Decision Date: 07/28/95 Archive Date: 08/03/95 DOCKET NO. 93-19 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Whether a February 22, 1985, rating decision clearly and unmistakably erred in denying service connection for bilateral flat feet. 2. Entitlement to a rating in excess of 10 percent for bilateral flat feet. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from October 1979 to April 1984. A February 1985 rating decision denied service connection for bilateral flat feet, finding that it preexisted service. The veteran was notified of this decision by a March 1985 letter, and he did not timely appeal. It is noted that during the course of this appeal, the regional office (RO), in a rating decision dated November 1992, granted service connection for bilateral flat feet on the basis that new and material evidence had been received to reopen and allow the claim. A rating of 10 percent was assigned, with which the veteran disagreed, and which issue has been developed for appellate review. The veteran also continued his appeal on the issue of clear and unmistakable error (or CUE). The representative, in a March 1994 statement, requested service connection for bilateral metatarsalgia. This issue is not inextricably intertwined with the instant appeal and is not for appellate review at this time. The matter is referred to the RO for adjudication. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the February 1985 rating decision contained CUE in that the decision did not contain sufficient reasons for the determination that flat feet preexisted service and were not acquired, nor any consideration of whether flat feet were aggravated during service. The appellant avers that, had such consideration been undertaken, then the outcome of the decision would have been to grant service connection for bilateral flat feet, since the evidence at that time was clear that the bilateral flat feet were aggravated by active service. The representative, in a March 1994 statement, references VA O.G.C. Op. No. 1-85 (March 5, 1985), in support of this claim. In the veteran's substantive appeal, he further contended that a rating in excess of 10 percent is warranted for pes planus because his feet swell and are tender and sore. He added that review of his feet would show calluses, swelling, and pain on manipulation. He stated that his flat feet had cost him jobs, including jobs in management, due to inability to stand for long periods. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the February 1985 rating decision contained clear and unmistakable error, and that the preponderance of the evidence is not against a rating of 30 percent for bilateral flat feet. FINDINGS OF FACT 1. The February 1985 rating decision denying service connection for flat feet was not supported by an evidentiary basis that the disorder was a congenital defect. 2. The February 1985 rating decision denying service connection for flat feet was not supported by a finding that the disorder did not increase in disability during service. 3. The February 1985 rating decision denying service connection for flat feet was not supported by a finding that the increase in disability during service was due to the natural progress of the disorder. 4. Bilateral flat feet are manifested by severe impairment. CONCLUSIONS OF LAW 1. The February 1985 rating decision contained clear and unmistakable error. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.400 (1994). 2. The manifestations of the bilateral flat feet warrant a rating of 30 percent. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Part 4, Diagnostic Code 5276 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. I. CLEAR AND UNMISTAKABLE ERROR Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). The February 1985 rating decision is considered to be a previous determination which is final and binding, because the veteran did not appeal the decision within one year after having been notified thereof. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In a rating decision dated November 9, 1992, the regional office granted service connection for bilateral flat feet and assigned a schedular rating of 10 percent. The effective date of the grants was November 21, 1990. Although the claim has been reopened and allowed based on the receipt of new and material evidence, that reopening was effective only as of the date of the new claim because the RO found that no CUE was present in the February 1985 rating decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.400. When a claim of CUE is stated, [i]t must always be remembered that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); en banc review denied, February 2, 1994. (emphasis in original) (citation omitted). A determination of whether CUE occurred must be based on the existing law and evidence of record at the time of the decision under review. Russell v. Principi, 3 Vet.App. 310, 314 (1992). As the question of whether CUE occurred in the February 1985 rating decision is to be answered based on the laws, regulations, and evidence in the record at that time, the Board notes that the pertinent provisions at that time were as follows. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (1984). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1984). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (1984). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). For peacetime service, the specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 C.F.R. § 3.306(c) (1984). It is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition. The congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormality which is not compensable or pensionable. 38 C.F.R. § 4.57 (1984). In the acquired condition, it is to be remembered that depression of the longitudinal arch, or the degree of depression, is not the essential feature. The attention should be given to anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. This is an unfavorable mechanical relationship of the parts. A plumb line dropped from the middle of the patella falls inside of the normal point. The forepart of the foot is abducted, and the foot everted. The plantar surface of the foot is painful and shows demonstrable tenderness, and manipulation of the foot produces spasm of the Achilles tendon, peroneal spasm due to adhesion about the peroneal sheaths, and other evidence of pain and limited motion. The symptoms should be apparent without regard to exercise. In severe cases there is gaping of bones on the inner border of the foot, and rigid valgus position with loss of the power of inversion and adduction. Exercise with undeveloped or unbalanced musculature, producing chronic irritation, can be an aggravating factor. 38 C.F.R. § 4.57 (1984). The essential facts of the case are not in dispute. The veteran was examined for enlistment in December 1978, at which time pes planus was not noted. He entered service in October 1979, and in December 1979, less than 1 and 1/2 months thereafter, he complained of corns on both feet hurting when he marched. The assessments were metatarsalgia and corns. Based in part on a history of metatarsal pain of 6 months' duration, pes planus was found in June 1980. Metatarsalgia was said to be secondary to pes planus in January 1981. Severe pes planus was reported in May and December 1981. An X-ray in April 1982 was reported to show mild pes planus deformity bilaterally. Additional findings of pes planus are contained within the service medical records. Separation examination in February 1984 reflected second degree flat feet, with moderate symptoms. VA examination in September 1984 resulted in the diagnosis of pes planus, although this was not shown on the report of the X-ray at that time. The rating decision in February 1985 concluded that pes planus pre-existed service. It was determined that there was no evidence of trauma to the veteran's feet in service and that he complained of feet problems shortly after entrance. The rating decision did not specifically hold that the condition was not acquired. The matter of aggravation was likewise not specifically addressed. On the recent revisitation of this issue, the hearing officer in August 1992 determined that the veteran's flat feet preexisted service, but progressed at an abnormally high rate during service, and that under an opinion of the VA's General Counsel in 1990, service connection could be granted for preexisting disorders which progress at an abnormally high rate during service. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990). In the rating decision of November 21, 1992, the determination was that the condition was aggravated by service. In Townsend v. Derwinski, 1 Vet.App. 408 (1991), the veteran had no pes planus at service entrance, but pes planus was shown one month after entrance, and at service separation. The Court did not object to the RO and Board having found that pes planus preexisted service. However, the Court noted that the claim was subject to provisions which applied to wartime veterans who experience an increase in severity of preexisting disability during service, which provisions require that to deny service connection in such cases, clear and unmistakable evidence must be submitted to rebut a presumption of aggravation. The Court found that, as the record before the RO showed that pes planus had increased during service, it was error for the RO to have denied the claim without finding by clear and unmistakable evidence that the increase was due to the natural progress of the disorder. The Board's decision was reversed. The Court did not discuss the provisions of 38 C.F.R. §§ 3.303(c) or 4.57, pertinent to congenital defects. Here, the facts are very similar to those in the Townsend case, insofar as that (1) the cases address pes planus, which is by regulation indicated to often occur as a congenital defect, and (2) the relevant medical facts which were available to the 2 ROs at the time of their rating decisions were substantially the same. Also, in both cases, the ROs did not have the benefit of the Court's interpretation of VA regulations. However, the Court's decision in the Townsend case makes clear that the pre-Court timing of a rating decision does not exempt it from strict review for error. The Board finds that the most logical inferences relevant to the instant case, which may be drawn from the Townsend precedent when construed along with the regulations pertinent to congenital defects, are: (1) it was not CUE for the RO in 1985 to determine that pes planus preexisted service, given the Court's approach in Townsend and § 4.57, which made clear that pes planus may be a congenital defect, but (2) as pes planus is of a nature that it may or may not have been a congenital defect, the RO was required to have an evidentiary basis of some sort to support the finding of congenital defect. Such evidentiary basis was not in the record in 1985. The evidence that "no trauma" occurred to the feet in service was not sufficient to find that the pes planus was a congenital defect under §§ 3.303(c) and 4.57. Since the evidence did permit the RO to find, without committing CUE, that pes planus preexisted service, but was not sufficient to find that pes planus was congenital, the RO was then required to inquire whether the preexisting pes planus underwent an increase in disability during service under 38 C.F.R. § 3.306(a) (1984). See, Townsend, supra. This inquiry was not undertaken. That the veteran had peacetime service is immaterial. 38 C.F.R. § 3.306(c) (1984). This is because the initial inquiry, which is the same under 38 C.F.R. § 3.306(a) regardless of whether service was in wartime or peacetime, was not undertaken. As found hereinabove, given that the evidence did not permit the inference that pes planus was a congenital defect, and given the striking similarities between the instant case and the Townsend case, the RO in 1985 should have considered whether the preexisting pes planus had been aggravated by service. In light of the veteran's apparent asymptomatic status at service entrance and the multiple findings of impairment attributable to pes planus throughout service, any conclusion that increase in disability did not occur can not be sustained. The regional office's failure to apply 38 C.F.R. § 3.306 (a)(1984) under those circumstances was plainly error. II. INCREASED RATING Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A noncompensable rating is assigned for bilateral pes planus which is mild, and symptoms are relieved by shoe build-up or arch support. A 10 percent rating is warranted for bilateral pes planus where there is moderate disability, characterized by weight-bearing line over or medial to the great toe, inward bowing of the achilles tendon, and pain on manipulation and use of the feet. A 30 percent rating is assigned for bilateral pes planus when it is severe, such as with objective evidence of marked deformity such as pronation, abduction, etc., accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5276. At his personal hearing in May 1992, the veteran testified that a 10 percent rating is inadequate to rate his bilateral flat feet, due to frequent pain with long periods of standing or with walking, his being required to wear expensive shoes, pain when stepping on hard objects, corns, calluses, swelling, and his being required to put his feet up and give them hot soaks. Transcript of hearing at pages 13-17. At VA examination of the feet in May 1992, the veteran complained of pain over the medial plantar surface of his feet and all metatarsal heads, worse with weight bearing. This pain was exacerbated by walking on uneven ground, walking more than 100 yards, prolonged standing, or wearing thin-soled dress shoes. The pain was somewhat relieved by rest. He reported that he was restricted to wearing tennis shoes or expensive, well-padded dress shoes. He reported that he had to give up jobs as a restaurant manager and salesman due to foot pain. He was working at the time of the examination as a life insurance salesman, as this was conductive to resting when needed. On examination, the veteran was noted to have normal posture but generally antalgic gait. The feet had marked pes planus, greatly exacerbated on the right by weight bearing. There was tenderness about the metatarsal heads. Hindfoot, midfoot, and forefoot motions were normal. Sensation was normal, and the feet was warm and without trophic changes. The pertinent diagnoses were bilateral pes planus and bilateral metatarsalgia. An X-ray was apparently ordered but is not of record. The Board has considered the entire history of the veteran's pes planus and all of the contentions and testimony. The Board determines that the current rating of 10 percent for this disability is correct. A 30 percent rating would be warranted for bilateral pes planus if it were severe, such as with objective evidence of marked deformity, accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. In view of the examiner's finding that the veteran's pes planus was "marked" bilaterally and the veteran's complaints of pain, the Board is unable to conclude that the preponderance of the evidence is against the veteran on the material question whether the symptomatology more closely approximates the criteria for the 30 percent rating. The Board has also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's pes planus is not so unusual or extraordinary as to warrant extraschedular rating. That is, the disability picture does not render impractical the application of the regular schedular standards. Thus, the regular rating schedule applies to the evaluation of the disorder. ORDER A rating of 30 percent for bilateral flat feet is granted. The rating decision dated in February 1985 which denied service connection for bilateral flat feet contained clear and unmistakable error. JOHN E. ORMOND, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -