BVA9502402 DOCKET NO. 93-09 520 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for bilateral varicose veins, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for bilateral pes planus, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from November 1941 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1991 from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the veteran's bilateral foot disorder has been diagnosed and rated as both bilateral weak foot and bilateral pes planus. However, following the collapse of her matatarsal arches, shown on VA examination in May 1994, this disorder has been rated as bilateral pes planus under 38 C.F.R. Part 4, Code 5276 (1994). The Board finds that pes planus represents the primary disability stemming from this disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in failing to grant increased ratings for her service-connected bilateral varicose veins and bilateral pes planus because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the appellant has bilateral varicose veins both below and above the knees and extending to the groin area; that she is required to wear support hose for this disorder; that she is required to take multivitamins to reduce cramps in her lower extremities; and that she is unable to cross her legs due to pain. It is further contended that her metatarsal arches have both fallen completely; that painful calluses have developed as a consequence; and that she experiences bilateral foot pain on extended walking or standing, requiring frequent foot soaks and elevation of the lower extremities. 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. 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 claims for increased ratings for bilateral varicose veins and for bilateral weak feet. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. Bilateral varicose veins are currently manifested by complaints of pain and occasional cramping on exertion and clinical findings of superficial varicosities on both calves and a cluster of varicose veins on the medial left thigh, without objective clinical findings of marked distortion, edema, sacculations, ulcerations, or involvement of the deep circulation. 3. Bilateral pes planus is currently manifested by a very marked loss of arch, hallux rigidities, some ankylosis of the phalangeal and metatarsal and tarsal structures, inability to stand on the toes, pain on prolonged walking or standing, and X-ray evidence of osteoporosis, deformity, degenerative changes and an area of focal periosteal reaction at the medial second metatarsal, left side. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for bilateral varicose veins is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 7120 (1993). 2. A rating in excess of 30 percent for bilateral pes planus is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 5276 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the appellant in developing all pertinent evidence. We note that the appellant has been afforded a VA disability compensation examination and has offered testimony at a personal hearing on appeal. On appellate review, we see no areas in which further development might be productive. The veteran's service medical records show that bilateral varicose veins and bilateral pes planus were shown in service and on service separation examination. A rating decision of June 1946 granted service connection for bilateral varicose veins and bilateral pes planus, each evaluated as noncompensably disabling from August 1945. A report of VA examination in December 1946 diagnosed weak foot and residuals of Venus [sic] injections for bilateral varicosities. A rating decision of May 1947 assigned an increased rating of 10 percent for bilateral weak foot, symptomatic, while continuing the noncompensable evaluation for bilateral varicose veins. A report of VA examination in November 1947 disclosed clinical findings of third degree pes planus, bilateral, symptomatic, and varicose veins, both legs, moderately diffuse. A rating decision of June 1948 assigned an increased rating of 10 percent for bilateral varicose veins, effective in November 1947, while continuing the 10 percent rating for weak foot, symptomatic. A report of VA examination in July 1976 diagnosed bilateral varicose veins, bilateral flat feet, and thrombophlebitis, lower extremity, by history. A rating decision of August 1976 assigned an increased rating of 30 percent for bilateral varicose veins and continued the prior 10 percent evaluation for weak foot, symptomatic. In May 1991, the appellant requested increased ratings for her service-connected bilateral varicose veins and bilateral pes planus. A VA hospital summary dated in September 1989 and VA outpatient clinic records dated from December 1990 to May 1991 reflect no treatment for the disabilities at issue. The appellant's claim was denied by rating decision of July 1991, giving rise to this appeal. In her substantive appeal, the appellant stated that her arches had fallen, causing great pain, making it difficult to stand or walk, and requiring special shoes. A personal hearing on appeal was held at the RO in March 1993 before a traveling member of the Board. The appellant testified that she has bilateral varicose veins, both below and above the knees and extending to the groin area; that she is required to wear support hose and has been hospitalized repeatedly for this disorder; that she is required to take multivitamins to reduce cramping in the lower extremities; and that she is unable to cross her legs due to pain. She further testified that her metatarsal arches have both fallen completely and that painful callosities have developed as a consequence of her bilateral weak feet. She described bilateral foot pain after walking approximately 15 minutes, requiring frequent foot soaks and elevation of the lower extremities. A transcript of her testimony is of record. We have reviewed that testimony and find it to be essentially credible. Pursuant to Remand by this Board, a VA compensation examination was conducted in May 1994. The examination report cited the appellant's complaints of pain and difficulty in walking or standing due to her flatfoot condition as well as complaints of bilateral varicose veins requiring the use of support hose to prevent swelling of the lower extremities. Examination disclosed very marked bilateral pes planus with some significant loss of arch, hallux rigidities, and some ankylosis of the phalangeal and metatarsal and tarsal structures. The examiner noted that this impairment made it impossible for the veteran to stand on her toes and caused considerable discomfort when standing or walking. X-ray examination of the feet revealed evidence of osteoporosis, deformity, degenerative changes, and a small area of focal periosteal reaction involving the medial second metatarsal, left side. Examination of the lower extremities disclosed varicose veins on the left thigh, medial to the knee, and superficial varicosities of the lower legs on both calves, all of which collapsed with elevation of the legs. No candidemia was found. The skin was shiny, there was absence of hair growth on the toes, and the toenails were verrucous-like and very thick. Peripheral, dorsalis, and posterior tibial pulses were good in both lower extremities. The diagnoses included severe flat feet with some distortion of the anatomy of metatarsals of the first toe on both feet with limited motion in the toes of both feet; and bilateral varicose veins. A rating decision of August 1994 granted an increased rating of 30 percent for bilateral pes planus, while continuing the previous 30 percent evaluation for bilateral varicose veins. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. The Schedule for Rating Disabilities provides that a 30 percent evaluation is warranted for moderately severe bilateral varicose veins involving the superficial veins above and below the knees with involvement of the long saphenous veins, varicosities ranging in size from 1 to 2 centimeters in diameter, and symptoms of pain or cramping on exertion, but with no involvement of the deep circulation. Severe varicosities below the knees with ulceration, scarring, or discoloration and painful symptoms are also evaluated at the 30 percent level as moderately severe varicose veins. A 50 percent evaluation requires severe bilateral varicose veins involving the superficial veins above and below the knees with involvement of the long saphenous veins, varicosities ranging over 2 centimeters in diameter, marked distortion and sacculation, edema, and episodes of ulceration, but with no involvement of the deep circulation. 38 C.F.R. Part 4, Code 7120 (1993). A 40 percent evaluation is warranted for severe unilateral varicose veins involving the superficial veins above and below the knee with involvement of the long saphenous vein, varicosities ranging over 2 centimeters in diameter, marked distortion and sacculation, edema, and episodes of ulceration, but with no involvement of the deep circulation. A 50 percent evaluation requires pronounced unilateral varicose veins with the findings of the severe condition described herein and additional secondary involvement of the deep circulation, as demonstrated by Trendelenburg's and Perthes' tests, with ulceration and pigmentation. 38 C.F.R. Part 4, Code 7120 (1993). A 10 percent evaluation is warranted for unilateral phlebitis or thrombophlebitis with persistent moderate swelling of a leg which is not markedly increased on standing or walking or with persistent swelling of an arm or forearm which is not increased in the dependent position. A 30 percent evaluation requires persistent swelling of a leg or thigh which is increased on standing or walking 1 or 2 hours, but is readily relieved by recumbency, with moderate discoloration, pigmentation or cyanosis; or moderate discoloration, pigmentation, and cyanosis or persistent swelling of an arm or forearm which is increased in the dependent position. 38 C.F.R. Part 4, Code 7121 (1993). The current medical evidence of record shows that the appellant's service-connected bilateral varicose veins are currently manifested by complaints of pain and cramping on exertion, clinical findings of superficial varicosities on both calves, and a cluster of varicose veins on the medial left thigh, without objective clinical findings of marked distortion, edema, sacculations, ulcerations, or involvement of the deep circulation. While a history of thrombophlebitis of a lower extremity was shown on VA examination in July 1976, there are no current clinical findings of thrombophlebitis involving either lower extremity and a rating based on thrombophlebitis is, therefore, inappropriate. In the absence of a clinical showing of severe unilateral varicose veins involving the superficial veins above and below the knee with involvement of the long saphenous vein, varicosities ranging over 2 centimeters in diameter, marked distortion and sacculation, edema, and episodes of ulceration, without involvement of the deep circulation, an increased rating based on unilateral varicose veins is, likewise, inappropriate. Based upon the foregoing, we find that a rating in excess of 30 percent for bilateral varicose veins is not warranted. The Schedule for Rating Disabilities further provides that bilateral weak foot is a symptomatic condition secondary to many constitutional conditions. It is characterized by atrophy of the musculature, disturbed circulation, and weakness. It should be rated on the basis of the underlying condition. The minimum evaluation is 10 percent. 38 C.F.R. Part 4, Code 5277 (1993). A 30 percent evaluation is warranted for severe bilateral acquired flatfoot (pes planus) manifested by marked deformity (pronation, abduction, etc.) accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral acquired flatfoot (pes planus) manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. Part 4, Code 5276 (1993). The appellant's service-connected bilateral weak foot disorder is evaluated on the basis of the resultant bilateral pes planus. This disorder is currently manifested by very marked loss of arch, hallux rigidities, some ankylosis of the phalangeal and metatarsal and tarsal structures, inability to stand on the toes, pain on prolonged standing or walking, and X-ray evidence of osteoporosis, deformity, degenerative changes, and an area of focal periosteal reaction at the medial second metatarsal, left side. We note, however, that a rating in excess of 30 percent for bilateral pes planus requires a clinical showing of marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. As these criteria are not met, a rating in excess of the currently assigned 30 percent evaluation for bilateral pes planus is not in order. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, including § 4.40, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the disabilities at issue present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). For example, these disabilities are not shown to have required frequent periods of hospitalization nor do they present marked interference with employment that has not already been contemplated by the current evaluations. ORDER An increased rating for bilateral varicose veins is denied. An increased rating for bilateral pes planus is denied. J. U. JOHNSON 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.