Citation Nr: 1613995	
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO. 09-34 693	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased rating, greater than 10 percent, for bilateral flat feet.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had active service with the United States Army from July 1971 until October 1971.
      
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim for an increased rating for bilateral flat feet. The Veteran appealed the denial, and perfected his appeal to the Board. Following a February 2014 remand by the Board for additional development, the matter is now ripe for consideration.


FINDING OF FACT

Throughout the entire rating period, bilateral flat feet have been productive of productive of pain on manipulation and use, and swelling.


CONCLUSION OF LAW

The criteria for a rating of 30 percent, and no higher, for bilateral flat feet have nearly approximated throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a Diagnostic Code 5276 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A notice letter was sent to the Veteran in January 2008, and included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). For an increased-compensation claim such as the Veteran's, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009), see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The notice was provided in the letter sent to the Veteran in February 2009. Although VA's duty to notify was thus satisfied after the initial adjudication of the issue on appeal, the issue was readjudicated, most recently, with the issuance of a supplemental statement of the case in August 2014, thus curing any timing defect. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 

VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").

The Board finds that VA has satisfied its duty to assist by acquiring service records as well as requesting records of private and VA treatment to the extent that such records were identified by the Veteran. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The duty to assist was further satisfied by VA examinations in February 2008 and June 2014 during which examiners conducted physical examinations of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While the February 2008 VA examiner was not provided the Veteran's claims file for review, an accurate history was elicited from the Veteran regarding his feet. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required.
	
Finally, in February 2014 the Board remanded the issue on appeal for additional development, including orders to attempt to retrieve private treatment records, to retrieve VA treatment records, and to provide the Veteran with an examination of his feet. Since that time, VA requested the identified private treatment records, associated additional VA treatment records with the claims file, and in June 2014 the Veteran was afforded a new VA examination which was compliant with the terms of the Board's February 2014 remand directives. Therefore, the Board finds that the RO substantially complied with the remand directives, and the Board may properly proceed with the decision below. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).

Increased Rating for Bilateral Flat Feet

The Veteran was previously awarded service connection and assigned an initial disability rating for bilateral flat feet in a prior decision. An appeal of the initial rating is not before the Board; rather the Veteran seeks an increased rating. In claims for increased ratings, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). 

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In the June 2008 decision on appeal, the Veteran's 10 percent evaluation for bilateral flat feet, effective May 3, 1996, was confirmed and continued. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5276 (2015), which provides ratings for acquired flatfoot (i.e., pes planus) where moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, DC 5276.

Descriptive words such as "moderate," "severe," and "pronounced" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2015). The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2015).

After reviewing the entire claims file, the Board finds that bilateral flat feet have more nearly approximated the criteria for a 30 percent rating throughout the period on appeal. Specifically, bilateral flat feet have been severe, and productive of pain on manipulation and use, as well as swelling.

In his November 2008 notice of disagreement with the RO decision on appeal, the Veteran endorsed pain with motion of the feet, periodic swelling, and an abnormal gait or limp. He stated that the pain was bad enough that he uses a cane for ambulation. He repeated these assertions in his September 2009 Appeal to the Board of Veterans Appeals, and asserted that the pain he experienced was "severe which is a good indicator of a structural deformity inside both feet."  The Veteran is competent to identify those symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, his endorsements of pain, swelling, and the use of a cane are competent and probative in describing his disability picture. However, the Veteran has not been shown to have the kind of medical expertise needed to assert that the degree of pain he experiences is "a good indicator of a structural deformity inside both feet" as this is a complex medical determination well beyond the scope of his lay competence. Nonetheless, the Board has considered the degree of pain in determining the appropriate rating for service-connected bilateral flat feet.

Of additional value are VA examination reports from February 2008 and May 2014. In February 2008, the Veteran told a VA examiner that pain in his feet was constant, but localized, and characterized by burning, aching, sharp, and cramping sensations. The pain was at a level of 10 out of 10, and was elicited by physical activity, but relieved with over-the-counter pain medication. When resting, the feet were still painful, and exhibited swelling. Standing and walking were productive of pain and weakness, but not fatigue. A physical examination showed evidence of abnormal weight bearing, with tender callosities located at the metatarsals. There were no signs of any unusual shoe wear pattern, breakdown, or abnormal weight bearing line. The examiner confirmed that the Veteran "requires a cane for ambulation because of bilateral foot pain on weight bearing," and noted that his gait was antalgic bilaterally.

Both feet were tender, but the examiner found no evidence of painful motion, edema, disturbed circulation, weakness, or atrophy of the musculature. Following the physical evaluation and review of x-ray imaging, the examiner concluded that bilateral flat feet resulted in tender callosities of the metatarsals. He noted radiographic findings of multiple hammertoe deformities of the second through fifth toes, but found "[n]o other abnormality" in either foot. The combination of pain and tenderness on standing was noted to limit function insofar as the Veteran uses a cane.

In August 2010, the Veteran reported callouses on the soles of his feet, and in August 2013 he requested a podiatry consultation regarding corrective footwear. VA treatment records are otherwise essentially silent for complaints or treatment regarding the feet - and this is consistent with VA examination reports indicating that the Veteran manages pain symptoms using over-the-counter medications. It is also consistent with his report to a VA examiner in May 2014 that he received no therapy or treatment regarding his feet, and had not seen a physician for six to seven years.

On VA examination in May 2014, the Veteran endorsed foot pain at a constant level of 8 out of 10, "[e]ven if no pressure" was being exerted on the feet. Nonetheless, he had no numbness, tingling, or weakness in the feet. Pain on use was accentuated on manipulation, though there was no indication of swelling, characteristic calluses, or extreme tenderness of the plantar surfaces of either foot. Longitudinal arch height was not decreased on weight-bearing, there was no evidence of deformity or marked pronation, and the weight-bearing line did not fall over, or medial to, the great toe in either foot. The examiner opined that bilateral foot pain "makes it difficult for the [V]eteran to perform physical activity when the joint is used repetitively over time," though he was unable to quantify the degree to which there was any loss of range of motion due to repetitive motion without resorting to speculation. Finally, having reviewed the entire claims file, and performed a physical evaluation of the Veteran, the examiner concluded that the primary functional impact associated the Veteran's foot disorders - of which there were several identified other than service-connected bilateral flat feet - was difficulty "standing or walking for long periods of time."

Given evidence of pain on use and pain accentuated with manipulation, the Board finds that the Veteran's bilateral foot symptoms more closely mirror the criteria of a 30 percent rating under 38 C.F.R. § 4.71a, DC 5276. However, while symptoms are thus severe, the Board finds that a rating of greater than 30 percent cannot be granted. Specifically, without evidence of pronounced flatfeet demonstrated by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, the disability simply does not rise to the level of the next higher rating. See Id.

Having evaluated the disabilities on appeal on schedular bases, the Board has also considered whether referral for an extraschedular rating is warranted for the same. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115.

The schedular rating criteria used to rate the Veteran's service-connected disability above, reasonably describe and assess the disability level and symptomatology. The criteria rate the disability on the basis of objective indications of the level of severity of flat feet, and implicitly consider the functional effect of those levels of severity. Thus, the demonstrated manifestations - namely pain on use and manipulation, and swelling necessitating the use of a cane for ambulation - are contemplated by the provisions of the rating schedule. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected bilateral flat feet that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated 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. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities; bilateral metatarsalgia and hammertoes of both feet in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.

Finally, the record does not reveal that the Veteran is claiming to be rendered unemployable by virtue of bilateral flat feet, nor does the evidence otherwise suggest as much. Thus, the Board finds that the record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus no discussion or remand of such a claim in warranted.

Accordingly, the Board concludes that the Veteran's bilateral flat feet disability has been 30 percent disabling, and no higher, throughout the entire period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

A rating of 30 percent, and no higher, for bilateral flat feet is granted.





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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs