Citation Nr: 1329702 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-11 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to a mental disorder. 2. Entitlement to service connection for alcohol abuse, claimed as secondary to a mental disorder. 3. Entitlement to a rating in excess of 30 percent for bilateral pes planus with calcaneal spurs. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to November 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the 30 percent rating assigned for bilateral pes planus with calcaneal spurs and denied the claims for service connection. The December 2008 rating decision also denied claims for service connection for obstructive sleep apnea, chronic pain, and posttraumatic stress disorder (PTSD). The Veteran perfected an appeal in relation to these claims. He subsequently withdrew the claims for service connection for obstructive sleep apnea and chronic pain. Service connection for specific phobia (driving) (claimed as PTSD), was granted in a June 2012 rating decision with a 50 percent rating effective October 24, 2007. None of these claims are currently before the Board for appellate review. The Veteran presented testimony at personal hearings before a Decision Review Officer and the undersigned Veterans Law Judge in July 2010 and April 2013, respectively. Transcripts of both hearings are of record. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The issue of entitlement to service connection for erectile dysfunction, to include as secondary to a mental disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A current diagnosis of alcohol abuse is not of record and the opinions provided in support of the claim for service connection for alcohol abuse are not probative. 2. The Veteran's bilateral pes planus with calcaneal spurs is not manifested by 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. CONCLUSIONS OF LAW 1. The criteria for service connection for alcohol abuse have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2013). 2. The criteria for a rating in excess of 30 percent for bilateral pes planus with calcaneal spurs have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 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). The Board finds that VA's duty to notify was satisfied by a letter dated in December 2007 with regard to the claim for increased rating and by a letter dated in July 2008 in regard to the claim for service connection for alcohol abuse on a secondary basis. These letters addressed all of the notice elements and were sent prior to the initial unfavorable decision by the AOJ in December 2008. The duty to assist was also met in this case. The service treatment records are in the claims file and all pertinent and identified VA and private treatment records have been obtained and associated with the file. The appellant was also afforded the opportunity to give testimony on two occasions. VA examinations with respect to the claim for increased rating were obtained throughout the course of the appeal, to include in January 2007, August 2008, August 2010 and March 2012. A VA examination with respect to the claim for service connection for alcohol abuse was obtained in August 2010. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they were predicated on a full reading of the private and VA medical records in the Veteran's claims file. They also considered all of the pertinent evidence of record and the appellant's statements. The Board acknowledges that the August 2010 VA examiner did not provide any opinion regarding the etiology of the Veteran's alleged and past-noted alcohol abuse. There is no prejudice to the Veteran, however, as he has not been diagnosed with alcohol abuse or alcoholism at any time since the inception of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In fact, at the time of the August 2010 VA examination, an Axis I diagnosis of alcohol dependence in full remission was made. Moreover, since the inception of the Veteran's claim, only a history of alcohol abuse has been noted in treatment records. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks entitlement to service connection for alcohol abuse, which he contends is secondary to his now-service connected mental disorder. He reports using alcohol for its numbing effects, to assist with sleep, and as a form of self-medication to help cope with his issues. See undated statements in support of claim; July 2008 VA Form 21-4138; April 2013 hearing transcript. At this juncture, the Board notes that the Veteran is not seeking service connection for alcohol abuse on a direct basis, although he does report beginning to drink in service as the result of a sexual assault. See e.g., July 2010 hearing transcript. To the extent that any of his assertions could be interpreted as seeking service connection for alcohol abuse as directly related to service, VA regulations stipulate that no compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. § 3.301 (2013). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. See 38 C.F.R. § 3.301 (c)(2) (2013). VA's General Counsel has confirmed that direct service connection for disability resulting from a claimant's own alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. The evidence of record indicates that the Veteran was diagnosed with alcohol abuse on several occasions prior to filing his claim around June 2008. See e.g., October 2004 mental health clinic note (claims he lost his driver's license because of third DWI); April 2005 psychiatry medical note (in court-ordered outpatient SATP (alcohol) since November 16, 2004). At no time since the inception of his claim, however, has a diagnosis of alcohol abuse or alcoholism been made. Rather, the Veteran has consistently denied drinking or reported only drinking in moderation or on occasion, see VA treatment records, and the assessments made have been past history of alcohol abuse or alcohol dependence in remission. See e.g. primary care note dated January 2006 and mental health clinic note dated October 2006 (emphasis added). At the time of the August 2010 VA initial evaluation for PTSD examination, the Veteran stated he last drank in 2004 or 2005 and an Axis I diagnosis of alcohol dependence in full remission was made. The Board acknowledges the April 2008 letter from a counselor at the Killeen Heights Vet Center, which reports that the Veteran had been coming regularly for PTSD treatment since February 2008 and this could be a reason for abuse of alcohol. See letter from G.T.D. (emphasis added). This opinion is not afforded any probative value. First because the Vet Center treatment records do not reference any reports of alcohol consumption or problems with alcohol. Second because G.T.D. does not provide a rationale in support of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Last, and perhaps more importantly, because it is speculative and medical opinions that are speculative, general or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102 (2013); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definitive statement as to etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Board also acknowledges the June 2008 letter submitted from the Veteran's VA treating physician, who reports that the Veteran suffers from PTSD and bipolar disorder and his alcohol abuse in the past could be secondary to the above diagnoses. See letter from Dr. G.S.C. (emphasis added). This opinion is also not afforded any probative value as it provides no rationale and is speculative. See 38 C.F.R. § 3.102; Prejean, 13 Vet. App. at 448-9; Morris, 13 Vet. App. at 97; Hogan, 544 F.3d at 1298; Madden, 125 F.3d at 1481; Nieves-Rodriguez, 22 Vet. App. at 301. The Board notes, however, that Dr. G.S.C. made clear that any alcohol abuse occurred in the past, which supports the above-finding that at no time since the inception of the Veteran's claim has a diagnosis of alcohol abuse or alcoholism been made. The preponderance of the evidence of record is against the claim for service connection for alcohol abuse on a secondary basis. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Without evidence of a current diagnosis of alcohol abuse, or a diagnosis made during the pendency of the claim, service connection is not warranted. See 38 C.F.R. §§ 3.303, 3.310; see also McClain, 21 Vet. App. at 321. As the preponderance of the evidence is against the claim, the statutory provisions regarding resolution of reasonable doubt are not applicable. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Service connection for bilateral pes planus with calcaneal spurs was originally granted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, with a noncompensable evaluation effective November 3, 1997. See May 1998 rating decision. It was increased on two occasions, first to 10 percent effective June 16, 1999, and later to 30 percent, effective June 30, 2003. See rating decisions dated July 2000 and September 2003. The Veteran's claim for increased rating was received at the RO on October 24, 2007. At the time of his July 2010 DRO hearing, the Veteran asserted that he is entitled to a rating in excess of 30 percent for bilateral pes planus with calcaneal spurs because the condition has worsened. He reported pain, foot swelling, and swelling in his calves. The Veteran testified that he missed time from work due to his feet (several days off and on every other month) and that it is hard for him to get out of bed because of foot pain. He reported problems with standing (only being able to stand approximately five to seven minutes) and walking (needing a handicap plate, the use of a cane and prosthetic shoes). The Veteran also testified to feeling a burning sensation on the soles of his feet, experiencing "freezing" and tingling of his big toes, needing to massage his feet because of cramps, and using orthotic devices in both shoes. In a June 2011 statement in support of claim, the Veteran reported that arch supports and shoes did not help his feet and that the discomfort remains. At the time of his April 2013 Board hearing, the Veteran testified that his feet swell and that he could not wear shoes. He reported that the pronation of his feet was outward (they turn out) and that he wore special shoes for flat heels and that he had pain. He indicated that the shoes caused his feet to roll more. The Veteran testified that his treating physicians had indicated that there was nothing more they could do for his feet and that he should continue to take his medication and let them know if he needed shots. He also reported that the inserts prescribed by VA did not help and that he felt they made his feet hurt more. Several lay statements have been submitted. Each report that the Veteran has trouble walking, but none specifically mention symptomatology related to the Veteran's feet. See December 2006 letters from Y.H., T.L.H., and D.W.C.; see also undated letter from C.D. The Board notes at this juncture that the Veteran filed separate claims for left foot neuropathy, left second toe capsulitis, and Morton's neuroma of the left second toe. These claims were denied in a May 2012 rating decision. The Board also notes that it has reviewed the medical evidence pertaining to the Veteran's feet in its entirety, but will not be discussing all of it with specificity, especially when treatment rendered was in relation to the neuropathy, capsulitis and/or Morton's neuroma. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). In other words, the Board will focus on the medical evidence specific to the service-connected bilateral pes planus with calcaneal spurs. Diagnostic Code 5276 provides only one rating in excess of 30 percent, namely a 50 percent rating for pronounced, bilateral, 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. The medical evidence in this case consists of VA and private treatment records and several VA examination reports. VA treatment records reveal that the Veteran has consistently sought treatment related to foot pain throughout the appeal. The Veteran underwent a VA feet examination in January 2007, at which time he reported pain, weakness, stiffness, swelling, and fatigability at rest and while standing and walking. He also reported heat and redness at rest. The Veteran indicated that his current pain was a level seven and one-half out of 10, that he took medication every six hours, and that he had daily flare-ups of pain rising to a level nine or ten out of ten, which lasted several hours until the aggravating factor (standing, walking, and/or prolonged use or activity) was removed. Alleviating factors were rest and medication. The examiner indicated that the condition did not impair the Veteran's ability to perform daily functional activities of self care, that it did not impair his ability to perform his job, and that he had not missed any time from work in the prior 12 months. The examiner reported that the Veteran used a cane, but did not use corrective shoes, inserts or braces. Physical examination at the time of the January 2007 VA examination revealed no edema, ecchymosis or erythema of either foot and both feet were non-tender. There was pes planus, but no pes cavus (high arches) and no tenderness on the arches or over the lateral and medial malleoli. Achilles tendons were intact and non tender with normal alignment. There was hallux valgus deformity (bunion) of both feet, but no hammer toe, claw toe, calluses, ulceration or skin breakdown. The Veteran was neurovascularly intact distally with intact pedal pulse, good capillary refill, sensation to his toes. Range of motion testing revealed normal foot/ankle dorsiflexion, plantar flexion, inversion and eversion of both feet and there was no further limitation or pain with repeated efforts times three. The Veteran also had normal posture on standing, squatting, supination, pronation, and rising on his toes and heels. The examiner specifically noted that alignment of the Achilles tendon and midfoot was normal without pain on manipulation, but there was tenderness on the plantar fascia on palpation. X-ray of the feet taken in January 2006 contained diagnoses of bilateral pes planus with calcaneal spurs and hallux valgus deformity, mild; and degenerative joint disease, bilateral feet. A March 2007 x-ray of the Veteran's feet showed mild degenerative and sclerotic changes of the right first metatarsal phalangeal joint with lateral spurring and a prominent and smaller posterior calcaneal spur. The impression was calcaneal spurring; and spurring and degenerative changes of the right first metatarsal phalangeal joint. The Veteran was seen in the primary care clinic in May 2007 with complaint of foot pain. An addendum noted there was tenderness on the arches of his feet. X-rays were ordered. A May 2007 x-ray of the Veteran's feet showed mild bilateral first metatarsophalangeal (MTP) osteoarthritis persists, as did bilateral plantar and posterior calcaneal enthesophytes/spurs. There was no acute fracture or subluxation evidence, the remaining joint spaces were preserved, and there was no significant interval change demonstrated. A July 2007 history and physical reveals that the Veteran was seen with chief complaint of bilateral foot cramping, right worse than left, for the past two years. He indicated that it used to be intermittent, but had been daily for about the last six to eight months; that it would awaken him from sleep; and that he had cramping if he walked any distance over 100 feet, which forced him to sit down. The examiner indicated that the Veteran had been treated with multiple prosthetics, to include heel cups, custom molded inserts, and extra depth shoes with inserts, which had apparently not been of much benefit. The Veteran reported that his function at work was gradually decreasing due to foot pain for which he had to get up and walk around and which was interfering with his work. Examination of the feet revealed no marked point tenderness although the Veteran reported some discomfort with pressure in the medial heel, bilaterally, and the great toe MTP joints on the plantar surfaces. There was no gross deformity, swelling or calluses noted. X-ray of the bilateral feet reported showed a slight spurring at the great toe MTP joint, otherwise normal. The assessment was mild degenerative joint disease, great toe, metatarsophalangeal joints. A July 2007 patient education note indicates that the Veteran was issued a rollator walking for longer distance mobility. This was done in conjunction with complaints of right foot and lower leg pain, as well as low back pain. Anterior posterior (AP), lateral and oblique standing views of the Veteran's bilateral feet taken in November 2007 revealed a mild hallux valgus deformity in each great toe. The first metaphalangeal (MP) joint in each foot was mildly narrowed with slight marginal spurring consistent with mild osteoarthritis, but other joint spaces were normal in length. Small corticated spurs were seen on both the plantar and posterior surfaces of each calcaneus. The calcaneal pitch in each was below normal limits measuring 14 degrees in the right foot and 11 degrees in the left. The impression was mild hallux valgus deformity seen in each side with associated dose to return in the first MP joint; bilateral calcaneal spurs. A bilateral flat foot deformity was also noted. A January 2008 private treatment record indicates that the Veteran was seen with chief complaint of bilateral flat feet and pain at a level eight out of ten. He noted that it was difficult for him to walk and that he walked with a cane. He had tried elevating his feet but the only thing that had worked most recently was Vicodin. Motrin and Tramado had also worked. The Veteran noted he had been in orthotics and gels with no improvement and that he had also tried diabetic shoes. He denied difficulty with balance and numbness in his feet or hands. He also denied clubbing of digits, intolerances to cold, swelling of lower extremity joints, and aches or pains. Physical examination revealed that the Veteran had warm, dry, supple skin without hyperkeratotic lesions. Dorsalis pedis and posterior tibial pulses were 2/4 and protective sensation was intact. Decreased arch, bilaterally, prominent dorsomedial imminence on the first toe metatarsal head, bilaterally, right greater than left, and contracted toes 2-5 were noted. Also noted was pronated foot type upon weight bearing and pain with palpation at the medial plantar fascial insertion. There was also pain with distraction at the second metatarsal phalangeal joint and with squeezing the midfoot. The examiner noted that AP lateral and axial calcaneal of the right foot weight bearing revealed an everted calcaneus on the axial calcaneal. AP noted hallux abductus angle of approximately 22, first intermetatarsal angle of 11, tibial sesamoid 4, fibular sesamoid about 50 percent exposed. There were no degenerative changes but some mild spurring on the calcaneal tubercle was noted. A normal talocalcaneal angle with closed sinus tarsi was noted. On the left foot, an everted axial calcaneal was noted. Lateral revealed no tractional heel spur but there was mild spurring at the Achilles' insertion. An elevated first metatarsal and normal talocalcaneal angle and talar first metatarsal on the lateral were noted. On the AP, a dorsomedial imminence, hallux abductus angle of 18, first metatarsal angle 10, tibial sesamoid 3, with accessory sesamoid but no degenerative joint disease at this point. Ultrasound bilateral was noted to be a 0.36 plantar fascial increase, 0.16 spur and 0.4 plantar fascia left and 0.19 spur, which are within normal limits. The assessment was pain in feet bilaterally; plantar fasciitis possibly; midfoot pronation syndrome causing medial column pain; hallux abducto balgus with bunion deformity; and metatarsalgia second metatarsal phalangeal joint. In pertinent part, a January 2008 letter from the private physician reported that an evaluation of the Veteran's feet had been conducted and he had subjective complaints of pain around bunion and secondary problems resulting from the bunion and his forefoot. The Veteran also had heel pain, which is usually due to pronation. The pronation or flat-footedness was graded on a mild to moderate severe situation. No secondary arthritic changes in the foot were seen. See letter from Dr. H.A.L. The Veteran underwent another VA feet examination in August 2010, at which time he reported continued chronic foot pain. The intensity was reported at a level eight and one-half out of 10 and was described as constant and sharp at the bottom of the feet. Pain was precipitated by sitting more than 10 to 15 minutes and standing more than five minutes. It was alleviated with lying down with his feet propped and medication. Response to current treatment was fair. Rest and elevation were effective in relieving symptoms but applying heat was not. The Veteran did not apply cold and denied surgery. He only had partial relief with medication. The Veteran identified pain as a symptom (with standing and walking) located at the bottom of his feet. He also reported numbness to both feet. Functional limitation on standing included being unable to stand for more than a few minutes. Functional limitations on walking included being unable to walk more than a few yards. Assistive devices, to include a cane and walker, were needed for bilateral flat feet. The Veteran indicated that he did not use orthotic inserts because they hurt. The efficacy of inserts was poor. Physical examination of the Veteran's feet at the time of the August 2010 VA examination revealed tenderness and abnormal weight bearing, but no painful motion, swelling, instability or weakness. Objective evidence of tenderness was noted to be focal tenderness to plantar fascia of hind foot, bilaterally. Evidence of abnormal weight bearing was noted to be an unusual shoe wear pattern. There was no skin or vascular foot abnormality and no evidence of malunion or nonunion of the tarsal or metatarsal bones. Bilateral Achilles alignment, both non weight bearing and weight bearing, was inward bowing. It was correctable with manipulation and there was no pain or spasm on manipulation. Bilateral forefoot malalignment was noted, but was correctable by manipulation, which was not painful. Bilateral midfoot malalignment was also noted, which was also correctable by non-painful manipulation. Bilateral pronation was noted to be mild. Arch was present on non weight bearing, bilaterally, but not on bilateral weight bearing. There was no pain on manipulation. The forefoot and valgus hind foot were noted to be abducted and the weight bearing line was over the great toe. There was no muscle atrophy of either foot. As for gait, the examiner noted that the Veteran walked both with and without a cane. When being observed, his gait was antalgic. When not being observed, his gait was normal. The examiner reported the results of the November 2007 bilateral foot x-ray. The results of a June 2010 left foot x-ray were also reported, which contained findings of no acute fracture or dislocation; no evidence of narrowing of the MTP joints or interphalangeal joints; calcaneal spur is present; and mild osteophyte formation at distal end of the left first metatarsal noted. The impression was calcaneal spur and small osteophyte at distal end of left first metatarsal. The Veteran was diagnosed with bilateral pes planus with calcaneal spurs. Significant effects on occupation in the form of decreased mobility and pain were noted resulting in increased absenteeism. It was also noted that the Veteran had to get up and walk around every 15 minutes and then sit for 15 minutes. His team leading position required more walking in different locations and on different floors requiring the use of elevators. There were no effects on daily activities. The Veteran had lost approximately eight to ten weeks in the last year due to bilateral foot pain. VA treatment records reveal that the Veteran began receiving more treatment in 2011 due to complaints of painful left second digits. In January 2011, pes planus foot structure was noted, there was difficulty with passive range of motion, and the Veteran related significant pain and discomfort. A January 2011 x-ray showing possible flattening of the second metatarsal head was noted, but was otherwise unremarkable. The assessment was likely capsulitis versus plantar plate rupture of the left second metatarsophalangeal joint. This record, as well as other records dated in 2011, predominantly in April and May, involved the left foot capsulitis versus neuroma and possible neuropathy and are not specific to the service-connected bilateral pes planus with calcaneal spurs. In April 2011, the Veteran was issued a special handicapped parking pass for the duration of the period that the podiatry department tried to cure his chronic left foot problem. The Veteran was issued molded bilateral metatarsal pads in April 2011. The January 2011 x-ray is of record. It is of the left foot and showed maintained bony alignment, normal joint spaces, no abnormalities in the soft tissues, normal bony mineralization, no evidence for acute fracture, and a splint over the second digit. The impression was no acute fracture or dislocation; no evidence for significant arthritic changes; splint noted over the second toe, which is new. A March 2011 magnetic resonance imaging (MRI) of the left foot is also of record. The impression was negative study. The Veteran underwent two Disability Benefits Questionnaires (DBQ) involving his feet in March 2012. During the miscellaneous foot DBQ, he was diagnosed with Morton's neuroma and left foot calcaneal spur. During the flatfoot (pes planus) DBQ, he was diagnosed with bilateral pes planus. Both examinations appear to have been conducted in conjunction with the Veteran's claims for service connection for left foot neuropathy, left second toe capsulitis, and Morton's neuroma of the left second toe. The findings and conclusions related to those claims will not be discussed, but the findings and conclusions related to the diagnosed bilateral pes planus will. The Veteran had pain on use of both feet, which was noted to be accentuated on use, bilaterally; pain on manipulation of both feet, which was noted to be accentuated on manipulation, bilaterally; and swelling on use of both feet. The Veteran did not have characteristic calluses, or any calluses caused by the flatfoot condition; his symptoms were relieved by arch supports; and he had no extreme tenderness of the plantar surfaces of either foot. The Veteran had decreased longitudinal arch height on weight-bearing, but there was no objective evidence of marked deformity of the foot, no marked pronation of the foot, the weight-bearing line did not fall over or medial to the great toe, and there was no lower extremity deformity other than pes planus that was causing alteration of the weight bearing line. The Veteran had "inward" bowing of the Achilles' tendon on both sides but no marked inward displacement and/or severe spasm of the Achilles tendon on manipulation. There was no metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal or metatarsal bones, or any other foot injuries. There were also no scars related to his foot conditions. Imaging studies of the feet revealed no abnormal findings. Pes planus was described as mild on non weight bearing and increased on weight bearing. The Veteran was able to heel/toe walk, but with pain, and mild tenderness to palpation of the plantar medial arches was noted. The examiner reported that the Veteran used soft shoe inserts, which provided mild symptom reduction but did not eliminate the pain. Inward bowing of the Achilles was reported to be approximately five degrees. The Veteran was noted to use assistive devices in the form of a cane and shoe inserts, both of which were used regularly. The cane was used for his knees and back in addition to his feet. The shoe inserts (pads) were solely for his feet. The Veteran's flatfoot condition was noted to have impacted his ability to work, since he reported that the pes planus caused difficulty with prolonged walking and standing, though he was able to do the sedentary aspects of the job. The Board acknowledges the Veteran's subjective complaints of symptomatology involving his feet, to include his reports of pain, cramping, swelling, and problems with walking and standing. It finds his assertions both competent and credible. The preponderance of the evidence of record, however, does not support the assignment of a rating in excess of 30 percent for bilateral pes planus with calcaneal spurs. This is so because although the Veteran has exhibited bilateral pronation and tenderness of the bilateral plantar surfaces, neither has been described as marked. Rather, the pronation or flat-footedness was graded on a mild to moderate severe situation in the January 2008 letter from private physician Dr. H.A.L., bilateral pronation was noted to be mild at the time of the August 2010 VA examination, and the March 2012 VA examiner specifically noted the absence of marked pronation of the foot and extreme tenderness of the plantar surfaces of either foot. In addition, there is no evidence of marked inward displacement and severe spasm of the tendo achillis on manipulation. Rather, the August 2010 VA examiner noted inward bowing bilateral Achilles alignment, but reported that it was correctable with manipulation and without pain or spasm on manipulation. The March 2012 VA examiner also noted that the Veteran had "inward" bowing of the Achilles' tendon on both sides, but specifically noted the absence of marked inward displacement and/or severe spasm of the Achilles tendon on manipulation. The Board has considered the other diagnostic criteria related to the feet to determine whether an increased rating is warranted for bilateral pes planus with calcaneal spurs under those provisions that provide for ratings in excess of 30 percent. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Only one does. See 38 C.F.R. § 4.71a, Diagnostic Codes 5278. This diagnostic code, however, is not for application in this case in the absence of any evidence that the Veteran has acquired claw foot. See VA and private treatment records; VA examination reports. In sum, the preponderance of the evidence supports the 30 percent disability rating assigned for bilateral pes planus with calcaneal spurs. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's bilateral pes planus with calcaneal spurs, to include pain, tenderness, and pronation, are contemplated by the rating criteria (i.e., 38 C.F.R. §4.71a, Diagnostic Code 5276), which reasonably describe the Veteran's disability. Therefore, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for alcohol abuse, claimed as secondary to a mental disorder, is denied. A rating in excess of 30 percent for bilateral pes planus with calcaneal spurs is denied. REMAND The Veteran seeks service connection for erectile dysfunction. He initially asserted it was secondary to his mental health disorder. At his April 2013 hearing, however, he testified to first noticing problems with function during service in the 1990s. The Veteran is competent to make such an assertion. VA obtained a genitourinary examination in August 2010, at which time the Veteran was diagnosed with erectile dysfunction (subjective). No opinion on etiology was provided. The Board notes that although an October 2007 VA urology clinic note contains an assessment of erectile dysfunction, which was noted to be "likely multifactorial due to Lorazepam, Wellbutrin and Metoprolol, along with organic cause (HTN)," the etiology provided is speculative and, therefore, not probative. See 38 C.F.R. § 3.102; Morris, 13 Vet. App. at 97; Hogan, 544 F.3d at 1298; Madden, 125 F.3d at 1481; Nieves-Rodriguez, 22 Vet. App. at 301. On remand, another examination with adequate opinion regarding the etiology of the Veteran's diagnosed erectile dysfunction must be obtained. Recent VA treatment records should also be associated with the claims folder. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Central Texas Veterans Health Care System, dated since May 2012. 2. Schedule the Veteran for an appropriate VA examination to determine the likely etiology of his diagnosed erectile dysfunction. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. A detailed history should be obtained from the Veteran. Afterwards, the examiner is to provide answers to the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any current erectile dysfunction had its onset during active service or is related to any in-service disease, event, or injury? In providing this opinion, the examiner must acknowledge the Veteran's report of erectile dysfunction during service. (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected mental disorder, or the medication taken for his mental disorder, caused any erectile dysfunction? (c) If the answer to (a) and (b) are no, is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected mental disorder, or the medication taken for his mental disorder, aggravated (i.e., caused an increase in severity of) any erectile dysfunction? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of erectile dysfunction (i.e., a baseline) before the onset of the aggravation. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs