Citation Nr: 1803120	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO. 08-32 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a disability rating in excess of 10 percent from April 18, 2005 to August 23, 2010, and in excess of 50 percent thereafter, to include as on an extraschedular basis, for service-connected bilateral pes planus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1969 to November 1970.

Effective June 1, 2006, the Veteran is in receipt of a total disability evaluation based on individual unemployability.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. It was last before the Board in February 2016, when the Board denied a disability rating in excess of 10 percent prior to August 23, 2010 and granted a disability rating of 50 percent thereafter. See February 2016 Board Decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2017 Joint Motion for Remand (JMR), the Court vacated the February 2016 decision and remanded the case to the Board for adjudication consistent with the Court's order. 


FINDINGS OF FACT

1. Prior to August 23, 2010, the Veteran's service-connected pes planus was manifest by severe symptoms bilaterally, to include evidence of marked deformity, pain, and swelling on use.

2. The symptomatology and impairments caused by the Veteran's pes planus are specifically contemplated by the schedular rating criteria.


CONCLUSIONS OF LAW

1. Prior to August 23, 2010, the criteria for a disability rating of 30 percent, but no higher, for bilateral pes planus have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code (DC) 5276 (2017).

2. From August 23, 2010, a disability rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code (DC) 5276 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 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). 

VA's duty to notify was satisfied by an August 2005 letter. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. 
§ 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded multiple in-person examinations. The VA examiners provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations and medical opinions are adequate to decide the Veteran's claim.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Increased Rating for Service-Connected Pes Planus

The Veteran's bilateral pes planus was rated as 10 percent disabling from April 18, 2005 to August 23, 2010, and as 50 percent disabling thereafter under DC 5276 (flatfoot). 38 C.F.R. § 4.71a.

Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

Under DC 5276, a 10 percent rating is warranted for moderate flatfoot with the weight-bearing line being over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot manifested by 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. 38 C.F.R. § 4.71a, DC 5276

Upon VA examination in October 2005, physical examination showed moderate decreased dorsiflexion and crepitus at the right first metatarsophalangeal joint (MPJ). A palpable mass consistent with hypertrophic bone formation was also noted in the same area. There was tenderness at the right first metatarsophalangeal joint MPJ and the bilateral plantar heels that was mild in severity. The examiner noted the Veteran's gait was not normal due to the decreased flexion of his right first MPJ with abduction of the right foot, there was evidence of abnormal weight bearing based on shoe-wear pattern on the right shoe. X-rays were performed and the examiner diagnosed plantar fasciitis and hallux limitus, noting the hallux limitus caused moderate effects on ability to exercise and play sports. The examiner indicated the Veteran's symptoms were moderate in severity. The Veteran reported to a VA examiner that he had flare-ups of foot joint disease, no limitations on standing, he was able to walk one to three miles, and elevating his feet partially relieved his symptoms. The Veteran also reported experiencing swelling and tenderness in both feet. 

Private podiatry treatment records from February 2007 reflected complaints of pain in the big toe, ball of foot, and medial arch, worse in the right foot than the left, with activity. A strong anti-inflammatory medication was prescribed, and custom-made shoe inserts were recommended. At a follow-up appointment a week later, the Veteran reported very minimal, slight improvement. The podiatrist noted the Veteran "seem[ed] more focused on pursuing a heightened disability rather than true improvement." The podiatrist further noted that he thought custom-made orthotics would provide a significant amount of relief.

In March 2007 during a general medical examination, the Veteran reported he could only walk a half mile but could stand for two hours. The examiner noted he had an antalgic gait and did not use assistive devices.

In April 2007, private podiatry notes showed the Veteran reported the same complaints and had not pursued any of the recommended treatments. A private letter from the podiatrist noted the Veteran had mild pes planus bilaterally and normal muscle strength, with some weakness and inability to dorsiflex and plantar flex his right great toe completely. He noted there was x-ray evidence of right foot hallux limitus rigidus, including a likely fracture fragment that was completely disarticulated and was likely due to the advanced stage of the hallux limitus rigidus. X-rays showed limited range of motion of that joint, thus increasing the demands of the adjacent MPJs. The podiatrist noted the Veteran had an antalgic gait on the right side, demonstrating signs of a very abducted gait secondary to the bilateral hallux limitus rigidus.

The podiatry letter also noted the Veteran had recent trouble with bilateral plantar fasciitis through the medial bands and middle bands and occasional shooting pains. He reported anti-inflammatory treatments and foot supports provided minimal to no relief, and he had extreme difficulty performing any activity that required weight bearing for an extended period of time.

In November 2008, a letter from a private family practice physician reported pain in the great toe and dorsum of the foot, and that the Veteran had tried orthotics but stated they actually seemed to increase his pain. The doctor noted that the Veteran had mild degenerative changes of the MP joint of his right great toe and mild pes planus of both feet. No other deformity or swelling was noted. X-rays showed osteoarthritic spurring of the MP joint of the right great toe.

The Veteran also submitted a March 2009 letter from a private podiatric physician and surgeon. The doctor noted normal muscle strength testing for dorsiflexion, plantar flexion, inversion, and eversion. He reported approximately 55 degrees range of motion at the left first MPJ and significant decreased motion on the right first MJP of approximately 10 degrees. He noted a firm, palpable mass along the dorsomedial aspect of the first MPJ consistent with degenerative arthritis. The doctor noted that the Veteran reported orthotics did not resolve his symptoms and he felt better without them, but noted there was abnormal wear on the Veteran's shoe, likely as a result of mechanical changes surrounding his first MPJ and the right rear foot. After x-ray review, the assessment was hallux limitus with degenerative changes of the right first MPJ, infracalcaneal heel spur with mild bilateral plantar fasciitis, and minor limb length discrepancy with left rear foot varus. After reviewing the VA disability criteria the Veteran provided, the doctor noted there did not appear to be any extreme tenderness or pain on range of motion or palpation; significant muscle spasm or neurological disorder with stance or gait; marked deformity, swelling, or tendonitis; or hyperkeratotic skin lesions as a result of abnormal mechanical wear. The doctor did note signs of pronation on stance and on ambulation, which again the Veteran reported was not alleviated by arch supports or shoe inserts. 

In a statement received April 2009, the Veteran reported the pain in "both feet and legs [was] much worse," and that once or twice a year he had to use a cane for a few days at a time. He stated that normal walking brought on pain, particularly in his right foot, right leg and right hip, and that the bottoms of his feet were sensitive.

In October 2009, the Veteran told a VA examiner his treatment included taking pain medication and doing pool exercises, with partial effectiveness in relieving symptoms. He complained of pain in the plantar arch while standing and walking; swelling in the ankle while standing, walking, and at rest; and stiffness in the plantar arch while standing, walking, and at rest. The examiner indicated there were no flare-ups of foot and joint disease, but that the Veteran was unable to stand for more than a few minutes and could walk a quarter of a mile. He used a cane for his hip and foot. Physical examination showed painful motion and tenderness at the left first MPJ, and weakness in plantarflexion, dorsiflexion, and eversion on the left foot only. The examiner noted the Veteran's gait had poor propulsion. After reviews of x-rays, the diagnoses were right foot hallux rigidus and bilateral pes planus with hallux valgus. The foot condition caused mild problems with chores, shopping, recreation, and traveling, and prevented the Veteran from exercising and playing sports.

After resolving reasonable doubt in the Veteran's favor, the Board finds his disability picture due to pes planus most nearly approximated the criteria for a 30 percent rating prior to August 23, 2010.

The Board has also considered the criteria for a 50 percent disability rating for the period, but finds that the evidence does not establish that the Veteran's pes planus manifested in 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

Prior to August 23, 2010, the evidence does not approximate findings for a disability rating in excess of 30 percent. The medical evidence prior to that date indicates the Veteran's pes planus was severe, with evidence of marked deformity, pain, and swelling. There is no indication that the severity of the disability has been described as pronounced. There are complaints of pain and swelling of the feet, but there is no objective evidence of marked pronation, extreme tenderness, or marked inward displacement and severe spasm of the achillis tendon on manipulation. The absence of the objective evidence as noted in VA examiners' conclusions, demonstrates the overall severe, but not pronounced, nature of the Veteran's disability. Therefore, a higher disability rating under DC 5276 is not warranted for the Veteran's service-connected bilateral foot disability.

In addition to DC 5276, the Board has considered whether evaluation of the service-connected bilateral foot disability under any alternative diagnostic code would provide a basis for a higher rating. The evidence shows that the Veteran has been diagnosed with bilateral hallux valgus. Specifically, all three examiners diagnosed the Veteran with bilateral hallux valgus. Under DC 5280, unilateral hallux valgus operated with resection of metatarsal head warrants a 10 percent rating and unilateral hallux valgus, severe, if equivalent to amputation of the great toe warrants a 10 percent rating. Although the Veteran has been diagnosed with hallux valgus bilaterally, there is no evidence showing that it is equivalent to amputation of the great toe or operated with resection of metatarsal head. More importantly, the Veteran is currently receiving a 30 percent rating, higher than the 10 percent rating under DC 5280. Therefore, the criteria for a higher or separate rating under DC 5280 have not been met. 

The Board has also considered DC 5284, residuals of other foot injuries. Under this code, moderate residuals of foot injuries are rated 10 percent, moderately severe residuals of foot injuries are rated 20 percent, and severe residuals of foot injuries are rated 30 percent. A note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent. 38 C.F.R. § 4.71a. There is no objective evidence of loss of use of the foot in order to receive the 40 percent disability rating under DC 5284. As such, a higher rating is not warranted under DC 5284. Although there is also evidence of the Veteran having diagnoses of Morton's disease, hallux rigidus, plantar fasciitis, and metatarsalgia, ratings in excess of 30 percent are not available under DCs 5003, 5279, 5281, and 5284. Further, there is no evidence the Veteran has been diagnosed with bilateral weak foot; claw foot; hammer toes; or malunion of, or nonunion of tarsal or metatarsal bones. Accordingly, a higher rating is not warranted under DCs 5277, 5278, 5282, or 5283.

The clinical evidence does not show that Veteran's bilateral foot disability has been manifested by symptomatology that equates to pronounced bilateral disability even when considering 38 C.F.R. §§ 4.40, 4.45 and the Court's holding in DeLuca, supra. The Board has considered sections 4.40 and 4.45 and DeLuca, supra, as the evidence shows the Veteran experiences pain and swelling while demonstrating movement in his feet; however, the lay and medical evidence of record does not reflect that his pain has been so disabling to result in a pronounced foot disability warranting the next-higher 50 percent rating under DC 5276 prior to August 23, 2010.

While the record reflects findings of arthritis in the foot, such diagnosis does not provide a basis for a higher, or additional, rating. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved; or, if limitation of motion is noncompensable, a maximum 20 percent rating is assignable under DC 5003, under certain circumstances, for limited and/or painful motion. While there is no specific diagnostic code for limitation of the foot, as noted, the current rating for the bilateral foot disability is primarily based upon the Veteran's reports of pain and limitation of motion, the same manifestations upon which arthritis is evaluated. Evaluation of the same manifestations under different diagnoses, or "pyramiding," is precluded by 38 C.F.R. § 4.14.



Extraschedular Consideration

The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111(2008). 

Under the law, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321 (b)(1) (related factors included "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.

The Veteran contends that the pain caused by his pes planus result in sleep impairment, and thus, merits extraschedular consideration. However, the symptomatology and impairments caused by the Veteran's bilateral pes does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321 (b). The schedular rating criteria specifically provide for disability ratings of pes planus 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. 

The issue of whether a disability is adequately captured by the schedular criteria is determined based on the manifestations of the disability and associated functional impairment, and not on external circumstances, unless the external circumstances somehow indicate that the underlying disability itself is outside the schedular norms. See VAOPGCPREC 6-96 (August 16, 1996) (holding that the fact that circumstances specific to a claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not in itself provide a basis for extraschedular referral). Difficulty sleeping due to pain, for example, does not appear inconsistent with the pain compensated under the General Rating Formula and section 4.45 of the regulations. Specific challenges caused by the Veteran's pes planus cannot alone support an exceptional or unusual disability picture solely on the basis that they are not mentioned in the rating criteria, which are cast in general terms devoid of examples of such challenges, as explained above, and instead are usually based on objective clinical findings serving as markers of disability at various levels. There is no indication that the Veteran's challenges or functional impairment as described by him are inconsistent with or more severe than the disability picture compensated under the rating schedule, such as to render application of the schedular criteria impractical for evaluating the Veteran's pes planus. 

Accordingly, the Board finds that the schedular rating criteria are adequate to rate the symptomatology and functional impairment associated with the Veteran's disability on appeal. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, see Thun at 118-19, and referral for extraschedular consideration is not warranted.



ORDER

A disability rating of 30 percent from April 18, 2005 to August 23, 2010 is granted.

A disability rating in excess of 50 percent from August 23, 2010 is denied.




____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs