Citation Nr: 1628740	
Decision Date: 07/19/16    Archive Date: 07/28/16

DOCKET NO.  11-27 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

What evaluation is warranted for bilateral pes planus with foot callosities?


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Parke, Associate Counsel


INTRODUCTION

The Veteran had active duty from April 2006 to March 2010.

This appeal is before the Board of Veterans' Appeals (Board) on appeal from September 2010, August 2011, and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2014, the Board remanded the claim for additional development and adjudicative action. 

The Veteran testified in support of these claims during a videoconference hearing before the undersigned in June 2012. Unfortunately, a written transcript of the proceeding could not be produced. In September 2012 the Veteran was informed of the above and was offered the opportunity to present for another hearing. He did not respond.  

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDING OF FACT

The Veteran's bilateral pes planus with foot callosities are not manifested by symptoms which equate to pronounced, 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 of the bilateral feet .


CONCLUSION OF LAW

The Veteran's bilateral pes planus with foot callosities do not meet the criteria for an increased disability rating in excess of 30 percent. 38 U.S.C.A. § 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.14, 4.71a, 4.118, Diagnostic Codes 5276, 7819 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the United States Court of Appeals for Veterans Claims discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA rated the Veteran's bilateral pes planus with foot callosities as 30 percent disabling under Diagnostic Codes 7819-5276. Hyphenated diagnostic codes are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. See 38 C.F.R. § 4.27. The purpose of a hyphenated rating "is to add information to help describe the origins of a single disability when the disability is not one listed under the explicit [diagnostic code] for the given condition." Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006).

Diagnostic Code 7819 provides that the benign neoplasms should be rated as disfigurement of the head, face or neck, scars, or impairment of function. Because the Veteran does not have any service connected disfigurement of the head, face, or neck or any scars of the lower extremities, the Veteran should be rated based upon his impairment of function, which in this case is under Diagnostic Code 5276 for acquired flatfoot. Additionally, during the Veteran's January 2015 VA medical examination, the Veteran was diagnosed with bilateral pes planus (flatfoot).

Diagnostic Code 5276 is used to provide appropriate disability ratings for acquired flatfoot. In order to receive a rating higher than 30 percent, there must be pronounced flat feet with 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 of the bilateral feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. 

A review of the evidence of record shows that at a VA examination in July 2010 the appellant reprted pain with walking, an inability to stand longer than 5 to 10 minutes, and being unable to walk more than three or four feet without pain.  He reported previously using inserts which did help, and undergoing injections which did not.  Physical examination revealed multiple corns on the balls and the pads of the toes.  There were no calluses or edema.  The examiner opined that the appellant's feet were not flat but rather the claimant had high arches.  There was no evidence of painful restricted motion abnormal weight bearing, or instability.  There was tenderness bilaterally over the arches and the big toes.

At a January 2011 VA examination the Veteran complained that his feet were worse, and that he had constant daily foot pain.  He reported cutting down the calluses himself.  The appellant stated that prolonged walking, standing and short-term walking and standing were affected in that he reportedly could only stand for 5-10 minutes and walk 10-15 feet before his feet hurt.   Physical examination revealed pain on use, and increased pain on manipulation of the feet.  There were significantly tender calluses on the soles of both feet, on both first and second toes, as well as on each forefoot and heel.  There was no evidence of corns, edema or flat feet.  Additionally, there was no evidence of painful or restricted motion, abnormal weightbearing weakness or instability.

The Veteran returned for a VA examination in January 2015.  He reported severe bilateral foot pain with flare ups, and an inability to stand on one foot without falling.  Physical examination revealed pain on use and manipulation of the feet.  There was no evidence of either swelling, extreme plantar tenderness, marked pronation, or marked deformity.  There was evidence of characteristic callouses and decreased longitudinal arch height.  The weight bearing line did not fall over or medial to the great toe, there was no inward bowing of the Achilles tendon in either foot, and there was no evidence of any marked inward displacement or a severe Achilles spasm on manipulation of either foot.  The examiner did find that the Veteran could not walk for prolonged periods of distance (20 yards) without pain starting.  

In light of the above, and VA treatment records dating from March 2010 to May 2015 which essentially reveal like findings, the Board finds that the preponderance of the evidence is against entitlement to an increased rating.  While the appellant's complaints of foot pain are acknowledged and are judged credible, and while the evidence shows problems with walking prolonged walking the objective evidence does not show evidence that bilateral pes planus with callosities are manifested by pronation, extreme tenderness of the plantar surfaces of the feet, inward displacement, or spasm of the tendo achillis on manipulation.  Indeed, it is well to note that despite the appellant's complaints of pain, the 2015 VA examination specifically found no evidence that the claimant met the requirements for a 50 percent rating.  As such, entitlement to a higher rating is denied.  

The Board has considered whether the Veteran's bilateral pes planus with foot callosities warrants referral for extra-scheduler consideration. In exceptional cases where scheduler disability ratings are found to be inadequate, consideration of an extra-scheduler disability rating is made. 38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-scheduler disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id.

The Veteran's symptoms are expressly contemplated by the rating schedule.  As outlined above, the Veteran has bilateral pes planus with foot callosities with painful movement, pain on weight-bearing and functional loss.  Such symptoms are contemplated by the scheduler criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5276.  The regulations and case law expressly consider each of these symptoms. In other words, Diagnostic Code 5276 adequately contemplates all of the Veteran's symptoms.  Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular rating is not warranted.

Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).


ORDER

Entitlement to increased rating for bilateral pes planus with foot callosities is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs