Citation Nr: 1415916 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 11-04 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to restoration of a 30 percent disability rating for bilateral pes planus with plantar fasciitis, to include the propriety of the reduction for the period from October 1, 2009. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to April 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). FINDINGS OF FACT 1. The RO complied with the procedural requirements for reducing the Veteran's disability rating for bilateral pes planus with plantar fasciitis from October 1, 2009, to include providing proper notification of the proposal to reduce the disability rating, and giving the Veteran the opportunity to submit evidence. 2. The evidence of record did not disclose material improvement in service-connected bilateral pes planus with plantar fasciitis warranting reduction of a 30 percent disability rating from October 1, 2009. CONCLUSIONS OF LAW 1. The reduction of the 30 percent rating for bilateral pes planus with plantar fasciitis from October 1, 2009 was procedurally proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.1-4.14, 4.118 (2013). 2. For the period from October 1, 2009, the criteria for a restoration of a 30 percent disability rating for bilateral pes planus with plantar fasciitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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), 3.326(a) (2013). The Veteran has appealed the October 1, 2009 reduction of a 30 percent rating for service-connected bilateral pes planus with plantar fasciitis. Because the Board is restoring a 30 percent rating for bilateral pes planus with plantar fasciitis for the entire rating period on appeal, the Board finds that this decision constitutes a full grant of the benefits sought on appeal, and no further discussion regarding VCAA notice or assistance duties is required. Propriety of the Reduction In May 2009, the RO proposed decreasing the Veteran's disability rating for bilateral pes planus with plantar fasciitis from 30 percent to 0 percent. The Veteran was notified of the RO's intent to reduce the 30 percent evaluation in a May 2009 letter and proposed rating decision. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The regulations provide that the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested or the veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2) (2013). The Board finds that the RO complied with the procedural requirements for reducing the Veteran's disability rating for bilateral pes planus with plantar fasciitis, to include providing proper notification of the proposal to reduce the disability rating and giving the Veteran the opportunity to submit evidence. The Veteran was notified of the RO's intent to reduce the 30 percent evaluation for bilateral pes planus with plantar fasciitis in May 2009. The Veteran was afforded an opportunity to have a predetermination hearing and was given at least 60 days in which to present additional evidence. 38 C.F.R. § 3.105(e), (i). Final action to reduce the 30 percent evaluation to 0 percent was taken pursuant to 38 C.F.R. § 3.105(e) and the Veteran was informed of this decision in July 2009. The reduction was made effective beginning October 1, 2009. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his rights, and was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). While the Veteran has indicated that he was deployed to Iraq as a civilian employee from August 2008 to September 2009, the record shows that the Veteran did not submit a change of address to VA and had not otherwise informed VA of his whereabouts. It is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts in order to facilitate the conducting of a medical inquiry. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Because the May 2009 proposed rating reduction and July 2009 rating decision were sent, according to procedure, to the Veteran's address of record at that time and copies of these letters were sent to his authorized representative, the Board finds that the reduction of a 30 percent rating for was procedurally proper. The Veteran has been afforded additional opportunity to submit evidence and argument in support of his appeal, and an updated VA rating examination was conducted in January 2011. As such, the Board will address the propriety of the reduction on its merits. Restoration of 30 Percent Rating The Veteran contends that restoration of a 30 percent rating is warranted for bilateral pes planus with plantar fasciitis. The record shows the Veteran's 30 percent disability rating for bilateral pes planus with plantar fasciitis was in effect less than five years at the time of the rating reduction; therefore, the provisions of 38 C.F.R. § 3.344(a), which set forth regulatory requirements for evaluations in effect for five or more years, are not for application. See 38 C.F.R. § 3.344(c) (2013). Because the Veteran's disability rating was in effect for less than five years, the Board finds that the provisions of 38 C.F.R. § 3.344(c) are for application. 38 C.F.R. § 3.344(c) provides that, for disabilities which have not become stabilized and are likely to improve, reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. The Board is required to ascertain in any rating reduction case, based upon review of the entire record, whether the evidence reflects an actual change in the disability, whether the examination reports reflecting such change are based upon thorough examination, and whether any improvement actually reflects improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82. However, post-reduction evidence may not be used to justify an improper reduction. Bilateral pes planus with plantar fasciitis was rated under Diagnostic Code 5276. Diagnostic Code 5276 provides ratings for acquired flat foot (pes planus). A 0 percent rating is assigned for mild flatfoot, with symptoms relieved by built-up shoe or arch supports. Moderate acquired flat foot, with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet, either bilateral or unilateral, is rated as 10 percent disabling. A 30 percent evaluation is assigned for severe bilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendon Achilles on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds that the evidence of record did not disclose material improvement in service-connected bilateral pes planus with plantar fasciitis warranting the reduction of the 30 percent rating from October 1, 2009. The evidence of record shows that an initial 30 percent rating for bilateral pes planus with plantar fasciitis was assigned based on findings from a March 2008 VA examination, which assessed the Veteran with pes planus bilaterally with a mild pronation deformity and bilateral plantar fasciitis. The March 2008 VA examination shows that pes planus resulted in flare-ups of foot pain reported with prolonged standing and walking. The Veteran had mild tenderness over the plantar fascia with stretching. He used custom-orthotics and ankle wrap and had mild pronation of the feet with standing and walking, but had no callosities present on the feet. In an April 2008 rating decision, the RO found that pes planus with plantar fasciitis approximated the criteria for a 30 percent rating under Diagnostic Code 5276 based on evidence of a pronation deformity, pain on manipulation and use, and indication of swelling of use. See 38 C.F.R. § 4.71a. At the time of the July 2009 rating reduction, there was no new evidence of record evidencing an actual change in the Veteran's disability. Instead, the record shows that the Veteran failed to report to an April 2009 VA examination, and the reduction was initiated based on the Veteran's failure to appear to the scheduled examination. In a January 2010 correspondence, the Veteran indicated that he failed to appear to the VA examination because he had been deployed to Iraq in conjunction with his civilian occupation. The Veteran requested that the examination be rescheduled, and he was afforded a new VA examination in January 2011. The Board finds that there was no material change in the severity of the Veteran's disability to warrant the reduction of the 30 percent rating from October 1, 2009. The Board finds that a January 2011 VA examination does not reflect an actual change in the severity in the Veteran's disability. In that regard, a January 2011 VA examination continues to show that pes planus with plantar fasciitis results in flare-ups of pain reported with prolonged standing and walking, and the Veteran continued to have a minimal pronation deformity present in the bilateral feet with no callosities evident. These findings are substantially the same as findings from the previous March 2008 VA examination upon which the Veteran's 30 percent rating was based. While the Veteran did not have objective evidence of pain or tenderness with active or passive motion, or on passive hyperextension of the toes on examination in January 2011, the Veteran reported in a February 2011 substantive appeal that pain was worse when he was working, because he was required to stand on his feet for several hours a day and reiterated that his foot disability was exacerbated with prolonged walking. The Board finds that February 2011 lay statement is credible and is consistent with statements made during both the January 2011 and prior March 2008 VA examination. The Veteran's description of the severity of his bilateral foot disability and his functional limitations have not changed since October 1, 2009. Moreover, the Board finds that the January 2011 VA examination did not adequately discuss the Veteran's occupational and functional limitations due to service-connected pes planus with plantar fasciitis, and fails to reflect actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420. For these reasons, the Board finds that a January 2011 VA examination does not reflect actual change in the severity of the Veteran's disability and did not disclose material improvement in service-connected bilateral pes planus with plantar fasciitis. Resolving doubt in favor of the Veteran, from October 1, 2009, the Board finds that the restoration of a 30 percent rating for bilateral pes planus with plantar fasciitis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER For the period from October 1, 2009, restoration of a 30 percent evaluation for bilateral pes planus with plantar fasciitis is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs