Citation Nr: 1334030 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-14 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for flat feet, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to October 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In the December 2009 rating decision, the RO denied both the Veteran's claim for an increased rating for his service-connected flat feet as well as a claim of entitlement to service connection for right leg pain. Although the RO issued an SOC on two issues, including entitlement to service connection for right leg pain, the Veteran's May 2011 VA Form 9 substantive appeal to the Board specifies that he only seeks to appeal the RO's denial of an increased rating for his service-connected flat feet. Accordingly, the issue of entitlement to service connection for right leg pain is not before the Board. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that he is unemployable due to the disability currently on appeal, the issue of TDIU is before the Board. The issue of entitlement to service connection for a low back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See September 2009 VA Form 119, Report of Contact. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to TDIU 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. FINDING OF FACT The Veteran's service-connected flat feet disability has been manifested by plantar, metatarsal, and tarsal pain, objective evidence of marked deformities, talus pronation and Achilles tendon deviation, collapsed transverse and longitudinal arches, mild sickle foot formation in the tarsal region, with increased sclerosing and narrowing of the joint space, not improved by orthopedic shoes or appliances, resulting in pronounced bilateral flatfoot. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected flat feet have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.40, 4.45, 4.57, 4.71a, Diagnostic Code (DC) 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1) Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the duty to notify was satisfied by way of a letter sent to the Veteran in August 2009. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file. In addition, VA afforded the Veteran an adequate examination in November 2009. The examiner reviewed his past medical history, conducted an appropriate physical examination and detailed the findings of diagnostic tests, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the examination report contains all findings needed to properly evaluate the Veteran's disability and is adequate for purposes of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2013). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits of the Claim 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 a September 2007 rating decision, the RO granted entitlement to a 50 percent rating for the Veteran's flat feet disability under DC 5276. The Veteran now contends he is entitled to a rating in excess of 50 percent. Specifically, he asserts that his disability has increased in severity and that his disability has prevented him from being able to sustain employment. Disabilities of the foot are rated under DCs 5276 through 5284. As an initial matter, neither of the Veteran's feet have been shown to be characterized by weak foot, claw foot, metatarsalgia, hallux rigidus, 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, 5281, 5282, 5283 (2013). Flat feet are specifically rated under DC 5276. 38 C.F.R. § 4.71a, DC 5276. Under DC 5276, pronounced acquired flatfoot that is bilateral in nature 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, warrants the assignment of a 50 percent evaluation. Id. The 50 percent rating is the maximum rating available for bilateral flat feet. See id. Therefore, the Veteran may only receive a higher rating under a different diagnostic code or an extra-schedular basis. Under DC 5280, severe unilateral hallux valgus warrants a 10 percent rating if the extent of disability is equivalent to amputation of the great toe. A 10 percent rating is also warranted for postoperative unilateral halux valgus with resection of the metatarsal head. 38 C.F.R. § 4.71a, DC 5280. The 10 percent rating is the maximum rating available for hallux valgus. See id. Alternatively, 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. The words "moderate" and "severe" 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 (2013). 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 DCs 5280 and 5284 and, as such, the Board has considered whether a higher and/or separate rating for the Veteran's bilateral flat feet disability would be warranted under DCs 5280 and 5284. The Board concludes, however, that DCs 5280 and 5284 are not appropriate in the instant case and that the Veteran's service-connected flat feet disability is properly rated under DC 5276. Specifically, though the Veteran has a current diagnosis of bilateral hallux valgus, as noted above, the maximum rating available under DC 5280 is limited to 10 percent for each foot, which is less than the Veteran's current 50 percent evaluation under DC 5276. Thus, it does not behoove the Veteran to be rated under DC 5280 for the present claim. In addition, 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 flat feet, which clearly is fully and best contemplated within the rating criteria for DC 5276, "Flatfoot, acquired." The Veteran's symptoms of pain, swelling, lack of improvement by orthopedic shoes, and similar symptoms are specifically noted in the rating criteria for DC 5276. Though DC 5284 allows for separate ratings for each foot, DC 5276 fully contemplates and provides a higher rating for disabilities involving flatfoot of both feet and, indeed, the Veteran is in receipt of such a rating in this case. Thus, the Veteran's flat feet are fully contemplated in the single rating assigned under DC 5276 and, for the reasons discussed above, the Board finds that the Veteran's current rating is more appropriate under the provisions of DC 5276 than DC 5284. Furthermore, the Board concludes that in light of the consistent symptomatology during this appellate period, staged ratings are not for application. See Hart, 21 Vet. App. at 505. Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.21(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id., at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id., at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that extra schedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate. The Veteran has not presented any evidence that his flat feet result in a unique disability that is not addressed by the rating criteria found at 38 C.F.R. § 4.71a. Diagnostic Code 5276 adequately represents his symptoms of pain while walking, tenderness throughout the foot, and collapsed arches bilaterally. Therefore, the first prong of the Thun test is not satisfied. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. ORDER Entitlement to an increased rating for service-connected flat feet, currently rated as 50 percent disabling, is denied. REMAND The issue of TDIU has been reasonably raised by the record in the Veteran's December 2010 Notice of Disagreement and May 2011 VA Form 9. Crucially, as noted in the Introduction above, the United States Court of Appeals for Veterans Claims has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. See Rice, 22 Vet. App. 447. The Veteran has not yet been notified as to how to substantiate a claim for TDIU. As the issue of TDIU may require further development based on what information the Veteran submits, the Board finds that a remand is necessary prior to the its consideration of the issue. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Schedule the Veteran for an appropriate VA examination for his claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review. The examiner should elicit a history from the Veteran regarding his employment and examine the Veteran thoroughly. The examiner should then render an opinion as to whether the Veteran is precluded solely by reason of his service-connected disability from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected flat feet should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities or circumstances should not be considered in this determination. The examiner should explain the reasons behind any opinions provided. 3. After the above development is completed, adjudicate the TDIU claim. If the benefit sought remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case regarding the issue of entitlement to TDIU and advise the Veteran of the procedural requirements to continue an appeal of that issue. If, and only if, a substantive appeal is timely filed, the issue should be certified 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