BVA9505195 DOCKET NO. 92-22 266 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a compensable evaluation for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from July 1988 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 1994, the Board remanded the veteran's case for further development. On remand, the Board instructed the RO to request that the veteran provide information pertaining to any post- service treatment he received for bilateral pes planus, and to schedule him for a VA orthopedic examination. In April 1994, the veteran informed VA that he had not received any post-service treatment for his service-connected bilateral pes planus, and attributed the absence of post-service medical treatment to a lack of medical insurance and to VA's allegedly informing him that he was not entitled to treatment for this disability. In an October 1994 letter, the veteran reiterated that his feet continued to hurt and expressed his desire to receive treatment from VA for this disability. In correspondence dated in December 1994, VA informed the veteran that he was entitled to treatment at a VA hospital for his service-connected foot disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an compensable evaluation for service-connected bilateral pes planus because he experiences continual pain in his feet and has difficulty getting up after sitting down. He further contends that he purchased new inserts for his shoes, and that these devices have not alleviated his discomfort. 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. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to a compensable evaluation for bilateral pes planus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's bilateral pes planus is not productive of more than mild impairment. 3. No unusual or exceptional disability factors have been presented. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5276 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for bilateral pes planus is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation of a service-connected disability generally is a well-grounded claim). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's bilateral pes planus claim, and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). 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 bilateral foot disability, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In May 1994, pursuant to the Board's remand instructions, the veteran underwent a VA orthopedic examination, during which he complained of bilateral plantar foot pain mainly after standing long-term and walking. The examiner noted that the veteran had obvious bilateral pes planus, with slight pain upon compression of the metatarsal heads bilaterally as well as some generalized plantar heel pain bilaterally. The examiner reported that the veteran's gait was normal, as was the function of his feet. The examination was negative for findings of skin or vascular changes, or apparent fasciitis. X-ray ray studies of the veteran's feet revealed bilateral pes planus and were negative for any other abnormality. At the conclusion of the examination, the veteran was diagnosed as having bilateral pes planus. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1994). Under the provisions of the Rating Schedule, a 10 percent evaluation is warranted for moderate pes planus with the weight bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, either unilaterally or bilaterally. 38 C.F.R. § 4.71a, Diagnostic Code 5276. As noted previously, the medical evidence of record shows that the veteran's bilateral pes planus is manifested primarily by flatness, with evidence of slight pain upon compression of the metatarsal heads bilaterally as well as some generalized plantar heel pain bilaterally. There is no evidence, however, of the weight bearing line over or medial to the great toe or inward bowing of the tendo achillis as required by Diagnostic Code 5276 for a compensable evaluation. Furthermore, there is no evidence of any functional impairment resulting from the slight pain described during the examination; thus, the provisions of 38 C.F.R. § 4.40 (1994) are inapplicable. In response to the veteran's contention, as set forth in a January 1995 statement of his representative, that consideration should be given to his claim in light of the provisions of 38 C.F.R. § 4.59 (1994), the Board points out that this regulation pertains to painful motion associated with any form of arthritis. In view of the May 1994 X-ray studies being negative for any findings of arthritis, the Board finds that this regulation is inapplicable to the present claim as well. The Board concludes, therefore, that the preponderance of the evidence is against the veteran's claim of entitlement to a compensable evaluation for service-connected bilateral pes planus. ORDER Entitlement to a compensable evaluation for bilateral pes planus is denied. SHANE A. DURKIN 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.