Citation Nr: 1335022 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-05 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine secondary to bilateral weak foot. 2. Entitlement to service connection for trochanteric bursitis of the hips secondary to bilateral weak foot. 3. Entitlement to a disability rating higher than 10 percent for bilateral weak foot. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from January 3, 1945, to December 24, 1945, and from March 1951 to December 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in August 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012 the Veteran appeared at hearing before the undersigned Veterans Law Judge. A copy of the transcript is in the Veteran's file. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in January 2013 the Board requested a medical expert opinion from the Veterans Health Administration (VHA) regarding the lumbar spine and hips. In April 2013 the Board received the requested opinion. In July 2013 the Board received a follow-up opinion. FINDINGS OF FACT 1. Degenerative disc disease of the lumbar spine was not affirmatively shown to have had onset during service, degenerative disc disease is not otherwise related to an injury, disease, or event in service, and degenerative disc disease is not caused by or aggravated by service-connected bilateral weak foot. 2. Trochanteric bursitis of the hips was not affirmatively shown to have had onset during service, trochanteric bursitis of the hips is not otherwise related to an injury, disease, or event in service, and trochanteric bursitis of the hips is not caused by or aggravated by service-connected bilateral weak foot. 3. Bilateral weak foot is manifested by flat feet without evidence of marked deformity in pronation or abduction, pain on manipulation and use accentuated, swelling on use, or characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1110, 5107(b) West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for service connection for trochanteric bursitis of the hips have not been met. 38 U.S.C.A. §§ 1110, 5107(b) West 2002); 38 C.F.R. § § 3.303, 3.310 (2013). 3. The criteria for a rating higher than 10 percent for bilateral weak foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5276, 5277 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in November 2008. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and for the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded a VA examination in June 2009. As the VA examiner reviewed the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion, the VA examination is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In May and June July 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). As the VHA medical opinion was based on a review of the Veteran's history and described the disabilities in sufficient detail so that the Board's review is a fully informed one, the VHA opinion is adequate to decide the claims. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records from the first period of service from January 1945 to December 1945 show that the Veteran was seen in April 1945 for complaints of back pain and leg pain, which were treated with liniment. There were no further complaints, finding, or treatment of back or leg pain. On separation examination the neurological and musculoskeletal evaluations were normal. In November 1949 on VA examination, there was complaint of back or hip pain. The service treatment records for the second period of service from March 1951 to December 1952 show that at on entrance examination the spine and lower extremities were evaluated as normal. There are entries for back or hip problems. After service in November 1964 on VA examination, the Veteran complained of pain in the feet with radiation into the lower portion of the back. On examination there was no finding or diagnosis of a musculoskeletal problem of the back or hips. In June 2004 on VA examination, there was no objective finding of a back or hip abnormality. In May 2005 VA records show that the Veteran complained of low back pain. After an X-ray the impression was degenerative disease of the lumbar spine. In November 2008 VA records show that the Veteran had fallen from a ladder in October 2008 and after few days she had developed pain in the lower back extending into the left buttock. History included chronic low back pain. The assessment was exacerbation of chronic lower back pain. In December 2008, a MRI showed degenerative disc disease of the lumbar spine. In June 2009 on VA examination the Veteran stated that she had severe back pain that started about one year earlier. The Veteran also complained of hip pain, which also started about one year earlier. The pertinent diagnoses were: degenerative disc disease of the lumbar spine with chronic pain, which was not caused or aggravated by the service-connected bilateral foot condition, which was more likely than not age related; left sciatica with pain into the hip and posterior thigh secondary to the degenerative changes of the lower lumbar spine; and trochanteric bursitis of the hips not caused or aggravated by the service-connected bilateral foot condition, which was more likely than not age related. In November 2010, a VA physician who treated the Veteran stated that the Veteran had problems with her low back and hips. The VA physician expressed the opinion that this was made worsene due to gait abnormalities resulting from a long history of flat feet. In August 2012, the Veteran testified that her low back and hip problems were related to her service-connected bilateral weak foot. She testified that her treating VA physician told her and wrote a statement to the effect that her lower back could be a result of the way she had been walking. She testified essentially that she did not have treatment for her low back or hips in service and never had treatment after service until her treatment by VA. She testified that she had been receiving treatment for about six years. The Veteran testified also that she had problems with only her left hip, not the right hip. The Veteran testified as to her qualifications as a medical technologist. In January 2013, the Board requested a medical expert opinion from the VHA regarding the likelihood that the Veteran's degenerative disc disease of the lumbar spine or the bursitis of the hips was caused or aggravated by the service-connected bilateral weak feet. In April 2013 the Board received the opinion from a VHA expert, a physician and Chief of Neurosurgery at a VA medical center. After a review of theVeteran's history and medical records, the VHA expert noted that bilateral plantar fasciitis started in the mid-1990s, X-rays in 1995 of the lumbar spine suggested some minimal degenerative changes and X-rays of the left hip showed no joint or hip abnormality, and 10 years later, X-rays showed degenerative disease of the lumbar spine. The VHA expert expressed the opinions that the hip and low back pathologies were not related to the weakness of the feet, and bursitis of the hips was not caused by or aggravated by degenerative disc disease of the lumbar spine, rather, the lumbar spine and hip conditions were separate pathologies that were likely caused by the onset and progression of degenerative changes with age. The VHA expert explained that the Veteran had age-related changes in several joints, including the lower spine, the hips, and the feet. In May 2013 the Board requested clarification of the VHA opinion, requesting an opinion as to the likelihood that the degenerative disc disease of the lumbar spine or the bursitis of the hips was permanently worsened due to the service-connected bilateral weak foot. In July 2013, the VHA expert expressed the opinion that degenerative disc disease of the lumbar spine and the bursitis of the hips were not related to the service-connected disability the feet. The VHA expert explained that on a detailed review of the literature there was no substantial evidence that there was a causal link between a person with bilateral foot symptoms that would then induce an aggravated course of degeneration in the lumbar spine, causing degenerative disc disease or bursitis of the hips. The VHA expert reiterated that the two pathologies, back and hips, were separate and coincidental and had no relationship to each other. Analysis The Veteran does not argue and on the basis of the service treatment records alone, neither degenerative disc disease of the lumbar spine nor bursitis of the hips was affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. Also neither degenerative disc disease of the lumbar spine nor bursitis of the hips is a chronic disease listed in 38 C.F.R. § 3.309, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), after service, in May 2005, X-rays by VA showed degenerative disease of the lumbar spine. In December 2008, a MRI by a private health care provider showed degenerative disc disease of the lumbar spine. In June 2009 on VA examination, trochanteric bursitis of the hips was diagnosed. The Veteran does not argue and there is no evidence that either degenerative disc disease of the lumbar spine or bursitis of the hips, first diagnosed after service, is otherwise related to an injury, disease, or event in service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(d) (first diagnosed after service and the diagnosed disease was incurred in service) is not warranted. The Veteran does assert that degenerative disc disease of the lumbar spine and bursitis of the hips were caused by, that is, secondary to service-connected weak feet. Service connection may be granted on this secondary basis if the evidence shows that a disability is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran testified that she has experience and training as a medical technologist to take and test blood samples and she has experience as a technician to take X-rays. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The second argument Mr. [redacted] makes pertains to the Board's finding regarding his competency to make certain statements. Specifically, with regard to each of his claims that was denied on the basis of a lack of evidence demonstrating service connection and his claim for a compensable initial disability rating for a duodenal ulcer, the Board found that Mr. [redacted] was competent to attest to his experienced symptoms, but was not competent to address matters of medical diagnosis and etiology because "[t]here is no evidence which establishes that [he] has medical expertise." R. at 41; see also R. at 12, 44-45, 47-48. Mr. [redacted] contends that the Board offered an inadequate statement of reasons or bases for its determination "that [he] is not qualified to speak of matters that are medical in nature." Appellant's Br. at 8. He notes that the Board essentially offered a boilerplate explanation for this determination that he was a lay person without the medical expertise necessary to answer relevant medical questions, and that it therefore did not address evidence of record indicating that, during his active duty service, he was a hospital corpsman with a primary specialty of medical field service technician, or that he received training at the Naval Hospital Corps School. Essentially, then, Mr. [redacted] argues that the Board failed to discuss whether, through his medical training and experience acquired in service, he was competent to answer the medical questions pertinent to his claims on appeal to the Board. The Court agrees. *6 Under 38 C.F.R. § 3.159(a)(1), "[c]ompetent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." Accordingly, in assessing whether particular medical statements made by an individual are competent, "[t]he level of training, education, and experience of the person ... is a factor that, if the Board affords more or less weight to the report [or statement] because of that reason, must be thoroughly explained in its decision." Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table)). In the present case, because there was evidence of record indicating that Mr. [redacted] received medical training and acquired medical experience while in service, the Board was at least required to discuss the nature of this training and experience and whether it qualified him to offer competent opinions regarding the particular medical questions relevant to his claims. Id. Instead, the Board baldly stated that there was no evidence that Mr. [redacted] possessed medical expertise and therefore concluded that, as a lay person, he was not competent to answer the medical questions at issue. The Board therefore offered an inadequate statement of reasons or bases regarding Mr. [redacted]'s competency to speak to such issues. See Caluza, 7 Vet.App. at 506 (holding that, to comply with its reasons-or-bases obligation, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Nevertheless, Mr. [redacted] has not carried his burden of demonstrating that he was harmed by the Board's failure to engage in an adequate discussion of his competency on such matters. See Sanders v. Shinseki, 129 S.Ct. 1696, 1705 (2009) (holding that it is the appellant's burden to allege prejudice and sufficiently explain how the asserted error caused harm). In this respect, the Court notes that Mr. [redacted] has not so much as identified a particular medical statement that he offered in support of his claims, let alone explained how any such statement is pertinent or potentially helpful to a favorable resolution of his claims. In fact, Mr. [redacted]'s brief is so bereft of detail that the Court cannot discern which of the six claims in the two Board decisions on appeal are relevant to his argument. Absent at least some discussion of the statements that he believes the Board impermissibly discounted as incompetent, Mr. [redacted] cannot possibly carry his burden of demonstrating prejudicial error. Accordingly, the Court will affirm both of the Board decisions now on appeal. However, the Veteran is not shown to have the specialized education, training, or experience of medical professionals trained to diagnose complex questions regarding etiology of neurologic or musculoskeletal conditions. To the extent the Veteran is considered a lay person, she is competent as such to offer an opinion on a simple medical condition-a condition that does not require that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran is competent to describe low back pain or hip pain or other symptoms she can perceive since their onset in relation to the onset of her bilateral foot disability. But it does not necessarily follow that there is a relationship between any current low back or hip disability and the bilateral week foot. Medical evidence is required to demonstrate such a relationship since such a relationship is one to which the Veteran as a lay person is not competent to make. Moreover, degenerative disc disease of the lumbar spine, and trochanteric bursitis of the hips, are not types of conditions under case law that have been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As the current back and bilateral hip disabilities are not the type of conditions that can be identified based on personal observation either as simple medical conditions under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the evidence is not admissible, the Board need not reach the credibility of the evidence. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or of a causal relationship or nexus between the current low back or bilateral hip symptomatology and the service-connected bilateral weak foot, then medical evidence is required to support the claims. The competent medical evidence of record consists of the reports by VA and private health care providers, who are qualified through education, training, or experience to offer a diagnosis and a medical opinion. 38 C.F.R. § 3.159. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The Board has considered the merits of the analysis and the details of the opinions, which were based on medical analysis applied to the significant facts of case, of the VA examiner at the June 2009 VA examination, and the VA chief of neurosurgery who provided opinions in April and July 2013. On that basis, the Board finds that these opinions are persuasive medical evidence against the two claims on the question of the likelihood that the Veteran's bilateral weak foot either caused or aggravated any degenerative disc disease of the lumbar spine or any trochanteric bursitis of the hips. See 38 C.F.R. § 3.310. These opinions are consistent with the rest of the medical evidence on file and internally consistent within the three reports. These VA opinions outweigh the November 2010 opinion of the Veteran's treating VA physician. As compared with the other VA opinions, her opinion provided no clear rationale that was consistent with the clinical history of the Veteran's low back and bilateral hip disorders. It consists simply of the assertion that the problems with the Veteran's low back and hips were undoubtedly worsened due to gait abnormalities of her long history of flat feet. As the preponderance of the evidence is against both of the service connection claims, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for either the degenerative disc disease of the lumbar spine, or trochanteric bursitis of the hips. 38 U.S.C.A. § 5107(b). II. Increased Rating Claim General Rating Policy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, 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. On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Evidence VA treatment records during the pendency of the claim show treatment for various bilateral lower extremity conditions including onychocryptosis, hallux bilaterally; onychomycosis times 10 toenails; peripheral vascular disease with claudication pain; peripheral arterial disease; arch pain secondary to peripheral vascular disease; heel pain improving; bilateral foot pain; chronic heel pain related to time in service. During a June 2009 VA examination, the examiner noted that VA examination in June 2004 provided assessments of pes planus, flexible, bilateral feet, with mild chronic plantar fasciitis, stable; and atherosclerotic peripheral vascular disease (PVD), bilateral lower extremities with intermittent claudication. In this regard the June 2009 examiner commented regarding the Veteran's symptoms, that the "majority of symptoms of her feet and lower extremities as described by the Veteran are more likely than not secondary to the PVD and less likely than not related to her pes planus and 'weak foot condition' that is service connected." The examiner noted on review of medical records that the Veteran had noted to have fairly stable atherosclerotic peripheral artery disease with claudication after about one-half mile of walking. The Veteran reported complaints of chronic left heal pain and arch pain. She reported that her heel pain was doing better, but her toenails were very thick causing pain, pressure and discomfort. She reported a history of underlying arterial disease. The Veteran reported that she can walk about one block and has increased pain to her feet and has to stop and rest. She reported that sometimes when walking she had pain that radiated along the lateral left thigh; and her feet hurt when she wakes in the morning, and she has to sit and rest before walking. She rated the pain when waking as 8/10, which decreases to 6-7/10 as she begins to move about some. She reported that she begins to have more pain when she walks, and has to sit down to rest after one block. The pain increases from 7/10 (background pain) to about 8/10. She reported that she tires easily and her legs get a heavy sensation. She takes acetaminophen three times per day and Tylenol PM at bed time. She reported having no flare-ups, but the symptoms fluctuate based on activity. She reported she did not use an assistive device, and has had no surgery or injuries. She uses custom orthotics. The condition limited her walking mainly, with some pain with standing such as when cooking. On examination of the lower extremities, the dorsalis pedis and posterior tibial pulses were biphasic with a Doppler. Capillary refill time was less than three seconds. Skin temperature was warm to cool from proximal to distal. Protective sensation was intact. Skin showed no ulcerations, erythema, edema or ecchymosis. Muscle strength was 5/5; and deep tendon reflexes were 2/4. Range of motion of the ankle joints were within normal limits. There was no pain on palpation of the heels. Pain to palpation was noted to toenails times ten. They were yellow, thick, elongated, malodorous, discolored and crumbly with subungual debris. On examination of the feet, there was mild tenderness with palpation of the plantar surface at the heel and along the arches bilaterally. There were no calluses. The arch was present when not weight bearing, and there was a diminished arch and mild eversion of both heels with weight bearing. There were non-palpable posterior tibialis and dorsalis pedis pulses bilaterally; warm to cool feet proximal to distal; mild superficial varicosities without saphenous varicosities; mild hallux valgus deformity bilaterally without hammer or claw toe deformities. After examination, the report contains assessments including (1) peripheral arterial disease; (2) onychomycosis times ten toenails; (3) heel pain improving; (4) pes planus, flexible, bilateral feet, with mild chronic plantar fasciitis, stable compared to previous data; atherosclerotic peripheral artery disease, bilateral lower extremities with intermittent claudication, now with symptoms of claudication at about one block walking that resolves with two to three minutes of rest. In conclusion the examiner commented that the majority of symptoms of the Veteran's feet and lower extremities as described by the Veteran were more likely than not secondary to the atherosclerotic PAD and less likely than not related to her pes planus and weak foot condition that is service connected. In a November 2010 statement by a treating VA staff physician, she noted that the Veteran was having increased problems with foot pain related to flat feet and resultant arthritic changes. That physician also stated that the Veteran was unable to walk more than two blocks without stopping to rest her feet due to pain, and she wakes up at night with feet pain. Analysis Originally, in December 1949 VA granted service connection and assigned a 10 percent rating for pes planus on the basis of evidence of that condition. VA later identified the service-connected bilateral foot disability as bilateral weak foot. The Veteran's service-connected bilateral weak foot is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5277, based on criteria for bilateral weak foot: a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. Under that code, the condition is rated on the basis of the underlying condition, with a minimum rating of 10 percent. The RO assigned a 10 percent rating on the basis of that requisite minimum rating assignable for the condition. The Rating Schedule provides rating criteria for the following pertinent underlying foot conditions. Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, acquired flatfoot, a 10 percent rating contemplates moderate flatfoot with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). A 10 percent rating is assigned whether the disability is bilateral or unilateral. 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 assigned a 20 percent rating for unilateral involvement and 30 percent for bilateral involvement. Id. Pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, is assigned a 30 percent rating for unilateral involvement and 50 percent for bilateral involvement. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5284, ratings of 10, 20, and 30 percent are assignable for other foot injuries are moderate, moderately severe, and severe, respectively. A 30 percent rating is the maximum schedular rating for other foot injury. The note following Diagnostic Code 5284 provides a 40 percent rating for actual loss of use of the foot. As the Veteran's bilateral weak foot disability is manifested by symptoms that are specifically covered under Diagnostic Code 5276 and service connection in essence is derived from her bilateral flat foot condition, the Board finds that Diagnostic Code 5276, rather than the general criteria under Diagnostic Code 5284, for other foot disability, is the most appropriate diagnostic code under which to rate her bilateral weak foot. On review of the foregoing medical evidence, and after affording due consideration to the objective evidence of the Veteran's bilateral foot pain and loss of function in each foot due to associated pain and weakness, the Board determines that the Veteran's service-connected bilateral weak foot-with symptoms and functional effects that are altogether intertwined with and indistinguishable from her pes planus and chronic plantar fasciitis-is productive of severe acquired flatfoot with bilateral involvement requisite for a 30 percent rating under Diagnostic Code 5276. See C.F.R. § 4.71a, Diagnostic Code 5276. The evidence does not, however, more nearly approximate or equate to symptoms productive of pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See C.F.R. § 4.71a, Diagnostic Code 5276. These symptoms are not shown to be present in total or in any significant combination. There is also no evidence that the service-connected bilateral foot disability includes the condition of claw foot. Therefore an evaluation under pertinent rating criteria is no benefit to the Veteran's claim. See C.F.R. § 4.71a, Diagnostic Code 5278. Based on the grant here, the Veteran's bilateral foot disability is now already evaluated at or beyond the maximum assignable rating for ratable conditions of anterior metatarsalgia (Morton's disease); unilateral hallux valgus; severe unilateral hallux rigidus; hammertoe; or unilateral malunion or nonunion of tarsal or metatarsal bones. Therefore an increased evaluation under pertinent rating criteria is not feasible. See C.F.R. § 4.71a, Diagnostic Codes 5279, 5280, 5281, 5282, 5283. For the above reasons, the preponderance of the evidence is against the claim for a rating higher than 30 percent at any time during the appeal, and the benefit-of-the-doubt standard of proof does not apply beyond the grant here. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule under C.F.R. § 4.71a, Diagnostic Code 5276, and the assigned schedule rating is adequate and referral for an extraschedular rating is not required. Total Disability Rating Based on Individual Unemployability A total disability rating based on individual unemployability (TDIU) is a part of a claim for a higher initial rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim 'identify the benefit sought' has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has made no explicit claim that due to her service-connected bilateral weak foot, she is unemployable, and the record does not show that she is unable to secure or follow a substantially gainful occupation due to the service-connected bilateral weak foot. The record indicates that the Veteran retired in the 1980s. As of the time of the most recent VA examination in June 2009, the examiner recorded a functional assessment with respect to usual occupation, that the Veteran had to do daily activities including household chores/activities slow due to back pain. Based on the foregoing, a claim for TDIU is not raised by the record. ORDER Service connection for degenerative disc disease of the lumbar spine is denied. Service connection for trochanteric bursitis of the hips is denied. A disability rating of 30 percent for bilateral weak foot is granted. ____________________________________________ GEORGE E. GUIDO, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs