Citation Nr: 1757774 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 07-31 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for pes planus of the left foot prior to February 16, 2005, and in excess of 30 percent for bilateral pes planus effective from February 16, 2005. 2. Entitlement to a rating in excess of 20 percent for arthritis of the left ankle. 3. Entitlement to a rating in excess of 10 percent for arthritis of the right ankle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1981 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005 and March 2011 rating decisions by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2010. In February 2011, the Board reopened service connection claims for pes planus of the right foot, arthritis of the right ankle, and a low back disability; granted service connection for pes planus of the right foot and for arthritis of the right ankle; and remanded the issues of entitlement to service connection for a low back disability and entitlement to ratings in excess of 20 percent for pes planus of the left foot and for arthritis of the left ankle for additional development. A March 2011 rating decision established service connection for arthritis of the right ankle and assigned a 10 percent rating effective from February 16, 2005. The rating decision also established service connection for pes planus of the right foot and assigned a separate 10 percent rating effective from February 16, 2005. In a November 2012 decision, the Board recharacterized the left foot and right foot pes planus increased rating claims as bilateral pes planus in light of 38 C.F.R. § 4.71a, Diagnostic Code 5276, which provides ratings for unilateral and bilateral pes planus. The record shows that in May 2012 the Veteran was notified that the Veterans Law Judge who presided over his hearing in September 2010 was no longer employed by the Board and of his right to request another hearing. In September 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. Copies of the transcripts of both hearings are of record. In November 2012, the issues of entitlement to a rating in excess of 10 percent for arthritis of the right ankle and for earlier effective dates for the award of service connection for arthritis of the right ankle and for pes planus of the right foot were remanded for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was issued in March 2016. To date, the Veteran has not perfected an appeal of those issues. The Board notes that although the Veteran did not did not perfect an appeal for entitlement to a rating in excess of 10 percent for arthritis of the right ankle, the RO adjudicated that issue in an October 2016 Supplemental Statement of the Case (SSOC), indicating that this issue was on appeal and the claim has been certified to the Board. Accordingly, the Board will accept jurisdiction of the claim for a rating in excess of 10 percent for arthritis of the right ankle. See generally Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). However, the claims for earlier effective dates for the award of service connection for arthritis of the right ankle and for pes planus of the right foot are not before the Board. In November 2012, the Board also remanded the claims for entitlement to service connection for a low back disability, a rating in excess of 20 percent for pes planus of the left foot prior to February 16, 2005 and in excess of 20 percent for bilateral pes planus effective from February 16, 2005, and a rating in excess of 20 percent for arthritis of the left foot for additional development. Since the RO granted the claim for spondylolysis of lumbar spine with disc degeneration of lumbar spine in July 2016, the claim for service connection for a low back disability is no longer on appeal. Regarding the claim for an increased rating for pes planus, the RO determined, in July 2016, that there was clear an unmistakable error in the evaluation of pes planus based on a 20 percent evaluation assigned for the left foot and a 10 percent evaluation assigned for the right foot, and assigned a 30 percent evaluation for bilateral pes planus effective February 16, 2005. As less than the maximum benefit available was awarded, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board is satisfied there was substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The issues of entitlement to a rating in excess of 20 percent for arthritis of the left ankle and in excess of 10 percent for arthritis of the right ankle are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to February 16, 2005, the Veteran's left foot pes planus was productive of no more than severe symptoms. 2. From February 16, 2005, the Veteran's bilateral foot pes planus has been productive of no more than severe symptoms. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 20 percent for left foot pes planus prior to February 16, 2005 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). 2. The schedular criteria for a rating in excess of 30 percent for bilateral pes planus from February 16, 2005, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims in February 2005. A March 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. While these were not all issued prior to initial decision in this matter, the claims have been readjudicated most recently in the October 2016 Supplemental Statement of the Case (SSOC). With respect to the claim for a higher initial rating, in cases such as for bilateral pes planus, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist, the Veteran's service treatment records, pertinent post-service treatment records, statements, and testimony from the September 2010 and September 2012 Board hearings have been associated with the record. Moreover, the Veteran was afforded VA examinations in May 2005, April 2009, and April 2016. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2005, April 2009, and April 2016 VA examinations read in conjunction are adequate and addressed all the relevant criteria regarding the Veteran's pes planus. Pursuant to the November 2012 Board remand, the RO issued a statement of the case regarding the issues of entitlement to a rating in excess of 10 percent for arthritis of the right ankle and for earlier effective dates for the award of service connection for arthritis of the right ankle and for pes planus of the right foot. Therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran, and no further action is necessary to assist the Veteran in substantiating this claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Disability Ratings Law and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased rating claim or in the adjudication of an initial rating when 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. 506 (2007). The Board must assess the competency, credibility and probative weight of the relevant evidence; both lay and medical, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000). Analysis Pes planus Service connection for left foot pes planus was granted in a January 1995 rating decision with an initial noncompensable evaluation assigned, effective January 13, 1990, using Diagnostic Code 5010 in conjunction with his degenerative joint disease of the left foot. In an April 2003 rating decision, the RO granted a 20 percent evaluation under Diagnostic Code 5276 pertaining to flatfeet. 38 C.F.R. § 4.71a (2017). As noted above, a March 2011 rating decision established service connection for pes planus of the right foot and assigned a 10 percent rating effective from February 16, 2005; however, in July 2016, the RO assigned a 30 percent evaluation for bilateral pes planus effective February 16, 2005. Under Diagnostic Code 5276, severe flatfoot, with objective evidence of marked deformity, such as pronation, abduction, or other deformity; pain on manipulation and use accentuated, indication of swelling on use, with characteristic callosities, is rated 20 percent for unilateral disability, and 30 percent 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 for unilateral disability, and is rated 50 percent for bilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). A May 2005 VA examination report reflects that the Veteran complained of pain in both feet. He walked slowly with a restricted stride. The examiner noted that the Veteran had significant bilateral relaxed pes planus that is not relaxed. There was mild swelling and tenderness throughout both feet. No unusual callouses were noted. The final diagnosis included a rigid flatfoot deformity. The examiner also stated that the Veteran was restricted to no prolonged standing. According to an April 2009 VA examination report, it was noted that the Veteran could only tolerate half time ambulation because of the pain in his feet and ankles. He was noted to have severe bilateral rigid pes planus with degenerative joint disease of the ankles and wore braces on both ankles and Aircast to support his feet. The examiner stated that the Veteran walks with a small stride, but no virtual limp. Upon examination, the feet were noted to have significant marked pes planus with lateral displacement of the foot and severe loss of the medial arches bilaterally. Plantar calluses were noted and both feet rolled inward on the medial arch. There was lateral displacement of the Achilles tendons bilaterally and significant loss of motion in the forefeet. The final diagnosis included bilateral pes planus described as markedly severe on the left foot and moderate on the right foot. It was further noted that the Veteran was unfit for any standing or walking more than a half hour at a time and that corrective devices lessen the Veteran's symptoms to a moderate degree. An April 2012 private treatment record reflects that the Veteran had a severe pes valgo planus deformities associated with unrelieved pain in both feet. His private physician noted that the Veteran's third propulsive phase of gait is absent most likely due to the rigid deformities of the rear, mid, and forefoot. He also noted that the Veteran's pes valgo planus deformity is causing significant torquing and internal rotation of both ankles. The examiner noted that the Veteran has pronounced pronation bilaterally not improved by custom shoes nor prescription orthotics and that the Veteran's continual pain is only marginally improved by custom footwear, orthotics, or braces. The Veteran submitted a disability benefits questionnaire (DBQ) completed by his private physician in September 2014. It was not indicated whether the Veteran's claims file was reviewed. At that time, the Veteran reported having sharp pain that feels like needles in his feet and complained that swelling limits his ability to walk. He was noted to have pain accentuated on manipulation of feet and swelling on use, but no characteristic calluses. He was also noted to have extreme tenderness on the plantar surfaces on both feet not improved by orthopedic shoes or appliances. There was decreased longitudinal arch height on weight bearing, objective evidence of marked deformity, and marked pronation of both feet. There was no inward bowing of the Achilles tendons and the Veteran did not have marked inward displacement and severe spasm of the Achilles tendons on manipulation of the feet. It was also noted that the Veteran had metatarsalgia. The Veteran last underwent a VA Foot examination in April 2016. He reported that his feet hurt all of the time and are worse with standing or walking. He was limited in his endurance to be on his feet. The Veteran also reported using orthotics and having new custom orthotics made for the feet. He complained of tingling of the toes bilaterally and up to the ankle on the left foot. The left foot was more painful than the right and he gets swelling of the left foot. Pain is diffuse in the feet but is primarily in the midfoot. He cannot walk a city block without needing to sit and rest. The Veteran reported that his foot pain is severe, sharp, burning and constant. Pain was accentuated on use and manipulation of the feet. There was no swelling on use, but there were characteristic calluses on both feet. It was noted that the Veteran has tried arch supports, built up shoes or orthotics but remains symptomatic. Upon examination, the Veteran's feet had decreased longitudinal arch height and objective evidence of marked deformity, and marked pronation not improved by orthopedic shoes or appliances. However, he did not have extreme tenderness of plantar surface of either foot nor marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner indicated that the Veteran did not have Morton's neuroma or metatarsalgia. He further commented that the Veteran's left foot was very stiff, fixed flatfoot deformity and the right still has partial midfoot mobility, but does not correct fully to neutral. Additional VA and private treatment records throughout the period on appeal reflect similar findings of pain in feet and notations of severe pes planus. In light of the evidence above, the Board finds that the preponderance of the evidence of record is not consistent with a 30 percent rating for left foot pes planus prior to February 16, 2005 and a 50 percent rating for bilateral pes planus from February 16, 2005. The higher ratings are not warranted as there is no evidence the Veteran's pes planus has most nearly approximated pronounced level of disability. Specifically, there are no findings of marked inward displacement or severe spasm throughout the appeal period. His disability has been consistently noted to be severe, which is specifically contemplated by the 30 percent rating. The Board observes that the Veteran's pes planus of both feet has included findings of marked pronation. Although the 50 percent rating for pronounced flat feet also references "marked pronation," the criteria go on to include extreme tenderness of the plantar surfaces, "marked inward displacement and severe spasm" of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. In other words, although the rating criteria are not clearly successive in nature, marked pronation alone is not sufficient to rise to the level of a 50 percent rating because it is also contemplated by the 30 percent rating. Cf. Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Further, some of the criteria for a rating of 50 percent under Diagnostic Code 5276 are in the conjunctive, using the word "and"; therefore, all such criteria must be present and 38 C.F.R. § 4.7 cannot circumvent the need to show all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Thus, although the Veteran reported tenderness on the bottom of his feet during the September 2012 Board hearing and was noted to have extreme tenderness on the plantar surfaces on both feet no improved by orthopedic shoes or appliances in the September 2014, the April 2016 VA examination report indicates that the Veteran did not have extreme tenderness on the plantar surfaces on either foot. VA and private examination reports have maintained that the Veteran does not have marked inward displacement and severe spasm of the Achilles tendons on manipulation of the feet. A rating in excess of 20 percent for left foot pes planus prior to February 16, 2005 and in excess of 30 percent for bilateral pes planus from February 16, 2005 is therefore not warranted under Diagnostic Code 5276. The Board notes that the April 2016 examiner opined that the functional impact attributable to the Veteran's service-connected feet disabilities is that he cannot work on his feet. The Board also observes that entitlement to VA individual unemployability benefits (TDIU) was granted effective from January 14, 2014 by the RO as part of a October 2016 rating decision. In light of the above, the preponderance of the evidence is against a rating in excess of 20 percent for left foot pes planus prior to February 16, 2005 and a rating in excess of 30 percent for bilateral pes planus from February 16, 2005. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent for pes planus of the left foot prior to February 16, 2005 is denied. A rating in excess of 30 percent for bilateral pes planus effective from February 16, 2005 is denied. REMAND The Veteran's left and right ankle arthritis is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5271. The applicable diagnostic criteria involve examination of range of motion. His most recent VA examination findings, from April 2016, do not meet the specifications of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examination report does not provide ankle range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. Although the April 2009 examination indicated range of motion findings for the right ankle on active and passive motion, range of motion findings in weight-bearing and nonweight-bearing were not provided at that time either. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. A further examination is thus necessary under 38 C.F.R. § 3.159(c)(4). The Board notes that the Veteran is presently receiving the maximum schedular rating for limitation of motion for his service-connected arthritis of the left ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5271. However, the April 2009 examiner provides contradictory statements regarding range of motion of the left ankle. While the examiner noted that the Veteran's left ankle plantarflexes only 10 degrees, he also noted that from a functional standpoint, there is no motion in the left ankle. As higher ratings are contemplated for ankylosis of the ankle under Diagnostic Code 5270, the examiner should specifically clarify whether the Veteran has any ankylosis. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran. If no medical records are available, this should be noted in the Veteran's claims file. 2. Then schedule the Veteran for an appropriate VA examination to assess the severity of the service-connected left and right ankle arthritis. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the left and right ankles; and make determinations regarding range of motion, including any additional functional impairment. The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran's left and right ankle disabilities. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. The examiner is asked to state whether the Veteran's service-connected left ankle arthritis is manifested by ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees, or by ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. A detailed rationale is requested for all opinions provided. 3. Following any other development deemed necessary, readjudicate the Veteran's claims. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals