Citation Nr: 1337652 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 04-38 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral pes planus with metatarsalgia and bone spurs. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and G. S. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1994. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the claim was subsequently transferred to the RO in Phoenix, Arizona. The Veteran and G. S. testified at a hearing before the undersigned Veterans Law Judge in September 2008. A transcript of the hearing is of record. In pertinent part, an April 2009 Board decision denied the Veteran's claim for an increased rating for her bilateral pes planus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court vacated that part of the April 2009 Board decision that denied the Veteran's claim for an increased rating for bilateral pes planus and remanded the case to the Board for readjudication consistent with a March 2010 Joint Motion for Remand (JMR). In a June 2010 decision, the Board remanded the claim for an increased rating for bilateral pes planus pursuant to the actions as outlined in the March 2010 JMR. In an October 2011 decision, the Board denied the claim for an increased rating for bilateral pes planus. The Veteran again appealed the Board's decision to the Court. In May 2012, the Court vacated that part of the Board decision that denied the claim for an increased rating for bilateral pes planus and remanded the case to the Board for readjudication consistent with a May 2012 JMR. Pursuant to the May 2012 JMR, and upon review of the claims file, the Board remanded the claim on appeal for additional development in October 2012 and July 2013. Overall, the Board finds there was substantial compliance with its prior remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Board's prior remands addressed the Veteran's claim for service connection for diabetes mellitus. This claim was denied in the Board's July 2013 decision and the Veteran has not appealed. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to May 14, 2009, the Veteran's service-connected pes planus was not manifested by marked deformity, severe pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, claw foot, malunion of tarsal or metatarsal bones, or any moderately severe foot injury. 2. Since May 14, 2009, the Veteran's service-connected pes planus is manifested by marked deformity (abduction) and severe pain on manipulation and use accentuated. CONCLUSIONS OF LAW 1. Prior to May 14, 2009, the criteria for the assignment of a disability rating in excess of 10 percent for service-connected bilateral pes planus with metatarsalgia and bone spurs have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2013). 2. As of May 14, 2009, the criteria for the assignment of a disability rating of 30 percent, but no higher, for service-connected bilateral pes planus with metatarsalgia and bone spurs have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has 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 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in March 2006 and May 2006 letters. As for the duty to assist, the Veteran's VA treatment records and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In June 2010 and September 2010, pursuant to the Court's March 2010 JMR, the RO contacted the Social Security Administration (SSA). In February 2011, SSA informed the RO that they had no records for the Veteran. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with her file. Pursuant to the Court's May 2012 JMR, the case was remanded to obtain a new VA examination with upright foot images. A VA foot examination was conducted in March 2013; however, the VA examiner failed to specifically indicate whether upright images of the Veteran's feet were taken. Therefore, a July 2013 remand was necessary to obtain an addendum opinion from the VA examiner on the issue of upright foot images. An addendum opinion was provided in August 2013. Taken together, the Veteran's January 2007 and March 2013 VA examinations, along with the August 2013 VA addendum opinion are sufficient as the VA examiners considered the entire record, noted the history of the disability, addressed relevant evidence and provided medical information necessary to reach a decision. 38 C.F.R. § 3.159(c)(4); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating The Veteran contends that she is entitled to a rating in excess of 10 percent for her service-connected bilateral pes planus with metatarsalgia and status post bone spurs due to foot pain that causes her to be unable to walk or stand for long periods. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that staged ratings for the Veteran's pes planus condition are warranted. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). In determining whether a claimed benefit is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an April 1995 rating decision, service connection was granted and an initial 10 percent rating assigned for bilateral pes planus with metatarsalgia and bone spurs, effective October 25, 1994. In January 2006, the Veteran filed her current claim for an increase rating. In the July 2006 rating action on appeal, the disability rating was continued at 10 percent disabling. Historically, the Veteran's foot disability has been evaluated under Diagnostic Codes (DC) 5284-5276 and DC 5276-5284. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The first hyphenated code may be read to indicate that foot injury is the service-connected disorder, and it is rated as if the residual condition is flat foot under DC 5276. The second code may be read to indicate that the service-connected disorder is flat feet, and it is rated as if the residual condition is a foot injury under DC 5284. The Board will consider all appropriate diagnostic codes. Under DC 5276, a 10 percent rating is assigned for moderate bilateral or unilateral flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, DC 5276. A 20 percent (unilateral) or 30 percent (bilateral) evaluation is assigned for severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. A 30 percent (unilateral) or 50 percent (bilateral) evaluation is assigned for pronounced flatfoot with 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. Id. Under DC 5284, foot injuries that are moderate warrant a 10 percent disability rating. Moderately severe foot injuries warrant a 20 percent rating. Severe foot injuries warrant a 30 percent rating. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 Prior to May 14, 2009, the evidence of record shows that the Veteran's pes planus does not warrant assignment of a rating in excess of 10 percent. However, as of May 14, 2009, the evidence supports a finding that the Veteran's pes planus disability should be rated as 30 percent disabling. Id. At the outset, the Board notes that it has considered all applicable criteria for rating the feet in order to assign a higher rating. There is no evidence of claw foot (DC 5278), or malunion of or nonunion of the tarsal or metatarsal bones (DC 5283). See 38 C.F.R. § 4.71a. Additionally, the Veteran is already receiving the maximum provided under the other diagnostic codes that deal with feet. See 38 C.F.R. § 4.71a, DCs 5277, 5279, 5280, 5281, and 5282. Thus, the only remaining consideration is a possible higher rating for bilateral pes planus under DC 5276 or 5284. On VA examination in January 2007, the Veteran reported constant bilateral heel pains. She could not wear closed toe shoes and if she walked a mile her heel pain got worse. At work, she sat a lot, elevated her feet and was given a special chair because of her feet. Examination of the feet showed severe bilateral pes planus. There were no calluses or ulcerations. Achilles tendon alignment was normal bilaterally. Standing and walking were normal. Active range of motion did not produce any weakness, fatigue, or incoordination. There was no additional loss of range of motion with repetitive movement. Bilateral heel examinations were negative for tenderness on palpation. No hallux valgus was present. Weight bearing was normal. The diagnosis was mild pes planus with metatarsalgia and bone spurs on both heels. X-rays showed a tiny right plantar calcaneal spur, otherwise the examination was unremarkable. A June 2007 treatment note found the Veteran's bilateral lower extremities had no clubbing, cyanosis or edema. See Estrella Women's Health Center, General Exam, June 2007. Additional treatment records from September 2007 to December 2007 noted the Veteran's feet were normal. See McDowell West Internal Medicine, Findings on Examination, September, October and December 2007. During the Veteran's September 2008 hearing, she testified that she cannot wear regular shoes but instead has to wear clogs or flip flops. See Veteran's Hearing Testimony, pg. 14, September 2008. The Veteran stated that her feet are "very uncomfortable," that she cannot stand or walk for long periods of time, and sometimes when her feet are hurting, she has to walk with a cane. Id. During a May 14, 2009 consultation for back pain, the Veteran reported her underlying history of persistent burning pain in the bottom of both feet. See Dr. G. A., Arizona Pain Consultants, Consultation Note, May 2009. Overall, the Veteran rated her foot pain as an 8 out of 10. Id. On physical examination, the Veteran had an antalgic gait favoring the right side with no cyanosis, clubbing or edema of her extremities. Id. The doctor's assessment was bilateral foot pain, possibly due to diabetic neuropathy of a mixed type. Id. On May 14, 2009, the Veteran had an initial consultation with a podiatric surgeon, Dr. B. D. N. See Dr. B. D. N., Initial Visit, May 2009. The Veteran complained of bilateral flat feet pain and being unable to wear shoes that are enclosed because they are uncomfortable. She also reported cramping in a cast after walking approximately 20 feet, which happens anytime she attempts to walk. Physical examination showed no edema and 5/5 muscle strength in all major muscle quadrants. Dr. B. D. N. did not identify any areas of point tenderness. However, there was a finding of reduced medial longitudinal arch tight with calcaneovalgus and forefoot abduction bilaterally. The doctor's impression was claudication and diabetes with signs of peripheral neuropathy and pain. Claudication is defined as limping or lameness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 369 (32nd. ed. 2012). In April 2010, the Veteran returned to Dr. B. D. N., with complaints of bilateral pain in both heels that is worse with standing and walking activities. See Dr. B. D. N., Progress Note, April 2010. Examination revealed pain upon palpation to the plantar calcaneal tubercle. Edema was noted to the insertion of the plantar fascia. Muscle strength remained 5/5. X-rays showed no evidence of fracture or stress fracture dislocation but there was a decreased calcaneal inclination angle. The relevant assessment was plantar fasciitis and pes planus. Dr. B. D. N. recommended that the Veteran continue with anti-inflammatory medication and injected corticosteroids into her plantar fascia bilaterally. Pursuant to the Board remand, the Veteran was provided a VA foot examination in March 2013. The VA examiner diagnosed with the Veteran with bilateral pes planus since 1994. Upon physical examination, the Veteran has bilateral pain on the use of her feet with bilateral pain accentuated on use. However, the Veteran has no pain on manipulation of the foot, no indication of swelling on use, no characteristic calluses and no extreme tenderness of plantar surface. The Veteran's symptoms are relieved by arch supports. The Veteran has decreased longitudinal arch height on weight-bearing bilaterally. The VA examiner found no objective evidence of marked deformity of either foot, no marked pronation of the foot, no weight-bearing line fall over or medial to the great toe, no inward bowing of the Achilles' tendon, no lower extremity deformity other than pes planus, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran did not use any assistive devices to aid in locomotion. Overall, the VA examiner found the examination of both feet to be unremarkable and opined that it was less likely than not that the Veteran's pes planus had worsened. An August 2013 addendum medical opinion stated that upright and weight bearing bilateral X-rays of the feet were taken in March 2013. The findings from these X-rays were mild pes planus and plantar calcaneal spur with no evidence of significant abnormalities. Based on the above, an evaluation higher than 10 percent is not warranted prior to May 14, 2009 under DC 5276. As an initial matter, the findings of the January 2007 VA examiner are of limited probative value. Specifically, the VA examiner stated that examination of the Veteran's feet showed "severe bilateral pes planus," but then diagnosed the Veteran with "mild pes planus." These contradictory findings were not explained by the VA examiner and therefore, his findings are of limited probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an adequate medical examination "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions" and must "provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted."); see also Nieves-Rodriguez, 22 Vet. App. at 300-01 (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). During this timeframe, the evidence reflects that the Veteran complained of constant bilateral heel pain, could not wear closed toed shoes, was given a special chair at work due to her foot condition, could not stand or walk for long periods of time, and sometimes had to walk with a cane when her feet were hurting. However, upon physical examination there were no calluses or ulcerations, Achilles tendon alignment was normal bilaterally, standing and walking were normal, active range of motion did not produce any weakness, fatigue, or incoordination and there was no additional loss of range of motion with repetitive movement. Bilateral heel examinations were negative for tenderness on palpation and weight bearing was normal. The Veteran's bilateral lower extremities had no clubbing, cyanosis or edema and her feet were found to be normal. Thus, the criteria for a rating higher than 10 percent under DC 5276 are not met. The Board also finds that an increased rating is not warranted under DC 5284. Disability such as that described in the record does not amount to disability that warrants a characterization of "moderately severe." That term is not specifically defined by the regulation, but a review of other rating criteria relating to disabilities closely associated with the same anatomical area suggests that this term contemplates disability greater than that experienced by the Veteran. For example, a 20 percent rating (which is the rating assignable under DC 5284 for "moderately severe" foot injury) may also be assigned in cases where all toes of a foot tend to dorsiflexion, with limitation of dorsiflexion, shortened plantar fascia, and marked tenderness under the metatarsal heads (DC 5278); or where the one or two toes have been amputated with removal of the metatarsal head (DC 5171). Thus, prior to May 14, 2009, the evidence of record is against a finding that the Veteran had any symptoms which warrant an evaluation in excess of 10 percent for bilateral pes planus. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Based upon the evidence in this case, the exact onset of the Veteran's worsened bilateral pes planus cannot be determined with any certainty. The earliest that that it can be factually ascertained that she met the criteria for a disability rating of 30 percent, but no higher, is May 14, 2009, the date she was examined by Drs. G. A. and B. D. N. On May 14, 2009, the Veteran reported bilateral foot pain and rated her foot pain as an 8 out of 10. She wore a cast on her foot and stated that she had cramping in her cast anytime she walks approximately 20 feet. On physical examination, the Veteran had an antalgic gait favoring the right side. Additionally, the Veteran had a reduced medial longitudinal arch tight with calcaneovalgus and forefoot abduction bilaterally. Dr. B. D. N. opined the Veteran was suffering from limping or lameness. Based on the evidence of record, from May 14, 2009, a 30 percent disability rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (abduction) and severe pain on use accentuated. See 38 C.F.R. § 4.71a, DC 5276. A higher evaluation of 50 percent for pronounced bilateral pes planus is not warranted as there is no indication the Veteran suffers from marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. Indeed, the March 2013 VA examination found that the Veteran's foot symptoms are relieved by arch supports of built up shoes or orthotics. In reaching the conclusion that prior to May 14, 2009, a rating of 10 percent is appropriate and as of May 14, 2009, a rating of 30 percent is warranted, the Board finds that such ratings adequately portray the functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of her feet. See DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5276. In finding that higher ratings are not warranted, the Board considered the functional impairment, including limitation on daily activities and limitation of motion shown during this appeal. Although the evidence showed that prior to May 14, 2009, the Veteran received a special chair at work due to her foot condition and required the occasional use of a cane for walking, the actual functional impairment, pain, and weakness shown by the pertinent medical findings discussed above indicates that the now assigned 10 percent rating is warranted. While the evidence as of May 14, 2009, shows the Veteran had a cast on her foot, cramping when walking more than 20 feet, and a diagnosis of limping or lameness, the actual functional impairment, pain, and weakness shown by the pertinent medical findings discussed above indicates that the now assigned 30 percent rating is appropriate. In other words, there is no suggestion in the record that the Veteran's functional impairments are tantamount to criteria required for a rating in excess of 10 percent prior to May 14, 2009, and in excess of 30 percent, as of May 14, 2009. Extraschedular Consideration Prior to May 14, 2009, the Veteran's bilateral foot disability was manifest by pes planus with moderate pain on use of the feet. As of May 14, 2009, the Veteran's foot disability has been characterized by objective evidence of a marked deformity (abduction) and severe pain on use. Additionally, as of April 2010, there are indications of bilateral edema in the feet. These factors are contemplated by the rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Total Rating for Compensation Based on Individual Unemployability Total rating for compensation based on individual unemployability (TDIU), is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran's March 2013 VA pes planus examination specifically finds that the Veteran's foot condition does not impact her ability to work. There is no evidence in the record of unemployability and the Veteran has not claimed to be unemployable due to her service-connected disabilities. Hence, further consideration of TDIU is not warranted. ORDER Prior to May 14, 2009, a rating in excess of 10 percent for service-connected bilateral pes planus with metatarsalgia and bone spurs is denied. As of May 14, 2009, a rating of 30 percent, but no higher, for service-connected bilateral pes planus with metatarsalgia and bone spurs is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs