Citation Nr: 1342013 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-03 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Adam G. Werner, Attorney ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from November 1976 to January 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that assigned a 10 percent disability rating for bilateral pes planus, after effectuating the grant of service connection for the same. The Veteran appealed the assigned rating. FINDING OF FACT The Veteran's bilateral pes planus is manifested by no more than moderate symptoms, including pain on use of the feet, without characteristic callosities, marked deformity, accentuated pain on use or manipulation, or swelling. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While 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 his 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The claim at issue, however, arises from the initial rating the RO assigned after effectuating the Board's grant of service connection for this disability. In this circumstance, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and lower Veterans Court (CAVC) have held that, where the underlying claim for service connection has been granted and there is disagreement regarding a "downstream" issue, such as the initial rating, the claim as it arose in its initial context has been substantiated, indeed proven, so the purpose of § 5103(a) notice served, and there is no need to provide additional VCAA notice concerning the "downstream" rating issue. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case (SOC) if the disagreement concerning the "downstream" issue is not resolved. And since the RO provided the Veteran this required SOC in January 2012 citing the statutes and regulations governing the assignment of disability ratings (including, as here, an initial disability rating) and discussing the reasons and bases for not assigning a higher initial rating, he has received all required notice concerning his claim. There is no pleading or allegation that he has not received all required notice concerning his claim. And as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing a VCAA notice error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Thus, absent this pleading or showing, the Board finds that the duty to notify him concerning his claim has been satisfied. The Veteran was provided a VA examination for his flat feet in November 2008 and July 2011. In both instances, the examiner obtained a thorough history, including reviewing the claims file, and provided detailed a physical examination. The evidence provided in the examinations is sufficient to address the relevant rating criteria. The examinations are adequate for determining the disability rating for the Veteran's service-connected bilateral pes planus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board acknowledges that that the examination of the Veteran's pes planus occurred over two years ago. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the pes planus since the July 2011 VA examination. The Veteran has not argued the contrary. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims. VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the Claim Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2013). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's pes planus is rated under Diagnostic Code 5276. He is in receipt of a 10 percent rating. A 10 percent evaluation is assigned for unilateral or bilateral moderate acquired flat feet with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent evaluation is assigned for bilateral severe acquired flat feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Finally, a 50 percent evaluation is assigned for bilateral pronounced 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 no improvement by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). The Veteran was examined for his pes planus in November 2008. He complained of numbness and pain in both feet, and stated that sometimes he had pain in his legs. The Veteran assessed the pain to be at a 1 or 2 out of 10, and stated that prolonged standing and walking increased it. He related that his feet swelled if he engaged in too many activities, and that repetitive motion increased the pain. He said that he saw a doctor occasionally. He stated that occasional use of orthotics relieved some of the pain, and that the activities of his daily living were limited and his work was affected by his pes planus. Upon physical examination, the examiner stated that the Veteran's right foot revealed moderate flatfoot, that the toes were straight, that there was no swelling, and that there were no deformities. The Veteran did not complain of any pain on palpation, there were no calluses, and the heel and the Achilles tendon were neutral. The ankle pulse was palpable, and sensation was normal. Examination of the left foot revealed moderate flatfoot. The toes were straight, and the skin was healthy and without any edema. There was no tenderness, the heel and the Achilles tendon were neutral, and the ankle pulse was palpable. The Veteran's shoes revealed a normal wear pattern. X-rays of both feet showed moderate pes planus, and no evidence of arthritis or any other deformity. The examiner stated that the only pertinent symptom of the Veteran's pes planus was pain, and that there was no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance on repetitive use of his feet. There was no impairment of daily occupational activities due to the Veteran's pes planus. The Veteran underwent a second VA examination of the feet in July 2011. He again reported pain and swelling in both feet, mostly on walking and standing. The intensity of pain was 1 or 2 out of 10. The Veteran stated that he had a pair of custom-made arch supports, which seemed to relieve the pain. He reported that repetitive motion of his feet increased the pain, but that there was no history of flare-ups. The Veteran also related that he experienced numbness of both feet and pain over the middle parts of the feet. He was not taking any treatment. Upon physical examination, the Veteran's shoe wear in both shoes was normal. He did not complain of any pain, and he used orthotics in his shoes. Examination of the feet revealed that there was moderate degree of flat feet. On the right side, there was no swelling, the skin was healthy, and there were no calluses. The Achilles tendon was neutral. There was no change in the Achilles tendon position on tiptoeing or full weight bearing. The Veteran complained of tenderness across the plantar fascia. There was no pain on manipulation of the forefoot and hindfoot. There was no evidence of any valgus or varus deformity, and the heel was neutral. The left foot examination revealed that there was moderate flat foot. There was no swelling of deformity. The toes were straight. There were no calluses. The heel and the Achilles tendon were neutral, and there was no change in position of the Achilles tendon on weight bearing or tiptoeing. There was no complaint of pain during the manipulation of the forefoot and the hindfoot. The Veteran complained of pain on palpation in the plantar fascia. X-rays of both feet revealed a mild degree of pes planus. Private medical records from 2006 show that the Veteran reported pain in both feet, pain in both heels, lack of arches in both feet, and difficulty finding comfortable shoes. The doctor noted abnormal medial longitudinal arches; fallen arches; excessive pronation of both feet; tenderness on palpitation of both feet; tenderness on palpation of the tarsometatarsal joints; tenderness on palpation of the metatarsal; tenderness on palpation of the medial midfoot and the lateral midfoot; and tenderness on palpation of the plantar aspect of the foot. Feet did not demonstrate full range of motion and showed no swelling. There was no erythema of the feet. A November 2006 letter from a treating physician stated that while the Veteran utilized custom foot orthoses, he still experienced pain with prolonged weight bearing. Private medical records from 2009 show that the Veteran complained of heel and arch pain, which occurred daily; that the pain was moderate and restricted weight-bearing activity; that the pain was alleviated by rest and orthotics; and that prolonged activity increased the pain. The Veteran reported wearing orthotics and taking over-the-counter painkillers for the pain. He denied numbness, redness, or tingling. The Veteran stated that he limped and that his feet were tender. Upon medical examination, the doctor noted tenderness; flat feet; subtalar joint pronation; hypermobile medial column; midtarsal joint sag, and limited range of motion. All testable reflexes in the Veteran's feet were normal. Upon review of all of the medical and lay evidence of record, the Board concludes that the evidence does not establish that the Veteran's service-connected bilateral pes planus warrants more than a 10 percent disability rating. There is no objective evidence of marked deformity, accentuated pain on manipulation and use, or indication of swelling on use. The VA examiners and the Veteran's private physicians specifically noted that examination of the Veteran did not demonstrate objective evidence of marked deformity, any pain on manipulation, objective evidence of swelling or characteristic callosities. The Veteran's foot pain improved upon wearing orthotics. His shoes showed normal wear patters. X-rays revealed mild to moderate pes planus, and no evidence of arthritis or any other deformity. The Veteran's heels and Achilles tendons were always neutral, his toes were straight, and there was no tenderness. The criteria for a 30 percent rating have simply not been met. Moreover, there is no evidence of pronounced symptoms of pes planus, including 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, to warrant an even higher rating of 50 percent. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. However, as range of motion is not factor in addressing the severity of pes planus, the criteria set forth in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) are not applicable to the right foot disability. The claims file includes statements from the Veteran, reiterating his complaints of foot pain and assertions that foot pain affected his employment. These complaints are consistent with those reported to the VA examiners and his private providers. Indeed, the Veteran is competent to report symptoms of his foot disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is also deemed credible in his reports of symptoms and their effect on his activities. He is not, however, competent to identify the specific level of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected foot disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be competent and probative evidence of record, and therefore they are afforded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has reviewed the remaining diagnostic codes relating to foot disabilities and finds that they are not applicable. The Veteran has been specifically service connected for pes planus. There is no evidence that he has been diagnosed with Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, or malunion or nonunion of the tarsal/metatarsal bones. There is likewise no basis for consideration under Diagnostic Code 5284 because the Veteran did not suffer an injury to his foot. As such, an increased rating cannot be assigned under Diagnostic Codes 5277-5284. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching the above-stated conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that 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 would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual symptomatology presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability rating specifically contemplate his moderate symptoms, including his complaints of pain on excessive use of the feet and the findings of abnormal medial longitudinal arches. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. The Veteran was unemployed at the time of his July 2011 examination. However, he has made no allegation that his pes planus played a role in his unemployment. The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus is denied. _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).