Citation Nr: 1802492 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-27 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a higher initial rating in excess of 30 percent for bilateral pes planus from September 2, 2009 to May 19, 2013. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada. The Board had previously denied the Veteran's increased rating claim in March 2015. However, pursuant to a Joint Motion for Remand (JMR) of October 2015, the United States Court of Appeals for Veterans Claims (Court) vacated the March 2015 Board decision denying the Veteran's claim. The matter was then remanded for further development. When the matter returned to the Board in June 2016, the Board granted the claim, in part, assigning a disability rating of 30 percent for the period from September 2, 2009 to May 19, 2013. However, pursuant to a JMR of March 2017, the Court vacated the portion of the Board's decision which denied an evaluation in excess of 30 percent prior to May 19, 2013 and remanded the matter for further development. It is now back before the Board for appellate consideration. FINDINGS OF FACT The Veteran's service connected bilateral pes planus was manifested by at most severe symptoms, improved by orthopedic shoes, prior to May 19, 2013. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral pes planus from September 2, 2009 to May 19, 2013 have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the appeal at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided VA examinations (the reports of which have been associated with the claim file). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Legal Criteria and Analysis 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. 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. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The Veteran contends that a rating in excess of 30 percent is warranted for his service connected bilateral pes planus from September 2, 2009 to May 19, 2013. Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned for moderate pes planus with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent evaluation is assigned for bilateral pes planus if severe, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indications of swelling on use, with characteristic callosities. A 50 percent evaluation is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. A December 2009 VA radiology report found bilateral pes planus deformities, but no signs of acute fractures or dislocation. There were degenerative changes of the tarsometatarsal noted especially on the right side. Bilateral dorsal calcaneal spurs were present and soft tissues were unremarkable. During a January 2010 VA podiatry consult, the Veteran reported sharp/throbbing pain at 6 out of 10 on the pain scale, and that the pain is enough to affect his ability to sleep, work, and sitting/standing for long periods of time. Upon evaluation, the examiner found gastrocnemius equinus, pes planus, symptomatic, with objective evidence including vascular intact, popliteal, dorsalis pedis, and posterior tibia bilaterally. There was no pain in the ankles, and no pain with subtalar, midtarsal active or passive range of motion. The examiner noted palpable hypertrophic spurring, midfoot region, right foot dorsum. In a later January 2010 visit to a VA treatment facility, the Veteran continued to report pain, but that the pain was now 4 out 10 and has now radiated to his back. In his January 2010 statement, the Veteran stated that a VA surgeon recommended surgery for his feet. He also stated that he had been issued prosthetics for his shoes. Further records do not indicate whether the Veteran ever underwent corrective surgery. At another VA appointment in January 2010, the Veteran complained about back pain, but denied any other musculoskeletal problems or pain. In April 2010, the Veteran asserted that his foot pain was continuous, despite the orthotics. The Veteran underwent a VA examination in November 2010. The examiner did not characterize the severity of the Veteran's condition. At the time, the Veteran reported that the pes planus had been stable since onset, he had a good response, despite still having pain and tenderness on the feet, to current treatments (using foot orthotics), and he was not on medications. The VA examiner noted that the Veteran had pain in his feet when walking, but experienced no functional limitations on standing or walking. On examination, the Veteran had pain and tenderness on the balls of the feet. There was no swelling, instability, weakness, or abnormal weight bearing. The Achilles alignment was normal on weight bearing and nonweight bearing. The arch was present on non-weight bearing and weight bearing. There was also no pain on manipulation or varus/valgus angulation of the OS calcis in relationship to the long axis of the tibia or fibula. The examiner noted that the Veteran had normal gait and walked mostly on the outside of his feet and toes. The examiner also indicated that the Veteran's bilateral pes planus caused no significant occupational effects and it had no effect on the Veteran's employment as a cement truck driver, or on his daily activities. Another VA examination in May 2013 revealed that the Veteran reported pain on manipulation of the feet. Unlike the prior examination, there was indication of swelling upon use of both feet. The Veteran reported extreme tenderness of plantar surface. The examiner reported that the Veteran's symptoms were however relieved by arch supports (or built up shoes or orthotics). The Veteran had decreased longitudinal arch height on weight bearing in both feet. There was no objective evidence of marked deformity of the foot. While there was marked pronation of both feet, the condition was improved by the use of orthopedic shoes. Finally, the examiner found that the Veteran did not have marked inward displacement and severe spasm of the tendo Achilles on manipulation or marked deformity. A later May 2013 VA treatment confirmed the Veteran's degenerative changes in his feet and spurring along the dorsal midfoot on the right side at the tarsal metatarsal junction. There was also evidence of bilateral bunions which causes skin irritation under the metarsal phalangeal joints. Both degenerative changes and bilateral bunions can induce metatarsalgia. In an August 2013 letter, the Veteran reported that he had been suffering from constant pain on the bottom of his feet, especially in the balls of his feet. The pain increases from 6 out of 10 to 7 out of 10 without medication. He asserted that the constant pain had been difficult to tolerate, and that his pain increased when standing or walking for periods longer than 30 minutes. The Veteran reported having episodes of spasms in the back of his legs between the lower calf area and ankle after periods of standing or walking. He stated that the episodes of spasms occurred once a week for long intense periods (about 10 minutes) of severe pain which he would rate at a 9/10 and the spasms felt like painful cramping. The Veteran reported having swelling in the feet; adding that his feet swelled up approximately twice a week after periods of standing or walking. The Veteran indicated that when his feet would swell, they were puffy looking and the bottoms of the feet felt extra tender. He also indicated that he had calloused feet that were hard like rocks with dried, hardened skin. In an August 2013 letter, the Veteran's attorney's law clerk, M. Mckie., BSN, RN, asserted that the Veteran experienced extreme tenderness of the plantar surfaces of his feet from September 2, 2009 through May 20, 2013. She stated that he reported in his August 2013 statement that he had constant pain in the bottoms (plantar surfaces) of his feet, especially in the balls of his feet, because of how "very sensitive" the bottoms of his feet were during that period of time. She reiterated his reports of pain of 6 out of 10, denoting moderate to severe, with medication and 7 out of 10, denoting severe to very severe, without. She further noted treatment records of 2010 which showed pain of 6 out of 10 and tenderness on the feet. Regarding muscle spasms, she noted the reported symptoms in the August 2013 letter of episodes of spasms in the back of the legs which occur about once a week at the intensity of 9 out of 10. She also noted records of January 2010 which showed shortening of the gastrocnemius muscle After review the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted for the period between September 2, 2009 and May 19, 2013. To warrant a 50 percent disability rating, the evidence should show pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and not improved by orthopedic shoes or appliances. During the appeal period, the evidence does not meet or approximate the criteria for a 50 percent disability rating. Indeed, while the Board acknowledges the Veteran's consistent complaints of pain due to his bilateral pes planus, in January 2010 there was no pain with subtalar, midtarsal active and passive range of motion despite reports of pain of 6 out of 10. Significantly, later in January 2010, the Veteran reported diminished pain to a 4 out of 10. By the November 2010 VA examination, the Veteran reported not being on medication for pes planus and good results with current treatment, use of orthotics, despite still reporting pain. Significantly, the examiner noted there was no functional limitation on standing or walking. Upon consideration of the above, the Board finds that the evidence simply does not show or approximate findings of marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and not improved by orthopedic shoes or appliances. In reaching its conclusion, the Board has considered the Veteran's statements as well as the August 2013 letter from M. Mckie, RN, the Veteran's attorney's law clerk. In regards to M. Mckie's letter, the Board acknowledges her medical background as a registered nurse, thus rendering her competent to provide opinions as to medical questions. However, despite the competency of her statement, the determination to be made is whether her statement provides sufficient competent and reliable evidence to support a disability rating in excess of 30 percent for the appeal period in question. In this regard, the Board finds that Ms. Mckie's statements as to the severity of the symptoms prior to May 19, 2013 are not supported by the contemporaneous evidence of record. At the outset, the Board notes that Ms. Mckie's assertions as to why the Veteran meets the requirements of a 50 percent evaluation are primarily based on the Veteran's own statements, in particular the August 2013 letter. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. See Falzone v. Brown, 8 Vet. App. 398, 4.03 (1995). However, the Board finds that the Veteran's lay 'statements have limited credibility because the statements are inconsistent with and are undermined by the medical evidence of record for the time period in question (September 2, 2009 to May 19, 2013). In determining whether statements submitted by a, veteran are credible; the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges the Veteran's contention that he has now, and previously experienced, extreme tenderness in his feet, as well as episodes of spasms in the back of his legs between the lower calf area and ankle after periods of standing or walking, swelling in the feet after periods of standing or walking, and callosities. See the August 2013 statement. The Veteran's attorney and his law clerk, Ms. Mckie, have also asserted that the Veteran had reported having extreme tenderness of the plantar surfaces of the feet, severe spasm of the Achilles tendon, shortening of the gastrocnemius muscle, deformities of the bilateral feet including degenerative changes of the tarsometatarsals and bilateral calcaneal spurs, a gastrocnemius equinus deformity, decreased calcaneal pitch, and bilateral foot swelling. See the M. Mckie's August 2013 letter and the July 2014 statement from the Veteran's attorney. However, while the medical evidence generated from 2009 to 2013 document findings of tenderness and pain on manipulation and use, it does not show marked pronation; marked inward displacement and severe spasm of the tendo Achilles on manipulation; or symptoms not improved by orthopedic devices during the time period in question. The Veteran did not report pronation; marked inward displacement and severe spasm; or that orthopedic devices did not improve his symptoms during the time period in question including when he was seeking medical treatment. In fact, as noted, in January 2010 he reported decreased pain to the level of 4 out of 10 and in November 2010, he reported needing no medication and good results with orthotics. The histories reported by the Veteran for treatment purposes are found to be of more probative value than the more recent assertions and histories given for VA disability compensation purposes (i.e. the assertions made in the August 2013 letter regarding symptoms between 2009 1nd 2013), as it is assumed that the Veteran would not hide symptoms from the medical professional from whom he was seeking 'treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board agrees with Ms. Mckie that the Veteran's symptoms are beyond what is considered "moderate" under a 10 percent rating. However, the currently assigned 30 percent contemplates symptoms of severe level. Moreover, while the Veteran and his attorney now assert that the Veteran has deformity of the feet due to his pes planus, objective finding of deformity of the feet was not made during either VA examination (during which physical examinations of the feet were conducted) and it was not alleged for many years after 2009. The attorney argues that the Veteran has spasm of the tendo Achilles as evidenced by the gastrocnemius equinus findings and other disabilities of the feet which the attorney assert should be considered to be deformities under Diagnostic Code 5276. However, neither VA examiner diagnosed the Veteran as such. For these reasons, the Board finds that the medical evidence generated during the time period of September 2, 2009 to May 19, 2013 outweighs the Veteran's own lay assertions in the August 2013 statement, the assertions made by Ms. Mckie in her August 2013 letter which were primarily based on the Veteran's August 2013 letter, and the attorney's assertions made in the 2014 statement. As noted, the Board recognizes that the Veteran experiences pain in his feet as a result of his pes planus, and does not wish to minimize the impact of this pain. However, it is noted, as previously noted, that pain is specifically contemplated by the Veteran's current 30 percent evaluation for "severe" pes planus. The Board further finds that while the Veteran has demonstrated pain due to the pes planus, the record does not otherwise show that the Veteran experienced the severity of pain or the other objective findings that would be associated with a 50 percent rating. The Board does not find that the Veteran has presented an overall symptom picture that more closely resembles a 50 percent evaluation for the time period in question. The Veteran has not shown marked pronation or the marked inward displacement and severe spasm of the tendo Achilles on manipulation that is associated with a 50 percent evaluation of pes planus. Additionally, a 50 percent evaluation is merited if orthopedic devices fail to improve symptoms. Here, both VA examiners found that orthopedic devices improved the Veteran's symptoms. In sum, the Board finds that the symptoms associated with the Veteran's pes planus are, at most, severe. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply and the claim for a higher initial evaluation for pes planus is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 30 percent for bilateral pes planus from September 2, 2009 to May 2013 is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs