Citation Nr: 1327618 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-03 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased rating for bilateral pes planus in excess of 30 percent disabling. REPRESENTATION Appellant represented by: Michelle Kincaid, Individual ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active military service from November 1966 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Regarding representation, initially Ms. Kincaid represented this Veteran, and then tried to represent another veteran (See Board of Veterans Appeals Decision Docket No. 08-10 253). In May 2010, the RO told her to pick one veteran to represent on a one time basis, and she picked the other veteran and withdrew from representing this Veteran in May 2010. The Board clarified in November 2010 that she could only represent this Veteran on a one-time basis (Docket No. 08-10 253). At some point, Ms. Kincaid withdrew from representing the other veteran and in August 2013 re-submitted a new VA Form 21-22a, clarifying representation. This claim was remanded in July 2010, along with a claim of service connection for a bilateral knee disability. Service connection was granted in March 2012 for a bilateral knee disability and that issue is no longer on appeal. FINDING OF FACT Throughout the time period on appeal, the Veteran's bilateral pes planus has been manifested by intermittent pronation and tenderness, and overall there is no improvement with the use of orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a 50 percent evaluation for bilateral flat feet have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & 2012); 38 C.F.R. § 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 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 March 2007 that provided information as to what evidence was required to substantiate the claim 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. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and Social Security Administration (SSA) records, as well as post-service reports of VA and private treatment and examination. Moreover, the statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In July 2010, the Board remanded this claim for SSA records. Such records have since been obtained and thus there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating The Veteran contended in February and March 2007 statements that his foot disability was getting worse. It was hard for him to stand and his employer made him wear steel-toe work boots. He used insoles in shoes but his feet hurt at the end of the day and it was hard to sleep. He could not carry heavy items and took frequent breaks. In a January 2009 statement, the Veteran stated he used a cane and had an antalgic gait. He pointed out that a November 2008 record stated his inlays were not improving his foot situation. In June 2012, he pointed to a May 2012 podiatrist report for support that an increase should be awarded. In July 2012, the Veteran submitted internet information on calcaneal spurs. He gave several reasons as to why he felt the July 2012 VA examination was inadequate, detailed further below. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). As background, in January 1991 the RO granted a claim for service connection for bilateral pes planus with hallux valgus and bilateral hammer toe deformity of the lateral four toes of each foot at 30 percent disabling under DC 5276 (effective November 19, 1990). The Veteran filed a claim for an increased rating in February 2007 and in June 2007 the RO continued the 30 percent rating. The Board must evaluate disabilities under multiple DCs to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). Flat feet are contemplated under DC 5276 ("Flatfoot, acquired"), which provides the following rating criteria: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Bilateral......................... 50 percent Unilateral......................... 30 percent Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Bilateral......................... 30 percent Unilateral......................... 20 percent Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral.............10 percent Mild; symptoms relieved by built-up shoe or arch support......................... 0 percent 38 C.F.R. § 4.71a, Code 5276 (2012). VA regulations state that "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more closely resembles the criteria for that rating. Otherwise the lower rating will be assigned." 38 C.F.R. § 4.7 (2012). In addition, "it is not expected ... that all cases will show all the findings specified in [the applicable DC]." 38 C.F.R. § 4.21 (2012). Except where a DC uses "successive rating criteria," if there is a question as to which disability rating most accurately reflects a veteran's disability picture, the Board must discuss whether the disability warrants a higher rating under § 4.7. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Persuasive authority states that DC 5276 does not employ successive rating criteria. See Wallace v. Shinseki, No. 08-3600, 2010 WL 4351734 at *7 (Vet. App. Nov. 3, 2010). In other words, it is entirely possible to have all the criteria for a 30 percent disability rating without having most of the criteria for a 10 percent disability rating. Id. The words "moderate," "severe," "pronounced" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2012). There are other factors which must be considered in addition to those contained in the applicable rating code. In this regard, the Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Here, the Board finds the record to have conflicting information regarding the severity of the pes planus. Resolving reasonable doubt in the Veteran's favor, the instant decision assigns the maximum schedular rating for the entire appeal period. As noted above, the primary difference between the current 30 percent evaluation and the next-higher 50 percent rating for bilateral pes planus is whether symptoms are improved with the use of an appliance. This question was expressly addressed at the Veteran's most recent VA examination in July 2012, where, in an addendum, the examiner stated that the foot disability is not improved with the use of orthopedic shoes or appliances. In terms of functional impact, the examiner stated in that same addendum that the Veteran was unable to carry, lift or pull heavy weight. He also could not walk or stand for a prolonged period of time. The pes planus disability was found to impact both physical and sedentary employment. The July 2012 VA examination and addendum supports assignment of a 50 percent maximum schedular rating for pes planus. Moreover, the Board finds that such 50 percent rating is warranted throughout the entire claims period on appeal. Indeed, no evidence of record at any time during the appeal indicates that the Veteran's pes planus symptoms improve with appliances. Again, this is the primary consideration for an increase, and prior VA examinations do not squarely address this point. The Veteran's subjective complaints have been consistent and reflect constant foot pain, as well as weakness and fatigability. Moreover, there is objective evidence of his foot symptomatology. In April 2007, insoles were recommended. A June 2007 VA examination report noted that he wore inserts at that time. A July 2008 VA spine examination report showed an antalgic gait and that the Veteran could not walk on his toes or heels. An October 2008 VA joint examination report also noted his gait was antalgic, with poor propulsion. The examiner also noted tenderness of the feet. At a December 2010 VA joint examination, the Veteran walked with a cane. He had antalgic gait but could walk in front of the examiner without the cane. He could not walk on toes and heels but could perform tandem walking by holding examination table and wall. Given the findings of record prior to the July 2012 examination, the Board finds nothing to suggest that his symptoms were improved with appliances. Indeed, from 2007 onward the Veteran began wearing insoles and eventually started using a cane and yet his symptoms, overall, have been worsening. For example, while his gait was described as stable in 2007, by 2008 it was generally found to be antalgic. Also, by 2008 the Veteran generally could not walk on his toes and heels. The Board acknowledges some inconsistency in the record, with instances such as a June 2007 VA examination showing normal gait and a lack of tenderness objectively. An examination conducted in June 2008 in conjunction with a claim for benefits from the Social Security Administration (SSA) revealed a normal gait- however such findings are undercut by a VA spine examination only one month later, at which time the Veteran's gait was antalgic and he could not walk on his toes and heels. In sum, despite some inconsistencies in the record between 2007 and 2012, the record enables a finding that the Veteran's pes planus symptoms were progressing despite his use of appliances and assistive devices. Again, no examiner prior to July 2012 expressly found that the disability was improved with the use of appliances. Overall, and resolving doubt in the Veteran's favor, the next-higher 50 percent evaluation is therefore warranted throughout the rating period on appeal. The Board will now address another contention raised by the Veteran in his statements. Specifically, he believes that non-service connected disabilities (calcaneal spur) and service-connected disabilities (bilateral knee disabilities) should have been addressed in the report. Such information is not pertinent to the issue of rating the service-connected bilateral pes planus. Regarding the VA examination report entitled "Foot Miscellaneous," the Veteran raised several other issues. He essentially states that he has hallux valgus and should be rated separately for that disorder. He expressed his understanding that hallux rigidus was the same condition as degenerative changes or arthritis. The Board finds no support for a separate rating for hallux valgus, which although noted in the past, was not found at the last examination. Moreover, there is no indication that the symptoms attributable to hallux valgus are distinct from those related to the pes planus, as would be required to achieve a separate award of service connection for that disability. Again, the present rating under Diagnostic Code 5276 fully contemplates foot pain, swelling, spasm, and displacement. Additionally, the Veteran has challenged the adequacy of the July 2012 VA examination, in part because it did not address his foot problems other than pes planus. He raised further complaints regarding the examination, to include that the examiner did not review X-rays prior to the examination. Also, the Veteran stated the examination report "did not ask the physician to provide a complete description of objective findings stated in concrete terms and a diagnosis of all described conditions." Such complaints have been considered. However, the Board finds the July 2012 VA examination report to be adequate because it addressed the pertinent manifestations of the bilateral feet. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009) (It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Regarding file review in increased rating cases, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Overall, the examination addressed all relevant rating considerations with respect to pes planus and serves as the basis for the award of the maximum schedular rating throughout the entirety of the claims period on appeal. In light of these factors, additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In a July 2012 statement, the Veteran pointed out that the July 2012 VA examination report addendum that he could not work due to his flat feet. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the evidence shows the Veteran was working for part of the appeal period and is in receipt of a TDIU (see November 2008 RO rating decision). Thus, TDIU is not at issue here. Finally, for exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), 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 a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The Board has considered step one under Thun, and finds the schedular rating to be fully adequate in this case. The Veteran described his foot symptoms, including pain on use, which are typical for a foot disability. The schedular rating takes such symptoms into account in the DC by listing specific symptoms along with their severity. The Board finds the pertinent rating criteria, as detailed previously, accurately describes the severity and symptoms of the service-connected bilateral pes planus. The evidence does not present an exceptional disability picture. In sum, the Board resolves doubt and finds that a 50 percent evaluation, but no higher, is warranted for the period on appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to a 50 percent evaluation for bilateral pes planus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs