Citation Nr: 1335119 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-13 990 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an increase in the 30 percent evaluation currently assigned for allergic rhinitis. 2. Entitlement to an increase in the 10 percent evaluation currently assigned for bilateral pes planus. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1955 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision by the RO which denied the benefits sought on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is assigned the maximum schedular rating for allergic rhinitis. 2. The Veteran's bilateral pes planus is manifested by complaints of pain relieved with arch supports, without deformity, pronation, abduction, swelling, callosities or inward bowing or alteration of the weight bearing line. 3. The Veteran's service-connected disabilities include allergic rhinitis; rated 30 percent disabling, and bilateral pes planus; rated 10 percent disabling. The combined rating is 40 percent. 4. The Veteran has a bachelor's degree and some graduate work, had occupational experience as an educational assistant, and retired in 1998. 5. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for allergic rhinitis are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.97, Part 4, Diagnostic Code 6522 (2012). 2. The criteria for an evaluation in excess of 10 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2012). 3. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in September 2011. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA and available private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. The Board finds that the VA examinations were comprehensive in scope, included a discussion and analysis of the Veteran's medical history and current findings, and was adequate to render a fair and impartial determination on the merits of the issues on appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Rating - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Allergic Rhinitis The Veteran contends, in essence, that he has suffered from chronic allergic rhinitis symptoms, including watery, itchy eyes, a runny nose and a hoarse throat for over 50 years and believes that the 30 percent evaluation currently assigned does not reflect the true severity of his symptoms. The Veteran was examined by VA in October 2011, to determine the current severity of his allergic rhinitis. The examiner indicated that the claims file was reviewed and included description of the Veteran's complaints, medical history and the current findings on examination. The Veteran reported that he had allergy symptoms daily, and that he took Benadryl - 25 mg twice a day. He reported treatment for symptoms of a sinus infection once a year and occasional sinus headaches. On examination, there was no evidence of sinusitis, osteomyelitis, nasal polyps, permanent hypertrophy of the nasal turbinates, deviated nasal septum, pharyngeal problems, or greater than 50 percent obstruction of the nasal passages. The diagnosis was allergic rhinitis. Additional medical records associated with the claims file during the pendency of this appeal showed that the Veteran was treated by several private healthcare providers for a various maladies, including allergic rhinitis from 1991 to 2012. The records showed a history of environmental allergies manifested primarily by nasal congestion, postnasal drainage and itchy-watery eyes, and treatment with various nasal sprays and medications over the years with limited relief. The clinical findings on the private reports were not significantly different from the VA examination findings and showed occasional hypertrophic turbinates, but no evidence of polyps or any additional disability associated with his service-connected allergic rhinitis. In this case, the Veteran is currently assigned the maximum rating of 30 percent for allergic rhinitis with polyps under DC 6522. Parenthetically, the Board notes that the Veteran was not shown to have polyps on any of the private or VA medical reports of record. However, the Veteran's current rating has been in effect for more than 20 years and cannot be reduced. 38 C.F.R. § 3.951(b). While the evidence showed that the Veteran suffers with symptoms commonly associated with allergic rhinitis, i.e., watery eyes, runny nose, sneezing, etc., there was no evidence of any additional symptoms or pathology which would provide a basis for the assignment of a separate rating. As the Veteran is currently assigned the maximum rating for allergic rhinitis and is not shown to have any additional associated disability, there is no basis for the assignment of a higher evaluation or an additional separate rating. Bilateral Pes Planus The Veteran contends that his bilateral pes planus is more severe than reflected by the 10 percent evaluation currently assigned. The Veteran reported that he can't walk barefoot for more than a few minutes without pain, and that while he is relatively pain free when using his shoe inserts, his feet hurt after his daily exercise of walking a mile. The Veteran's bilateral pes planus is rated 10 percent disabling under DC 5276, which provides, in pertinent part, for a noncompensable evaluation for mild symptoms relieved by built-up shoe or arch supports. A 10 percent evaluation is assigned for moderate bilateral or unilateral symptoms with weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, pain on manipulation and use of the feet. Severe bilateral symptoms with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities is rated 30 percent disabling. Pronounced bilateral symptoms with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, is rated as 50 percent disabling. 38 C.F.R. § 4.71a, DC 5276. When examined by VA in October 2011, the examiner indicated that the claims file was reviewed and included description of the Veteran's complaints, medical history and the current findings on examination. On examination, the Veteran complained of bilateral foot pain, which was relieved with arch supports, and had some decreased longitudinal arch height, bilaterally. There was no evidence of swelling, characteristic calluses, tenderness of plantar surfaces, or marked deformity or pronation. There was no pain on manipulation, alteration of weight bearing line, inward bowing of the Achilles tendon or spasm of the Achilles tendon. The Veteran did not use any assistive devices other than the shoe inserts and there was no evidence of any additional physical findings, complications, signs or symptoms associated with his bilateral pes planus. Additional medical records from 1991 to the present showed that the Veteran was treated by various private healthcare providers for numerous maladies, including bilateral foot pain. The records showed that the Veteran was seen on a number of occasions for left leg/foot pain in 2008, which was thought to be due to possible nerve impingement of the lumbar spine, plantar fasciitis or metatarsalgia. A report in December 2008, noted that the Veteran's foot pain was worse when he sits down, but that he had no problems when standing or walking on his toes and heels. The assessment was persistent pain suggestive for disc disease. Other than being refitted for new orthotics in December 2011, the private records did not show any specific treatment for his bilateral pes planus. In order to receive a schedular evaluation greater than the 10 percent currently assigned for bilateral pes planus, the disability picture would need to approximate a finding of severe manifestations of flatfoot involving objective evidence of marked deformity, pain on manipulation and use accentuated, swelling on use and characteristic callosities (DC 5276). As the Veteran is not shown to have any of the clinical findings or symptoms for a higher evaluation under DC 5276, there is no basis for an increased rating. Although the Board has taken into account the Veteran's statements concerning the severity of his service-connected disability, the evidence overall does not demonstrate functional impairment such as to warrant an evaluation greater than 10 percent. Applying the appropriate Diagnostic Codes to the facts of this case, the objective assessment of the Veteran's impairment from his bilateral pes planus does not suggest that he had sufficient symptoms so as to a warrant an evaluation in excess of 10 percent at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the Veteran's bilateral pes planus is not manifested by the objective findings necessary for an increased evaluation under the provisions of § 4.56 or the criteria of DC 5276 or any other provision of the rating code for evaluating a foot disability. Under certain circumstances additional disability could be awarded under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Those circumstances are not present in this case, as where a diagnostic code is not predicated on a limited range of motion alone, such as DC 5276, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). At any rate, functional impairment due to pain and other factors have been taken into consideration in awarding the 10 percent rating in this case. Extraschedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the manifestations of the Veteran's allergic rhinitis and bilateral pes planus are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestations related to the service-connected disabilities are unusual or exceptional. The schedular rating criteria adequately contemplates the degree of impairment caused by these disabilities, and provides for a higher rating with more severe symptoms or clinical findings. In view of this, referral of this case for extraschedular consideration is not in order. TDIU Under the applicable criteria, a total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). The Veteran contends that he is unable to stand or walk for any prolonged period of time due to chronic bilateral foot problems, and believes that his service-connected disabilities render him incapable of working. The evidence of record showed that the Veteran has a four year college education and that he retired in 1998. While the Veteran indicated on his application for TDIU (VA Form 21-8940), received in April 2011, that he served eight years of full-time service in the Army National Guard from 1990 to 1998, he did not report what his past work experience included. In fact, the Board has reviewed his entire four volume claims file and has been unable to find any statement or record that showed the Veteran's employment history. When examined by VA in March 2008, the examiner noted that he was an education assistant. In any event, the Board notes that the fact that he was an NCO in the National Guard suggests that he has some degree of intelligence and experience in a supervisory position. The Veteran's service-connected disabilities include allergic rhinitis; rated 30 percent disabling, and bilateral pes planus; rated 10 percent disabling. The combined rating is 40 percent. In this case, the Veteran does not meet the schedular criteria for a total disability rating based on individual unemployability. That is, the Veteran does not have a single disability rated 40 percent disabling, and does not have a combined rating of 70 percent or more. His combined rating is 40 percent. Therefore, he does not meet the threshold requirements for TDIU. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes this case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When examined by VA in October 2011, the examiner indicated that the Veteran's pes planus would be an impediment to working in a job that required prolonged standing or walking, and that his rhinitis prevented him from working in a nursery or other similar positions. However, the examiner stated that the Veteran was certainly able to work in a sedentary position, such as, a desk job or in any environment free of allergens. In this case, the evidence shows that while the Veteran has chronic foot pain on prolonged walking or standing, he is able to walk a mile before the onset of pain. Therefore, the evidence shows that he retains some limited mobility and suggests that he could certainly get to, and home from a sedentary type of job. While the Veteran indicated that he had sought teaching positions at various public schools, While the Board cannot consider the Veteran's age in determining employability, the fact that he is 75 years old, and has a number of significant nonservice-connected disabilities, including chronic back problems involving his entire spine (lumbosacral, thoracic and cervical) that cause significant postural and balance problems (see December 2011 private PT note), neurological problems of the left leg and foot associated with disc disease of the lumbar spine, hearing loss and GERD that certainly limit his prospects for finding or maintaining employment. Furthermore, the Veteran has not provided any credible or competent medical evidence to support his contentions that he is unemployable by reason of his service-connected disabilities, alone. While the Board does not dispute that the Veteran experiences some industrial impairment due to his service-connected disabilities, the degree of impairment is adequately reflected by the combined schedular rating of 40 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record fails to show that the Veteran's service-connected disabilities, either singularly or in combination, are so severely disabling as to render him unable to secure or follow substantially gainful employment. The available evidence of record tends to show that the Veteran is able to perform sedentary type of work. Accordingly, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increased evaluation for chronic allergic rhinitis is denied. An increased evaluation for bilateral pes planus is denied. Entitlement to TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs