Citation Nr: 1334162 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-16 302 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an initial, compensable rating for bilateral pes planus (flat feet) with plantar fasciitis, from October 1, 2004. 2. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus with plantar fasciitis, from July 21, 2005. 3. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus with plantar fasciitis, from September 12, 2006. (The issues of entitlement to an initial, compensable disability rating for right and left ankle posterior tibialis tendinopathy are addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) arose from a December 2006 rating decision in which the RO granted a 30 percent disability rating for bilateral pes planus, effective September 12, 2006. In January 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2008. A supplemental statement of the case (SSOC) was issued in May 2012. Based on the foregoing, the RO characterized the appeal as to the evaluation of bilateral pes planus with plantar fasciitis as encompassing only the period for which the 30 percent rating was awarded. However, the Board has re-characterized the appeal as emanating from the award of service connection and initial compensation. In making this determination, the Board notes that the RO granted service connection for bilateral pes planus in a June 2005 rating decision and assigned an initial, 0 percent (noncompensable) rating, effective October 1, 2004. One month later, in July 2005, the Veteran filed a request "reopen" his claim. The RO treated the Veteran's July 2005 letter as a claim for higher rating. The Board observes, however, that the letter may reasonably be construed as a timely-filed expression of disagreement, or, NOD, with the initial rating assigned. See 38 C.F.R. §§ 20.200, 20.201 (2012). As such, the appeal extends back to the effective date of the award of service connection, i.e., October 1, 2004. The RO subsequently issued a December 2005 rating decision awarding a 10 percent rating for bilateral pes planus with plantar fasciitis, effective July 21, 2005. Thereafter, the RO characterized a September 2006 statement from the Veteran as a claim for higher rating, after which it awarded the 30 percent rating, effective September 12, 2006, in the December 2006 rating decision on appeal. The Board notes that, by virtue of the addition of new and material evidence to the claims file within one year of both the June and December 2005 rating decisions, those decisions never became final. Specifically, the September 2005 VA foot examination report was received within one year of the RO's June 2005 rating decision, while the November 2006 VA foot examination report was received within one year of the December 2005 rating decision. On these facts, the appeal is appropriately considered as pending from the award of service connection and initial compensation. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). As such, with respect to bilateral pes plans, the current appeal encompasses all three ratings and associated periods, or stages, as reflected by the first three matters set forth on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability, and effectively holding that different ratings may be warranted for distinct periods of time, based on the facts found); AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that the Veteran is presumed to seek the maximum available benefit for a disability). In February 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the February 2013 Board hearing, the Veteran submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In March 2013, the Board remanded the claims on appeal, as well as a claim for higher rating for bilateral ankle posterior tibialis tendinopathy, to the RO, via the Appeals Management Center (AMC) in Washington, DC, to schedule the Veteran a Board hearing in conjunction with his ankle claim. The Veteran was afforded a hearing on that particular issue before a different Veterans Law Judge (not the undersigned) in July 2013. Also in July 2013, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board's decision addressing the claims for higher initial and subsequent ratings for bilateral pes planus is set forth below. As noted above, the claims for higher ratings for bilateral ankle posterior tibialis tendinopathy are addressed in a separate decision. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. From October 1, 2004, (the effective date of the award of service connection) to July 20, 2005, the Veteran's bilateral pes planus (flat feet) with plantar fasciitis was manifested by pain on manipulation and use, which was not relieved by built-up shoe or arch support. There was no evidence of abnormal weight-bearing or misplacement of the tendo Achilles. 3. For the period dated from July 21, 2005, to September 11, 2006, the Veteran's bilateral pes planus with plantar fasciitis continued to be manifested by pain on manipulation and use. There was, however, no evidence that the Veteran's pain had increased in severity or that his pes planus was also manifested by marked deformity of pronation or abduction, swelling on use, calluses. 4. For the period from September 12, 2006 to March 29, 2012, the Veteran's bilateral pes planus with plantar fasciitis was manifested by severe symptoms of pes planus, including pain on manipulation and use of the feet, marked pronation deformity, and swelling. There was no evidence of marked inward displacement and severe spasm of the tendo Achilles on manipulation; nor did the evidence show the Veteran's pain or tenderness was so extreme or severe to warrant a higher rating. 5. As of March 30, 2012, the Veteran's bilateral pes planus with plantar fasciitis was manifested by pronounced symptoms of pes planus, including marked pronation, extreme tenderness of plantar surfaces of the feet, and continued pain and swelling on use and manipulation of the feet, which were not improved by orthopedic shoes or appliances. 6. The schedular criteria have been adequate to evaluate the Veteran's bilateral pes planus at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial, compensable rating for bilateral pes planus, from October 1, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). 2. For the period from July 21, 2005, to September 11, 2006, the criteria for a rating in excess of 10 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). 3. For the period from September 12, 2006 to March 29, 2012, the criteria for a rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). 4. As of March 30, 2012, but no earlier, the criteria for a 50 percent rating, but no higher, for bilateral pes planus are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2006 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the October 2006 letter, and opportunity for the Veteran to respond, the April 2008 SOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the reports of VA examinations conducted in April and September 2005, November 2006, September 2006, and March 2012. The evidentiary record also includes VA treatment records dated from 2007 to 2012, as well as additional evidence contained in the paperless, electronic (Virtual VA) file associated with the Veteran's paper claims file (which have also been considered by the RO). The Board finds that no additional RO action to further develop the record in connection with any claim, prior to appellate consideration, is required. As for the February 2013 Board hearing, the Board points out that the Veteran appeared, along with his authorized representative, and provided testimony on the matters herein decided. The transcript from that hearing reflects that the Veteran was afforded the opportunity to present hearing testimony, argument and evidence. The transcript also reflects appropriate exchanges between the Veteran and the undersigned Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999). The transcript further reflects that the Veterans Law Judge identified and explained the material issues herein decided, and suggested the submission of evidence that would support the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board hearing is, thus, legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the RO assigned an initial 0 percent (noncompensable) rating for bilateral plantar fasciitis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. Pursuant to Diagnostic Code 5276, for a bilateral disability, a 0 percent (noncompensable) rating is assigned for mild symptoms of pes planus that are relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Severe and pronounced pes planus are provided with separate ratings for unilateral or bilateral disabilities. Id. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). At the outset, the Board notes that it appears that the RO has appropriately assigned a single rating for pes planus with plantar fasciitis, as the medical evidence indicates that these conditions effectively constitute a single foot disability. See 38 C.F.R. § 4.14 (2012) (providing that evaluation of the same disability under different diagnostic codes is to be avoided). While separate evaluations for separate problems arising from the same injury may be assigned if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14, here, there is no basis for assigning separate evaluations for pes planus, the rating criteria contemplates a rating based upon bilateral involvement, and no additional, separate claims concerning the feet have been raised by the Veteran. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (in cases where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps). As there are no separate and distinct manifestations of which have not already been contemplated under the disability rating for pes planus, the Board cannot award a separate evaluation, even if service connection was warranted, as rating such overlapping symptomatology would result in pyramiding. Id. The Board will proceed to evaluate whether the Veteran's bilateral pes planus warrants a higher disability rating at any point pertinent to this appeal. Considering the pertinent evidence in light of the above, the Board finds that a compensable rating for bilateral pes planus is not warranted for the period beginning October 1, 2004, the effective date of the award of service connection, to July 20, 2005. The service treatment records (STRs) show that the Veteran was noted to have bilateral pes planus when he entered into active duty; however, the STRs also show the Veteran has continued to seek treatment for his bilateral pes planus during service, which the April 2005 VA/QTC examiner opined permanently worsened the disability. As relevant to the time period in question, i.e., from October 1, 2004 to July 20, 2005, the pertinent evidence of record consists of an April 2005 VA/QTC examination report, which shows the Veteran was diagnosed with bilateral pes planus. At this examination, the Veteran reported having stiffness at rest, while he also experienced pain, stiffness, and swelling with standing and walking. Objective examination revealed pes planus bilaterally, a moderate degree of valgus, and slight tenderness to palpation of each foot. There was, however, good alignment of the right and left Achilles tendon. The examiner noted the Veteran wore arch supports, although the examiner noted that the Veteran's symptoms and pain were relieved by his corrective shoe wear. Despite the foregoing, the Veteran has consistently asserted that his shoe inserts do not and never have relieved the pain he has experienced with his service-connected bilateral pes planus. See e.g., July 2005 VA Form 21-4138; May 2008 VA Form 9. The Board notes that the Veteran is competent to report his own symptoms that are observable by a lay person. Generally, the Board accepts as more persuasive statements the Veteran made in furtherance of treatment at the VA than those made at a VA examination done solely for the purposes of assessing his entitlement to a higher disability rating because these statements are deemed more credible. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). In this case, however, the Board notes that the Veteran has consistently reported that the shoe build-ups and other orthopedic appliances used to treat his service-connected pes planus do not and have not relieved his bilateral pes planus disability and, in this regard, the Board finds probative that the VA treatment records show the Veteran has continued to seek treatment, including requesting additional orthotics, for his bilateral pes planus during the appeal. As such, the Board finds that the Veteran's description of his bilateral pes planus symptoms is deemed credible, as they have been consistent during the pendency of this claim and appeal. Collectively, the pertinent evidence of record reflects that, from October 1, 2004 to July 20, 2005, the Veteran's bilateral pes planus was manifested by pain on manipulation and use, which was not relieved by built-up shoe or arch support. There was no lay or medical evidence of abnormal weight-bearing or misplacement of the tendo Achilles and, without such evidence, the Board finds the evidence does not show that the Veteran had symptoms that warranted a compensable disability rating at any point during the period in question. The Board also points out that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also Johnson v. Brown, 9 Vet. App. 7 (1996). During the time period in question, the Veteran reported having constant pain and stiffness, including while standing and walking. Medical examination has also revealed that the Veteran has pain and swelling on manipulation and use of the feet. Under Diagnostic Code 5276, functional loss due to pain is already contemplated as part of the diagnostic criteria used to evaluate the disability; hence, pain, alone, does not provide an additional basis for any higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5276; see DeLuca, 8 Vet. App. at 204-7. Additionally, the Veteran has not alleged any specific functional loss other than pain and fatigue upon usage, and medical examinations do not mention any restricted motion in his feet or lower extremities. As such, a higher disability rating is not warranted based upon DeLuca, supra, and the provisions of 38 C.F.R. §§ 4.40, 4.45. Accordingly, for reasons discussed above, the symptoms shown for the period dated from October 1, 2004, to July 20, 2005 are consistent with no more than the noncompensable rating assigned for that period. The Board also finds that a rating higher than 10 percent is not warranted for the period beginning from July 21, 2005 (and ending September 11, 2006). In this regard, the pertinent evidence includes a September 2005 VA examination report which shows the Veteran reported that his bilateral pes planus was manifested by pain, which limited his ability to run or participate in recreational basketball. Objective examination revealed mild to moderate bilateral pes planus, with minimal preservation of the arches bilaterally. There was no pain on manipulation of either foot and there was normal form and function of the tendo-Achilles. The VA examiner also noted the Veteran had a normal gait, normal weight-bearing, and normal walking, including for distance, and the examiner noted that there was no impairment of range of motion with respect to either foot. In sum, the evidence of record shows that, during the time period in question, i.e., from July 21, 2005 to September 11, 2006, the Veteran's bilateral pes planus continued to be manifested by pain on manipulation and use. There was, however, no evidence that the Veteran's pain had increased in severity or that his pes planus was also manifested by marked deformity of pronation or abduction, swelling on use, calluses, or any other symptom which more nearly approximates a severe level of pes planus disability, as contemplated by the higher, 30 percent rating under Diagnostic Code 5276. In addition, during the time period in question, there is no lay or medical evidence of functional loss or impairment, other than due to pain, upon usage of his bilateral feet. As such, a disability rating higher than 10 percent is not warranted based upon DeLuca, supra, and the provisions of 38 C.F.R. §§ 4.40, 4.45. Accordingly, for reasons discussed above, the symptoms shown for the period dated from July 21, 2005, to September 11, 2006, are consistent with no more than the 10 percent rating assigned for that period. With respect to the time period beginning September 12, 2006, the pertinent evidence includes VA examination reports dated November 2006, September 2008, and May 2012, VA outpatient treatment records dated from 2007 to 2012, and private treatment records from Dr. S.S. During the November 2006 VA examination, the Veteran reported having constant pain which was elicited by physical activity and weather and relieved by rest. He also reported experiencing pain, stiffness, swelling, and fatigue while walking, with stiffness and swelling also manifested by rest. The Veteran reported that his functional impairment was painful running or walking, especially on uneven surfaces. Objective examination revealed slight tenderness bilaterally, with a moderate degree of valgus and marked pronation. There was good alignment of the Achilles tendon, with no evidence of pes cavus, hammertoes, or Morton's Metatarsalgia. The examiner noted the Veteran required arch supports, which were further noted to relieve the Veteran's symptoms and pain. On September 2008 VA examination, the Veteran reported experiencing progressive symptoms, including foot swelling and aching pain in the soles of both feet, which he reported limited ambulation tolerance. He reported continued use of over-the-counter meds, with some symptomatic relief, as well as the use of custom orthotics, which he reported did not relieve his symptoms. Objective examination did not reveal any evidence of pain upon manipulation of either foot and alignment of the tendo Achilles was normal nonweight-bearing, with mild valgus with weight-bearing. The Veteran's gait and weight-bearing was normal, with no evidence callosities. The examiner noted that the Veteran's walking and standing ability and distance tolerance appeared to be normal and unimpaired without a requirement for extra breaks, restriction of tasks, or limitation of work hours. The examiner also noted the Veteran does not require prosthetics, orthotics, or shoe modifications and that there were no range of motion limitations regarding either foot. During the March 2012 VA examination, the Veteran reported having pain, including accentuated pain, on use and manipulation of the feet, as well as swelling on use of the feet. There was, however, no evidence of calluses or extreme tenderness and the examiner noted that the Veteran's symptoms are relieved by arch support. There was objective evidence of marked deformity of the foot, as well as marked pronation; however, there was no evidence of the weight-bearing line falling over or medial to the great toe. There was also no evidence of inward bowing of the Achilles tendon, marked inward displacement, or severe spasm of the Achilles tendon on manipulation. The VA examiner noted that the Veteran's flatfoot disability impacts his ability to work, noting that he has difficulty standing, walking running, or chasing as a police officer. VA treatment records show that the Veteran has consistently reported experiencing pain, stiffness, swelling, and limitation of motion in his ankle and foot joints. The treatment records also show he has used shoe inserts and arch supports to treat his bilateral pes planus. See VA treatment records dated from 2007 to 2012. During the February 2013 Board hearing, the Veteran testified that his bilateral pes planus has increased in severity since the March 2013 VA examination. He specifically testified that he treats his bilateral pes planus with medication, orthopedic inserts, and a steroid patch that he applies to his feet. He testified that, despite his treatment, he continued to have issues, as standing and walking causes problems with his feet. He testified that his disability is also manifested by pronation, calluses on the sides of his feet, and constant pain. The Veteran testified that, while he continues to work as a police officer, he has been reassigned from foot patrol, as he was unable to perform his duties for a long period of time. Private treatment records from Dr. S.S. show that the Veteran has sought treatment for pain and stiffness in his feet and ankles, which was previously treated with rigid orthotics but did not alleviate his symptoms. Objective examination in September 2011 revealed "sharp tenderness" with palpation to the medial aspect of the feet. The Veteran's gait revealed moderate to severe pronation with medial collapse of the medial arches bilaterally. In July 2013, the Veteran was noted to have an increased level of discomfort in his ankles and Dr. S.S. noted that the Veteran's orthotics failed to control his marked pronation. In a July 2013 pes planus disability questionnaire, Dr. S.S. noted that the Veteran's bilateral pes planus is manifested by pain, including accentuated pain, on use and manipulation of the feet, with extreme tenderness of the plantar surfaces. Dr. S.S. noted there is decreased longitudinal arch height, marked deformity of the feet, and marked pronation of each foot. The examiner also noted that the weight-bearing line fell over or medial to the great toe bilaterally, with additional evidence of inward bowing of the Achilles tendon. There was no evidence of swelling on use of the feet, calluses, or marked inward displacement or severe spasm of the Achilles tendon. Dr. S.S. also stated that the Veteran's symptoms are not relieved by arch supports or other orthotics. Based on the foregoing, the Board finds that a higher, 50 percent rating for bilateral pes planus is warranted as of March 30, 2012, the date of the most recent VA examination. but no earlier. Indeed, the Board notes that the evidence dated prior to March 30, 2012, inclusive of the November 2006 and September 2008 VA examination reports, VA treatment records, and private treatment records, show that the Veteran's bilateral pes planus was manifested by severe symptoms of pes planus, including pain on manipulation and use of the feet, marked pronation deformity, and swelling. While there is evidence of "sharp tenderness" of the plantar surfaces, as reflected in the September 2011 private treatment record from Dr. S.S., the preponderance of the evidence of record dated prior to March 2012 does not show that the Veteran's bilateral pes planus was manifested by an increased level of pain in the plantar surfaces to be considered "extreme tenderness." In this regard, VA outpatient treatment records show the Veteran reported that his feet hurt when he walked, but there is no indication that his bilateral foot pain was extreme, pronounced, or significantly more severe than as previously reported. See VA outpatient treatment records; see e.g., September 2010 VA treatment record. As of March 30, 2012, however, the evidence shows that the Veteran's bilateral pes planus was manifested by symptoms that more nearly approximate a pronounced disability, as contemplated by the 50 percent rating under Diagnostic Code 5276. Indeed, while there is no evidence of marked inward displacement and severe spasm of the tendo Achilles tendon bilaterally, there is, now, evidence of extreme tenderness of plantar surfaces of the feet, as reflected in the July 2013 questionnaire from Dr. S.S., as well as evidence of marked pronation and continued symptoms, including pain and swelling on use and manipulation of the feet, which are not improved by orthopedic shoes or appliances. Accordingly, the Board finds that the weight of the evidence supports the grant of a 50 percent disability rating for bilateral pes planus, as of March 30, 2012, but no earlier. The Board notes that the disability ratings assigned herein adequately compensates the Veteran for any functional loss due to pain and other factors noted in sections 4.40 and 4.45, as well as DeLuca, during the period in question, i.e., for the period beginning September 12, 2006 (and extending through March 30, 2012). As indicated, the Veteran's complaints of pain and swelling have been adequately documented and considered; however, the lay and medical evidence does not contain any indication or allegation that the Veteran's bilateral pes planus has resulted in additional functional loss due to pain and other factors, including limited range of motion or other additional functional limitations, that would warrant a higher rating. The Board also has considered the applicability of alternative diagnostic codes for evaluating the Veteran's foot disability, but finds that no higher rating is assignable. There is no lay or medical evidence of record that shows the Veteran's bilateral pes planus is, or has ever been, manifested by weak foot, claw foot (pes cavus), Morton's neuroma, hallux valgus, hallux rigidus, hammertoes, or other foot deformity. In addition, X-rays of the bilateral feet do not show any malunion or nonunion of tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, DCs 5277 to 5283. The Board has specifically considered whether it would be more appropriate to rate the Veteran's bilateral pes planus under DC 5284, which pertains to injuries of the foot not described by other diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under DC 5284, a 10 percent rating is warranted when a foot injury is productive of a moderate disability. A 20 percent rating is warranted when a foot injury is productive of a moderately severe foot disability, and a 30 percent rating is warranted when a foot injury is productive of a severe disability. A maximum rating of 40 percent may be assigned if loss of use of a foot is demonstrated. See note following Diagnostic Code 5284. As discussed previously, as the Veteran's bilateral foot disability is manifested by symptoms that are specifically covered under DC 5276, the Board finds that such diagnostic code, rather than the general criteria under DC 5284, is the most appropriate diagnostic code under which to rate his bilateral pes planus. Thus, the disability in question is not shown to involve any factors warranting evaluation under any other provisions of VA's rating schedule. Based on the foregoing, the Board concludes that the Veteran's bilateral pes planus more nearly approximated the criteria for the 50 percent schedular rating as of March 30, 2012, but no earlier. The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). See also Thun, supra. In this case, the Veteran has described his symptoms and the functional impairment he experiences as a result of his pes planus symptoms, to include difficulty walking on rugged terrain or for long distances. He recently asserted that he had to change his duties as a police officer to accommodate his bilateral pes planus. To this end, the physicians who conducted the September 2005 and September 2008 VA examinations noted that the Veteran's bilateral pes planus resulted in minimal or no functional impairment; however, the March 2012 VA examiner opined that the Veteran's bilateral pes planus affects his ability to work, as his disability results in difficulty standing, walking, running, and chasing people (as he is required to do in his job as a police officer. While the lay and medical evidence of record describes the functional impairment experienced by the Veteran as a result of his bilateral pes planus, the Board finds that the Veteran's bilateral pes planus is fully addressed by the rating criteria under which his disability is rated, as it contemplates the Veteran's particular symptoms and the resulting degree of occupational and social impairment. In particular, the rating criteria contemplate the Veteran's symptoms of pain on use and manipulation of the feet, marked pronation, swelling, and requiring the use of orthotics and the Board notes that the criteria authorize a higher rating when warranted by the symptomatology and impairment shown. There is no indication or argument that the Veteran's bilateral pes planus is manifested by symptoms, or results in functional impairment, that are not adequately contemplated by the rating criteria or adequately compensated by the disability ratings currently assigned. As such, the Board finds the applicable criteria are adequate to rate the Veteran's bilateral pes planus. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence shows that the Veteran has been employed throughout the pendency of this claim and that he is currently employed as a deputy sheriff. In addition, the Veteran has not alleged that he is effectively rendered unemployable as a result of his service-connected bilateral pes planus, nor is there any medical comment or opinion to that effect. On these facts, the Board finds that a claim for a TDIU due to pes planus has not been raised, and need not be addressed. For all the foregoing reasons, the Board finds that ratings for bilateral pes planus for greater than 0 percent, 10 percent, and 30 percent must be denied for the periods from October 1, 2004 to July 20, 2005, from July 21, 2005, to September 11, 2006, and from September 12, 2006 to March 29, 2012, respectively but that the record supports assignment of a higher, 50 percent rating for the disability from March 30, 2013. The Board has favorably applied the benefit-of-the-doubt doctrine in reaching the decision to award the 50 percent rating from the date indicated, but finds that preponderance of the evidence is against assignment of any higher rating at any other point. 38 U.S.C.A. §§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial, compensable rating for bilateral pes planus, for the period from October 1, 2004 to July 20, 2005 , is denied. A rating in excess of 10 percent for bilateral pes planus, for the period from July 21, 2005, to September 11, 2006, is denied. A rating in excess of 30 percent for bilateral pes planus, for the period from September 12, 2006 to March 29, 2012, is denied. A 50 percent rating for bilateral pes planus, from March 30, 2012, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs