Citation Nr: 0002661 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 93-27 663 ) DATE ) ) On appeal from 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: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Army from July 1979 to July 1982. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an April 1993 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, denied an evaluation in excess of 10 percent for the appellant's bilateral pes planus. The Board remanded the case for the second time in December 1996; the RO has now returned the case to the Board for appellate review. The Board notes that the appellant submitted a 38 U.S.C.A. § 1151 claim in June 1997; the RO began development action in August 1997, when it sent a letter to the VAMC in Birmingham requesting records relating to the appellant's hospitalization there. However, to date no rating action has been issued on this claim and the matter is referred to the RO for appropriate action. The Board also notes that the appellant submitted a VA Form 21-526 in April 1992, and then followed up in July 1992 with a VA Form 21-4138 in which he referenced his "request for non service connected veterans pension" and submitted Social Security Administration records in support of that claim. To date, it does not appear that the RO has issued any rating action on the appellant's pension claim; again, the matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's bilateral pes planus disability is currently manifested by subjective complaints of recurring pain and swelling, and pain on weight-bearing which is limited to no more than thirty minutes at a time and objective clinical evidence of bilateral Grade I pes planus without any accentuated pain on manipulation, or any swelling of the feet or ankles, and with no evidence of any plantar callosity formation, any marked pronation deformity or extreme tenderness of the plantar surface. Radiographic examination reveals normal views of the feet. CONCLUSION OF LAW The schedular criteria for an increased 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. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.31, 4.40, 4.41, 4.45, 4.59, 4.71, 4.71a, and Diagnostic Code 5276 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's assertion that his service-connected bilateral pes planus has increased in severity constitutes a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a), requiring VA to fulfill the statutory duty to assist the veteran in developing all facts relevant to the claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The evidence on file includes VA medical records and the reports of various VA medical examinations. This evidence is sufficient in scope and depth for a fair, impartial, and fully informed appellate decision and the Board finds that the duty to assist has been fulfilled. The appellant alleges that he is entitled to at least a 30 percent disability evaluation for his service-connected bilateral pes planus. He contends that the symptomatology attributable to this disability includes recurring pain and swelling which radiates upward to his legs and knees. In August 1993, the appellant stated that he experienced pain and swelling of the feet which radiated up the legs into the knees. He also stated that he had calluses on the outside of both feet and on both heels. He indicated that his toes curled inward. 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; 38 C.F.R. Part 4, § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as in this case, entitlement to compensation has already been established, the present level of disability is of primary concern. Although 38 C.F.R. § 4.2 requires that the whole recorded history be reviewed, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The most current evidence of disability consists of VA medical records dated between 1991 and 1997, and the reports of VA medical examinations conducted in March 1996, and May 1997. During the VA examination conducted in March 1996, the appellant reported sharp pains in both ankles. The examiner noted that the appellant's medical history included a post- service severe inversion injury to the right ankle which occurred in 1984. The examiner reported that the appellant indicated that he had flat feet which developed during service. The examiner stated that there was some flattening of the arch of the right foot that he did not feel was truly significant. The examiner also discussed the fact that the appellant wore a left shoe brace because of residuals of a stroke that occurred in 1990. Apparently, no x-rays of the feet were taken. Review of the VA medical treatment records in evidence reveals that the appellant reported in September 1996 that he was not currently working due to the effects of a major stroke. He also reported that he was in receipt of Social Security Administration disability benefits as a result of the stroke. The VA treatment records also reveal that the appellant underwent an initial assessment as a new rehabilitation medicine patient in January 1997; physical examination demonstrated that the appellant suffered from left hemiparesis with hyper-reflexion and synergy. His gait was characterized by left foot inversion and mild left foot drop; there was a Trendelenburg to the left. The appellant underwent another VA foot examination in May 1997; the examiner stated that he reviewed the claims file. The appellant complained of pain with weight-bearing and reported that most of the pain seemed to be around his ankles. He also complained of recurrent swelling of the ankles that was worsened by weight-bearing and of pain that radiated from the feet into both legs. He stated that he could stand and walk comfortably for no more than thirty minutes at a time. On physical examination, the examiner noted that the appellant moved about with a rather significant limp on the left secondary to his hemiplegia. No pronation or abduction deformity was noted. There was no pain on manipulation of either foot. The examiner stated that there was no plantar callosity formation on either foot. No plantar tenderness was noted in either foot. No marked inward displacement or Achilles tendon spasm was observed on manipulation. Radiographic examination revealed normal views of the feet. The examiner diagnosed pes planus and stated that the appellant has rather significant left hemiplegia secondary to a prior stroke. Mindful of the Court's holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995), as well as the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.55, 4.59 and 4.71, the Board has considered the appellant's complaints pertaining to bilateral foot pain on use as credible. The rating schedule provides a noncompensable rating for mild, acquired pes planus relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate unilateral or bilateral pes planus with the weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet. Severe bilateral pes planus with objective evidence of marked deformity (pronation, adduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities warrants a 20 percent rating when the condition is unilateral and 30 percent when it is bilateral. A 50 percent disability rating is in order when the bilateral disorder is pronounced; with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Diagnostic Code 5276. Although the appellant asserts that the symptoms associated with his service-connected flatfeet are more disabling than currently rated, the evidence does not corroborate this assessment. While the appellant complained of recurrent swelling and pain on use during the VA foot examination of March 1997, the examiner did not find that there was accentuated pain upon manipulation nor did he find any swelling of the feet or ankles or any callus formation. It was reported that there was no evidence of marked deformity or extreme tenderness of the plantar surface. In view of the lack of any definitive findings which comport with the next higher evaluation in this regard, to include marked deformity, accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities, the Board is of the opinion that the symptoms associated with the service-connected pes planus are no more than moderate, and that no more than a 10 percent evaluation is currently warranted. The Board has also considered other Diagnostic Codes relating to the feet. The appellant's bilateral foot disorder could achieve a higher rating only if it were rated as clawfoot (Diagnostic Code 5278), malunion of the tarsal or metatarsal bones (Diagnostic Code 5283) or foot injury (Diagnostic Code 5284). However, since appellant's bilateral foot disability has not been clinically assessed as involving pes cavus where all toes tend toward dorsiflexion or shortened plantar fascia and dorsiflexion at the right ankle is not limited to a right angle, while the loss of motion in the left ankle is secondary to the stroke, and the plantar fascia are not shortened with marked tenderness under the metatarsal heads, Diagnostic Code 5278 is not for application. Furthermore, no malunion or nonunion of the tarsal or metatarsal bones, or the equivalent, has been demonstrated; nor has a moderately severe foot injury been demonstrated. Thus, an evaluation in excess of 10 percent would not be warranted under these analogous diagnostic codes. 38 C.F.R. § 4.20, Diagnostic Codes 5276, 5278, 5279, 5283, 5284. The Board also finds that there is no basis for a higher rating in this regard due to additional loss of range of motion, weakening, excess fatigability, or other impaired ability due to pain as envisioned by 38 C.F.R. §§ 4.45, 4.57, 5.59 or DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As noted previously, the appellant was shown to be unable to perform a range of maneuvers to test left foot function due to his stroke and not the pes planus disability. In addition, no swelling or pain on manipulation was demonstrated in either foot during the May 1997 VA examination. The Board thus finds that the appellant's complaints of pain and limitations upon activity as a result thereof are adequately contemplated by the currently assigned disability rating which encompasses a moderate degree of overall impairment. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. ORDER An increased rating for pes planus in excess of 10 percent is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals