Citation Nr: 1336888 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-14 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating in excess of 30 percent for bilateral pes planovalgus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from June 1987 to June 2007. The matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Wichita, Kansas. In June 2011, the Veteran testified before the undersigned via videoconference. A copy of the transcript has been associated with the claims file. In a November 2011 decision the Board granted a 30 percent evaluation for the Veteran's bilateral pes planovalgus. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which in May 2013 vacated the Board's decision and remanded the matter for readjudication. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected bilateral pes planovalgus is manifested by objective evidence of marked pronation, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, extreme tenderness of plantar surfaces of the feet, and not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a 50 percent evaluation for bilateral pes planovalgus have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Veteran's claim for a higher rating for bilateral pes planovalgus arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's statements and post-service private and VA treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any other outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in February 2007, June 2009, and December 2010. The Board finds that the VA examination reports are adequate because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's bilateral pes planovalgus in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the August 2007 rating decision, the Veteran's bilateral pes planovalgus was evaluated under 38 C.F.R. § 4.71a , Diagnostic Code 5276 (2013). Under the General Rating Formula for the foot, a 10 percent rating is assigned for unilateral or bilateral disability that is moderate, characterized by weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for pronounced bilateral acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and not improved by orthopedic shoes or appliances. Background The Veteran was afforded a QTC examination in February 2007. The Veteran reported that he had suffered from pain located at the bottoms of both feet for eight years. The Veteran reported that the pain occurred constantly and the pain was aching, sharp, and sticking in nature. The Veteran reported that the pain could be elicited by physical activity. He reported that it was relieved by rest and Motrin and Aleve. The examiner noted that the functional impairment was difficulty walking, running, or standing for prolonged periods of time due to pain, stiffness, and fatigue on the bottoms of both feet that traveled through the feet bilaterally. Physical examination of both feet revealed tenderness. Both feet showed forefoot and midfoot misalignment of a slight degree, which could be corrected by manipulation. There was no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation or the whole feet everted on either foot. Palpation of the plantar surfaces of both feet revealed moderate tenderness. Both Achilles tendons revealed good alignment. The examiner noted that the Veteran did not have any limitation with standing and walking and that he required arch supports. The examiner noted that the symptoms and pain were not relieved by the previously noted corrective shoe wear. The examiner diagnosed bilateral pes planovalgus deformity of both feet and noted the subjective factors were pain, stiffness, and fatigue on both feet. He also noted the objective factors were tenderness of the foot with midfoot malalignment. VA treatment records dated October 2007 to August 2009 reveal that the Veteran was treated for bilateral foot pain. A March 2008 record shows that the Veteran was wearing right and left over the counter Spenco foot orthotics and was issued new Spenco orthotics. A May 2008 treatment record shows the Veteran continued to complain of foot pain. He reported that the shoe inserts had not helped with his foot pain and that the pain had worsened at the proximal and inferior toes. X-rays showed weight-bearing views of the feet to be within normal limits. On physical examination, the examiner noted there was bilateral tenderness. Palpation of the plantar surface revealed no tenderness in either the right foot or the left foot. The alignment of the Achilles tendon was normal on both the right and left during weight bearing and non-weight bearing. The examiner noted that there was no pes planus, pes cavus, hammertoes, metatarsalgia, hallux valgus, or hallux rigidus present. The examiner noted that the Veteran had limitations with standing and walking as he was able to stand 15-30 minutes. The examiner also noted that the Veteran required arch supports and noted that the Veteran's symptoms and pain were not relieved by the corrective show wear. The Veteran also submitted a June 2008 physician's statement that stated the Veteran's bilateral pes planovalgus was pronounced with marked pronation, extreme tenderness of plantar surfaces of both feet, and not improved by orthopedic shoes or appliances. The physican crossed out marked inward displacement and severe spasms of the tendoachillis on manipulation. The physician also noted that the Veteran's bilateral pes planovalgus was severe with objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. In an April 2009 statement, the Veteran reported that the VA had issued corrective appliances that did not work. The Veteran was afforded another QTC examination in June 2009. The Veteran reported symptoms related to his bilateral hallux valgus. On physical examination, the examiner noted there was bilateral tenderness. Palpation of the plantar surface revealed no tenderness in either foot. The alignment of the Achilles tendon was normal on both feet during weight bearing and non-weight bearing. The examiner noted that there was no pes planus, pes cavus, hammertoes, metatarsalgia, hallux valgus, or hallux rigidus present. The examiner noted that the Veteran had limitations with standing and walking as he was able to stand 15-30 minutes. The examiner also noted that the Veteran required arch supports and noted that the Veteran's symptoms and pain were not relieved by the corrective shoe wear. The Veteran was afforded another QTC examination in December 2010. The Veteran reported that he shaved his foot calluses. The Veteran reported that he still had foot pain with walking. He also reported that in the mornings his feet feel stiff and then the pain eases. He reported that during the day the pain returns mid afternoon and then eases again. He reported in the evening he props up his feet and they feel better. He reported that when he and his wife go to the store he sits and waits for her because he cannot do any walking. He reported that when he stands on his feet for long periods of time, he gets a tingling sensation that is throbbing. The Veteran denied burning and itching of the feet. The Veteran reported that he used orthotic inserts and reported that the efficacy was poor. On physical examination, the examiner noted that there was no evidence of painful motion, swelling, instability, or weakness in either foot. The examiner did find evidence of tenderness and abnormal weight-bearing in both feet. There was objective evidence of tenderness on the ball of the foot, especially behind the second and third toe of both feet. There was evidence of callosities and an unusual shoe wear pattern in both feet. The shoe wear pattern on both feet was on the lateral side of the heel and mid-shoe. When standing the forefoot was abducted and the hind foot was valgus. X-rays revealed no bone trauma or destruction with vascular calcifications in both feet. The examiner diagnosed pes planovalgus bilaterally. The examiner noted that there were significant occupational effects due to pain and increased foot pain when walking. The examiner noted that the Veteran was employed fulltime as a program writer and analyst. The Veteran reported that he had been with his current employer for two to five years and that he had lost no time from work during the prior 12 months. The examiner also noted that the Veteran retired from the military in June 2007 but was still employed at the Fort Leavenworth, Kansas. At a June 2011 hearing before the Board the Veteran reported that since he retired his feet are continually sore and he cannot stand on them for a long period of time. He reported that after a couple of hours he has to take his shoes off to relieve the pressure. The Veteran also reported that he has rough calluses on the bottom of his feet that he has to continually shave off. The Veteran reported that he takes Tylenol and Motrin for the pain. The Veteran reported that on a daily basis he has stiffness, swelling, and pain like stepping on needles. The Veteran reported he relieves the pain in his feet by taking his shoes off and propping them up. The Veteran also reported that his pain progresses throughout the day. Analysis In light of the Court Memorandum decision, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran is entitled to a higher 50 percent rating for his bilateral pes planovalgus disability for the entire appeal period. The Board finds that VA treatment records, the QTC examinations, and the Veteran's Board hearing testimony demonstrate that the Veteran's bilateral pes planovalgus disability manifests as marked pronation, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Furthermore, in June 2008 the Veteran's treating physician found the Veteran's bilateral pes planovalgus was pronounced with marked pronation, extreme tenderness of plantar surfaces of both feet, and not improved by orthopedic shoes or appliances. Thus, the Board finds that the Veteran's disability picture is better described under the regulations pertaining to a 50 percent disability, rather than those which pertain to a 30 percent disability, and thus finds in the Veteran's favor that a higher rating is warranted in this case for the entire appeal period. The Board also notes that this is the highest rating available for bilateral pes planovalgus. Also, as previously found by the Board, in considering other potentially applicable diagnostic codes, the Board finds that the Veteran has not been diagnosed with service-related pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or a separate and distinct other foot injury. The Veteran has also not been diagnosed with service-related weak foot, Morton's disease, hallux rigidus, or hammer toe. Thus, the remaining diagnostic codes pertaining to the feet cannot serve as a basis for a separate rating in this case. 38 C.F.R. §§ 4.14, 4.71a, DC 5277, 5278, 5279, 5281, 5282, 5283, 5284. The Veteran has already been awarded separate service connection for hallux valgus of the right and left feet. 38 C.F.R. § 4.71a, DC 5280. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, the Veteran has testified that he retired for reasons other than his service-connected foot disability. Furthermore, while on December 2010 VA examination his service-connected disability was determined to limit his ability to function in an occupational setting, it was not determined to prevent employment. Moreover, insofar as the Veteran's bilateral pes planovalgus interferes with his employability, the Board finds that such is contemplated by his assigned evaluation under the rating schedule. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The December 2010 VA examiner also indicated that the Veteran reported that he was employed as a program writer/analyst. Therefore, the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral pes planovalgus with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the rating schedule. The Veteran has not described any exceptional or unusual features of his bilateral foot disability. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that since July 1, 2007, when service connection became effective, the Veteran's bilateral pes planovalgus has warranted a 50 percent rating, but no higher. The benefit-of-the-doubt rule has been applied in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 50 percent evaluation for bilateral pes planovalgus is granted subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs