Citation Nr: 1336757 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-06 922A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent from July 9, 2007 to August 13, 2013, and in excess of 30 percent from August 14, 2013, for bilateral pes planus and residuals of a left 5th metatarsal fracture. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to April 1988 and from November 1989 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the Veteran's physical VA claims file and has been reviewed. This case was before the Board in March 2013 when it was remanded to the RO, through the Appeals Management Center (AMC) in Washington, D.C. for additional development. Following completion of the requested actions, the AMC, by a September 2013 rating action, awarded an increased evaluation of 30 percent, effective from August 14, 2013, for the Veteran's service-connected foot disability. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or irrelevant to this appeal. FINDING OF FACT Since July 9, 2007, service-connected bilateral pes planus and residuals of a left 5th metatarsal fracture have been manifested by marked abduction, weight-bearing line over or medial to the great toes, and accentuated pain and swelling on use, without objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo Achillis on manipulation, resulting in no more than severe bilateral flatfoot. CONCLUSION OF LAW Since July 9, 2007, the criteria for an initial 30 percent evaluation (but no higher) for bilateral pes planus and residuals of a left 5th metatarsal fracture have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, however, the statutory scheme contemplates that, once a decision awarding service connection, a disability rating, and an effective date have been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006). Here, the Veteran is exercising his right to appeal the initial staged ratings assigned. A February 2009 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating foot disabilities, and further notice on the downstream issue of an initial increased rating, including of what the evidence showed, and why the current rating was assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process. Notably, he does not allege that notice in this case was less than adequate or that he has been prejudiced by any notice deficiency. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Discussion of the Veteran's September 2012 Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to an increased initial rating for bilateral pes planus and residuals of a left 5th metatarsal fracture was identified as the issue on appeal. Information was elicited from the Veteran concerning the nature and severity of his foot disability, to include any functional impairment that he experienced. In particular, and a result of his testimony that his foot disability had worsened since he was last examined, the matter was Remanded to afford the Veteran a new VA examination. Specifically, the Board remanded the Veteran's increased rating claim in March 2013 for additional action, including obtaining outstanding treatment records and affording him a VA examination to ascertain the current nature and severity of his service-connected foot disability. In response to a request for outstanding treatment records, the Veteran submitted duplicate treatment records from 1997 and 1998 in 2012. As will be discussed in more detail below, the Veteran was afforded a VA examination in August 2013. The report of this examination reflects that the Veteran's records were reviewed; the report contains the requested information. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. A 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 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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 disuse. 38 C.F.R. § 4.45. 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. The provisions of Diagnostic Code 5276 pertain to pes planus. Under that code, a 10 percent rating is warranted for moderate bilateral or unilateral pes planus manifested by weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of feet; a 20 percent rating is warranted for severe unilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent evaluation is also provided for pronounced unilateral pes planus; manifested by 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; and a 50 percent rating is warranted for pronounced bilateral pes planus; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5284 (for other foot injuries), a 10 percent rating is warranted for moderate foot injuries, a 20 percent rating is warranted for moderately severe foot injuries, and a 30 percent rating is warranted for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.6. Amputation of the great toe is rated under the criteria of Diagnostic Code 5171, under which a rating of 10 percent is awarded for amputation without metatarsal removal. A rating of 30 percent is awarded for amputation with removal of the metatarsal head. Loss of use of a foot (for special monthly compensation purposes) is shown when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee. 38 C.F.R. § 4.63. Other diagnostic codes providing for a rating in excess of 10 percent for foot disability-5278, 5283-require pathology not shown here, i.e., claw foot, or malunion or nonunion of tarsal or metatarsal bones. 38 C.F.R. § 4.71a. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's claims file, 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. STRs show that the Veteran was seen with complaints of foot pain and fractured left fifth metatarsal. Assessments included pes planus. Following service, the Veteran submitted a claim seeking service connection for a bilateral foot disability in July 2007. An October 2007 QTC examination report notes the Veteran's complaints of foot pain occurring one time per day, each time lasting for two hour. The pain was described as aching, sharp and cramping in nature, and 10/10 in severity. It was elicited by physical activity and relieved by rest and the medication (Motrin 800 mg). The Veteran reported that pain began after standing for approximately one hour; this was followed by cramping in the calf muscles. At rest he has stiffness, but no pain, weakness, swelling and fatigue. While standing or walking he has pain and swelling, but no weakness, stiffness and fatigue. On examination, the right foot revealed no tenderness, painful motion, weakness, edema, atrophy, or disturbed circulation. There was active motion in the metatarsophalangeal joint of the right great toe. Examination of the left foot reveals no tenderness, painful motion, weakness, edema, atrophy, or disturbed circulation. There was active motion in the metatarsophalangeal joint of the left great toe. Gait is within normal limits. Pes planus was present. On the right, there was a moderate degree of valgus present, which could not be corrected by manipulation. The right foot showed no forefoot/midfoot malalignment. On the right, there was deformity of medial tilting of the upper border of the talus and deformity of the forepart of the foot abducted and the whole foot everted. There was no tenderness to palpation of the right foot plantar surface. The right Achilles tendon revealed good alignment. On the left, there was a moderate degree of valgus present, which could not be corrected by manipulation. The left foot showed no forefoot/midfoot malalignment. On the left, there was deformity of medial tilting of the upper border of the talus and deformity of the forepart of the foot abducted and the whole foot everted. There was no tenderness to palpation of the left foot plantar surface. The left Achilles tendon revealed good alignment. No pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus were found on examination of the feet. The Veteran did not have any limitation with standing and walking. He required arch supports, but not orthopedic shoes, corrective shoes, foot supports, build-up of the shoes, or shoe inserts. X-ray studies revealed bilateral pes planus; no other significant abnormalities were found. By rating decision in March 2008 the Veteran was awarded a 10 percent rating from July 9, 2007, for bilateral pes planus and residuals of a left 5th metatarsal fracture. In a June 2008 Notice of Disagreement, the Veteran challenged the adequacy of that examination report. He strongly disagreed with the accuracy of the history and complaints for his bilateral foot disability set forth in the October 2007 examination report. He took issue with the VA examination finding that there was no evidence of tenderness and painful motion. He stated that he endures pain and tenderness daily, especially in his right foot, which is caused by just normal walking and standing throughout the day. He also reported that moments of just sitting or getting out of bed cause the muscles and tendons in his feet to contract and stiffen, which causes pain and discomfort when he gets up to walk. He stated that he has been provided with a foot brace to keep his foot and calf muscles stretched out during periods of inactivity. The Veteran submitted a photograph of the brace. He also indicated that he has developed plantar fasciitis and planovalgus deformity of both feet. The Veteran reiterated these statements in March 2009. During a September 2012 hearing before the Board, the Veteran stated that his feet are painful every morning when he wakes up. His job requires him to be on his feet and walk, which causes him stiffness, pain and tenderness. He denied numbness and limitation of motion. The Veteran's wife testified that nothing alleviates her husband's foot pain. She reported that the Veteran could walk only 20 to 25 minutes before he needed to sit down. In a September 2012 statement, the Veteran's employer reported that in April 2012 the Veteran voiced complaints about his foot pain. Specifically, the Veteran advised that he was unable to participate as a K-9 trainer because the physical demands of the job were causing him a lot of foot pain. In an April 2013 statement, the Veteran stated that he was no longer receiving medical treatment for his service-connected foot disability. He had been advised by his private physicians that they could do nothing for him other than provide pain medication and stretching exercises. He explained that he experienced daily pain, soreness and stiffness in his feet and calves and that no amount of pain medication or stretching exercises could "terminate the effects" of his pes planus. An August 2013 VA examination report notes that the Veteran's claims file was reviewed by the examiner. The Veteran was examined first at 8:30 am, and then brought back at 4:00 pm for another evaluation at the end of his work day. The examiner noted the Veteran's current complaints of aching, pain and stiffness in his feet that gets worse throughout the day, especially after working. He stated that he was no longer taking Motrin for his pain. He used over the counter shoe inserts and had slight improvement in height of arches with insoles. On examination, no swelling was noted, and no pain was elicited with palpation of plantar surfaces. The Veteran stated that his pain was worse after working a 12 hour shift (which he did not work that day). Positive abduction of feet bilaterally was noted, with no significant pronation. Weight-bearing line over or medial to the great toes. X-ray studies showed bilateral MTP joint degenerative changes unrelated to the Veteran's flat foot diagnosis. The examiner stated that the Veteran's foot function was not so diminished that he would be equally well served by amputation and prosthesis. By rating decision in September 2013 the Veteran was awarded an increased 30 percent rating from August 14, 2013. The Veteran is currently in receipt of a 10 percent rating for the period from July 9, 2007, to August 13, 2013, and a 30 percent rating for the period beginning August 14, 2013. After reviewing the above evidence, the Board finds that the Veteran's bilateral pes planus and residuals of a left 5th metatarsal fracture more closely approximates a disability rating of 30 percent (but no higher) for the entire period of the appeal, effective July 9, 2007. The Board finds that, for the entire appeal period, the Veteran's bilateral foot disability is manifested by weight-bearing lines over or medial to the great toes, accentuated pain and swelling on use and marked abduction, without objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, resulting in no more than severe bilateral flatfoot. The Veteran has reported pain rated as 10/10 that prevented prolonged standing and walking. See June 2008 and March 2009 statements, September 2012 statement from the Veteran's employer, and September 2012 hearing testimony. The Veteran is competent to report symptoms of pain and functional limitations. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, given the consistency of his reports throughout the appeal period, the Board finds that his reports of pain and limitation to be credible. While the VA examiners did not observe pain on use at their examinations, the Veteran did report pain at those examinations, and the lack of observable pain on the given day of the examination does not render the Veteran's reports not credible. The Board finds that this symptomatology more closely approximates "severe" rather than "moderate." Therefore, the Board finds that the preponderance of the evidence shows that the degree of the Veteran's foot pain throughout the appeal period has been accentuated and is typical of a 30 percent disability rating. The Board finds that the Veteran's overall disability picture since the date of service connection more closely approximates the symptoms described in a 30 percent rating. However, the relevant symptomatology shown throughout the entirety of the appeal period is no worse than severe. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Specifically, there is simply no indication that the Veteran's bilateral foot disability produces sufficient symptomatology to warrant a pronounced characterization of pes planus at any time during the appeal period. Although the Veteran asserts that orthopedic shoes or appliances do not alleviate his symptomatology, he does not consistently manifest other symptoms appropriate for the higher (50 percent) rating. The fact that his shoe inserts do not relieve his pain symptoms does not by itself support a 50 percent rating. The evidence does not reflect marked pronation, marked inward displacement, severe spasm of the tendo Achillis on manipulation and extreme tenderness of the plantar surfaces of the feet. Moreover, a rating in excess of 30 percent is not warranted based on loss of use of a foot. As described above, the Veteran is still able to use his feet to walk, albeit with significant pain and for a limited period of time. However, given that he retains function in his feet and continues to ambulate, it cannot be said that he would be equally well-served by an amputation stump with a prosthetic foot or feet. Thus, a higher disability ratings is not warranted for loss of use of a foot. See 38 C.F.R. § 4.63. The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology (pain and stiffness) of his bilateral foot disability. Specifically, the rating schedule contemplates a significantly painful disability. This is the main symptom of the Veteran's foot disability. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. The competent evidence does not show that the disability cause marked interference with employment, requires frequent hospitalizations, or otherwise produce impairment unrecognized by the schedule. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected foot disability prevents him from obtaining and maintaining gainful employment-nor has he contended otherwise. Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. ORDER Effective July 9, 2007, an initial 30 percent rating, but no higher, is granted for bilateral pes planus and residuals of a left 5th metatarsal fracture, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs