Citation Nr: 0004645	
Decision Date: 02/23/00    Archive Date: 02/28/00

DOCKET NO.  96-01 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUE

Entitlement to an increased rating for bilateral pes planus, 
currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


INTRODUCTION

The veteran served on active duty for more than 26 years, and 
retired from service in April 1979.

This case first came before the Board of Veterans' Appeals 
(Board) from a rating decision rendered in September 1995 by 
the New Orleans, Louisiana, Regional Office (RO) of the 
Department of Veterans Affairs (VA).  In November 1998, the 

Board remanded the veteran's claim of entitlement to an 
increased rating for bilateral pes planus, evaluated as 30 
percent disabling, along with his claim for a total rating 
based on unemployability due to service-connected 
disabilities (TDIU), in order to accomplish additional 
development of the record.  

In June 1999, the RO granted the veteran's claim for TDIU, 
but denied his claim for an increased rating for bilateral 
pes planus.  The latter issue has accordingly been returned 
to the Board for further appellate review.


FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of 
the veteran's claim has been developed.

2.  Bilateral pes planus is manifested primarily by deviation 
of the left second and third toes at the proximal 
interphalangeal joint, and by deviation of the right achilles 
tendon; it is not productive of pronounced impairment.


CONCLUSION OF LAW

The criteria for an increased rating for bilateral pes planus 
are not met.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 
4, §§ 4.40, 4.71a, Diagnostic Code 5276 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran's claim is "well 
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 
1991); that is, he has presented a claim that is plausible.  
(See Proscelle v. Derwinski, 2 Vet. App. 629 (1992), with 
regard 

to the application of the well-grounded standard for claims 
for increased compensation.)  He has not alleged the 
existence of any records of probative value that may be 
obtained, and which are not already associated with his 
claims folder.  The Board accordingly finds that the duty to 
assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), 
has been satisfied.  

Service connection for bilateral pes planus was granted by 
the New Orleans RO in a September 1979 rating decision, 
following review of evidence that included the veteran's 
service medical records and the report of a July 1979 VA 
examination.  The RO noted that pes planus had been accorded 
treatment during service, and that this disability was shown 
on post-service examination.  A 10 percent rating was 
assigned.  In an August 1993 rating decision, the RO 
increased the evaluation for that disability to 30 percent.

The veteran now contends that his bilateral pes planus is 
more severe than as reflected by the current 30 percent 
rating, and that an increased rating should be assigned.  
After a review of the record, however, the Board finds that 
his contentions are not supported by the evidence, and that 
his claim fails.

The severity of service-connected bilateral pes planus is 
ascertained, for VA rating purposes, by the application of 
rating criteria set forth in VA's Schedule for Rating 
Disabilities, 38 C.F.R. Part 4, Diagnostic Code 5276 (1999).  
Under these criteria, the 30 percent rating currently in 
effect contemplates severe impairment that is manifested by 
objective evidence of marked deformity (pronation, abduction, 
etc.), accentuated pain on manipulation and use, indication 
of swelling on use, and characteristic callosities.  A rating 
greater than 30 percent (in this instance, 50 percent) is 
appropriate for bilateral pes planus that is productive of 
pronounced impairment, and which is manifested by marked 
pronation, extreme tenderness of the plantar surfaces of the 
feet, marked inward displacement and severe spasm of the 
tendo achillis on manipulation, and which is not improved by 
orthopedic shoes or appliances.  


The criteria for an increased rating are not satisfied.  The 
report of the most recent VA examination of the veteran's 
feet, which was conducted in February 1999, while noting that 
the left second and third toes were deviated medially at the 
proximal interphalangeal joint, that the veteran walked with 
a limp, that he stood with his feet spread out, and that the 
achilles tendon on the right was deviated medially and could 
not be corrected, also shows that he had full range of motion 
without pain, and that there was no edema or instability.  
The report also shows that there were no unusual calluses or 
shoe wear patterns, nor were there any skin or vascular 
changes.  It was also noted that there was no valgus 
deformity.  Although the right achilles tendon was deviated, 
it was neither tender nor swollen.  Reports of radiographic 
studies of the feet, undertaken pursuant to this examination, 
indicate "minor abnormality" as the "primary diagnostic 
code."  

In brief, this report does not demonstrate that the veteran's 
bilateral pes planus is productive of plantar tenderness, or 
of spasm of the achilles tendon on manipulation.  Likewise, 
while it indicates that there was some degree of orthopedic 
deformity, it does not show that such deformity was 
characterized as marked inward displacement.  It must be 
emphasized that, to the contrary, the report shows that the 
primary manifestations of the veteran's bilateral pes planus 
appear to be deviation of the second and third toes of the 
left foot, and deviation of the right achilles tendon; it 
does not indicate the presence of other symptoms that would 
warrant a finding that this disability was productive of 
pronounced impairment.  In that regard, the Board notes that 
the report of a previous VA examination, conducted in 
December 1996, indicates that he was deemed to have "moderate 
to severe" impairment of the feet.  The report of a VA 
examination of his feet, conducted in October 1996, similarly 
indicates that his disability resulted in "moderate to 
moderately severe impairment."  

The United States Court of Appeals for Veterans Claims, 
formerly the United States Court of Veterans Appeals (Court) 
has held that VA is to consider the degree of functional 
impairment when evaluating the severity of a service-
connected 

musculoskeletal disability.  DeLuca v. Brown, 8 Vet. App. 202 
(1995); see also 38 C.F.R. § 4.40 (1999).  This regulation 
stipulates, however, that an assertion of functional 
impairment must be supported by adequate pathology.  In the 
instant case, no such pathology is shown.  Rather, the report 
of the February 1999 VA examination notes that, while the 
veteran walked with a limp and stood with his feet spread 
out, there were no unusual calluses or shoe wear patterns, 
nor were there skin or vascular changes.  Moreover, he had 
full range of motion without pain, and there was neither 
edema nor instability.  

In view of the foregoing, the Board must conclude that the 
preponderance of the evidence, to include that evidence 
pertaining to the question of functional impairment, is 
against the veteran's claim for an increased rating for 
bilateral pes planus.  That claim, accordingly, fails.


ORDER

An increased rating for bilateral pes planus is denied.



		
	M. S. SIEGEL
	Acting Member, Board of Veterans' Appeals