Citation Nr: 1418454 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 12-01 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral pes planus. 2. Entitlement to an initial compensable evaluation for right ankle strain. 3. Entitlement to an initial compensable evaluation for left ankle strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from February 2008 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that in addition to the paper claims file there is a Virtual VA electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran's service-connected bilateral pes planus was not shown to have been manifested by moderate symptoms such as a weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis or pain on manipulation and use of the feet. 2. The Veteran's service-connected right ankle strain was not shown to have been manifested by moderate limitation of motion. 3. The Veteran's service-connected left ankle strain was not shown to have been manifested by moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral pes planus were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.71a, Diagnostic Code 5276 (2013). 2. The criteria for an initial compensable evaluation for right ankle strain were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.71a, Diagnostic Code 5271 (2013). 3. The criteria for an initial compensable evaluation for left ankle strain were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The Board finds that VA's duty to notify the Veteran has been met. The record reflects that prior to the initial adjudication of the Veteran's claims the Veteran was mailed a letter in October 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist the Veteran has also been met. Service treatment records, and identified VA treatment records and private treatment records have been associated with the claims file. Neither the Veteran nor his representative has identified any outstanding medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). A VA general examination and a VA feet examination were provided in October 2008 and December 2009, respectively. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, as discussed below, the VA examination reports are adequate. The Board notes that the Veteran's last examination is over four years old. The Veteran's representative, in its April 2014 appellate brief presentation, argued that the Veteran should be afforded a new VA examination. The Board notes that 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 Veteran's foot and ankle disabilities since the December 2009 examination. The Veteran has not argued the contrary. The Veteran has not asserted that his disabilities have gotten worse. Instead, he has argued in his January 2012 substantive appeal, June 2010 notice of disagreement, and October 2009 claim that the assigned rating "does not accurately reflect the severity of his present disability." Thus, VA's duty to assist with respect to obtaining a VA opinion has been met. See 38 C.F.R. § 3.159(c)(4) (2013). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria The Veteran asserts that he warrants initial compensable evaluations for his bilateral pes planus and bilateral ankle strains. He contends that he continues to experience limited motion and pain in the use of his feet and ankles that is not accurately reflected by the assigned evaluations. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating the 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervations, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2013). Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2013). Painful, unstable, or misaligned joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. The Veteran is in receipt of noncompensable evaluations for his bilateral pes planus under Diagnostic Code 5276. Under this code a noncompensable evaluation is warranted for pes planus with mild symptoms such as symptoms that are relieved by a built-up shoe or arch support. A 10 percent evaluation is warranted for moderate symptoms such as the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, either bilateral or unilateral. A 20 percent evaluation is warranted for unilateral severe symptoms, and a 30 percent evaluation is warranted for bilateral severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. The maximum schedular evaluations of 30 for unilateral and 50 percent for bilateral pes planus are warranted for pronounced symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or symptoms not improved by orthopedic shoes or appliances. The Veteran is also in receipt of noncompensable evaluations for his right and left ankle strain under Diagnostic Code 5271. Under this code a 10 percent evaluation is warranted for moderate limitation of motion of the ankle. The maximum schedular evaluation of 20 percent is warranted for marked limitation of motion of the ankle. The Board notes that the Veteran may also warrant a separate disability evaluation under an alternative Diagnostic Code, including for foot injuries, other, under Diagnostic Code 5284. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013). Under this code, a 10 percent evaluation is warranted for moderate symptoms, a 20 percent evaluation is warranted for moderately severe symptoms, and the maximum schedular evaluation of 30 percent is warranted for severe symptoms. A note to Diagnostic Code 5284 also provides that an evaluation of 40 percent is warranted with the actual loss of use of the foot. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran is in receipt of noncompensable evaluations for his bilateral pes planus and bilateral ankle strains. Based on a review of the record, the Board finds that compensable evaluations are not warranted. VA treatment notes show that the Veteran was afforded x-rays in September 2009, which showed a normal right foot and bilateral ankles. In an October 2009 podiatry consultation, the Veteran complained of pain across his left and right ankles, with numbness and tingling that worsened by the end of the day. Upon physical examination, the examiner noted that the Veteran was not flatfooted. The examiner recommended orthotic supports and cork bottom sandals. An August 2010 treatment record notes that the Veteran complained of chronic "off and on" bilateral ankle and foot pains. Upon physical examination the examiner diagnosed bilateral ankle and foot arthropathy and recommended plaque reduction neutralization nonsteroidal anti-inflammatory drug/Tylenol and discussed the importance of proper fitting footwear. In a March 2011 podiatry clinic visit, the Veteran reported a pulling pain sensation that was aggravated with walking or running on hard surfaces. The examiner noted no discomfort to palpation of the posterior calcaneal tuberocity without color, no pain at the muscle belly, myotendonous junction, tendon sheath, calcaneal attachment, and no discomfort to palpation of the tarsal tunnel, lateral heel or arch. The examiner noted that the Veteran had subjective pain in the Achilles tendon area that was not substantiated with physical examination. A July 2008 private treatment record shows the Veteran complained of pain in his arches. He identified the medial aspect of his arches on the plantar surface as the area of chief complaint. After physical examination and x-rays the examiner diagnosed posterior tibial tendonitis with faulty biomechanics. The examiner recommended shoe gear changes and activity modifications as the Veteran's medial longitudinal arch was in part contributing to his symptoms. In October 2008, the Veteran was afforded a VA general medical examination. The Veteran reported anterior bilateral ankle pain due to congenital flat feet. He reported pain on the anterior of the ankle along the lateral and medial malleolus with the right ankle greater than the left ankle. He reported flare-ups of pain once a week of 3/10 that lasted as long as he was walking or in an exacerbating condition. He also noted pain of 1/10 in his bilateral feet in the center of the arch. Upon physical examination, the examiner noted that the Veteran's range of motion was full in both ankles and nontender to palpation. The examiner also noted no painful motion, endema, weakness, instability, or tenderness in either foot, and no evidence of abnormal weightbearing. The examiner noted no calluses and no abnormal shoe wear. The examiner confirmed that the Veteran has congenital pes planus. The examiner noted no Achilles tendon misalignment, and no pain with manipulation of the plantar fascia. In December 2009, the Veteran was afforded a VA feet examination. The Veteran reported aching foot pain throughout the arches, weakness and fatigue with walking, standing and difficulty bearing weight barefoot. He reported that the shoe inserts have not helped. He reported flare-ups of foot pain several times a week that were 5/10 in pain. He denied locking or instability of the ankles. He reported aching pain on the scale of 5/10 in the ankles daily caused by standing or prolonged walking. Upon physical examination, the examiner noted no gross deformity, swelling, tenderness or pain associated with range of motion with gravity or against resistance in either ankle. The examiner noted normal inversion and eversion with good strength in the bilateral ankles. The examiner noted no gross deformity, swelling or tenderness in either foot. The examiner noted possibly mild pes planus in the right foot and mild early pes planus but no tenderness noted on palpation of the plantar surface of the left foot. The examiner noted no pain on motion, edema, weakness, instability or tenderness in either foot, and no function limitations with standing or walking. The examiner noted no evidence of callus formation. The Achilles alignment with weight-bearing was normal on both feet. The examiner noted no swelling or tenderness on the plantar surface of either foot and normal joint function in all digits of both feet. In sum, there is no objective medical evidence that supports a compensable evaluation for either bilateral pes planus or bilateral ankle sprain. The October 2008 and December 2009 VA examinations reported a normal weight-bearing line, no inward bowing of the tendo achillis, and no pain on manipulation and use of the feet. While the Veteran has reported symptoms of pain on use, as reported in a March 2011 podiatry note, the Veteran's subjective reports were not substantiated by physical examination. The Veteran has also reported that orthopedic shoes or appliances have not helped his symptoms. However, again, there is no objective evidence to substantiate his assertions. Thus, a 10 percent evaluation for bilateral pes planus is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered the DeLuca factors described in detail above. The Board has determined that any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, or weakness, does not warrant a higher evaluation. As noted, the Veteran has reported pain and flare-ups of pain, however, those symptoms are considered under Diagnostic Code 5276 and the Board has determined that do not rise to the level required for a higher evaluation. Further, as noted above, there is no objective evidence to support the Veteran's contentions. The Board has also considered an additional rating under alternative rating codes including Diagnostic Code 5284 for other foot injuries. The medical evidence indicates that the Veteran has "plantar fasciitis" or foot pain. As noted above, foot pain was considered in evaluating the Veteran under Diagnostic Code 5276. In light of the prohibition on pyramiding, see 38 C.F.R. § 4.14 (2013), the Board finds that an additional rating under an alternative rating code, including Diagnostic Code 5284 is not warranted. Further, there is evidence, as noted above, that the observed pathology from x-rays does not support the Veteran's complaints of foot pain. In regards to the Veteran's claim for an increased initial evaluation for bilateral ankle sprain, the Veteran has reported limited range of motion. However, as noted above, the October 2008 and December 2009 VA examination reports note that the Veteran's range of motion in his bilateral ankles was normal. Thus, a 10 percent evaluation is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. The Veteran asserts that the assigned evaluation does not encompass the totality of his symptoms. However, as noted above, the Board has found that a higher rating is not warranted. While the Veteran asserts that he has constant pain on use, treatment records have repeatedly shown no objective evidence to substantiate the Veteran's claim. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial compensable evaluation for service-connected bilateral pes planus is denied. Entitlement to an initial compensable evaluation for service-connected right ankle strain is denied. Entitlement to an initial compensable evaluation for service-connected left ankle strain is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs