Citation Nr: 1341702 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 07-18 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1978 to August 1979. He served from June 1980 to June 1982 under honorable conditions. The Veteran's period of service from June 1982 to June 1984 was dishonorable for VA purposes and is a bar to the receipt of VA benefits during that period. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2007, the Veteran requested a hearing before the Board for the increased rating claim; however, in June 2012, before a hearing was scheduled, the Veteran withdrew his request. See 38 C.F.R. § 20.704(d) (2013). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In a September 2009 rating decision, the RO granted entitlement to a total disability rating based a TDIU from March 10, 2009. As such, the Board will not address the issue of a TDIU. The issue on appeal was previously remanded by the Board in August 2013 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination for the Veteran's bilateral foot disability. This was accomplished, and the claim was readjudicated in a November 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected bilateral pes planus is manifested by extreme tenderness of plantar surfaces of the feet without improvement by orthopedic shoes and inserts. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating, but no higher, for bilateral pes planus have been met for the entire increased rating period on appeal. 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 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran a letter in December 2005 that informed him of the requirements needed to establish increased rating claim on appeal. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. Service treatment records and VA treatment records dated from 2005 to 2013 are associated with the claims folder. The Veteran was also afforded VA foot examinations in January 2006, July 2007, October 2007, March 2009, and September 2013. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted, to include obtaining X-rays. The VA examiners reviewed the Veteran's medical history and recorded pertinent examination findings. The Board notes that the VA examination reports are adequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, neither the Veteran nor his representative has voiced any challenge to the adequacy of the Veteran's VA examinations. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Increased Rating for Bilateral Pes Planus Disability Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West Supp. 2012). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2013); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the reasons discussed in further detail below, and upon review of all the evidence of record, the Board finds that staged ratings are not appropriate in this case. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2013). When all the evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran filed a claim for an increased rating in excess of 30 percent for the service-connected pes planus disability in September 2005. The Veteran and his representative maintain that the service-connected pes planus warrants a higher rating. Under the rating criteria for the foot, the Veteran is currently assigned a 30 percent disability rating for his service-connected bilateral pes planus. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Severe bilateral acquired flatfoot warrants a 30 percent rating when there is evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. Pronounced bilateral acquired flatfoot warrants a 50 percent rating when there is marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and symptoms are not improved by orthopedic shoes or appliances. Id. Upon review of all the evidence of record, both lay and medical, the Board finds that, for the entire increased rating period on appeal, the evidence of record is at least in equipoise as to whether a 50 percent rating is warranted for the Veteran's bilateral pes planus. The Board further finds that the Veteran's symptoms have remained relatively consistent throughout the entire rating period on appeal. In a January 2006 VA foot examination, the Veteran reported bilateral foot pain and further stated that he had difficulty with prolonged standing and walking. Physical examination of the feet revealed painful motion and tenderness. Upon review of x-rays, the VA examiner noted that bilateral pes planus was not present. The Veteran was instead diagnosed with hallux valgus and hammertoes. The Board notes that service connection for bilateral hallux valgus and hammertoes, to include as secondary to the service-connected bilateral pes planus was denied by the Board in an August 2013 decision. In a following July 2007 VA examination report, the Veteran reported pain in both feet which occurred constantly. A physical examination of the feet revealed painful motion and tenderness. Edema, disturbed circulation, weakness, and atrophy were not found. The VA examiner stated that pes planus was present, but did not find marked inward displacement of the tendo Achillis. Palpation of the feet surface revealed moderate tenderness. The Veteran was afforded another foot examination in October 2007, where again he reported constant foot pain. The Veteran described the pain as burning, aching, sharp, and cramping in nature. He reported increased pain with standing or walking. Upon physical examination and a review of x-ray findings, the VA examiner noted bilateral foot tenderness with no painful motion, edema, disturbed circulation, weakness, and atrophy. Gait was within normal limits. The VA examiner further noted that pes planus was present. It was noted that the Veteran required orthopedic shoes and that symptoms were relieved by such. In a March 2009 VA foot examination for service connection for bilateral hallux valgus and hammertoes, to include as secondary to the service-connected bilateral pes planus (denied by the Board in an August 2013 decision), the VA examiner reviewed radiographs and conducted a physical examination. The VA examiner found noted that the Veteran walked with a limp. The VA examiner also opined that his findings were not consistent with severe pes planus. Instead, the examiner found that the Veteran had severe hallux valgus and hammertoes, unrelated to the pes planus. Pursuant to the Board's August 2013 remand, the Veteran was afforded another VA foot examination in September 2013. During the evaluation, the Veteran stated that because his flat feet are so painful, he scrunched his toes to help with the pain, which lead to hammer toes and caused calluses. The Veteran also reported that when he walks, he has to stop after two blocks because of foot pain. The Veteran also stated that his foot pain affects his mobility, he has to walk with a cane, and wears diabetic shoes. The Veteran also reported that he has to order new shoes every six months and change his insoles every two weeks. Daily pain was rated as a six to an eight out of ten. According to the Veteran, weather affects the pain level and increased activity causes him to have to lay with his feet up the next day. The Veteran has to have his family complete errands due to the pain and he has hired a neighbor to mow the lawn. Upon physical examination, the VA examiner found that bilateral weight bearing x-rays did not confirm a diagnosis of pes planus; however, it was noted that the Veteran had bilateral pain on use of feet, pain on manipulation, extreme tenderness of plantar surface, and with symptoms not relieved by arch supports or orthopedic shoes. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran continues to have diagnosed bilateral pes planus during the appeal period. The Veteran has been afforded five VA foot examinations to assess his bilateral foot disability. The Board finds that two of the VA examiners (July 2007 and October 2007) found that pes planus was present. Moreover, a review of VA treatment records demonstrates continued treatment and diagnoses for pes planus. See January 2007, March 2007, May 2007, July 2007, and March 2008 VA podiatry notes. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran continues to have pes planus during the appeal period. 38 C.F.R. § 3.102. The Board further finds that the evidence is also in equipoise as to whether a 50 percent rating for pes planus is warranted under Diagnostic Code 5276. Although the evidence does not demonstrate that the Veteran's pes planus symptoms manifest all symptoms contemplated under Diagnostic Code 5276, the Board finds that the evidence shows that he experiences extreme tenderness of plantar surfaces of the feet without improvement by orthopedic shoes and inserts. See September 2013 VA examination report. These symptoms are specifically contemplated in the 50 percent disability rating under Diagnostic Code 5276. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire increased rating period on appeal, the Veteran's pes planus more nearly approximates a 50 percent disability rating under Diagnostic Code 5276. The Board has considered whether the Veteran is entitled to a higher rating under another Diagnostic Code; however, a 50 percent evaluation is the highest schedular rating available under Diagnostic Code 5276, regardless of the level of disability, and there are no other diagnostic codes related to the foot that provides for a higher disability rating. As such, the Board finds that, for the entire increased rating period on appeal, a 50 percent rating, but no higher, is warranted for the service-connected pes planus disability. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, 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 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's bilateral pes planus is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provides for disability ratings based on pain, tenderness, and any improvement by orthopedic shoes or appliances. The schedular rating criteria specifically provides for ratings based on all levels of pain, deformity, pronation, inward displacement, and spasms. In other words, the Veteran does not have any symptoms from the service-connected pes planus disability that are unusual or are different from those contemplated by the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. " Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, comparing the Veteran's pes planus and the symptomatology listed in the Rating Schedule, the degree of disability throughout the entire period under consideration is contemplated by the Rating Schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the Veteran's bilateral pes planus disability, the Board finds that the criteria for referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 50 percent rating, but no higher, for bilateral pes planus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs