Citation Nr: 1337213 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-16 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 10 percent for service connected bilateral plantar fasciitis and bilateral pes planus. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1982 to January 2006. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board acknowledges the claims file includes additional medical evidence submitted directly to the RO that was not first considered by the RO in the most recent statement of the case from March 2010. See 38 C.F.R. § 19.37(a). However, in this case the Board finds the only potentially relevant new evidence to the issue at hand is the April 2010 treatment record from a VA podiatrist. The information contained in the April 2010 treatment record, however, is nearly duplicative of the information from the June 2009 treatment record from the VA podiatrist considered by the RO in the most recent statement of the case. Because the newly submitted evidence reflects the Veteran's bilateral foot condition remained the same it therefore does not include any new evidence in support of an increased rating. Accordingly the Board finds such new evidence is not relevant and there is not prejudice to the Veteran by the Board's continued adjudication of this appeal. FINDING OF FACT The evidence does not establish the Veteran had objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities on either foot at any point during the period on appeal. CONCLUSION OF LAW Criteria for a rating in excess of 10 percent for bilateral plantar fasciitis with pes planus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.71a, Diagnostic Code (DC) 5279-5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an increased rating for his bilateral foot condition of plantar fasciitis with pes planus. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. 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 Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed his current claim in December 2008. The Veteran is asserting that he suffers from pes planus, hallux valgus, callosities as a result of pes planus, pain on manipulation, and pronounced pronation on both feet. Therefore he asserted his condition should be rated at least 30 percent and with the bilateral factor should be rated 50 percent. The Board notes the Veteran is service-connected for several conditions of his feet, including peripheral neuropathy and hallux valgus bilaterally. However, only the condition of bilateral plantar fasciitis with pes planus is currently on appeal before the Board. The RO and the Board have considered the Veteran's statements regarding his hallux valgus on his May 2009 written notice of disagreement. However in the March 2010 statement of the case the RO clearly stated the issue of bilateral hallux valgus was not on appeal because the RO interpreted the Veteran "mentioned these conditions to prove that you have deformity of the feet." The RO also stated if the Veteran wished to appeal the issue of hallux valgus to inform their office in writing. However, to date the Veteran has not indicated he wished to appeal the issue of hallux valgus. Therefore the Board finds the Veteran was provided with clear notice that the issue of hallux valgus was not included in his appeal, and did not submit any indication of an intention to appeal this issue after being provided the opportunity by the RO. Accordingly, the Board finds this issue is not currently on appeal before the Board and only the issue of bilateral plantar fasciitis with pes planus will be addressed at this time. The Veteran's condition is currently rated 10 percent under diagnostic code 5279-5276. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case the Veteran's hyphenated rating code indicates his condition is rated for metatarsalgia and flatfoot. Under Diagnostic Code 5279 a maximum 10 percent rating is assigned for metatarsalgia, whether unilateral or bilateral. Accordingly the Veteran already receives the maximum schedular rating available under this diagnostic code. Therefore his claim for increased rating will be evaluated under Diagnostic Code 5276. Under Diagnostic Code 5276 a 10 percent rating is assigned for moderate flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendon achillis, and pain on manipulation and use of the feet, whether unilateral or bilateral. A higher 20 percent rating is warranted if there is unilateral severe 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 30 percent rating is warranted if these symptoms are bilateral. 38 C.F.R. § 4.71a. As a lay person the Veteran is competent to report what comes to him through his senses, such as experiencing pain in his feet. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medication opinion such as measuring the degree of severity of his bilateral foot condition. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore the Board has considered the Veteran's lay statements regarding his current bilateral foot condition in conjunction with the medical evidence of record. The Veteran filed his current claim in December 2008. Accordingly all evidence of record has been reviewed and considered. As will be discussed, the Board finds the evidence does not establish the Veteran's bilateral foot condition warranted a rating in excess of 10 percent at any point during the period on appeal. In June 2008 the Veteran sought treatment from a VA podiatrist for painful ingrown toenails. The Board notes that the Veteran is not service-connected for ingrown toenails and therefore this condition will not be considered in his claim for increased rating. However during this appointment the physician examined the Veteran's feet and opined there was no gross musculoskeletal deformities of his feet, providing evidence against the Veteran's claim. In December 2008 the Veteran returned to the VA podiatry department. The physician indicated the Veteran had dorsalis pedis and posterior tibial pulse bilaterally, as well as warm skin, decreased pedal hair, and skin discoloration of the tina pedis. Multiple hammar toes were also noted. Custom orthotics were ordered for the Veteran's plantar fascia pain. The Veteran was provided with a VA examination in February 2009. The Veteran reported experiencing pain in both feet at severity level of 7 out of 10 on the right and 8 out of 10 on the left. Mild weakness and stiffness were noted bilaterally, as well as fatigability and lack of endurance. No swelling, heat, or redness was noted. The Veteran took pain medication to control his pain. The Veteran also reported experiencing flare-ups "at least 20 times in 6 months" during which the pain increased to severity level of 10 out of 10. The Veteran reported these flare-ups were precipitated by prolonged standing or walking more than two miles and relieved by rest and elevation of the feet. The Veteran used bilateral arch supports of his own, but had not been prescribed any arch supports by a physician. The Veteran reported feeling better with arch supports. The Veteran had a history of three surgeries for bilateral ingrown toenails, in 1984, 1985, and 1988. Upon physical examination the examiner noted the Veteran walked with a normal gait and was able to bear full weight. The examiner noted no callosities. Medial, lateral, and transverse plantar arches were well preserved both during weight bearing and non-weight bearing situations. Achilles tendon alignment was also normal on weight bearing and non-weight bearing. Mild tenderness was noted over plantar surface and around the heel of both feet. Mild hallux valgus deformities were noted with hammertoes. Range of motion was normal and there were no neurological deficits bilaterally. No abnormal wearing pattern was noted on either shoe. Bilateral x-rays of the foot revealed degenerative joint disease, bilateral hallux valgus, and bilateral hammertoes of toes two through five. The examiner opined the Veteran's bilateral foot condition was "mild" and had "minimal effect" on his usual occupation and daily activities, providing more evidence against this claim. The Board finds the report of this examination does not establish the Veteran had severe flatfoot in either foot. No evidence of marked deformity or swelling on use was noted and the examiner specifically opined the Veteran's foot condition was mild. Accordingly the Board finds the evidence does not establish the Veteran had a severe condition in either foot and therefore a higher rating was not warranted. That same month the Veteran also returned for a follow-up with the VA podiatry department. The Veteran reported his plantar fasciitis pain in his left foot was 6 out of 10 and he received relief from his custom-made orthotics. The physician noted abnormalities, hammertoe deformity, and pes planus bilaterally. The physician modified the Veteran's custom made orthotics and advised the Veteran to return in three months. The Veteran returned to the VA in June 2009. He reported receiving relief from his custom-made orthotics, but his feet still hurt. Examination revealed reduced medial arch bilaterally and 8 degrees of right forefoot valgus and 7 degrees on the left. Hammertoe deformity was also noted bilaterally. The physician opined the Veteran had bilateral pes planus, pronated bilateral foot, and arthritic changes to dorsum bilateral midfoot. His custom orthotics were adjusted. The Board acknowledges this record suggests the Veteran's bilateral foot condition had worsened, for example bilateral pronation was noted for the first time during the period on appeal. However, the Board finds the Veteran's bilateral foot condition had not increased in severity to such a level as would merit an increased rating. Although pronation was noted, there is no objective evidence indicating the Veteran had "marked deformity" due to his pronation. Simply stated, while the condition may have become worse during the appeal period, it is important for the Veteran to understand that the evidence clearly indicates that the disability does not meet the next higher level of disability compensation at this time. Furthermore there was no indication of accentuated pain on manipulation, indication of swelling on use, or notation of characteristic callosities. Accordingly, the Board finds the medical evidence does not establish the Veteran's condition met any of the criteria warranting a rating in excess of 10 percent at this time. In August 2009 the Veteran sought treatment from a private physician for left foot pain for the past two days. The Veteran described the pain woke him at night and he had not injured his foot recently. The Veteran was diagnosed with gout and was given pain medication. The Board notes the Veteran is not currently service connected for gout and accordingly the symptoms from this condition will not be considered in the Veteran's current appeal. In September 2009 the Veteran sought treatment for toe pain due to gout. The physician assistant noted mild swelling in the Veteran's left big toe and mild tenderness on palpation of the toe. However no tenderness on palpation was noted of the lateral midfoot. X-ray revealed "tiny" left big toe first metatarsal erosion, which the physician opined may be associated with early gout arthropathy. In February 2010 the Veteran reported experiencing gout attacks in the first metatarsal joints of both feet, two to three times in the past six to eight months. The Board finds the medical evidence opines these symptoms were due to gout and are therefore not part of the Veteran's current appeal for an increased rating for his bilateral plantar fasciitis with pes planus. In April 2010 a VA podiatrist examined the Veteran and noted reduced medial arch bilaterally upon weight bearing. The physician measured 8 degrees of right forefoot valgus positions and 7 degrees on the left. The physician also noted "severe tightening" of the Achilles tendon bilaterally upon dorsiflexion. The physician opined the Veteran had hammertoe deformity, bilateral pes planus, pronated bilateral foot, and arthritic changes to dorsum bilateral midfoot. His custom orthotics were modified. The Board finds this record suggests the Veteran's bilateral plantar fasciitis and pes planus was of generally the same severity as was noted in June 2009. As such, the Board finds an increased rating was also not warranted at this time. The Board acknowledges reduced medial arch and tightening of the Achilles tendon were noted. However, the Board finds these symptoms do not constitute "objective evidence of marked deformity." Additionally no accentuated pain on manipulation, swelling on use, or characteristic callosities were noted. As such, the Board finds an increased rating was not warranted. Based on the foregoing the Board finds the evidence does not establish the Veteran's bilateral plantar fasciitis with pes planus condition warranted a rating in excess of 10 percent at any point during the period on appeal. The Board has considered the Veteran's lay statements asserting he has callosities as a result of pes planus and pronounced pronation on both feet. However, the Board finds these lay statements are not supported by the medical evidence of record. In this regard, no medical professional noted the Veteran had callosities characteristic of pes planus or pronounced or marked pronation of either feet at any point during the period on appeal. Nor was indication of swelling on use noted in either foot. Accordingly the Board finds the characteristics of a higher rating were not reflected at any point during the period on appeal and the Veteran's claim for an increased rating is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's bilateral foot condition that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain and fatigability. These symptoms were specifically contemplated in the schedular ratings that were assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his foot condition. Moreover, the Veteran already receives a combined evaluation of 100 percent for all his service connected disability. Thus, the Board finds that Rice is inapplicable. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for an increased rating is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs