Citation Nr: 1331310 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 05-17 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating greater than 10 percent prior to April 27, 2007, for bilateral pes planus with associated plantar fasciitis. 2. Entitlement to an increased rating greater than 30 percent from April 27, 2007, for bilateral pes planus with associated plantar fasciitis. 3. Entitlement to special monthly compensation (SMC) due to loss of use of both feet. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1973 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In pertinent part, the December 2004 rating decision continued the noncompensable evaluation for bilateral pes planus disability. In a May 2009 rating decision, the RO increased the evaluation for the bilateral pes planus disability to 10 percent, effective April 27, 2007. As the increase in the evaluation of the Veteran's bilateral pes planus disability did not represent the maximum rating available for the condition, the Veteran's claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In February 2010, the Veteran testified before the undersigned in a Travel Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. The Veteran's claims were remanded for additional development in March 2011. Subsequently, in a December 2012 decision, the Board granted entitlement to a 10 percent rating prior to April 27, 2007 and a 30 percent rating from April 27, 2007, for the Veteran's bilateral pes planus disability. As such, the claims have been listed as above. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2013 Joint Motion for Remand (JMR), in a June 2013 Order the Court vacated the Board's decision with respect to the Veteran's entitlement to a disability rating greater than 10 percent prior to April 27, 2007 and 30 percent from April 27, 2007, for bilateral pes planus and remanded the matter to the Board. The Board notes that the issues of entitlement to an initial evaluation in excess of 10 percent for low back disability and entitlement to a total disability rating due to individual unemployability (TDIU) were remanded to the agency of original jurisdiction in December 2012. These issues have not yet been recertified to the Board. Therefore, they remain in remand status and are not currently before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to SMC due to loss of use of both feet is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the period prior to April 27, 2007, the Veteran's disability due to bilateral pes planus with associated plantar fasciitis was manifested by pain on manipulation and use, a misaligned Achilles tendon, and plantar spurring. The medical evidence does not show objective evidence of marked deformity (pronation, abduction, etc.), or an indication of characteristic callosities. 2. For the period since April 27, 2007, the Veteran's disability due to bilateral pes planus with associated plantar fasciitis has been manifested by persistent pain, marked tenderness, moderate pronation, moderate plantar spurring, pain on manipulation and use accentuated, and apparent gait disturbance. The evidence does not show pronounced disability with extreme tenderness, marked pronation, marked inward displacement or severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for an increased rating greater than 10 percent prior to April 27, 2007, for bilateral pes planus with associated plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5276, 5284 (2013). 2. The criteria for an increased rating greater than 30 percent from April 27, 2007, for bilateral pes planus with associated plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5276, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in April 2004, January 2005, and June 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The June 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition to the foregoing, in a September 2013 statement the Veteran's representative specifically indicated that the Veteran waived any VCAA notice errors. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The Veteran has indicated that he has received no treatment through the VA with respect to the disabilities on appeal. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private treatment records identified by the Veteran were obtained, to the extent possible. In that regard, in March 2011 the Veteran was asked to provide additional evidence in support of his claim, to include authorization to obtain records from the State of Alabama, Department of Corrections. The Veteran failed to respond. The duty to assist is not always a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in October 2004, April 2007, and July 2011. The VA examination reports are thorough and supported by the evidence of record. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's bilateral foot disability. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of SSA records, the provision of the March 2011 notice letter, the July 2011 VA examination report, and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its March 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 case, 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). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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 (2013). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. As discussed above, in a December 2012 decision, the Board granted entitlement to a 10 percent rating prior to April 27, 2007 and a 30 percent rating from April 27, 2007, for the Veteran's bilateral pes planus disability. These ratings are assigned under DC 5276. The Veteran alleges his bilateral foot disability is more severe than currently rated. Specifically, the Veteran, through his attorney representative, argues that the Veteran is entitled to a separate rating for each foot under DC 5284. Disabilities of the foot are rated under DCs 5276 through 5284. As an initial matter, neither of the Veteran's feet has been shown to be characterized by weak foot, claw foot, metatarsalgia, hallux rigidus, hallux valgus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, the DCs pertaining to those disabilities are not applicable in the instant case. See 38 C.F.R. § 4.71a, DCs 5277, 5278, 5279, 5280, 5281, 5282, 5283 (2013). Under DC 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276. Moderate flatfoot 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, bilateral or unilateral, is rated 10 percent disabling. Id. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability. Id. A 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopaedic shoes or appliances. Id. Under DC 5284, moderate residuals of other foot injuries warrant a 10 percent rating. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. 38 C.F.R. § 4.71a, DC 5284. A note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. See id. As noted above, the words "marked," "severe" and "pronounced" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Prior to April 27, 2007 Private treatment records dated in 2003 and 2004 show that the Veteran sought treatment for bilateral pes planus and bilateral plantar fasciitis. He complained of pain in both of his heels, as well as in the arches of his feet. He received cortisone injections for heel spurs and prescription medication to treat inflammation in his feet. He was also fitted for orthotics to treat his symptomatology. On multiple examinations, to include in October 2003 and July 2004, there was no clubbing, cyanosis, or edema in the extremities. Findings from an April 2004 MRI of the feet were considered normal by his treating private podiatrist. In October 2004, the Veteran underwent a VA examination to evaluate the severity of his bilateral pes planus with associated plantar fasciitis. The report shows that the Veteran complained of constant pain with stiffness, swelling and fatigue in both of his feet. He described his bilateral foot pain between five and seven out of a scale up to ten. He experienced increased pain with standing and walking, and he had difficulty with prolonged standing and walking. His foot pain was better with rest. He reported that he had been treated with cortisone injections, orthotics, and pain medication that had provided some relief. The Veteran was currently employed as a correctional officer. Upon examination, the Veteran walked with a slightly antalgic gait, without shoes and he walked with a slight limp with shoes on. He refused to walk on his heels or toes. There was no discernible swelling or redness in his feet. There was tenderness on palpation of the heels. The Veteran had minimal deviation in his Achilles tendons. There was objective evidence of pain on range of motion of his feet. X-ray film of the feet revealed bilateral pes planus and bilateral plantar spurring. The Veteran was assessed with bilateral pes planus with mild impairment and bilateral plantar fasciitis with plantar spurring. In December 2004, the Veteran denied any decrease in his ability to perform activities of daily living. The record also contains the report of a September 2005 general medical evaluation performed in conjunction with the Veteran's claim for SSA disability benefits. This SSA evaluation report shows that the Veteran complained of bilateral foot pain. He reported that he received treatment for heel spurs. On physical examination, there was evidence of mild tenderness of his feet without deformity or swelling. The Veteran's arches were considered normal. He had mild pain on movement of his feet. It was opined that the Veteran was unable to stand or walk for two to four hours out of an eight-hour work day without taking frequent breaks every 15 to 20 minutes. An October 2005 private examination for SSA benefit eligibility purposes included the notation from the examiner that the Veteran's reports of arthritis, disc problems, and bone spurs in the feet that caused severe restrictions in standing, walking, and sitting were "only partially credible" as objective examination showed some limitations, but not to the level of severity asserted by the Veteran. After consideration of all of the evidence of record, the Board finds that the Veteran's disability due to his bilateral pes planus with associated plantar fasciitis most closely approximates the currently assigned 10 percent rating under DC 5276 for the period prior to April 27, 2007. The medical evidence for that time period shows that the Veteran's disability involves no more than "mild" pes planus. See 38 C.F.R. § 4.71a, DC 5276. There is indication in the private treatment records and VA examination report of pain on manipulation and use of the feet, the need for orthotics, and misalignment of the Achilles tendon, which is consistent with the criteria for a 10 percent rating for "moderate" pes planus under DC 5276. See 38 C.F.R. § 4.71a. The medical evidence during this period, however, does not show "severe" pes planus, with objective evidence of marked deformity (pronation, abduction, etc.) or characteristic callosities, as required for the next-higher 30 percent rating under DC 5276. Occasional swelling is noted in the treatment records, though it does not appear to have been persistent, given the lack of swelling noted on VA examinations and multiple other private treatment records. Given the lack of the other symptoms contemplated at this level, the Veteran's disability picture does not more nearly approximate the 30 percent rating prior to April 27, 2007 under DC 5276. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In that regard, the Board notes that separate ratings for each foot are available under DC 5284 and, as such, the Board has considered whether a higher and/or separate rating for the Veteran's bilateral pes planus disability would be warranted under DC 5284 prior to April 27, 2007. The Board concludes, however, that DC 5284 is not applicable to the instant case and that the Veteran's service-connected pes planus disability with associated plantar fasciitis is more appropriately rated under DC 5276. Specifically, a higher or separate rating under DC 5284 is not warranted as the clear intent of DC 5284 is to encompass disabilities not contemplated by the other DCs of the foot, as evidenced by its title of "Foot injuries, other." In this case, and as discussed above, the Veteran is service-connected for bilateral pes planus, which clearly is fully and best contemplated within the rating criteria for DC 5276. The Veteran is service-connected for bilateral pes planus (or flat feet) with associated plantar fasciitis and is rated under the DC for "Flatfoot, acquired." The Veteran's symptoms of pain, swelling, pronation, and similar symptoms are specifically noted in the rating criteria for DC 5276. The sole argument advanced by the Veteran's representative as to the basis for rating the Veteran under DC 5284 is that separate ratings are available for each foot. DC 5276, however, fully contemplates and provides a higher rating for disabilities involving pes planus of both feet and, indeed, the Veteran is in receipt of such a rating in this case. Thus, the Veteran's bilateral foot problems are fully contemplated in the single rating assigned under DC 5276 and, for the reasons discussed above, the Veteran's current rating is more appropriate under the provisions of DC 5276 than DC 5284 for the period prior to April 27, 2007. In reaching that conclusion, the Board has considered the contentions of the Veteran's representative that plantar fasciitis is not contemplated under DC 5276. The Board finds that such a conclusion is clearly mistaken. "Plantar fasciitis is defined as inflammation involving the plantar fascia especially in the area of its attachment to the calcaneus and causing pain under the heel in walking and running." Hoag v. Brown, 4 Vet. App. 209, 211 (1993). Plantar fasciitis is inflammation of the sole of the foot, associated with eosinophilia, edema, and swelling. Fenderson v. West, 12 Vet. App. 119, 122 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 609-10, 1300 (28th ed.1994)). Bilateral plantar foot pain is specifically noted in the rating criteria for DC 5276. While the Board acknowledges that this symptom is noted among the criteria for a 50 percent rating, as the Veteran's pain cannot be termed "extreme" for the period prior to April 27, 2007, (in light of the above discussion of a higher rating under DC 5276), the Board concludes that a 50 percent rating is not warranted in this case. However, such a finding does not affect the clear intent that symptoms of tenderness of the plantar surface of the feet are encompassed under and contemplated in the rating criteria for DC 5276. The Board also acknowledges the notation in the May 2013 JMR that GC Op. 9-98 indicates that depending on the nature of the foot injury DC 5284 could involve loss of range of motion and, as such, the Veteran's claim requires consideration under 38 C.F.R. §§ 4.40 and 4.45. In this case, however, for the reasons discussed above the Board has concluded that a higher or separate rating under DC 5284 is not applicable. As such, and given that DC 5276 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. at 204-206, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 10 percent prior to April 27, 2007, for the Veteran's bilateral pes planus with plantar fasciitis. Furthermore, the Board concludes that in light of the consistent symptomatology during this appellate period and the absence of the necessary criteria for a higher rating at any point prior to April 27, 2007, that further staged ratings are not for application. Hart, 21 Vet. App. at 505. From April 27, 2007 The Veteran was afforded a second VA examination on April 27, 2007. In that examination report, the VA examiner noted that the Veteran complained of constant pain in his feet. He described the pain at a level of seven out of ten. He also complained of weakness, stiffness, and swelling in his feet. He experienced flare-ups of pain to a level ten approximately three times a month that would last for hours. Precipitating factors included prolonged standing and walking. He reported that he was only able to walk up to 200 yards and stand for a maximum of one to two hours on his feet. He stated that injections, orthotics, and pain medication did not resolve his symptomatology. He felt that he had additional limitation of motion and functional impairment of 10 to 25 percent because of the severity of his bilateral foot symptomatology. Physical examination revealed objective findings of moderate to marked tenderness on palpation of both heels. Tenderness along the plantar fascia was also noted. There was no evidence of obvious warmth, swelling or redness. The VA examiner noted that the Veteran had "obvious pes planus on examination." The Veteran walked with an antalgic gait and with the use of a cane. Diagnostic testing revealed bilateral pes planus and moderate sized plantar calcaneal tuberositis. An assessment of bilateral pes planus (with associated plantar fasciitis) was provided. In February 2009, the Veteran denied any recent injury to the feet and historically could recall only a left ankle twisting incident in 1974. The Veteran also indicated that past use of orthotics had been of no help. On examination, neither foot was tender overall, but there was some tenderness in the left ankle and both feet at the base of the calcaneus and along the metatarsal heads on the plantar side. The Veteran had bilateral low arches that were quite severe, but flexible. The Veteran could extend and flex his toes, retained sensation and pulses, and had no evidence of fracture or dislocation on x-ray. However, there was a possible small bone spur anteriorly at the left ankle joint. The impression was bilateral flat feet. Pursuant to the Board's March 2011 remand directives, the Veteran was afforded another VA examination in July 2011. The examiner noted review of the claims file. In addition, the examiner specifically stated that there was no history of trauma to the feet. The examination report included the Veteran's complaints of constant pain, swelling, and stiffness with activity and with rest. He also complained of fatigue, weakness, and lack of endurance with walking and standing. He experienced weekly flare-ups of pain that lasted one to two days. During a flare-up episode, he reported that he had additional functional impairment where he was unable to stand or walk for more than a few minutes. The Veteran used orthotic devices and a cane with good results. On physical examination, the VA examiner observed that the Veteran walked with an antalgic gait. There was evidence of painful motion, tenderness and weakness in both feet. The Veteran was unable to stand on his heels or toes. There was no evidence of swelling, instability, abnormal weight bearing, hammertoes, hallux valgus or rigidus, clawfoot, or malunion or nonunion of the tarsal or metatarsal bones. The Veteran had inward bowing with Achilles alignment and midfoot misalignment. There was evidence of pain on manipulation and the misalignment was not considered correctable. The Veteran had moderate pronation and weight bearing line over the great toe. No marked foot deformities were observed on physical examination and there was no atrophy of the foot muscles. X-ray film of the feet revealed the following findings: moderate pes planus, bilaterally; plantar calcaneal tuberosities; mild degenerative changes at the first metatarsal phalangeal joints; and minimal flexion deformities of the second through fourth toes on the left foot. The VA examiner assessed the Veteran with moderate pes planus, bilaterally. In support of his claim, the Veteran also submitted a statement signed by multiple acquaintances who indicated that the Veteran had problems with everyday living, to include intermittent difficulty with activities such as walking and driving. On some days the Veteran needed help from these individuals, while on other days he did not. After consideration of all of the evidence of record, the Board finds that the Veteran's disability due to his bilateral pes planus with associated plantar fasciitis most closely approximates the currently assigned 30 percent rating under DC 5276 for the period from April 27, 2007. The evidence shows that the Veteran's disability was manifested by objective evidence of moderate to marked tenderness, pain on manipulation and use which is accentuated by prolonged walking or standing, and moderate sized plantar calcaneal tuberositis. Additionally, the Veteran has had consistent subjective complaints of constant pain, swelling, and stiffness. Moreover, a 50 percent rating or greater is not warranted under DC 5276, because the evidence does not reflect that the Veteran's disability due to bilateral pes planus with associated plantar fasciitis reaches the level of severity to be considered a "pronounced" disability under DC 5276. See 38 C.F.R. § 4.71a. The VA examiners in April 2007 and July 2011 indicated that the Veteran's heels were very tender upon palpation, and the Veteran testified to the same. This tracks with one of the symptoms in the criteria for a 50 percent rating. However, the remaining symptoms are not shown by the record. The displacement of the Veteran's Achilles tendon was not considered to involve marked inward displacement, but rather was characterized as "bowed." Pronation was noted to be moderate, rather than marked, as contemplated in the currently assigned 30 percent rating. Also, there have been no complaints or evidence of severe spasm of the tendo achillis on manipulation. There are no additional signs or symptoms that correspond to the requirements for a 50 percent rating under DC 5276. In short, greater than 30 percent for bilateral pes planus with plantar fasciitis is not warranted under DC 5276 for the period from April 27, 2007. Again, as discussed in the above section, the Board recognizes that separate and/or higher ratings are available under DC 5284. For the same reasons discussed above, however, the Board concludes that separate and/or higher ratings under DC 5284 are not warranted because DC 5276 specifically contemplates a combined rating for bilateral pes planus and associated symptoms, to include plantar fasciitis; therefore, the Veteran's bilateral flat feet and plantar foot pain are most appropriately rated under DC 5276. The July 2011 VA examiner reiterated prior findings that the Veteran had not experienced trauma to the feet. As above, a separate or higher rating under DC 5284 is not warranted for the period from April 27, 2007. For these same reasons, consideration the requirements of 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca, are not required for the period from April 27, 2007. To the extent that the x-rays of record show evidence of degenerative changes, such a disability also would not warrant a separate or compensable rating under DC 5003. The degenerative arthritis in the right foot and the left foot does not involve two minor joints (it only involves the first metatarsophalangeal joint of each foot). A separate compensable rating under DC 5003 for degenerative arthritis is not warranted. See 38 C.F.R. § 4.71a, DC 5003 (2013). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 30 percent from April 27, 2007, for the Veteran's bilateral pes planus with plantar fasciitis. Furthermore, the Board concludes that in light of the substantially consistent symptomatology during this appellate period and the absence of the necessary criteria for a higher rating at any point from April 27, 2007, that further staged ratings are not for application. Hart, 21 Vet. App. at 505. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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 based 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. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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 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 for 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 feet is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral feet with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran's primary problems are pain and tenderness in the feet, along with other reported problems such as weakness, fatigability, incoordination, and lack of endurance. As these symptoms and the objective evidence of record demonstrate a worsening of the disability from April 27, 2007, an increased rating is in effect from that point. That said, for all applicable time periods, his current ratings under DC 5276 are specifically for his pain and other such symptomatology that fully contemplate his reported problems. In that regard, associated problems with extended walking, standing, or driving would be necessary consequences of moderate and/or severe flatfoot symptoms, such as pain and weakness, and, as such, also are contemplated in the current ratings. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disabilities on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 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 an increased rating greater than 10 percent prior to April 27, 2007, for bilateral pes planus with associated plantar fasciitis is denied. Entitlement to an increased rating greater than 30 percent from April 27, 2007, for bilateral pes planus with associated plantar fasciitis is denied. REMAND In addition to the foregoing, in a September 2013 statement, an agent of the Veteran's representative from advanced the contention for the first time that the Veteran was entitled to special monthly compensation, or SMC, benefits due to loss of use of both feet. In that regard, the Veteran potentially is entitled to SMC if there is loss of use of one or both feet where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. 38 U.S.C.A. § 1114(k) and (l) (West 2002); 38 C.F.R. § 3.350(a) and (b) (2013). In this case, given the Veteran's specific request (through his representative) that this claim be remanded to the agency of original jurisdiction (AOJ) and as the AOJ has not adjudicated entitlement to SMC benefits, it could be potentially prejudicial for the Board to decide this issue in the first instance. See Huston v. Principi, 18 Vet. App. 395, 403 (2004). As to the question of remanding the claim as opposed to referring the matter to the AOJ, in light of the evidence of record the Board will consider the relationship to be substantially similar to that for a claim for a total disability rating based on individual unemployability (TDIU) as part of a claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding that a request for an increase in benefits involving a creative organ is an inferred claim for SMC regardless of whether the issue is raised by the Veteran). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake any development necessary for the proper adjudication of the Veteran's claim for SMC due to loss of use of both feet. 2. After the above is complete, adjudicate the Veteran's claim for entitlement to SMC due to loss of use of both feet. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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 of Veterans' Appeals or by the United States 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs