BVA9505869 DOCKET NO. 93-13 307 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for bilateral pes planus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from June 1977 to February 1984. This appeal arises from a February 1993 rating decision of the St. Petersburg, Florida, Regional Office (hereinafter RO) which assigned a 10 percent evaluation for bilateral pes planus. The veteran is represented in his appeal by The American Legion. The case is now ready for further appellate review. The appeal originally included the issue of service connection for residuals of a hairline fracture of the right patella. However, the RO granted service connection for residuals of a hairline fracture of the right patella in April 1993; as a notice of disagreement has not been filed, this issue is not properly before the Board for appellate review. See 38 C.F.R. § 20.200 (1994). In his statement in support of claim, received in May 1993, the veteran raised the issue of entitlement to service connection for a right ankle disability. This issue is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased evaluation for his pes planus. He contends that he experiences frequent pain and problems due to the pes planus. He asserts that the VA examination was inadequate as it was conducted by a general practitioner and requests an examination by an orthopedist. Specifically, the veteran's representative requests that his appeal be remanded to the RO for an orthopedic examination conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. DECISION OF THE BOARD The 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(s). 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 preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for bilateral pes planus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The January 1993 VA examination report reveals that subjective and objective findings were observed and recorded per §§ 2.29 and 2.30 of the VA Physician's Guide for Disability Evaluation Examinations and thus, the examination is complete and adequate. 3. The veteran has been shown to suffer from no more than moderate bilateral pes planus which is manifested by tenderness along the metacarpals. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5276 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for further development of the record is not necessary. The Board notes the veteran's request for a new examination as the January 1993 VA examination was conducted by a general practitioner and not an orthopedist and the representative's request for a remand for an orthopedic examination conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. With regard to an examination of the feet, section 2.29 of the VA Physician's Guide for Disability Evaluation Examinations provides that subjective findings, including pain, fatigue, location, severity, relation to activity, progression, residuals of trauma and frostbite, and previous treatment and course are to be recorded. Section 2.30 provides for evaluation of objective findings which include posture, edema, soft tissue or joint tenderness, muscle spasm or contracture, atrophy of soft tissue, callosities, ulcers, and any circulatory condition, deformity, and a report of the veteran's ability to walk. The report of examination is to reflect the cardinal principle of rating, that the concern is with impaired function. VA Physician's Guide for Disability Evaluation Examinations, §§ 2.29, 2.30 (1985). Review of the January 1993 VA examination reveals that subjective and objective findings were observed and recorded per §§ 2.29 and 2.30 of the VA Physician's Guide for Disability Evaluation Examinations and thus, the examination appears complete and adequate. Accordingly, a new examination is not necessary for evaluation of the veteran's claim. As it is apparent that the appellant's service representative is well aware of the contents of the VA Physician's Guide for Disability Evaluation Examinations, the Board need not provide a copy of the text or an opportunity to respond thereto. See Junstrom v. Brown, 6 Vet.App. 264 (1994) (reliance upon a medical text by the Board without providing appellant with prior notice as required by Thurber v. Brown, 5 Vet.App. 119 (1993) is harmless error as appellant's service representative was aware of the text and had referred to it in his statements to the Board). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). The rating schedule provides a 30 percent evaluation for severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 10 percent evaluation is warranted for moderate bilateral pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo achilles and pain on manipulation and use of the feet. 38 C.F.R. Part 4, Diagnostic Code 5276. The veteran's service medical records indicate that the veteran was noted to have mild pes planus at his entrance examination in December 1976. In May 1978, the veteran was issued arch supports. During 1978 and 1979, the veteran was seen on several occasions for complaints of painful feet. In June 1979, January 1982, and February 1983, the veteran was given a permanent profile due to bilateral pes planus. According to the report of the May 1984 VA examination for compensation purposes, the veteran had full range of motion of the foot and ankle and good flexion and extension strength of the toes. The feet were flat. The examiner indicated that when the veteran stood, the foot was in definite eversion, approximately 1/4 of full pronation. The veteran stood with about a 15 degree external rotation of the foot that was due to external rotation of the whole leg. The diagnosis was pes planus with pronation. The examiner commented that it was a very minor disability and would be corrected with an inside wedge and corrective exercises. In June 1984, the RO established service connection for bilateral pes planus evaluated as noncompensable. A the January 1993 VA examination for compensation purposes, the veteran complained that he was laid off from work as a warehouseman because his feet and knee gave him many problems. He related that he was currently employed as an auto parts worker but that he was also still unemployed. He also stated that he has not seen a physician concerning his complaints in recent years. Upon physical examination, the veteran walked without a limp and his gait appeared normal. There was evidence of moderate flat feet, but the feet were not swollen, red, warm, or otherwise deformed. The pulses were normal bilaterally. The veteran claimed tenderness when the metacarpals were palpated on both feet, particularly over the distal end. The veteran could stand on each foot without difficulty and walk on his tip toes and heels. X-ray studies of the feet were interpreted as showing pes planus with mild hallux valgus and mild degenerative joint disease. The veteran was diagnosed as suffering from pes planus, bilateral, mild to moderate, with degenerative joint disease. The Board notes that the veteran has been found at the most recent examination to exhibit moderate bilateral pes planus manifested by tenderness along the metacarpals. The examination failed to disclose evidence of marked deformity, swelling, or characteristic callosities. In the absence of such symptoms and given the moderate impairment associated with the veteran's bilateral pes planus, an evaluation in excess of 10 percent is not presently warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1994) have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). There is no evidence that the veteran has required any period of hospitalization due to his pes planus. Additionally, there is no indication that his pes planus disability causes marked interference beyond that contemplated in the schedular provision. The veteran has given contradictory statements regarding his current employment status. Accordingly, the evidence does not suggest that the veteran's pes planus is productive of such an exceptional or unusual disability picture as to render impractical the applicability of the regular schedular standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994). ORDER An increased evaluation for bilateral pes planus is denied. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals (Continued on next page) 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.