Citation Nr: 1513687 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 11-25 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus prior to October 21, 2010. 2. Entitlement to an initial evaluation in excess of 30 percent for pes planus from October 21, 2010, to November 19, 2012. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee, which granted service connection for bilateral flat feet (pes planus) from June 15, 2004, and assigned a 10 percent disability evaluation. In a July 2011 rating determination, the RO increased the Veteran's disability evaluation for his bilateral flat feet from 10 to 30 percent and assigned an effective date of October 21, 2010. In an August 2013 rating determination, the RO increased the disability evaluation for bilateral flat feet from 30 to 50 percent and assigned an effective date of November 19, 2012. In July 2014, the Veteran withdrew his request for a Central Office Board hearing in Washington, DC. The Veteran, along with his attorney, has not indicated dissatisfaction with the assignment of the 50 percent disability evaluation from November 19, 2012 and has only requested that the Veteran be assigned a 50 percent disability evaluation throughout the appeal period. Moreover, the Board notes that this is the highest schedular evaluation that is assignable for bilateral pes planus. Given the foregoing, the Board has listed the issues as such on the title page of this decision. FINDINGS OF FACT 1. Prior to October 21, 2010, the Veteran was shown to have pain on manipulation and use accentuated along with tenderness of plantar surfaces of the feet. 2. From October 21, 2010, the Veteran's bilateral pes planus symptoms have been shown to cause excessive pronation, extreme tenderness of plantar surfaces of the feet, and moderately depressed longitudinal arch, with no improvement resulting from orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the rating period from June 15, 2004, to October 21, 2010, the criteria for an initial rating of 30 percent, and no more, for bilateral pes planus have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Code 5276 (2014). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 50 percent evaluation for bilateral pes planus from October 21, 2010, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Code 5276 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). Notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. Such notice also must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The Veteran's appeal for a higher initial rating arises from a disagreement with the initial evaluation following the grant of service connection for bilateral flatfoot; no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also 38 C.F.R. § 3.159(b)(3)(i). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and lay evidence. No additional pertinent evidence has been identified by the claimant. As to the necessity for an examination, the Veteran was afforded VA examinations in October 2009 and September 2011. The Board finds that the VA examinations of record are adequate because they were performed by a medical professional, were based on a thorough examination of the Veteran, documented and considered the Veteran's complaints and symptoms, and include adequate descriptions to properly rate the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that no further examination is necessary regarding the above issue. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments from his attorney and through a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2014). Under Diagnostic Code 5276, pertaining to pes planus, the rating schedule provides a 10 percent rating for moderate bilateral or unilateral pes planus manifested by weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of feet; a 20 percent rating for severe unilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 30 percent rating is provided for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent evaluation is also provided for pronounced unilateral pes planus; manifested by 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. A 50 percent rating is warranted for pronounced bilateral pes planus; 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. The Veteran maintains that the symptomatology associated with his bilateral pes planus has warranted a 50 percent disability evaluation throughout the entire appeal period. Rating Prior To October 21, 2010 A review of the record reveals that in December 2005 private treatment record, it was noted that the Veteran reported jogging a mile or two per week, usually one or two days a week, and that he did a lot of walking during the day. Physical examination performed at that time did not address the feet. A December 2005 X-ray of the left foot revealed that the bony structures were intact, with no acute fracture, dislocation, or other bony abnormality. At the time of a June 2006 private outpatient visit, the Veteran reported having bilateral foot pain. In a July 2006 letter, the Veteran's private physician, E. M., M.D., indicated that the Veteran was a regular patient of his, who was seen in December 2005, at which time he reported having some heel pain and was given shoe inserts, which gave him a little bit of arch support that helped with his flatfeet. In an August 2006 letter, Dr. M. indicated that the Veteran had been a patient at the clinic for many years and had experienced problems with his feet due to pes planus (fallen arches) since he had known him. He stated that in his opinion it was possible that the Veteran's foot problems and related pain could have very well been related to his physical activity while in the Armed Forces. In March 2008 and September 2009 letters, the Veteran's private physician, W. H., DPM, indicated that the Veteran presented with mild osteoarthritic changes midtarsal related to pronation syndrome and calcaneal spurring of both feet with plantar fasciitis symptoms. He stated that these symptoms were somewhat relieved by over-the-counter arch supports; however, he indicated that the Veteran would probably benefit from orthotic supports. In October 2009, the Veteran was afforded a VA examination. The Veteran reported that he had experienced foot pain since May 1960 and that his foot pain was 9 out of 10. He indicated that shoe inserts moderately helped his pain. He stated that he was able to walk about 30 minutes or half a mile. The Veteran reported that he experienced flare ups where his pain jumped to 10 out of 10. He further noted that prolonged standing or walking seemed to aggravate and cause the flare ups. He also indicated that he had start up pain with his first steps in the morning. The Veteran had not had any surgery, physical therapy, injections, or medications for his flatfeet. The Veteran reported that he felt that the pain in his feet limited his ability to do his job as a salesman. Physical examination of the feet revealed no significant swelling, tenderness to palpation at the medial aspect of the calcaneus and along the plantar fascia, and slight valgus alignment of the calcaneus. The Achilles tendons had normal non-weight bearing alignment and slight valgus weight bearing alignment. There was no obvious forefoot or midfoot malalignment, no obvious hallux valgus, and no significant weakness with eversion, inversion, plantar flexion, or dorsiflexion of the feet. There was active motion at the first metatarsal phalangeal joints. The Veteran had normal gait, no calluses or unusual shoe wear, and no skin or vascular changes. X-ray reports of the feet were reviewed and showed no acute fractures. In a May 2010 letter, Dr. T. indicated that the Veteran presented with mild osteoarthritic changes midtarsal, related to pronation syndrome. He also presented with calcaneal spurring of both feet and plantar fasciitis symptoms. These symptoms were somewhat relieved by over-the-counter arch supports. He indicated that the Veteran would probably benefit from orthotic supports. It was noted that the Veteran reported that he still had problems with pain and ambulation at the end of the workday even with orthotic support. The Veteran reported that he had to rest two to three hours after work and/or long term standing due to extreme tenderness of the plantar fascia and midtarsal area of both feet. It was also noted that the Veteran had occasional edema in these areas. Dr. T. indicated that he would consider this an approximate 30 percent disability. VA treatment records in September 2010 show that the Veteran complained of plantar foot pain and reported that he received orthotics from his private physician that provided little relief. Upon examination, the Veteran had a mild antalgic gait, mild flattening of the arches, and normal alignment at the ankle. There was no tenderness upon palpitation and no pain with eversion/inversion of the feet. The Veteran submitted a March 2014 statement from J. C., M.D., who indicated that based upon review of the records and treatment of the Veteran through the years, it was his medical opinion that the Veteran suffered from pronounced pes planus with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achillis on manipulation, which was not improved with orthopedic shoes or appliances. It was his medical opinion that the Veteran's foot condition had remained the same since 2004. To warrant the next higher rating from June 15, 2004, to October 21, 2010, the Veteran's bilateral flatfoot disability would need to have been manifested by objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. In this case, while the evidence of record, lay and medical, shows no marked deformity, no significant swelling, and no calluses or unusual shoe wear of the feet during this rating period, the Veteran has reported having flare-ups of bilateral foot pain, with prolonged standing or walking, reaching a scale of 10/10. Tenderness of the plantar surfaces was also noted during this time frame. Resolving reasonable doubt in favor of the veteran, the Board finds that while not all the criteria were met for the assignment of a 30 percent disability evaluation, the Veteran's symptoms more closely approximated those noted for a 30 percent disability evaluation. Furthermore, Dr. T. in his May 2010 letter, also indicated that he would consider this an approximate 30 percent disability. A 50 percent rating, the next higher evaluation, is not warranted, as the Veteran was not shown to have pronounced bilateral pes planus; marked pronation; extreme tenderness of plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo Achillis on manipulation, or no improvement with use of orthopedic shoes or appliances, during this time frame. In making the above determination, the Board has considered the March 2014 opinion from Dr. C. that the Veteran's foot condition had remained the same since 2004. The Board notes that Dr. C indicated his opinion was based, in part, on his years of treatment of the Veteran. This is unsupported by the record. At the time of filing his original compensation claim for bilateral flatfoot, in December 2001, and in statements to support his June 2004 claim to reopen service connection for bilateral flatfoot, the Veteran reported that he received treatment for his flatfeet from Dr. M. The Veteran's claims file includes records from the Jackson Clinic, where Dr. M. treated the Veteran, from 1992 to 2006. In 2008 and 2009, the record demonstrates the Veteran received treatment for his flatfeet from Dr. H., with copies of these records having been associated with the claims folder. Prior to the submission of a November 2012 Addendum Report, the Veteran and his attorney made no reference to treatment received from Dr. C, and there is no medical evidence of record for any treatment from Dr. C. before November 2012. As the medical records prior to October 21, 2010 demonstrate that private and VA physicians recorded complaints made by the Veteran, conducted physical examinations of the feet, and reviewed X-ray studies of the feet, the Board finds these medical records adequate for VA purposes. The Board further finds that the private and VA medical evidence, prior to October 21, 2010, out-weighs the March 2014 statement provided by Dr. C. For these reasons, the Board finds Dr. C's opinion that the Veteran's flatfoot disability had remained the same since 2004, unsupported by the evidence of record, and assigns this opinion no probative value. In addition, the characterizations by the Veteran's attorney in her March 2014 argument of the findings made at the time of the October 2009 examination by the VA examiner of extreme tenderness of the plantar surfaces, inward displacement, excessive pronation, and no improvement by use of orthetic appliances, are not support by the clinical findings shown in the record. Therefore, the Veteran's appeal for a higher initial rating of 30 percent, and no more, from June 15, 2004, to October 21, 2010, is warranted. Rating from October 21, 2010 At the time of an October 21, 2010 VA outpatient visit, the Veteran reported having painful flat feet. He stated that he was unable to stand for prolonged periods of time without having considerable pain his feet and legs. Previous orthotics offered little relief. Physical examination revealed a moderately depressed medial longitudinal arch with excessive foot pronation. The Veteran walked with an abducted gait and an everted stance. X-ray findings revealed a navicular cuneiform sag, bilaterally, with flattening of the arch. The Veteran was prescribed power step orthotics and walker II shoes. An assessment of moderate pes planovalgus was made. In September 2011, the Veteran underwent another VA foot examination. The Veteran reported having 9/10 pain in his feet with flare-ups to 10/10 on a daily basis with any standing or walking. It was relieved with rest or sitting down. He wore custom made shoes which he stated provided moderate relief. He was only able to walk for 15 minutes before he had to stop because of foot pain. He noted that it had affected his work as a sales person. Examination of the right and left foot revealed mild pes planus deformity on standing, mild flattening of the longitudinal arch and positive talonavicular subluxation. There was positive tenderness to palpation over the talonavicular joint with no significant tenderness to palpation over the remainder of the midtarsal joints, and no tenderness to palpation over the Achilles tendon, or posterior tibial tendon on both feet. There was no tenderness of the peroneal tendons on the right foot and mild tenderness on the left foot. On toe raise, both hindfoot deformities corrected neutral. There was no indication of swelling of either foot. On standing, the Veteran also had a mild pes planus deformity and a mild decrease in the height of the longitudinal arch. X-ray reports of the right foot show the Veteran was subluxing the naviculocuneiform joint; otherwise, his calcaneal pitch while mildly flattened was not significantly diminished. He had no significant arthrosis in any of the joints. X-ray reports of the left foot showed subluxation through the naviculocuneiform joint with mild decrease in the calcaneal pitch. There was no significant arthrosis. The VA physician diagnosed bilateral pes planus without significant arthrosis and opined that the Veteran was capable of 7-8 hours of sedentary employment on a daily basis without difficulty. At the time of a September 2012 outpatient visit, the Veteran reported having painful flat feet and being unable to walk or stand for prolonged periods of time without having considerable pain in both feet. The power step orthotics offered little relief. Physical examination revealed an inflamed nail lip with an incurvated medial nail border, and left hallux painful moderately depressed medial longitudinal arch with excessive foot pronation. The Veteran walked with an abducted gait and heel was everted during stance. X-rays revealed a navicular cuneiform sag, bilaterally, with flattening of the arch. It was the examiner's assessment that the Veteran had a moderate pes planovalgus deformity. The Veteran was prescribed cork and leather orthotics and walker II shoes. In a November 2012 report, Dr. C. indicated that the Veteran had pronounced pes planus, marked pronation of the feet, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, with no improvement of the feet with use of orthopedic shoes or appliances. Dr. C. indicated that this impacted the Veteran's ability to work. He noted that the Veteran had pain and instability with ambulation and that this required him to sit and rest frequently. Resolving reasonable doubt in favor of the Veteran, the Board will find that the symptomatology associated with the Veteran's bilateral pes planus has more closely approximated that necessary for a 50 percent disability evaluation from October 21, 2010. While not all of the criteria have been met, the Veteran has been found to extreme pain in his feet at the time of each outpatient visit and examination beginning in October 2010. He has also been found to have excessive pronation and a moderately depressed longitudinal arch. Moreover, the Veteran's heel has been found to be everted and he has been noted to receive little or no relief from the orthotics which have been prescribed. As such, while not all of the criteria were met for a 50 percent disability evaluation prior to November 20, 2012, the overall symptomology from October 21, 2010, more closely approximates that necessary for a 50 percent disability evaluation. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of an extraschedular rating for bilateral pes planus under 38 C.F.R. § 3.321(b)(1). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). As to bilateral pes planus, with respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The Veteran's bilateral pes planus has manifested in a symptomatology and functional impairment most nearly approximating pronounced acquired flatfoot due to symptoms including marked deformity, extreme pain and tenderness on the plantar surfaces of the feet with painful motion, and a significantly impaired ability to stand or walk from October 21, 2010, with lesser symptomatology prior to this time. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The schedular rating criteria specifically provide for and contemplate ratings based on such symptomatology (Diagnostic Code 5276). In this case, comparing the Veteran's disability level and symptomatology of the bilateral pes planus to 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. Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence associated with the claims file shows that the Veteran is employed. Therefore a TDIU is not reasonably raised. (CONTINUED ON NEXT PAGE) ORDER An 30 percent disability evaluation for bilateral pes planus, and no more, from June 15, 2004, to October 21, 2010, is granted. A 50 percent evaluation for bilateral pes planus from October 21, 2010, is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs