Citation Nr: 1536642 Decision Date: 08/27/15 Archive Date: 09/04/15 DOCKET NO. 10-49 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for gout of both feet. 2. Entitlement to an increased rating for bilateral pes planus and plantar fasciitis, rated 30 percent prior to December 28, 2012, and as 50 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran served on active duty from July 1989 to November 1989, from January 2002 to November 2002 and from February 2003 to June 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Historically, a March 2007 Board decision dismissed an appeal for service connection for PTSD, as the claim had been withdrawn, and remanded a claim for rating in excess of 10 percent for bilateral pes planus and plantar fasciitis, but, thereafter, a January 2008 Board decision granted a 30 percent rating for that disorder, which was effectuated by a February 2008 rating decision, as of June 22, 2004. Thereafter, a June 2008 rating decision, in pertinent part, denied a rating in excess of 30 percent for bilateral pes planus and plantar fasciitis, as did an October 2008 rating decision. The Veteran's Notice of Disagreement (NOD) initiating an appeal was received in November 2008. A Statement of the Case (SOC) addressing that increased rating claim was issued in July 2009 and that appeal was perfected by filing a VA Form 9, Appeal to the Board, in July 2009. The Veteran presented testimony at a videoconference hearing chaired by the undersigned Veterans Law Judge in April 2010. A transcript of this hearing is associated with the Veteran's claims folder. The Board remanded the case in December 2010 for further development. At that time the issues of service connection for an acquired psychiatric disorder, including depression, to include as secondary to the Veteran's service-connected foot disability; and service connection for gout were remanded to have an SOC issued because a Notice of Disagreement (NOD) had been filed. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board remand, at page 3, specifically informed the Veteran that he had to "complete his appeal concerning entitlement to service connection for gout and an acquired psychiatric disorder, including depression, by filing a substantive appeal following the issuance of the SOC. See 38 C.F.R. § 20.200." However, prior to the issuance of any SOC or Supplemental SOC (SSOC), the Veteran filed VA Form 9 in December 2010 addressing service connection for psychiatric disability and service connection for gout. Thereafter, the Veteran testified in April 2011 before a Decision Review Officer (DRO) as to both of these claims. A transcript thereof is on file. Subsequently, after an August 2011 examination, a June 2012 rating decision granted service connection for post-traumatic stress disorder (PTSD) and a depressive disorder, not otherwise specified (NOS), and assigned an initial 50 percent disability rating, all effective July 28, 2009. The Veteran had not contested either the effective date or the initial disability rating assigned for the now service-connected psychiatric disorder. In July 2012 the RO issued an SSOC addressing solely the issue of service connection for gout. The cover letter noted that if he had not filed a formal appeal (as to that issue, i.e., service connection for gout), and he wished to continue his appeal he should execute and file a formal appeal (VA Form 9). He was informed that he could loss his right to appeal if he did not file his formal appeal on time. Thereafter, a January 2013 rating decision grant a 50 percent rating for service-connected bilateral pes planus and plantar fasciitis, effective December 28, 2012 (date of VA rating examination). Subsequently, a January 2013 SSOC addressed the issues of service connection for gout of both feet and an increased rating for bilateral pes planus and plantar fasciitis. The Veteran has submitted additional evidence, with a waiver of initial RO consideration thereof, which includes an April 2014 statement from a VA clinician that indicates that due to unspecified "physical conditions" the Veteran could not perform his job duties and would benefit from retiring. From this it is not clear whether the Veteran continues to maintain gainful employment or desires to claim a total disability rating based on individual unemployability due to service-connected disabilities. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issue service connection for gout of both feet is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT The evidence shows that prior to December 28, 2012, the Veteran had pronounced pes planus and plantar fasciitis with marked inward displacement, and extreme tenderness of the plantar surfaces of the feet. CONCLUSIONS OF LAW 1. Prior to December 28, 2012, the criteria for a disability rating of no greater than 50 percent for bilateral pes planus and plantar fasciitis were met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2014). 2. Since December 28, 2012, the criteria for a disability rating in excess of 50 percent for bilateral pes planus and plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). As to notice, the Veteran has been provided the requisite notice with respect to the claim for an increased disability rating for service-connected bilateral pes planus and plantar fasciitis by letter September 2009, prior to the initial RO adjudications thereof. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran presented testimony at a Board videoconference and at a DRO hearing. VA has obtained available service treatment records; private treatment records; and VA medical records. The appellant has been provided VA rating examinations. Although the Veteran's service representative has requested a more recent VA rating examination, since the last examination was in December 2012, the Board notes that the Veteran is now in receipt of the maximum schedular rating for disabilities of the feet. Moreover, the adequacy of the past examinations has not been challenged. The Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999). 38 C.F.R. § 3.103(c)(2) requires that one presiding at a hearing explain the issues and suggest the submission of relevant but overlooked evidence. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The hearing focused on the elements needed for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. Neither the Veteran nor his representative have alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the appeal is available but unobtained. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Legal Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2014). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's service-connected bilateral pes planus with plantar fasciitis is rated at a 30 percent disability rating prior to December 28, 2012, and at a 50 percent disability rating thereafter. Pes planus, flatfoot, is rated for acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 30 percent disability rating contemplates severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. A 50 percent rating contemplates bilateral 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 appliances. Id. The 50 percent rating is the highest disability rating assignable. The Veteran was afforded VA rating examinations of his feet in April 2009 and again on December 28, 2012. The 2009 examination reported that the bilateral pes planus was stated to be of a moderate to severe degree. The Achilles tendon was tender on the right foot but not the left, and both were in normal alignment. He walked with pronation, bilaterally, of a moderate degree. He had a callous formation on the lateral aspect of the sole of the right foot. There was no edema. He had pain on attempting to stand on his tip toes. Toe motion of the right foot was generally decreased. The right foot was tender over the metatarsal area, anterior heel are, and the Achilles tendon area. The left foot was tender over the metatarsal area and the anterior heel area. The Veteran's gait appeared to be painful. There was a hallux valgus deformity of 5 degrees on the right and of 10 degrees on the left. It was noted that X-rays of the left foot in July 2008 showed degenerative changes of the 1st metatarsophalangeal joint with pes planus, and a calcaneal spur. The examiner's diagnosis was degenerative joint disease, pes planus, plantar fasciitis, and hallux valgus deformity of both feet. The VA December 28, 2012 VA examination of the Veteran's feet found that he had pain which was accentuated on use of the feet. His symptoms remained symptomatic despite the use of arch supports, bilaterally. He had extreme tenderness of the plantar surfaces of both feet. He had pain on manipulation of each foot, and there was an indication of swelling of the feet on use. He had marked inward displacement and severe spasm of the Achilles tendon on manipulation of each foot. Reviewing the findings on the VA examination reports as a whole, the Board finds that Veteran's service-connected bilateral pes planus with plantar fasciitis more nearly approximates the criteria contemplated by the 50 percent disability rating during the entire period of the appeal. While the 2009 examination did not specifically find that the service-connected disabilities of the feet caused pronounced impairment due to bilateral pes planus, that disability was described as being between moderate and severe. However, the Veteran also had tenderness of the right Achilles tendon. Moreover, he had bilateral pronation of the feet which was described as being moderate, and he also had tenderness over the metatarsals and anterior heels, bilaterally. In fact, the 2009 examination observed that the Veteran's gait appeared to be painful. Accordingly, a 50 percent rating is granted for bilateral pes planus, with plantar fasciitis, prior to December 28, 2012. The assigned 50 percent disability rating is the maximum assignable disability rating for pes planus under the provisions of Diagnostic Code 5276. Diagnostic Code 5278 provides for a maximum 50 percent rating for bilateral acquired claw foot (pes cavus). The evidence of record does not show any such diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5278 (2014). Unilateral hallux valgus warrants the assignment of a 10 percent disability rating for being operated with resection of metatarsal head or for being severe, if equivalent to amputation of great toe. See 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2013). While the Veteran has hallux valgus of both feet, it is slight to moderate without surgical resection. Accordingly, assignment of a separate disability rating under this diagnostic code is not warranted. Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A Note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2014). However, this Diagnostic Code would not warrant a rating in excess of the 50 percent disability rating currently assigned under Diagnostic Code 5276. To assign a separate rating under Diagnostic Code 5284, would constitute pyramiding. 38 C.F.R. § 4.14 (2014). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b)(1). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the disability picture resulting from the Veteran's service-connected bilateral pes planus with plantar fasciitis, is not so unusual or exceptional in nature as to render the already assigned ratings inadequate. The Veteran's service-connected bilateral pes planus with plantar fasciitis is evaluated under the correct diagnostic code and the maximum disability rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Separate ratings for hallux valgus and foot injury have been considered and found not to be warranted. The criteria under Diagnostic Code 5276 specifically contemplate the level of occupational impairment caused by this disability. The service-connected bilateral foot disorder is manifested by pronounced flat foot with extreme tenderness of the plantar surfaces of the feet, which is not improved by orthopedic shoes or devices. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the assigned 50 percent disability rating. The criteria for the ratings currently assigned reasonably describe the Veteran's bilateral pes planus and plantar fasciitis disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation for his service-connected bilateral pes planus with plantar fasciitis is adequate and that referral of the Veteran's case for extraschedular consideration is not required. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral pes planus, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected bilateral pes planus varied to such an extent that a rating greater or less than 50 percent would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, a rating of 50 percent for entire appeal period is warranted. ORDER A disability rating of 50 percent is granted for bilateral pes planus and plantar fasciitis, prior to December 28, 2012, subject to applicable law and regulations governing the award of monetary benefits. A disability rating in excess of 50 percent for bilateral pes planus and plantar fasciitis is denied. REMAND The Board wishes to explain that upon the Veteran's having filed an NOD to the denial of service connection for gout, an SOC should have been issued. This matter was addressed the December 2010 Board remand. The Veteran at that time was instructed to file a Substantive Appeal, VA Form 9 or equivalent, after the issuance of an SOC. However, the Veteran preemptively filed a VA Form 9 before any SOC was issued. Complicating this matter is the fact that a formal "SOC" was never issued. Rather, an SSOC was issued in July 2012 which addressed, in isolation, the claim for service connection for gout. Unfortunately, the instructions in the cover letter attached to the July 2012 SSOC could have misled the Veteran. That is, he should have filed a VA Form 9 after the July 2012 SSOC. However, the cover letter to the July 2012 SSOC informed him that if he had already filed a VA Form 9, he did not have to file another VA Form 9. Again, as noted above, he had already filed a VA Form 9, in December 2012 (prior to the issuance of the July 2012). As to this, the Board's instruction in the December 2010 remand was to issue an SOC addressing the claim for service connection for gout of both feet. Rather than issue an SOC, as instructed, the RO issued an SSOC. As to this, generally an SSOC is issued after a VA Form 9 had been filed. In order the preserve the proper appellate procedure, the Board must again remand the claim for service connection for gout of both feet. Upon remand, the RO must issue a Statement of the Case (SOC) and not a Supplemental Statement of the Case (SSOC), addressing the claim for service connection for gout of both feet. The Veteran is again instructed that only after the issuance of an SOC addressing the claim for service connection for gout of both feet, he must file a Substantive Appeal, i.e., VA Form 9 or equivalent in order to perfect the appeal. Additionally, on remand, the Veteran should be afforded an up-to-date VA examination addressing whether he now has gout and, if so, whether it is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an examination of his feet for the purpose of determining whether he now has gout of the feet and, if so, whether it is as likely as not that any such gout is relate to or of service origin. The examination should also address the severity of the service-connected bilateral pes planus and plantar fasciitis. The examiner should describe all symptoms, including any neurological manifestations and comment on the degree of functional and industrial impairment and the effect on employment caused by the disability. All appropriate testing should be conducted. The claims file must be made available for the examiner to review, and the examiner must indicate that this was accomplished. 2. Issue a Statement of the Case (SOC) which addresses only the issue of entitlement to service connection for gout of both feet, and which considers any additional evidence, including the results of any VA examination (as requested above). The Veteran should be informed (and hereby is so informed) that in order to perfect his appeal as to the claim for service connection for gout of both feet he must file a Substantive Appeal, VA Form 9 or equivalent, after (and not before) the issuance of the SOC addressing that matter. 3. Then, if in order, return the appeal to the Board (only returning the service connection issues to the Board if the Veteran timely files a Substantive Appeal, VA Form 9 or equivalent by which the appeal is perfected as that issue). The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs