Citation Nr: 1336717 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 06-23 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to January 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran and his wife testified at a Board hearing at the RO in Wichita, Kansas in September 2007. This transcript has been associated with the file. The case was brought before the Board in February 2009 and March 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording the Veteran new VA examinations. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded a VA examination most recently in May 2012 for his pes planus. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. Throughout the appeal period the Veteran's right foot pes planus has been manifested by pain on manipulation, swelling, and characteristic callosities. 2. Prior to August 16, 2010 the Veteran's left foot pes planus was manifested by pain on manipulation, swelling, and characteristic callosities. 3. As of August 16, 2010 the Veteran's left foot pes planus is manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. Prior to August 16, 2010 the criteria for an evaluation in excess of 30 percent for bilateral pes planus were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). 2. As of August 16, 2010 the criteria for a separate evaluation of 20 percent, but no higher, for pes planus of the right foot have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). 3. As of August 16, 2010 the criteria for a separate evaluation of 30 percent, but no higher, for pes planus of the left foot have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran was notified of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). He was also notified of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. With regard to records from Irwin Army Community Hospital, the RO exhausted all efforts to obtain these records, including contacting both the hospital and the National Personnel Records Center on multiple occasions. The Veteran was notified in November 2011 that all available records from Irwin Army Community Hospital had been submitted. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination most recently in May 2012 to determine the severity of his bilateral pes planus. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that his bilateral pes planus should be rated higher than 30 percent disabling. For the reasons discussed below, the Board finds that as of August 16, 2010 a separate 20 percent evaluation, but no higher, is warranted for the right foot pes planus and a separate 30 percent evaluation, but no higher, is warranted for the left foot pes planus. Pes planus is rated under38 C.F.R. § 4.71a, Diagnostic Code 5276. Under this Diagnostic Code severe pes planus is defined as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Unilateral severe pes planus is rated as 20 percent disabling and bilateral severe pes planus is rated as 30 percent disabling. Pronounced pes planus is defined as 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. Unilateral pronounced pes planus is rated as 30 percent disabling and bilateral pronounced pes planus is rated as 50 percent disabling. At the Veteran's March 2007 VA examination he reported that his foot pain was worsening and was an 8/10 in severity. He also reported weakness and stiffness of the bilateral feet, left worse than right. He also reported some swelling, heat, and redness. He was wearing arch supports but stated that he did not think they were helping with his symptoms. The examiner stated that the Veteran had moderate to severe bilateral pes planus which was especially evident with the severe calluses noted on both feet. They were also extremely tender to touch and impaired the Veteran's ability to bear weight on the center of his feet. The Veteran reported pain of the bilateral feet in an October 2007 treatment record. In March 2009 the Veteran was fitted with new orthotics by his private treatment provider. See also March 2011 VA treatment record. The Veteran was afforded a VA examination in April 2009. He reported recently being measured for new orthotics. He also reported almost constant daily pain due to weight bearing in arches and calluses on the bottom of his feet. He also reported stiffness and swelling in his left lateral toes. The examiner noted tenderness in his bilateral arches and diagnosed the Veteran with moderately severe bilateral pes planus. Weight bearing and non weight bearing alignment of the Achilles tendons appeared normally aligned. At his August 2010 VA examination the Veteran reported daily throbbing pain. He could not tolerate full weight bearing on the soles of his feet and walked on the sides of his feet to help with pain. He denied swelling and heat. He did report spasms that could last as long as 30 seconds. He was wearing customs inserts that were modified 3-4 months earlier. The examiner noted bilateral plantar calluses and a softening of tissue. She classified his pes planus as moderately severe. She noted marked pronation of the left 1st joint, none of the right foot. She also noted extreme tenderness of the plantar surfaces of the bilateral feet. The Veteran also had marked inward placement of the left 1st joint, but no marked inward placement of the right foot. There was no evidence of severe spasm of the bilateral tendo achillis on manipulation. An additional examination was provided in October 2010. Again the Veteran reported painful motion which worsened with prolonged standing or walking. The Veteran had bilateral calluses which were painful on palpation. The examiner stated there was no clinical or radiologic evidence of pes planus. There was no marked pronation of either foot. There was no marked inward displacement or severe spasm of the Achilles' tendon on manipulation of either foot. At his most recent May 2012 VA examination the Veteran reported severe pain in calluses which caused him to walk on the sides of his feet. He could not distinguish whether the pain in his feet was from pes planus, bunions, or hammertoes. He reported his flatfeet limited him in doing anything that required long standing. He was also limited in recreational activities such as hunting and fishing. On examination he had pain on both feet which was accentuated on use. He had pain on manipulation of both feet. There was no swelling, but calluses were present. The Veteran had extreme tenderness of plantar surfaces of both feet. There was no objective evidence of marked deformity of the foot, no marked pronation, and no lower extremity deformity other than pes planus causing alteration of the weight bearing line. The Veteran did not have inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. The Veteran's symptoms were not relieved by arch supports. In reviewing all the evidence of record, the Board finds that a 30 percent evaluation is appropriate for the period prior to August 16, 2010 as the evidence revealed that the Veteran's symptoms most closely showed severe bilateral pes planus. However, as of August 16, 2010 a 20 percent evaluation is warranted for severe pes planus of the right foot and a separate 30 percent evaluation is warranted for pronounced pes planus of the left foot. As of August 16, 2010 there was evidence of marked inward displacement and extreme tenderness of the plantar surface of the left foot not improved by orthopedic shoes or appliances. Although the October 2010 and May 2012 VA examiners did not find the same symptoms, the Board will afford the Veteran the benefit of the doubt and assign a separate 30 percent evaluation for the left foot as of the date of the August 16, 2010 VA examination. A higher evaluation is not warranted as there is no evidence of pronounced pes planus of the bilateral feet at any time during the appeal period. Although the Veteran's right foot pes planus symptoms were not relieved by arch supports, he did not have inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that warrants the assignment of the ratings discussed above. See 38 C.F.R. § 4.7. The Board has also considered whether a separate and/or higher rating may be assigned for the Veteran's pes planus. However, there is no evidence that the Veteran's pes planus would be better classified under a different diagnostic code in 38 C.F.R. § 4.71a. The Veteran is already receiving separate evaluations for hallux valgus and hammertoes and his pes planus is most analogous to the rating criteria in Diagnostic Code 5276. In addition to the medical evidence, the Board has considered the statements and testimony of the Veteran in support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); 38 C.F.R. § 3.159(a)(2). At his September 2007 Board hearing the Veteran testified to constant pain in his feet, spasms, and swelling. He also testified to using custom inserts to help with the pain. However, as a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral pes planus in relation to the applicable rating criteria. The VA examiners have taken into account the Veteran's subjective complaints and performed objective testing to determine the overall severity of his pes planus. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). For the reasons discussed above, the Veteran is not entitled to an evaluation in excess of 30 percent prior to August 16, 2010. As of August 16, 2010 a 20 percent evaluation for right foot pes planus is warranted and a 30 percent evaluation for left foot pes planus is warranted. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has 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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's pes planus is appropriately evaluated. His primary symptoms are pain, marked deformity, swelling, and spasms. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected pes planus is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Prior to August 16, 2010 entitlement to an evaluation in excess of 30 percent for bilateral pes planus is denied. Entitlement to an evaluation of 20 percent, but no higher, as of August 16, 2010 for pes planus of the right foot is granted, subject to the applicable regulatory provisions governing payment of monetary awards. Entitlement to an evaluation of 30 percent, but no higher, as of August 16, 2010 for pes planus of the left foot is granted, subject to the applicable regulatory provisions governing payment of monetary awards. ____________________________________________ D.C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs