Citation Nr: 1328187	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  07-34 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for pes planus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1986 to December 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent evaluation for bilateral pes planus.  The Board remanded this issue in September 2011.


FINDING OF FACT

The Veteran's service-connected bilateral pes planus is manifested by no more than moderate symptoms, including pain on use of the feet, without characteristic callosities, marked deformity, accentuated pain on use or manipulation, or swelling.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for service-connected bilateral pes planus have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in November 2006 of the criteria for establishing an increased rating for his service-connected bilateral foot disability, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in February 2007.  Nothing more was required.

VA's duty to assist has also been satisfied.  The Veteran's service treatment records and identified VA treatment records.  No outstanding evidence has been identified that has not otherwise been obtained.

The Veteran was most recently provided a VA examination for his flat feet in October 2011.  The examiner obtained a thorough history, including reviewing the claims file, and provided detailed a physical examination.  Thus, the Board finds that the October 2011 examination is adequate for determining the disability rating for the Veteran's service-connected bilateral pes planus.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

There is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected pes planus since he was last examined.  38 C.F.R. § 3.327(a) (2012).  Notably, a September 2012 VA podiatry examination, obtained in conjunction with another claim, showed pes planus symptomatology consistent with the October 2011 VA examination.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  See VAOPGCPREC 11-95.  A new VA examination is not necessary at this time.

As noted above, the Board remanded the Veteran's claim of entitlement to an increased rating for pes planus to the Appeals Management Center (AMC) in September 2011 for further evidentiary development, including obtaining updated VA treatment records and providing the Veteran with a new VA examination.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC obtained updated VA treatment records and provided the Veteran a new VA examination in October 2011.  Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran's pes planus is currently evaluated as 10 percent disabling under Diagnostic Code 5276.  He seeks a higher rating.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v.  Brown, 7 Vet. App. 55 (1994).  However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Under Diagnostic Code 5276, a 10 percent evaluation is assigned for unilateral or bilateral moderate acquired flatfeet with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet.  A 30 percent evaluation is assigned for bilateral severe acquired flatfeet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  Finally, a 50 percent evaluation is assigned for bilateral pronounced acquired flatfoot with 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.  38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012).

The Veteran was first examined in December 2006.  He complained of throbbing left foot pain while standing and throbbing right foot pain while standing and walking, bilateral fatigability while standing and walking, bilateral weakness while standing and walking, and a lack of endurance bilaterally while standing and walking.  He indicated that rest partially relieved his symptoms and that he had a good response to his orthopedic shoes with arch relief.  He denied swelling, heat, redness, stiffness, and other symptoms bilaterally.  He indicated that he did not experience flare ups, was not limited in standing, and was limited in walking to no more than one mile.  

The examiner observed pes planus bilaterally without any objective evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight-bearing.  The Veteran's Achilles alignment was normal, nonweight-bearing and weight-bearing, bilaterally, as was the Veteran's gait.  The examiner did not observe any forefoot or midfoot malalignment, pronation, pain on manipulation, or muscle atrophy for either foot.  X-rays showed pes planus bilaterally with no acute fracture or dislocation in either foot.  The examiner diagnosed the Veteran with bilateral pes planus with no significant occupational effects, mild effects on chores and shopping, moderate effects on exercise, and severe effects on sports.

The Veteran was next examined for his pes planus in October 2011.  He complained of pain on use of the feet bilaterally, but denied any pain accentuated on use or on manipulation of the feet.  He also reported that his symptoms were relieved by arch supports.  The examiner observed decreased longitudinal arch height on weight-bearing and no swelling, characteristic calluses, extreme tenderness on the plantar surface of either foot, objective evidence of marked deformity of the foot, or marked pronation of the foot.  The weight-bearing line fell over or medial to the great toes bilaterally, but there was no inward bowing, marked inward displacement, or severe spasm on manipulation of the Achilles tendon.  X-rays showed no evidence of pes planus or degenerative or traumatic arthritis.  The examiner diagnosed the Veteran with bilateral pes planus and concluded that it impacted his ability to work, but had no effect on his activities of daily living.  Specifically, the examiner noted that the Veteran remained employed with the U.S. Postal Service and was able to perform his job, but took more frequent sitting breaks.  The examiner further indicated that the Veteran's clinical findings were mild and that his worst reported symptoms - tingling and numbness with prolong walking, standing, or sitting - were not likely related to his service-connected pes planus.

The Veteran was most recently afforded a VA examination for his feet in September 2012.  This examination was conducted in conjunction with a claim for service connection for bilateral bone spurs, secondary to his service-connected pes planus, which is not before the Board.  However, as the examination report addresses the Veteran's bilateral foot symptomatology, it is relevant to his present claim.  At the time of the September 2012 examination, the Veteran complained of painful flat feet and pain when arising in the morning that is alleviated with walking.  He denied swelling or skin discoloration.  The examiner did not observe Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal/metatarsal bones, or any other foot injury and noted that the Veteran's pes planus was stable.  He attributed the Veteran's complaints of foot pain to plantar fasciitis secondary to bone spurs, neither of which was related to his service-connected pes planus.

VA treatment records address the Veteran's pes planus and complaints of foot pain and are generally consistent with the VA examiners' findings.  Notably, a June 2012 VA treatment record diagnosed the Veteran with flexible pes planus, gastrocnemius equinus, and plantar fasciitis and noted that his alignment, bone density, and cortex were all within normal limits.  June 2012 VA treatment records also indicate that the Veteran was fitted for new orthotics at that time.  Earlier VA treatment record dated in May 2006 noted that the Veteran had received custom molded shoes with good relief of pain and that the provider was unable to elicit pedal pain with palpation.


Upon review of all of the medical and lay evidence of record, the Board concludes that it does not establish that the Veteran's service-connected bilateral pes planus warrants more than a 10 percent disability rating.  There is no evidence of severe flatfeet, such as objective evidence of marked deformity, accentuated pain on manipulation and use, or indication of swelling on use to warrant a 30 percent rating.  The VA examiners each specifically noted that examination of the Veteran did not demonstrate objective evidence of marked deformity, any pain on manipulation, accentuated pain on use, swelling, or characteristic callosities.  Further, there is no evidence of pronounced symptoms of pes planus, including 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, to warrant an even higher rating of 50 percent.  A rating in excess of 10 percent for bilateral pes planus cannot be granted.

The claims file includes statements from the Veteran, reiterating his complaints of foot pain and assertions that foot pain affects his employment.  These complaints are consistent with those reported to the VA examiners and his VA providers.  Indeed, the Veteran is competent to report symptoms of his foot disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  He is also deemed credible in his reports of symptoms and their effect on his activities.   He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's service-connected foot disability has been provided by VA medical professionals who have examined him.  The medical findings directly address the criteria under which this disability is evaluated.  The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  

The Board has reviewed the remaining diagnostic codes relating to foot disabilities and finds that they are not applicable.  The Veteran has been specifically service connected for pes planus and there is no evidence that he has been diagnosed with Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal/metatarsal bones, or any other foot injury to warrant an increased rating under another Diagnostic Code relating to the foot.  As such, an increased rating cannot be assigned under Diagnostic Codes 5277-5284.  38 C.F.R. § 4.71a, Diagnostic Codes 5277-5284 (2012).

Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period.  As such, assignment of staged ratings is not warranted.  See Hart, supra.

In reaching the above-stated conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned 10 percent disability rating specifically contemplate his moderate symptoms, including his complaints of pain on use of the feet and the findings of weight-bearing over or medial to the great toe.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected bilateral pes planus presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).  Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  He reported as recently as October 2012 that he was employed at the United States Postal Service.  The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378   (Fed. Cir. 2001).



ORDER

Entitlement to a disability rating in excess of 10 percent for bilateral pes planus is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs