Citation Nr: 1802451 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 03-22 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for herniated lumbar disk, status post lumbar laminectomy. 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy. 3. Entitlement to a rating in excess of 50 percent for bilateral pes planus, effective April 25, 2011. 4. Entitlement to a rating in excess of 10 percent for bilateral pes planus prior to January 7, 2008. 5. Entitlement to a rating in excess of 30 percent for bilateral pes planus from January 7, 2008 through April 24, 2011. 6. Entitlement to an effective date prior to April 25, 2011 for the grant of entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and FV ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active duty service from December 1977 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2002, April 2013, and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The July 2002 rating decision denied a rating in excess of 10 percent for bilateral pes planus, and the Veteran appealed. The appeal was denied by the Board in a December 2004 decision which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2005, the parties filed a Joint Motion for Partial Remand with the Court, which the Court granted in December 2005. The parties requested that the Court not disturb the grants of a 10 percent rating for the Veteran's service-connected right and left knee disabilities. In an August 2012 decision, the Board denied entitlement to an evaluation in excess of 10 percent for bilateral pes planus prior to January 7, 2008 and granted an evaluation of 30 percent for bilateral pes planus from January 7, 2008 through April 24, 2011 and an evaluation of 50 percent for bilateral pes planus, effective from April 25, 2011. The Veteran again appealed the Board's decision to the Court, and in June 2013, the Court granted a Joint Motion for Partial Remand, vacated the Board's decision, and remanded the appeal to the Board. The claim of entitlement to TDIU was granted in the September 2014 rating decision, and an effective date of July 29, 2013 was assigned. The Veteran appealed the effective date, and a March 2016 rating decision granted an earlier effective date of April 25, 2011. However, as that is not the earliest effective date possible, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal has been subject to multiple remands in October 2005, August 2006, September 2007, January 2009, March 2011, June 2014, and April 2015 for development which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. In support of his claim for an increased rating for pes planus, the Veteran, in his February 2015 and October 2017 written statements, asserted that his pes planus disability has caused hammer toes. This component of the Veteran's increased rating claim must be addressed, but it is a separate medical condition from the pes planus disability. See Jones v. Brown, 7 Vet, App, 132, 137-38 (1994). Thus, the Board finds that the Veteran has raised the issue of entitlement to service connection for hammer toes under both a direct and secondary basis, which must be developed and adjudicated by the RO. In September 2004, the Veteran testified at a hearing before a Veterans Law Judge (VLJ), via videoconference. That VLJ has since left the Board, and in accordance with VA regulations, in February 2017, the Veteran was advised that he is entitled to another hearing, if he so chose. 38 U.S.C. § 7107; 38 C.F.R. §§ 19.3, 20.707. The Veteran did not respond to the notification within the required time frame, therefore the Board determined that the Veteran does not want another hearing. The issue of entitlement to an earlier effective date for the grant of TDIU is addressed in the REMAND that follows the below ORDER. FINDINGS OF FACT 1. On February 19, 2015, prior to promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the appeal of the issues of entitlement to a rating in excess of 10 percent for herniated lumbar disk, status post lumbar laminectomy and a rating in excess of 20 percent for left lower extremity radiculopathy is requested. 2. On October 26, 2017, prior to promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the appeal of the issue of entitlement to a rating in excess of 50 percent for bilateral pes planus, effective April 25, 2011, is requested. 3. Throughout the appeal period, the Veteran's bilateral pes planus was productive of symptoms not improved by orthopedic shoes or appliances, including pain, swelling, and pain on use with clinical observations of pronation, tenderness with palpation along the length of the medial arch and some weakness of the foot inverters bilaterally. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to a rating in excess of 10 percent for herniated lumbar disk, status post lumbar laminectomy, a rating in excess of 20 percent for left lower extremity radiculopathy, and a rating in excess of 50 percent for bilateral pes planus, effective April 25, 2011, by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Prior to January 7, 2008, the criteria for an initial rating of 50 percent, for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). 3. From January 7, 2008 through April 24, 2011, the criteria for an initial rating of 50 percent, for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his attorney, has withdrawn the appeal of the issues of entitlement to a rating in excess of 10 percent for herniated lumbar disk, status post lumbar laminectomy, a rating in excess of 20 percent for left lower extremity radiculopathy, and a rating in excess of 50 percent for bilateral pes planus since April 25, 2011. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed. I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claims. The record reflects that all available pertinent treatment records have been obtained, to include the Veteran's service treatment records and post-service VA and private treatment records. No outstanding, existing evidence that could be obtained to substantiate the claims has been identified. The Board is also unaware of any such evidence. In addition, the Veteran was afforded the necessary VA examinations. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned where flatfoot is moderate, 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, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, 20 and 30 percent ratings (unilateral and bilateral, respectively) are assigned. For 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, not improved by orthopedic shoes or appliance, 30 and 50 percent ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276. 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. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); 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), citing Gilbert, 1 Vet. App. at 54. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. III. Analysis The Veteran's bilateral pes planus has been assigned initial ratings of 10 percent prior to January 7, 2008 and 30 percent from that date through April 24, 2011, pursuant to Diagnostic Code 5276. 38 C.F.R. § 4.71a. At his September 2004 hearing, the Veteran described having constant foot pain all day and swelling of the feet periodically throughout the day. He further testified that the pain was on the sides, middle, and back of the feet. The Veteran said he would have a tremendous amount of pain trying to walk in the morning and that it did not get better. He asserted that his VA-prescribed shoe inserts did not provide any relief and that each foot experienced pretty much the same symptoms. The Veteran also said that he had muscle cramping and spasms in his feet at least three times per day and that he took Tylenol for the pain two or three times a day. The Veteran's employer at the time, FV, also testified. He reported observing the Veteran in constant pain for which the Veteran took medication. The employer stated that the Veteran moved more slowly than he did, even though they were the same age. The Veteran was afforded two VA examinations over the appeal period. At a May 2002 VA examination, he complained of pain along the arch to the heels bilaterally with stiffness and pain on first weight bearing in the morning, of occasional mild swelling of the foot, and of occasional redness over the metatarsal heads bilaterally. He also reported pain on standing. The Veteran was intolerant of the shoe inserts he had been provided. On physical examination, the Veteran demonstrated flexible Grade II pes planus bilaterally. There was marked tenderness over the plantar ligament insertions at the metatarsal head and calcaneal insertions, as well as decreased sensation. X-rays were unremarkable. The examiner diagnosed flexible pes planus and plantar fasciitis. A VA examination performed in March 2009 documented subjective complaints of stiffness and pain, especially in the morning when getting out of bed. During the weight-bearing examination, there was no antalgic gait, and the Veteran was able to stand on his tip toes and walk on his heels. The Veteran reported that he had tried different arch supports and was still having pain. There was a minimal valgus deformity on the left. There was no evidence of pronation or palpable foot pain. The Veteran did not have an antalgic gait and the rectus calcanei were said to be without varus and/or valgus deformity. The examiner said that some of the foot pain experienced by the Veteran may be related to diabetic peripheral neuropathy and/or osteoarthritis. VA treatment notes show that the Veteran's feet have been examined on multiple occasions, often in connection with his diabetes mellitus. Treatment for diabetes mellitus included for onychomycosis of multiple toenails and sensory symptoms, such as decreased sensation in the feet. Symptoms noted in association with the Veteran's pes planus included pain in the arches. A June 2007 treatment note also documented swelling and numbness around the toes, as well as cramping in the anterior tibialis muscle. A letter and private treatment record from Dr. KD dated in September 2004 and August 2004, respectively, were also received. The physician found that the Veteran had collapsing pes plano valgus foot structure which caused pain with ambulation. He also said that the Veteran had tried various arch supports without significant relief. Dr. KD said that he had informed the Veteran that his condition was not amenable to surgical intervention and recommended supportive shoes and accommodative insoles. Finally, he said the Veteran would most likely continue to suffer intermittent chronic pain from the condition. Another private treatment record from Dr. KD dated in January 2008 noted complaints of bilateral foot pain. The physician said that the Veteran had normal touch, pin, vibratory and proprioception sensations and that deep tendon reflexes were normal. He said the Veteran had a propulsive gait bilaterally with marked pronation throughout the gait cycle. The medial arches were collapsed and there was tenderness with palpation along their lengths. He said there was some weakness of the foot inverters noted bilaterally. No x-rays were taken. The impression was severe pes planus with a propulsive gait and marked pain with walking or standing. He stated that the Veteran was referred to a pedorthotist for accommodative orthosis to provide support and control of severe pronation. The March 2009 VA examiner indicated that some of the Veteran's foot pain may be related to his nonservice-connected diabetic peripheral neuropathy and/or osteoarthritis. However, the evidence is insufficient for the Board to ascertain what amount or degree of foot pain is due to service-connected disability as opposed to nonservice-connected disability. Therefore, the Board considers all of the Veteran's foot pain to be due to his service-connected pes planus for the purposes of this decision. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the Veteran's favor, and that such signs and symptoms be attributed to the service-connected condition). Consequently, in light of the above evidence and affording the Veteran all reasonable doubt, the Board finds that throughout the appeal period, the Veteran's bilateral pes planus has been productive of symptoms not improved by orthopedic shoes or appliances, including pain, swelling, and pain on use with clinical observations of pronation, pronation, tenderness with palpation along the length of the medial arch and some weakness of the foot inverters bilaterally. The Board concludes that these symptoms more closely approximate a 50 percent rating for bilateral pes planus. Therefore, the Board assigns a 50 percent rating, but no greater, to the Veteran's bilateral pes planus throughout the appeal period. This is the maximum rating available pursuant to Diagnostic Code 5276 and under any diagnostic code relevant to the foot. See 38 C.F.R. §§ 4.1, 4.2, 4.71a, Diagnostic Codes 5277 to 5284; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). IV. Extra-Schedular Rating In the February 2015 submission, the Veteran's attorney argues that the Veteran's bilateral pes planus results in marked interference with employment and so should be rated as 100 percent disabling on an extra-schedular basis. Whether referral for an extra-schedular rating is warranted must be addressed when raised by the record. See Yancy v. McDonald, 27 Vet. App. 484 (2016). For an extra-schedular rating to be warranted, the disability must present an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321 (b). Extra-schedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id. All symptoms and the level of disability resulting from the Veteran's bilateral pes planus are addressed by criteria found in the rating schedule. He reports pain and swelling, and that orthopedic shoes and appliances do not improve his symptoms. Clinical examination reveals pronation, tenderness of the plantar surfaces along the medial arch, and some weakness of the foot inverters bilaterally. These symptoms are contemplated by the rating criteria for pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Therefore, the first prong of the Thun test is not satisfied and referral for extra-schedular consideration is not warranted. Also considered by the Board is whether the collective effect of his other service-connected disability warrants referral for extra-schedular consideration. See Johnson v. Shinseki, 762 F.3d 1362 (Fed. Cir. 2014). In addition to his bilateral pes planus, the Veteran has service-connected disabilities of left lower extremity radiculopathy, left knee pain, right knee pain, and herniated lumbar disc status post lumbar laminectomy with degenerative disc disease and mild spondylosis. The evidence does not show that these disabilities act together with the bilateral pes planus to produce a collective effect that makes his disability picture an unusual or exceptional one. Rather the record shows that he is compensated appropriately for all of his service-connected disabilities. For these reasons, the Board declines to remand this case for referral for extra-schedular consideration. ORDER The issue of entitlement to a rating in excess of 10 percent for herniated lumbar disk, status post lumbar laminectomy is dismissed. The issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is dismissed. The issue of entitlement to a rating in excess of 50 percent for bilateral pes planus since April 25, 2011 is dismissed. Entitlement to an initial rating of 50 percent, but no greater, for bilateral pes planus prior to January 7, 2008 is granted. Entitlement to an initial rating of 50 percent, but no greater, for bilateral pes planus from January 7, 2008 through April 24, 2011 is granted. REMAND Regrettably, the Board determines that a remand of the Veteran's claim of entitlement to TDIU prior to April 25, 2011 is necessary. The outcome of that claim is dependent on the ratings assigned to the Veteran's service-connected disabilities, and in light of the grant of a 50 percent rating for bilateral pes planus above, the Board determines that the TDIU claim should be remanded for reconsideration by the RO. Accordingly, the case is REMANDED for the following action: 1. The AOJ should readjudicate the claim for a TDIU rating prior to April 25, 2011, in light of the grant of an initial 50 percent schedular rating for pes planus. 2. In doing so, the Veteran and his attorney may submit additional evidence and argument, if they so wish. 3. If the claim for a TDIU rating remains denied, the AOJ should issue a supplemental statement of the case (SSOC) and provide the Veteran and his attorney the opportunity to respond thereto, at their option. Then, the case should be returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs