Citation Nr: 0002865 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-04 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 10 percent, the initial rating assigned, effective from June 1, 1997, for service-connected bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from August 1982 to May 1997. The veteran's DD Form 214 indicates total prior active service of 15 years, 6 months, and 26 days. This appeal to the Board of Veterans' Appeals (Board) arises from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDING OF FACT Bilateral pes planus is manifested by pain on walking. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent, the initial rating assigned, effective from June 1, 1997, for service-connected bilateral pes planus, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1-4.14, 4.71a, Diagnostic Code 5276 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes the November 1997 RO decision on appeal granted and denied certain service connection claims, and denied an increased rating for two other disabilities. The veteran's December 1997 notice of disagreement (NOD), however, indicated disagreement with only the issues of an increased rating for bilateral pes planus and the denials of service connection for arthritis of the ankles and for a prostate nodule. His March 1998 substantive appeal referred only to the issue of an increased rating for bilateral pes planus. Appellate review of a decision by an agency of original jurisdiction (AOJ) is initiated by the claimant's filing a timely NOD with the AOJ; an appeal is perfected by the claimant's filing a substantive appeal with the AOJ. See 38 C.F.R. § 20.200; Fenderson v. West, 12 Vet. App. 119, 128 (1999); see also 38 U.S.C.A. § 7105 (West 1991). Accordingly, as the issue of an increased rating for the veteran's service-connected bilateral pes planus is the only issue noted in the substantive appeal of record, that is the only issue before the Board at this time. Initially, the Board finds the veteran's claim well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that when a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Additionally, in accordance with 38 C.F.R. §§ 4.1-4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence on file is inadequate for rating purposes. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1; Fenderson, 12 Vet. App. at 125. The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of an initial rating in an original claim, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 126. The Board notes the 10 percent rating for the veteran's service- connected bilateral pes planus is effective June 1, 1997, the day after the date of the veteran's discharge from active duty service. Thus, the Board will consider whether a higher rating is warranted at any time subsequent to that date. No medical records pertaining to the veteran's service- connected bilateral pes planus, subsequent to his May 31, 1997, discharge, have been submitted in connection with this appeal. During a August 1997 VA examination, the veteran reported symptoms attributable to his ankles when giving a history of his bilateral pes planus. The veteran, in his December 1997 NOD, also reported an ankle symptom, fluid or swelling, as attributable to his bilateral pes planus. In a December 1997 report from a military hospital, however, it was noted the veteran had chronic ankle pain "likely due to [a] combination of longstanding tendonitis and ankle swelling." There is no medical opinion of record relating any ankle tendonitis or ankle swelling to the veteran's service- connected bilateral pes planus. A July 1997 report from that facility also indicated ankle tendonitis. An X-ray taken in conjunction with the veteran's August 1997 VA examination revealed mild degenerative lipping, right and left ankle, and the diagnosis was early mild degenerative arthritis of the left and right ankles. The Board notes that service connection has not been granted for ankle tendonitis or arthritis of the ankles, nor have those symptoms been medically related to the veteran's pes planus. Thus, no ankle symptoms may be considered when rating the symptomatology of the veteran's service-connected bilateral pes planus. The use of manifestations not resulting from service-connected disease or injury in establishing a service-connected rating is to be avoided. See 38 C.F.R. § 4.14. During the August 1997 VA examination, the veteran reported being fitted for inserts in his shoes (although it was not noted that he was then wearing them), and that he continued to have pain on walking. Upon physical examination, the veteran was noted to be obese. His gait was normal. No lower limb sensory or motor deficit was found. No symptoms were attributed to bilateral pes planus. The diagnosis was pes planus, right and left. In his December 1997 NOD, the veteran reported that both his feet were "rolling out," and that his feet were swollen and painful every evening. In his March 1997 substantive appeal, he argued that a 30 percent rating was warranted due to pain on manipulation and use [being] accentuated, [and because there was an] indication of swelling on use. He contended that the August 1997 VA examination report noted swelling of his feet in the early morning, before walking all day. As noted above, however, there are no such findings in that report as to the veteran's feet; swelling was noted only in the non-service connected ankles. Disabilities of the foot are rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5276-5284. Pes planus is defined as flat feet. See Buckley v. West, 12 Vet. App. 76, 79 (1998). Acquired flatfoot is rated in accordance with DC 5276. For a 50 percent evaluation under this code there must be a pronounced bilateral disorder, with marked pronation (eversion and abduction of the foot, raising the lateral edge), extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. A pronounced unilateral disorder, with the same pathology, is required for a 30 percent evaluation. A severe bilateral disorder, with objective evidence of marked deformity (pronation, abduction, etc.), with pain on manipulation and use accentuated, and with indication of swelling on use, and characteristic callosities, is required for a 30 percent evaluation. A unilateral severe disorder, with the same pathology, is required for a 20 percent evaluation. A moderate bilateral or unilateral disorder, with the weight-bearing line over or medial to the great toe, and with inward bowing of the tendo achillis, and pain on manipulation and use of the feet, warrants a 10 percent evaluation. A mild bilateral or unilateral disorder, with symptoms relieved by a built-up shoe or arch support, warrants a noncompensable evaluation. The Board, in applying the criteria under 38 C.F.R., Part Four, Schedule for Rating Disabilities, to the veteran's symptomatology, must determine whether the criteria are to be applied conjunctively or disjunctively. See Drosky v. Brown, 10 Vet. App. 251, 255 (1997). That is, the Board must determine whether all the listed criteria have to be met or only that certain criteria have to be met. That involves whether the conjunctive, "and," is employed, or the disjunctive, "or." The criteria of DC 5276 for a 20 percent rating for bilateral pes planus clearly indicate that objective findings of all criteria must be exhibited. The VA examination report does not include findings as to the feet (not the ankles), of objective evidence of marked deformity (pronation, abduction, etc.), with pain on manipulation and use accentuated, and with indication of swelling on use, and characteristic callosities. Hence, the criteria for a 30 percent bilateral rating under DC 5276 have not been met. In determining a rating for a disability, the Board may only consider those factors which are included in the rating criteria provided by regulations for rating that disability. To do otherwise would be error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The veteran's service-connected bilateral pes planus symptomatology, standing alone, has also been considered under DC 5277, which rates bilateral weak foot, and indicates that weak foot is characterized by atrophy of the musculature, disturbed circulation, and weakness. The evidence, however, does not reveal that the veteran has such symptomatology. The veteran's service connected symptomatology, standing alone, has also been considered under DC 5284, which rates other foot injuries. The medical evidence does not reveal, however, a moderately severe bilateral pes planus disability so as to warrant an evaluation in excess of 10 percent. The Board notes the veteran's contention that his ankle symptoms are part of his bilateral pes planus. However, a veteran, as a lay person, while competent to testify as to the symptoms he or she experiences, is not competent to render an opinion as to a link between those symptoms and his service-connected diagnosis. See Rucker v. Brown, 10 Vet. App. 67, 75-76 (1997). The Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral pes planus, for any period after June 1, 1997. Fenderson, 12 Vet. App. at 126. In reaching this determination, the Board also considered DeLuca v. Brown, 8 Vet. App. 202 (1995), which addresses 38 C.F.R. §§ 4.10, 4.14, 4.40, 4.45. However, as DC 5276 is not predicated on loss of range of motion, §§ 4.40 and 4.45, with respect to pain, do not apply. See VAOPGCPREC 9-98 (Aug. 1998); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The objective medical evidence also does not show that there is any functional loss due to pain or weakness or to flare-ups so as to warrant a separate rating. Id. In reaching this decision, the Board also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes the veteran's representative, in the March 1999 Informal Hearing Presentation, argued that the veteran's VA examination was not "contemporaneous or thorough," because it was not conducted by a VA certified podiatrist. The Board, however, notes that no medical evidence has been submitted in regard to this appeal which indicates findings different than those of the VA examination, nor does the veteran contend that he was not thoroughly examined. 38 C.F.R. § 3.327(a) provides that reexaminations will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. However, in the absence of assertions or evidence that the disability has undergone an increase in severity since the time of the last examination, the passage of time since an otherwise adequate examination does not necessitate a new examination. See VAOPGCPREC 11-95; 60 Fed. Reg. 43, 186 (1995); Voerth v. West, 13 Vet. App. 117 (1999). Thus, a remand for a new VA examination is not warranted in this case. ORDER An evaluation in excess of 10 percent, the initial rating assigned, effective from June 1, 1997, for service-connected bilateral pes planus, is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals