Citation Nr: 1328229 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 06-21 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability evaluation in excess of 10 percent prior to December 18, 2009, and in excess of 10 percent from March 1, 2010, for bilateral pes planus with plantar fasciitis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1986 to April 1988. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in significant part, denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis. In September 2010, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims folder. In November 2010 and October 2012, the Board remanded the Veteran's increased rating claim for additional evidentiary development. The Veteran's claims folder has been returned to the Board for further appellate review. In a May 2013 rating decision, the evaluation for bilateral pes planus with plantar fasciitis was increased from 10 percent to 100 percent (on an extraschedular basis), effective December 18, 2009, and the RO assigned a 10 percent evaluation from March 1, 2010. As the rating for the Veteran's bilateral pes planus with plantar fasciitis is less than the maximum available rating prior to December 18, 2009 and since March 1, 2010, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). As noted in the Board's November 2010 and October 2012 decisions, the Veteran has filed a claim for bilateral foot arthritis, to include as secondary to his service-connected bilateral pes planus with plantar fasciitis disability. See the Veteran's April 9, 2010 Statement in Support of Claim. To date, this claim has not been adjudicated by the RO in the first instance. As such, the claim is once again referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board does not have jurisdiction of issues not yet adjudicated by the RO]. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Prior to December 18, 2009, the Veteran's bilateral pes planus with plantar fasciitis is manifested by subjective complaints of severe bilateral pain and of swelling of the feet, objective pain on manipulation of the feet, calluses on the great toes, low medial arches, abnormal weight-bearing, tenderness of the plantar surfaces of the feet, low calcaneal pitch angle between the foot and the ankle, and objective evidence of mild talonavicular joint pronation improved by orthopedic shoes or appliances; there is no objective evidence of abduction, marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 2. Since March 1, 2010, the Veteran's bilateral pes planus with plantar fasciitis is manifested by subjective complaints of severe bilateral pain and of swelling of the feet, objective abnormal weight-bearing line fall over or medial to the great toe, decreased longitudinal arch height, accentuated pain on use of the feet, tenderness of the plantar surfaces of the feet, objective evidence of marked pronation improved by orthopedic shoes or appliances; there is no objective evidence of calluses, abduction, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a disability evaluation of 30 percent, but no more, for bilateral pes planus with plantar fasciitis prior to December 18, 2009, and since March 1, 2010 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice & Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Substantially compliant notice was sent in July 2005, May 2008, and July 2008 letters and the claim was readjudicated in October 2008, March 2010, September 2010, April 2012, and April 2013 supplemental statements of the case. Mayfield, 444 F.3d at 1333. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA and private outpatient treatment records has been completed. In addition, the Veteran has been afforded appropriate VA examinations. Further, the Board finds that there has been substantial compliance with the November 2010 and October 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any additional outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Board must consider the veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases such as this, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 5276, a 10 percent rating requires evidence of moderate bilateral or unilateral acquired flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo-achilles, pain on manipulation and use of the feet. A 30 percent rating is for application when there is severe bilateral (or 20 percent for severe unilateral) disability with objective evidence of marked deformity such as pronation or abduction, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for a bilateral pronounced disability, demonstrating marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background In a July 1994 rating decision, service connection was granted and a 10 percent disability evaluation assigned for pes planus with plantar fasciitis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276, effective November 8, 1993. In September 1997, August 2002, and March 2004 rating decisions, the Veteran's 10 percent evaluation was continued. In July 2005, the Veteran submitted a claim for an increase. In the September 2005 rating action on appeal, the RO continued the Veteran's 10 percent evaluation based upon the August 2005 VA examination findings, and the Veteran's outpatient treatment records. Thereafter, the Veteran perfected the instant appeal. In a May 2013 rating decision, the RO increased the Veteran's evaluation from 10 percent to 100 percent, effective December 18, 2009, and assigned a 10 percent rating from March 1, 2010. A July 2005 private treatment record shows the Veteran reported right heel pain. The Veteran was given an injection in his right heel. The assessment was plantar fasciitis. The physician noted that the Veteran was in the processing of getting custom orthotics from VA. On VA examination in August 2005, the Veteran reported severe pulling and pain in his arches. He reported that he wore custom orthotics. He reported that he had been treated with injections for his right plantar fasciitis. He reported that he was currently employed at a tire factory where he inspected tires. He further reported that he did not miss work as a result of his bilateral foot disability. On physical examination, there was structure with weight-bearing arches, and arches were visible. The examiner was able to insert his finger under the central medical arch area. There was no evidence of medial deviation or bulging. There was no evidence of abnormal weight bearing. The toes were straight. The Achilles tendons were straight. There was evidence of tenderness in the right arch along the plantar facial vein. There was evidence of pain on manipulation of the feet. There was no evidence of functional limitation while standing or walking. X-rays were within normal limits. The examiner diagnosed mild congenital pronation of the feet. The examiner noted that the Veteran also had some facial strain and fasciitis over the years based upon the Veteran's reported symptoms. The examiner concluded that the Veteran essentially had a normal appearing foot with minimal structural changes and minimal changes shown on x-ray. A November 2005 VA treatment record shows the Veteran was fitted for custom orthotics for his feet. A December 2005 private treatment record notes that the Veteran called his physician and reported chronic plantar fasciitis. The physician noted that he previous gave the Veteran a corticosteroid injection which provided temporary relief. A January 2006 VA outpatient treatment record notes the Veteran report of bilateral foot pain for the past three days. On VA examination in May 2006, the Veteran reported that he experienced severe foot pain if he stood for more than one hour. He reported that he worked in a tire factory for the past several years. On physical examination, there was a pinch callus on his great toe, bilaterally. He had a low medial arch. The examiner pressed his fingers into the arch area without resistance. There was no evidence of hammer toes or bunions. The Achilles tendons were straight. There was no evidence of a medial bulge. There was no evidence of palpable tenderness or pain on manipulation of the feet. There was evidence of edema of the medial arch level. There was evidence of abnormal weight bearing. X-rays indicate mild talonavicular joint pronation, low calcaneal pitch angle between the foot and the ankle, but, were negative for spurs, bilaterally. The examiner diagnosed mild congenital pes planus. The examiner concluded that that the Veteran's bilateral foot disorder did not affect his usual occupation. A June 2006 VA outpatient treatment record demonstrates the Veteran reported swelling of his feet for the past week. He reported that it was hard for him to walk when he first woke up in the morning. He further reported that he experienced chronic pain in his arches. He requested new orthotics because his current orthotics had collapsed. The assessment was plantar fasciitis. A December 2006 VA outpatient treatment record shows the Veteran reported left foot pain. On VA examination in January 2007, the Veteran reported bilateral fifth toe and foot pain, on a daily basis. He reported bilateral heel pain, as well as cramps while in bed. He reported that he used orthotics, however, he explained that they did not provide him with much relief. He reported that he currently worked in a factory and was required to stand all day. He reported that he had not missed any work due to his bilateral foot disorder. On physical examination, there was evidence of small thin calluses on the medial plantar of both great toes. His arches were flexible and low. There was no evidence of callous on the plantar at any level. There was no evidence of palpable tenderness on any part of the feet. His Achilles tendons were essentially straight with minimal heel valgus. There was no evidence of abnormal weight-bearing. There was no evidence of pain on manipulation of the feet. X-rays were within normal limits. The examiner diagnosed mild congenital pes planus. A March 2007 VA emergency room record shows the Veteran sought treatment for bilateral foot pain in the arch and heel. He reported that the pain began a day prior, and explained that he had difficulty walking due to such pain. The assessment was bilateral foot pain and possible plantar fasciitis. A May 2007 VA outpatient treatment record notes the Veteran's report that his custom foot orthotics were no longer supportive. He also reported that he experienced bilateral foot pain in the morning when he first woke up, and thereafter, a constant dull aching pain throughout the day. On examination, there was tenderness upon palpation of the medial band of the plantar fascia of the feet. X-rays were negative for spurs, fracture, or bony lesion. The assessment was chronic plantar fasciitis. August 2007, September 2007, and November 2007 VA outpatient treatment records note the Veteran's complaints of bilateral foot pain. At the time of treatment in August 2007 and September 2007, the Veteran was given trigger point injections in both feet. The assessments were plantar fasciitis in August 2007 through November 2007, and flatfeet in November 2007. December 2007 and January 2008 VA outpatient treatment records demonstrate that the Veteran reported bilateral foot pain. Such records also show that the Veteran participated in physical therapy for his bilateral foot disorder. On VA examination in July 2008, the Veteran reported that he wore orthotics. He reported that he currently worked as a forklift operator. He reported that he had not missed any work due to his bilateral foot disorder. On physical examination, there was evidence of tenderness of the midfoot plantar surface, bilaterally. There was minimal evidence of abnormal weight bearing. There was no evidence of calluses. There was no evidence of pain on manipulation of the feet. His Achilles tendons were neutral. There was no evidence of tenderness, edema, painful motion, weakness. X-rays show flatfeet with a loss of arch, without degenerative changes. The examiner diagnosed planovalgus feet with plantar fasciitis. As noted above, the Veteran was assigned a temporary total 100 percent evaluation effective December 18, 2009 to March 1, 2010, as a result of his shockwave therapy for his bilateral foot disorder. Thus, the evidence relevant to such period will not be discussed in this decision. On VA examination in March 2010, the Veteran reported that he experienced constant foot pain on a level of five or six of ten. He further reported, that if he was in a weight-bearing position, that his level of pain was a nine or ten of ten. He reported that he wore custom orthotics. He reported that he was currently employed as a forklift operator and had not missed any work due to his bilateral foot disorder. On physical examination, there was evidence of flatfoot, bilaterally, in a weight-bearing position. There was no evidence of a medial bulge. His Achilles tendons were straight. There was no evidence of tenderness. There was evidence of abnormal weight-bearing. The examiner commented that he could not explain the Veteran's subjective pain with respect to pain on manipulation of his feet. X-rays indicate slight talonavicular joint pronation, bilaterally, and a small spur at the talar neck, which was noted by the examiner as not an unusual finding for congenital pes planus. The examiner diagnosed congenital pes planus. Subsequent March 2010 VA outpatient treatment records note that the Veteran had exhaustive conservative care for his plantar fasciitis, to include Richie braces (custom molded foot orthotics). Examination revealed mild to moderate pain with palpation of the sesamoid region, bilaterally. The assessment was chronic plantar fasciitis. In an April 2010 letter, the Veteran's supervisor asserted that subsequent to his leave and medical treatment (leave and medical treatment occurred during a period in which Veteran received 100 percent rating), that the Veteran was still not where he wanted to be performance-wise. In a subsequent April 2010 letter the Veteran's supervisor indicated that the Veteran missed several days of work (while he was a tire inspector) for medical treatment, to include surgery, as a result of his feet. In September 2010, the Veteran testified before the Board via videoconference hearing. The Veteran asserted that his bilateral foot disorder worsened since his last VA examination in March 2010, to include spasms and cramping of his feet. He also asserted that his private physician recommended posterior tibial nerve release surgery in order to relieve the burning of his feet. He stated that he currently wore Arizona braces and custom orthotics. He asserted that he took a lesser paying job as a forklift driver, versus standing and inspecting tires, because it was supposed to be easier to sit given his bilateral foot disorder. In a September 2010 letter, the Veteran's private physician reported that he recently treated the Veteran for bilateral foot pain. He reported that the nerve conduction velocity testing performed in February did not reveal any positive findings. He further reported that on examination in September 2010, there were physical findings consistent with tarsal tunnel syndrome, with the left worse than the right. He stated that on such visit, he administered corticosteroid injection to the left posterior tibial nerve. On VA examination in February 2012, the Veteran reported severe bilateral foot pain. He reported that he utilized orthotics and braces for his disorder. On physical examination, the examiner noted that the Veteran's symptoms were relieved by arch supports (orthotics). There was evidence of accentuated pain on use of the feet. There was no evidence of swelling on use of the feet. There was no evidence of characteristic calluses caused by the flatfoot condition. There was no evidence of extreme tenderness of plantar surfaces of the feet. There was evidence of decreased longitudinal arch height on weight-bearing of the feet. There was objective evidence of marked deformity of the feet, specifically, pronation. The weight-bearing line fell over or was medial to the great toe, bilaterally. There was no evidence of inward bowing of the Achilles tendons. There was no evidence of inward displacement or severe spasm of the Achilles tendons on manipulation. X-rays were negative for degenerative or traumatic arthritis and bones and joints were normal. The examiner diagnosed bilateral pes planus, bilateral plantar fasciitis, and bilateral foot pain. A subsequent February 2012 VA outpatient treatment record notes the Veteran's complaints of bilateral foot pain, namely, in his arches, balls, and heels, as well as trouble falling asleep due to bilateral foot cramps. An August 2012 VA emergency room record shows the Veteran sought treatment for several issues, to include bilateral foot pain. The Veteran was prescribed pain medication. Analysis Prior to December 18, 2009, the Veteran's bilateral pes planus with plantar fasciitis is manifested by subjective complaints of severe bilateral pain and of swelling of the feet, objective pain on manipulation of the feet, calluses on the great toes, low medial arches, abnormal weight-bearing, tenderness of the plantar surfaces of the feet, and objective evidence of talonavicular joint pronation improved by orthopedic shoes or appliances. These findings demonstrate that the Veteran does have objective pain on manipulation of the feet, as well as characteristic callosities, two criterion for a 30 percent evaluation. He does not have abduction of either foot, but does have pronation of sufficient severity to cause a low calcaneal pitch angle between the foot and the ankle, another criterion for a 30 percent evaluation. He did not have objective evidence of swelling. However, the Veteran's contention that he had swelling after working is credible, as the record establishes that his job required him to be on his feet all day as a tire inspector in a tire factory. Since March 1, 2010, the Veteran's bilateral pes planus with plantar fasciitis is manifested by subjective complaints of severe bilateral pain and of swelling of the feet, objective abnormal weight-bearing line fall over or medial to the great toe, decreased longitudinal arch height, accentuated pain on use of the feet, tenderness of the plantar surfaces of the feet, and objective evidence of marked deformity of the feet, namely, pronation improved by orthopedic shoes or appliances. These findings demonstrate that the Veteran does have objective pain on accentuated pain on use of the feet, as well as marked deformity of the feet (pronation), two criterion for a 30 percent evaluation. He does not have abduction of either foot, characteristic callosities, or objective evidence of swelling; however, during the March 2010 VA examination, he reported that he was currently employed as a forklift operator, a change from his position as a tire inspector, which he held for more than a decade. In this regard, subsequent to such examination, during his hearing before the Board, the Veteran asserted that he took this lesser paying job as a forklift operator because it allowed him to continue to work, as he had great difficulty standing all day as a tire inspector due to his bilateral foot disorder. Moreover, he provided a statement from his employer, who indicated that the Veteran missed several days of work (while he was a tire inspector), for medical treatment, to include surgery, as a result of his feet. During both of the above-noted rating periods on appeal, the Veteran meets some, but not all, of the criteria for a 30 percent evaluation for his bilateral pes planus with plantar fasciitis. However, it does appear that he meets or approximates half of the criteria for a 30 percent evaluation. Resolving reasonable doubt in the Veteran's favor, the Board finds that he meets the criteria for a 30 percent evaluation both prior to December 18, 2009, and since March 1, 2010. The RO will consider the effective date for the evaluation for the period prior to December 18, 2009 when it effectuates this decision. 38 C.F.R. § 3.400(o)(2) (2012). The Veteran's bilateral foot disorder does not, however, meet any of the criteria for a 50 percent evaluation during either of the rating periods on appeal, as his disorder is not manifested by objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. Although he has objective evidence of marked deformity, namely, pronation, it is improved by orthopedic shoes or appliances and is not so severe as to meet the criterion of "pronounced." Further, the Veteran does not contend that his bilateral foot disability is manifested by such symptoms. The Board has considered whether the Veteran is entitled to an evaluation in excess of 30 percent under any other criteria used to evaluate disability of the feet. However, no provider has assigned a diagnosis of claw foot, evaluated under DC 5278. As DC 5278 is the only diagnostic code which provides for a rating in excess of 30 percent, other than DC 5276, it is clear that the Veteran does not meet the criteria for an evaluation in excess of 30 percent under any other diagnostic code. Extraschedular Consideration The Board has also considered the potential application of various other 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). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral pes planus with plantar fasciitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to a disability evaluation of 30 percent, but no more, prior to December 18, 2009, and since March 1, 2010, for bilateral pes planus with plantar fasciitis is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs