Citation Nr: 1326372 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-06 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for bilateral pes planus, evaluated as 10 percent disabling prior to April 10, 2013, and 30 percent disabling beginning on that date. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to May 1982. This matter comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a disability rating in excess of 10 percent for bilateral pes planus. This matter was remanded by the Board in February 2013. In a May 2013 rating decision, the Appeals Management Center (AMC) increased the rating for pes planus to 30 percent, effective April 10, 2013. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period prior to April 10, 2013, bilateral pes planus was not manifested by a severe disability with objective evidence of marked deformity, pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. 2. From April 10, 2013, bilateral pes planus was manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation. CONCLUSIONS OF LAW 1. For the period prior to April 10, 2013, the criteria for the assignment of a disability rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5276, 5284 (2012). 2. For the period from April 10, 2013, the criteria for the assignment of a 50 percent disability rating for bilateral pes planus have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5276, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in May 2008 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The duty to assist has also been satisfied, and there has been substantial compliance with the Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's VA treatment records have been associated with the claims folder and he was afforded a VA examination per the Remand. The Veteran was afforded VA examinations in June 2008 and April 2013. The examination reports contain all findings needed to rate his disability and will be discussed below. There is no indication that there is any relevant evidence outstanding, and the Board will proceed with consideration of the Veteran's appeal. Criteria & Analysis In an April 2007 decision, the Board denied entitlement to a disability rating in excess of 10 percent for bilateral pes planus. In April 2008, the Veteran filed an increased rating claim asserting that his flat feet had worsened. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 10 percent disability rating is assigned for pes planus (flat foot acquired), regardless of whether the condition is unilateral or bilateral, where there is evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet. A 20 percent disability rating for unilateral pes planus or a 30 percent disability rating for bilateral pes planus is assigned where there is a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, characteristic callosities. A 30 percent disability rating for unilateral pes planus or a 50 percent disability rating for bilateral pes planus requires a pronounced condition manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5284 provides the rating criteria for rating foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. In June 2008, the Veteran underwent a VA examination. The examiner noted that his foot condition had been complicated by diabetic peripheral neuropathy of upper and lower extremities causing sensation of walking on pebbles, tingling, burning of the soles, and shooting pains on feet and legs. Pain occurs when standing and walking on the heels and metatarsalgia. There was no swelling, heat, redness, stiffness, but there was fatigability and weakness. The weakness was due to diabetic peripheral neuropathy of both lower extremities. He had lack of endurance due to prolonged standing and prolonged ambulation. The sensation of walking on pebbles, tingling, and burning were all noted to be secondary to diabetes mellitus. He was able to stand for 15 to 30 minutes and reported being able to walk 1 to 3 miles. He was noted to use an orthotic insert due to pes planus with heel pain. The effect of the arch supports was noted to be fair. On physical examination, there was no painful motion upon range of motion of ankles or toes but upon ambulating. The Veteran stated "the whole both feet hurt, all over" especially over both heels. There was no objective evidence of swelling, instability, abnormal weight bearing, hammertoes, hallux valgus or rigidus. There was tenderness whenever he was touched, plantar and dorsally, but no tenderness when range of motion of ankles was being tested with his tennis shoes on and the feet being pressed to test for pain. He could jump anywhere on the feet when aware. There was no tenderness when distracted. There was objective evidence of weakness, specifically decreased strength secondary to diabetic peripheral neuropathy of both lower extremities. There was decreased touch sensation on both feet distally and on soles, decreased muscle mass and absence of hair on lower legs and feet, all secondary to diabetic neuropathy. There was absence of hair, thinning of the skin, decreased muscle mass secondary to diabetic neuropathy. There was hyperkeratosis of both heels. Pulsations were present. There was inward bowing correctable with manipulation. There was no pain or spasm on manipulation. There was no forefoot or midfoot malalignment. There was mild pronation. The arch was present on non-weight bearing but no arch present on weight-bearing. There was pain on manipulation. Varus/valgus angulation of the os calcis in relationship to the long axis of the tibia/fibula was 5 degrees valgus (pronated feet). Left heel valgus was 5 degrees. Location of weight bearing line was over the great toe. There was muscle atrophy of the foot secondary to diabetic peripheral neuropathy. His gait was antalgic. The examiner commented that his foot condition was worsened by his diabetic neuropathy with paresthesia, dysesthesia and atrophy. A June 2008 VA outpatient treatment record reflects the Veteran's report of bilateral foot pain, worse at the right heel. He said he was told he might have plantar fasciitis. A March 2009 VA outpatient treatment record reflects the Veteran's concern about bilateral foot pain. He was referred to podiatry. Thereafter, in March 2009, the Veteran underwent VA outpatient podiatry evaluation. He complained of pain in both feet. The examiner noted the Veteran's diabetes with confirmed neuropathy. He reported various types of pain from just pain to numbness to burning. On musculoskeletal examination, the anterior, posterior and lateral muscle groups all demonstrated adequate strength. STJ and ankle range of motion were within normal limits without crepitus or pain. It was noted that he has flat feet. The examiner also conducted a vascular, dermatological and neurological examination. The examiner diagnosed flat feet, diabetes mellitus, and diabetic neuropathy. A March 2010 VA outpatient treatment record reflects that the Veteran underwent a foot screen. It was noted that there was weakness in the ankles or foot and it was noted that he had hardened toenails, mild flat feet with complaints of heel pain. There was no callous and his skin was intact. He was oversensitive on monofilament on sensation test. It was noted that he was under very poor diabetes mellitus management. A June 2010 VA outpatient treatment record reflects that he underwent a diabetic foot exam but there were no findings related to flat feet. A July 2011 VA outpatient treatment record reflects that his feet were improved with etodolac and gabapentin. A January 2012 VA outpatient treatment record reflects stable neuropathic pain in the hands and feet. A July 2012 VA outpatient treatment record reflects chronic neuropathy pain to bilateral feet. In April 2013, the Veteran underwent a VA examination to assess the severity of his bilateral flat feet. It was noted that he has pain on use of the feet with pain accentuated on use. He had pain on manipulation of the feet. The pain was accentuated on manipulation. There was no indication of swelling on use. He had characteristic calluses caused by the flatfoot condition. His symptoms were relieved by arch supports. He had extreme tenderness of plantar surface of one or both feet. The tenderness was improved by orthopedic shoes or appliances. He had decreased longitudinal arch height on weight-bearing. There was objective evidence of marked deformity and marked pronation of the feet. The condition was improved by orthopedic shoes or appliances. There was no other lower extremity deformity other than pes planus causing alteration of the weight bearing line. He had inward bowing of the Achilles' tendon. He had marked inward displacement and severe spasm of the Achilles tendon on manipulation. He did not have functional impairment that would result in no effective function comparable to amputation. The examiner diagnosed bilateral flat feet with plantar fasciitis. The examiner noted that the Veteran was experiencing pain due to bilateral plantar fasciitis causing pain on standing, walking, and also aggravated by his diabetic peripheral neuropathy. Rating in excess of 10 percent prior to April 10, 2013 There is no basis for assigning a disability rating in excess of 10 percent for the period prior to April 10, 2013, as the evidence does not reflect marked deformity, pain on manipulation and use accentuated, nor indication of swelling on use or characteristic callosities nor a moderately severe food disability due to pes planus. As detailed in the June 2008 VA examination report, his subjective complaints of a sensation of walking on pebbles, tingling and burning were all secondary to non-service-connected peripheral neuropathy of the lower extremities due to diabetes mellitus. Moreover, it was noted that his experienced weakness was also due to his diabetic neuropathy. There were no objective findings of swelling, instability, or abnormal weight bearing. There was tenderness when touched on the plantar and dorsal areas but the examiner seemed to suggest that it was exaggerated in light of the fact that when he was distracted there was no tenderness. There was inward bowing correctable with manipulation; there was no pain or spasm on manipulation; there was no forefoot or midfoot malalignment. There was only mild pronation, and the arch was present on non-weight bearing but no arch present on weight-bearing. The examiner commented that his pes planus was complicated by his diabetic neuropathy which was manifested by paresthesia, dysesthesia and atrophy. Thereafter, VA outpatient treatment records also do not show marked deformity, pain on manipulation and use accentuated, nor indication of swelling on use or characteristic callosities due to his pes planus. The records reflect complaints of heel pain, but no callous. The March 2010 VA examiner characterized his pes planus as "mild." The examiner also noted that he was under very poor diabetes mellitus management. Most of the objective findings and comments were related to his diabetic neuropathy, rather than pes planus. His symptoms were not shown to have worsened until he underwent a VA examination on April 10, 2013, the period which is discussed below. Although the Veteran claimed an increase in symptoms, he did not report the manifestations needed for a rating in excess of 10 percent prior to the April 2013 examination, nor did the VA treatment records document such symptoms. The Veteran's pes planus was not shown to be manifested by marked deformity or other symptoms of severe disability for the period prior to April 10, 2013. Rating in excess of 30 percent from April 10, 2013 The April 10, 2013 VA examination report reflects pain on manipulation of the feet and characteristic calluses caused by the flatfoot condition. He also had extreme tenderness of the plantar surface. There was also objective evidence of marked deformity and marked pronation of the feet. It was noted that the pes planus caused alteration of the weight bearing line. Based on these objective findings, a 50 percent rating is warranted. As detailed, the VA examination report showed marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the Achilles tendon on manipulation. Although his condition was noted to be improved by orthopedic shoes or appliances, the Board finds that his disability most closely approximates the criteria for a 50 percent rating. Thus, a 50 percent rating is warranted from April 10, 2013. The Board also considered for both periods whether the Veteran's disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but, finds that the criteria pertaining to bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, hammer toe, malunion or nonunion of the tarsal or metatarsal bones, or other foot injuries under Diagnostic Codes 5277, 5278, 5279, 5281, 5282, 5283, 5284, respectively are not applicable. As detailed hereinabove, pes cavus, metatarsalgia, hallux rigidus, and hammer toe have not been diagnosed. Bilateral weak foot has not been diagnosed, and atrophy and disturbed circulation have not been shown to be due to his bilateral flat feet. Finally, while he has pes planus, he has not been shown to otherwise have a foot injury, thus Diagnostic Code 5284 is inapplicable. Ultimately, the weight of the evidence is against ratings higher than those awarded in this decision. 38 U.S.C.A. § 5107(b). Extraschedular consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Total Rating The Veteran has been retired for 14 years. The question of entitlement to a total disability rating due to individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)). The April 2013 VA examiner commented that the Veteran's bilateral flat feet had no effect on the Veteran's usual daily activities and that while pes planus might cause pain in both feet to some degree it would not prevent him from gaining employment. The Veteran has not alleged that his service connected disability has caused unemployability. Thus, the evidence of record does not support a finding that this service-connected disability precludes employment. Further consideration of entitlement to a TDIU due to his service-connected bilateral pes planus is not warranted. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (holding that TDIU is not raised in an increased rating claim unless there is evidence of unemployability). ORDER For the period prior to April 10, 2013, entitlement to a disability rating in excess of 10 percent for bilateral pes planus is denied. For the period beginning April 10, 2013, entitlement to a disability rating of 50 percent for bilateral pes planus is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs