Citation Nr: 1335971 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-17 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to a rating in excess of 10 percent for left foot calcaneal spurs. 3. Entitlement to a rating in excess of 10 percent for right foot calcaneal spurs. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1985 to May 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In part, that decision denied service connection for pes planus and granted service connection for left and right foot calcaneal spurs and rated 10 percent for each foot, effective from the date following the Veteran's separation from service. In August 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In November 2012 and June 2013, the matters were remanded for further development. In November 2012, the Board dismissed an appeal concerning service connection for a right hip disability, and in June 2013, the Board denied service connection for a left hip disorder. As was noted in November 2012 and again in June 2013, the service connection claim pertaining to the feet was developed and adjudicated as limited to the diagnosis of pes planus. Private and VA treatment records submitted in association with this claim, and an accompanying May 2009 letter from the Veteran, show or suggest that she seeks service connection for other bilateral foot pathology, to include degenerative joint disease (DJD), capsulitis, bursitis, metatarsalgia, and hallux abducto valgus. These matters were not adjudicated by the RO, and were referred to the RO for appropriate action in both November 2012 and June 2013. The record before the Board does not show that the RO has taken any action regarding them. Accordingly, they are again referred to the RO for appropriate action. FINDINGS OF FACT 1. 1st degree pes planus was noted on the Veteran's service enlistment examination in July 1985 and is not shown to have increased in severity (in either foot) during or as a result of service. 2. At no time since the award of service connection are the Veteran's left and/or right foot calcaneal spurs disabilities shown to have been manifested by symptoms or impairment that may be reasonably be characterized as exceeding moderate foot injury. CONCLUSIONS OF LAW 1. Service connection for bilateral pes planus is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). 2. A rating in excess of 10 percent for left foot calcaneal spurs is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Codes 5015, 5284 (2013). 3. A rating in excess of 10 percent for right foot calcaneal spurs is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.71a, Codes 5015, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claims. A July 2007 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The letter also advised her of how VA determines the disability rating and the effective date of an award when a disability is service-connected. She has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. As the rating decision on appeal granted service connection for calcaneal spurs, and assigned the initial ratings and effective dates for the awards, statutory notice had served its purpose, and its application was no longer necessary. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed, Cir. 2007). In January 2009, the RO provided notice on the downstream issue of entitlement to an increased initial rating for the calcaneal spurs. An April 2009 statement of the case readjudicated the matters after the Veteran and her representative had opportunity to respond/supplement the record. The Veteran's service treatment records (STRs) and pertinent pre- and post-service treatment records have been secured. She was afforded VA examinations in September 2007, December 2012, and July 2013. The reports of these examinations, in particular of the July 2013 examination, contain sufficient findings to rate the Veteran's calcaneal spurs under the pertinent rating criteria. The Board finds that the medical opinion offered on July 2013 VA examination, concerning the Veteran's claim for service connection for pes planus, is adequate for rating purposes. The opinion is accompanied by an explanation of rationale and reflects familiarity with the factual evidence. The explanation given makes it clear that the examiner's checking of the box on the examination report which indicates that the claimed condition is related to service is a typographical error, and so no further remand action is necessary in this regard. The Veteran argued in September 2013 that the July 2013 VA examination for pes planus was inadequate, as the examiner only touched one side of her left foot and later told her she had tarsal tunnel syndrome. She indicated that she had seen numerous podiatrists and not one had indicated that her symptoms were related to tarsal tunnel syndrome. However, the critical question in this matter is whether pes planus increased in severity during service, and the evidence of record is adequate to make that determination; current findings would not be material to this critical question. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Service Connection for Pes Planus Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 1st degree pes planus was noted on the Veteran's July 1985 service enlistment examination prior to service. The Veteran's pes planus was noted on a number of subsequent occasions during service, with no notation that it had become worse or was worse than 1st degree. In April 2007, it was noted that she used inserts for flat feet. Her foot complaints in service included foot pain and swelling. Plantar fasciitis, bilateral hallux valgus, tarsal tunnel syndrome, and bilateral calcaneal spurs were assessed in service. In the appellant's May 2007 VA Form 21-526, Veteran's Application for Compensation and/or Pension, she indicated that her pes planus began in November 1987. On September 2007 VA examination, the Veteran attributed her pes planus to running in boots. On examination, a number of foot findings were made, and it was reported that "(p)es planus is not present." The examiner indicated that for the claimed condition of pes planus, there was no diagnosis because there was no pathology to render a diagnosis. Private evaluations of the Veteran's feet from August 2007 to January 2008 did not note pes planus. Service Department evaluations of the Veteran's feet from July 2007 to February 2009 (including December 2008 X-rays of the feet) did not note pes planus. On December 2011 VA examination of the Veteran's feet, pes planus was not noted, including on X-rays of her feet. Foot diagnoses other than pes planus were made. On December 2012 VA examination of her feet, the Veteran reported that she was told at service induction that she had bilateral pes planus, but was not given orthotics. She started to have pain around 1995, as there were no boots and so she wore small flat shoes. When boots came in, she could wear several socks. She reported that she started having pain (was diagnosed with plantar fasciitis), pointing to her soles of her feet, and then her heels, right worse than left. Then, she was given custom orthotics, physical therapy, and exercises. Currently, her heels were problematic on occasion and she was waiting for a bunionectomy. On examination of each foot, there was no evidence of abnormal weight bearing. Achilles alignment on nonweight bearing and on weight bearing was normal. Bilateral pes planus was diagnosed. The examiner indicated that there were no significant occupational effects. In June 2013, the Board remanded the case to the RO for further VA examination. On July 2013 VA foot examination, the examiner indicated that examination of the Veteran's feet revealed asymptomatic pes planus. She opined that the Veteran's pes planus was not worsened since service because it was asymptomatic on examination. The Veteran's May 2007 statement that her pes planus began in November 1987 is accepted as competent evidence, see Falzone v. Brown, 8 Vet. App. 398 (1995), but it is outweighed in probative value by her service enlistment examination report, which noted based on examination for service that she had 1st degree pes planus. The Veteran's remote recollections of when her pes planus began are outweighed by contemporaneous clinical findings on examination for induction. Since her pes planus existed prior to service as shown by its notation on service enlistment examination, the presumption of soundness on induction does not apply. See 38 U.S.C.A. § 1111. Accordingly, to prevail in her claim, the Veteran must show that her pes planus was aggravated by service. Aggravation is shown by demonstrating that a disability increased in severity during service. The Veteran's pes planus was noted to be 1st degree on service entrance examination. While it was symptomatic at times during service, at no time during service was it noted to be more severe than 1st degree. Moreover, it was not found on September 2007 VA examination. On July 2013 VA examination, it was asymptomatic and the examiner opined that therefore it had not worsened in service. Given this and the explanation provided by the July 2013 examiner, the Board is satisfied that the Veteran's pre-existing pes planus did not increase in severity during, or as a result of, service. As it is no worse now than it was on service enlistment examination, it could not have increased in severity during, or as a result of, service. The Board notes that the examiner in July 2013 checked a box on the examination report indicating that the Veteran's pes planus was incurred in or caused by service. However, this clearly was a typographical error explained at length by the examiner indicating that the pes planus existed prior to service and did not worsen therein. In July 2012, the representative argued that the Veteran's pes planus was directly related to the rigors of service. However, the preponderance of the evidence shows that it pre-existed, and was not aggravated in or by, service. Calcaneal Spur Ratings In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's calcaneal spurs of each foot are rated 10 percent under Code 5015 (for benign new bone growths). The most analogous Code to rate the Veteran's calcaneal spurs under is Code 5284, for other foot injury. Under that Code, a 10 percent rating is warranted for a moderate foot injury, a 20 percent rating is warranted for moderately severe foot injury, and a 30 percent rating is warranted for severe foot injury. 38 C.F.R. § 4.71a. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). On July 2007 VA examination, the Veteran complained of bilateral foot pain that was unrelieved by corrective shoe wear. On examination, her gait was within normal limits. Each foot was tender but without painful motion, weakness, or atrophy. December 2008 service X-rays of the Veteran's feet revealed bilateral calcaneal spurs. On December 2011 VA examination, the Veteran complained of bilateral foot pain, exacerbated by physical activity and walking. On examination, her gait was within normal limits. Each foot was painful, weak, and tender. On December 2012 VA examination, the Veteran reported that currently, her heels were a problem. If she sat for a while, the pain was intense bilaterally, in her entire feet. She could not isolate her pain to her spurs but described an achy, piercing and sharp pain located in the sole, sides of the feet, and heels. On examination, there was no evidence of swelling, weakness, or abnormal weight bearing, and no evidence of muscle atrophy of either foot. Bilateral calcaneal spurs were diagnosed. The examiner indicated that were no significant occupational effects. On July 2013 VA examination, the Veteran reported that she had severe foot pain which started 12 years prior. She denied pain on use or manipulation of the feet, and there were no indications of swelling on use. She did not have extreme tenderness of the plantar surface of either foot. The examiner indicated that the Veteran's heel spurs do not cause pain in her feet or cause worsening of her symptoms. The July 2007 examination showed foot tenderness but a normal gait and no painful motion, weakness, or atrophy. The December 2011 examination showed a normal gait with each foot painful, weak, and tender. The December 2012 examination found no swelling, weakness, abnormal weight bearing, or muscle atrophy of either foot, and that there were no significant occupational effects from her calcaneal spurs. The July 2013 examination showed that the Veteran had no pain associated with the heel spurs in her feet. Based on all these findings, the Board concludes that at no time since the award of service connection are either the Veteran's left or right foot calcaneal spurs disabilities shown to have been manifested by symptoms or impairment that may be reasonably be characterized as greater than moderate foot injury. That being the case, a higher rating than 10 percent cannot be assigned under Code 5284. The Board has reviewed the rating schedule and finds that no other Codes are appropriate. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). In summary, the factual evidence of record does not show findings that meet or approximate any schedular criteria for a rating in excess of 10 percent for calcaneal spurs of either foot. Consequently a schedular rating in excess of 10 percent is not warranted for calcaneal spurs of either foot. The Board has also considered whether referral of this matter for extraschedular consideration is warranted. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's calcaneal bone spurs and their associated impairment to the rating schedule, the Board finds that the degree of disability shown throughout the appeal period under consideration is wholly encompassed by the schedular criteria, and consequently those criteria are not inadequate. Therefore, referral of these claims for consideration of an extraschedular rating is not warranted. Finally, as the December 2012 VA examination report shows that the Veteran had been employed full time for 2-5 years and had lost less than 1 week at work (for unspecified reason) in the past year, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Service connection for a bilateral pes planus is denied. A rating in excess of 10 percent for left foot calcaneal spurs is denied. A rating in excess of 10 percent for right foot calcaneal spurs is denied. ______________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs