Citation Nr: 1803631 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-43 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for bilateral pes planus. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from February 1951 to April 1955. The Veteran was awarded the Purple Heart Medal, among other decorations. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a November 2017 videoconference hearing, the transcript of which is included in the record. At the hearing, the Veteran submitted additional evidence, to include private treatment records and a VA Disability Benefit Questionnaire, with a waiver of initial Agency of Jurisdiction (AOJ) review in accordance with 38 C.F.R. § 20.1304(c) (2016). The evidence is accepted for inclusion in the record on appeal. At the videoconference hearing, the Veteran, through his representative, presented a motion to advance this case on the docket based on the Veteran's advanced age. As the Veteran is over 75 years of age, that motion is granted pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a) (2) (West 2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a) (2) (West 2014). This appeal includes documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision outlined below. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to October 20, 2017, the Veteran's service-connected bilateral pes planus was manifested by mild flatfoot with symptoms relieved, but not eliminated, by built-up shoe or arch support; but, moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achilles, and pain on manipulation was not shown. 2. Since October 20, 2017, the Veteran's service-connected bilateral pes planus is manifested by severe flatfoot with objective evidence of marked deformity, pain on use accentuated, and indication of swelling on use; but, 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 not shown. CONCLUSIONS OF LAW 1. Prior to October 20, 2017, the criteria for an initial compensable disability rating for bilateral pes planus have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2016). 2. From October 20, 2017, the criteria for an increased disability rating of 30 percent, but no higher, for bilateral pes planus, have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159 (b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b), and no further notice is needed. Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned in November 2017. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling 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 disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. For an initial rating, the effective date for service connection is used if not on appeal. Id. As this claim for an increased rating is an initial rating, and the Veteran has not appealed the effective date, the Board has considered all evidence for an increased rating from the effective date of February 2012 to the present. The Board has thoroughly reviewed all the evidence in the Veteran's record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Analysis Prior to October 20, 2017, the Veteran was afforded a VA examination in September 2013 in which he reported an ability to walk for 100 yards before having to stop due to pain and using a wheelchair for activities out of the home. His symptoms were noted to include pain on use of the feet that was accentuated on use, no pain on manipulation of the feet, no characteristic calluses, symptoms relieved by arch supports, no extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing, no evidence of marked deformity, no marked pronation, no weight-bearing line fall over or medial to the great toe, no other lower extremity deformity causing alteration of the weight bearing line, no "inward" bowing of the Achilles' tendon, no marked inward displacement and severe spasm of the Achilles tendon, and atrophic skin over feet. The examiner noted minimal pes planus on the right and mild pes planus on the left. In the Veteran's October 2013 notice of disagreement, he noted that he received some relief with his arch supports, but they did not eliminate the pain. Dr. T.E.S. submitted correspondence in July 2014, attesting to the Veteran's collapsing pes planus requiring custom molded orthotics and extra depth shoe gear, and his decreased mobility causing the need for a wheelchair for assistance. Dr. T.E.S. also submitted correspondence in April 2017, attesting to the Veteran's prescription shoe gear with custom inserts, mobility scooter, and custom molded orthotics. Dr. T.E.S. noted the Veteran's difficulty with ambulating more than 200 feet, difficulty walking, malalignment of the medial aspect of the foot secondary to posterior tendon dysfunction with the left worse than the right, decreased calcaneal inclination angle, decreased joint space in the posterior subtalar joint and first metatarsal cuneiform joint, hammertoe deformities, elevated first metatarsal, increased calcaneal cuboid angle and midfoot joint fault. Since October 20, 2017, a VA Disability Benefit Questionnaire was completed on October 20, 2017, that noted the Veteran's use of assistive devices for extended, greater than 100 yards, ambulation. The Veteran's symptoms were noted to include achy/shooting pain, flare ups that decreased his ability to go out and shop/do personal errands, no pain on manipulation, swelling on use, no characteristic calluses, the use of built-up shoes and orthotics, no extreme tenderness of plantar surfaces, decreased longitudinal arch heights, evidence of marked deformity of the feet, pronation, no weight-bearing line falling over or medial to the great toe, no other lower extremity deformity causing alteration of the weight bearing line, "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles tendon. The examiner noted less movement than normal, excess fatigability, pain on weight-bearing, disturbance of locomotion, interference with standing, regular use of a wheelchair and occasional use of a walker. In November 2017 the Veteran also testified as to his use of an electric scooter, pain, an ability to walk 200 to 300 feet without stopping and sitting down, tenderness, wearing orthopedic shoes, swelling at times, severe symptoms at times, and using reinforced handrails to go upstairs. After carefully reviewing the evidence of record, the Board finds that entitlement to an initial compensable rating for bilateral pes planus prior to October 20, 2017, is not warranted. While the Veteran presented with evidence of pain on use of his feet and limited mobility, he did not have weight-bearing line over or medial to the great toe, inward bowing of the atendo Achilles, or pain on manipulation. As such, the Board does not find that a compensable rating is warranted prior to October 20, 2017. Based on the evidence of record, the Board finds that the severity of the bilateral pes planus more nearly approximates the criteria for severe flatfoot since the October 20, 2017, VA Disability Benefit Questionnaire. At that time, the Veteran presented with objective evidence of marked deformity, pain on use accentuated, and indication of swelling on use. The Board has also considered the Veteran's testimony before the undersigned, noting severe bilateral pes planus symptoms at times. Therefore, the Board finds that the Veteran's symptoms are of such severity to approximate, or more nearly approximate, the criteria for a 30 percent evaluation, and no more, under Diagnostic Code 5276, for the period from October 20, 2017. 38 C.F.R. § 4.3, 4.7, 4.71a. A higher evaluation of 50 percent is not warranted unless flat feet are manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, a marked inward displacement, and severe spasm of the tendo Achilles on manipulation that is not improved by orthopedic shoes or appliances. The Board finds that this level of impairment has not been shown at any time during the pendency of the Veteran's appeal. The Board has also reviewed the remaining diagnostic codes for the Veteran's bilateral pes planus on appeal and finds that the evidence does not support a higher rating under any alternate diagnostic codes relevant to the bilateral pes planus. See 38 C.F.R. § 4.118 (2017). The Board has also considered the Veteran's statements describing his symptoms for the disability on appeal, and he is certainly competent to report any observable symptoms. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Board finds that the Veteran's lay evidence is outweighed by the competent and credible medical evidence that evaluates the extent of any impairment attributable to the service-connected disabilities based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. In addition, their reports provide sufficient information to allow the Board to apply the schedular criteria. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Consideration has been given to assigning a further staged rating; however, at no time during the period in question has the disability warranted more than the assigned ratings. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. Last, under certain circumstances additional disability could be awarded under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Those circumstances are not present in this case, as the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The rating for pes planus is not predicated on limitation of motion. Moreover, pain on manipulation and use is among the criteria specifically considered when assigning a disability evaluation for pes planus under Diagnostic Code 5276. Thus, no further consideration pursuant to the Court's holding in DeLuca is warranted in this appeal. ORDER Prior to October 20, 2017, entitlement to an initial compensable disability rating for bilateral pes planus is denied. From October 20, 2017, entitlement to an increased disability rating of 30 percent for the bilateral pes planus, is granted, subject to the law and regulations governing the payment of VA compensation benefits. REMAND Concerning the claim for a TDIU listed on the cover page, a TDIU is part of an increased disability rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Testimony during the November 2017 hearing reasonably raises a claim of entitlement to a TDIU. Thus, that issue has been added to cover page. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities; provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). The Veteran meets the percentage threshold requirements for a TDIU. The critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. The Board finds that, on remand, a TDIU examination should ascertain the functional and occupational impact of his service-connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion as to the effect of the veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to return the form to the AOJ. 2. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include requesting, with the Veteran's assistance, all records from his previous employers, including any medical records and/or administrative decisions pertaining to disability benefits. All actions to obtain the requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. Then, the Veteran should be scheduled for a VA examination before an appropriate examiner to determine functional effects of his service-connected disabilities, either individually or taken in their totality, relative to his ability to obtain or maintain a substantially gainful occupation that his education and occupational experience would otherwise permit him to undertake. The examiner should review the electronic claims file and note such review in the examination report. The examiner should provide a rationale for any opinion expressed. The examiner must not consider and must not discuss impairment related to nonservice-connected disability and the Veteran's age. 4. Then, readjudicate the Veteran's claim. If any benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, to include a review of all new medical evidence, and provided an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs