Citation Nr: 0005289 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-02 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for bilateral pes planus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran had active service from December 1967 to December 1976. This matter comes before the Board of Veterans' Appeals from an April 1996 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to an increased (compensable) rating for service-connected bilateral pes planus. The veteran has perfected an appeal of the April 1996 decision, which appeal is now before the Board. During the pendency of the appeal, the RO increased the rating for bilateral pes planus from 0 to 10 percent, effective July 27, 1995. On a claim for an increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, even though the RO issued a decision awarding a higher rating, the veteran's appeal proceeds. Id. The veteran raised a claim of entitlement to service connection for chondromalacia of the right knee in January 1997. This issue has not been adjudicated by the RO and is referred to that organization for appropriate action. Where the veteran raises a claim that has not yet been adjudicated, the proper course is to refer that issue to the RO. Bruce v. West, 11 Vet. App. 405 (1998). The Board notes that at a VA RO hearing on January 3, 1997, the veteran withdrew his claim of entitlement to an increased rating for a left thumb injury, and testified that he would consider a 10 percent evaluation for lumbosacral strain a complete grant of benefits. In a May 1997 rating decision, the RO increased its evaluation of the veteran's lumbosacral strain condition from 0 to 10 percent, effective July 27, 1995. It is held, therefore, that the claims relating to a left thumb injury and lumbosacral strain are not currently before the Board. AB v. Brown, at 38 (a claimant may limit the benefit he is seeking); 38 C.F.R. § 20.204 (1999). . FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's bilateral pes planus is manifested by a moderate degree of inversion of the feet on standing, and complaints of pain on standing without orthotics. Objective indications of marked deformity, pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities have not been demonstrated. CONCLUSION OF LAW The 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. § 4.71a, Diagnostic Code 5276 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that the disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]ompensation for service-connected injury is limited to those claims which show present disability" and held: "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." Factual Background Service medical records show a problem with the plantar surface of the veteran's left foot was noted prior to entry into service. No other information was provided. The veteran complained of contusions and blisters on his feet in September 1968. Low arches were noted. He was given felt pads and arch supports. In June 1969, the veteran complained of difficulty with standing and walking for long periods. No deformity, swelling or inflammation was noted. Mild strain and metatarsalgia was assessed. Arch supports were prescribed. The veteran complained of contusions to both heels in February 1970. And in June 1973, the veteran complained of heel and arch pain and blisters on both feet after playing basketball. A history of fallen arches since 1967 was noted. Mild bilateral pes planus with pronation was diagnosed. Range of motion of the ankles was found to be within normal limits. Arch supports were prescribed. During a June 1975 examination, the veteran complained of chronic heel pain while standing. Metatarsal adduction and some heel varus were noted. The veteran's examination upon release from active duty noted pain in both heels since boot camp. A bilateral plantar release was reportedly performed at a private facility in September 1986 to relieve discomfort. The veteran was afforded a VA examination in February 1996. He reported no significant improvement after the bilateral plantar fascial release in 1986 and that he continued having problems in the posterior aspect of the arch and heel of the foot. He reportedly couldn't stand for more than 3-4 hours per day or his feet and legs would ache. He was unable to engage in high impact activity since the 1980s because of foot pain. He received foot injections in the 1980s for chronic foot pain but indicated that he had not received such treatment for several years. He reported using orthotics and double pairs of socks. He indicated that spent much of his day on his feet, causing foot pain. He also reported calf, knee and thigh pain when he felt foot pain. The aching was reportedly present when he was on his feet for more than 3-4 hours at a time, and happened several times weekly. Examination revealed normal gait and posture. Scars from the plantar release procedures on the posterior aspect of the arch, measuring 1.5 cm in length, were noted. No tenderness at the scars was observed. Tenderness over the anterior aspect of the heel bilaterally was reported. Arch contour was good without weight-bearing, but mild to moderate pes planus was observed upon weight-bearing. No pain was noted while bearing weight on the balls of his feet but pain was observed when the veteran bore weight solely on his heels. Plantar fasciitis with pes planus and arch insufficiency was assessed. X-ray examination revealed minimal calcaneal spurring. Bone mineralization was normal. There was no evidence of degenerative joint disease. The veteran testified at a hearing before a hearing officer at the RO in January 1997 He reported constant heel pain. He stated that his feet often throbbed and kept him awake at night. He testified that he experienced "unevenness in his walking ability" the longer he was on his feet, and fatigue and soreness in his legs, knees and back. He further testified that he was a mechanic and was able to do routine housework, go camping, and scuba dive with orthotics, but that he was unable to run. He reportedly took pain medication. He stated that his right foot pain in the heel and ankle was noticeably worse than his left. He also stated that feelings of weakness extended from his feet to his thighs, and that he felt wobbly and had trouble walking evenly, with symptoms more pronounced on the right. He stated that he missed 2-3 days from work during the year due to foot problems. He also stated that he must wear footwear whenever walking. Private treatment records indicate that the veteran was examined February 2, 1997 after complaining of knee and foot pain. He reported taking Naprosyn daily, but still complained of pain. He also indicated that his painful feet cause him to hobble, walk differently and cause knee pain. Chronic plantar fasciitis, and probable patellofemoral syndrome (due to plantar fasciitis) were assessed. He was instructed to ice his feet and knees daily, and plantar stretching exercises and physical therapy were recommended. Private physical therapy records dated in February 1997 indicate that the veteran reported working in building maintenance, which required standing for long periods of time and crawling in small spaces. The veteran complained of constant bilateral foot pain located at the anterior portion of the plantar surface of the calcaneus. He indicated that the pain could awaken him at night. Comfortable shoes, medication, ice and elevation reportedly helped to ease foot pain slightly. He denied recent functional loss and reported great pain at work. Bilateral lower quarter landmarks were symmetrical in standing. Bilateral pes planus was noted when standing. A callus over the bilateral patellar tendons was observed. Gait was 3+ to 4/4 with moderate heel-and-toe gait and more of a flatfoot planting on the left. Bilateral calcaneal plantar-fascial attachment, deep massage of the plantar surface, ice massage and straight leg raises were recommended. The veteran received physical therapy beginning in February 1997. On a follow-up private examination later in February 1997, it was noted that the plantar fasciitis and patellofemoral syndrome were responding well to physical therapy and NSAID (nonsteroidal antiinflamatory drug) use. During a March 1997 physical therapy session, the veteran reported that his feet were "overall better" and that they "don't pound at night" and "don't feel like lead" in the morning. At the final therapy session later in March 1997, the veteran indicated that his feet were slightly better. Continued stretching and exercising at home were recommended. VA outpatient treatment records dated in April 1998 indicated that the veteran complained of metatarsal pain. Limited range of motion of the right subtalar joint was noted. Orthotics were provided in May 1998. The veteran was afforded a VA examination in December 1998. It was reported that he often had to elevate his feet at work to relieve pressure. He stated that he had worked as a mechanic for 16 years. He also reported that pain was worse with soft-soled shoes than with hard-soled shoes. Physical examination revealed no numbness, weakness or atrophy of the lower extremities. A 1-cm scar on the right foot and 3 cm scar on the left foot was observed on the medial aspects of the heel. Both scars were well healed. No tenderness, inflammation or swelling of the feet was noted. The veteran reportedly stood with his feet in a moderate degree of inversion because of flat feet, worse on the left than right. No tenderness over the Achilles heel was noted, and no crepitus was palpable. The condition was described as asymptomatic. Bilateral pes planus status post plantar fascia release surgery with residual pain and a small calcaneal spur was assessed. Laws and Regulations Disability evaluations are rated in accordance with a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part, or system, in self-support of the individual. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates, the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Fenderson v. West, 12 Vet. App. 119(1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's bilateral pes planus has been rated under the provisions of Diagnostic Code 5276. Under that code, the rating schedule provides a 10 percent rating for moderate bilateral or unilateral pes planus manifested by weight- bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of feet. A 30 percent rating is provided for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 50 percent rating for pronounced bilateral pes planus; 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. Scars are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118 (skin), Diagnostic Codes 7800 through 7805 (1999). Diagnostic Code 7804 provides that scars that are superficial, tender, and painful on objective demonstration will be assigned a 10 percent evaluation. Diagnostic Code 7805 provides that scars may be rated on limitation of function of the part affected. Benign new bone growths are rated as degenerative arthritis on the basis of limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5015. Analysis The veteran has consistently complained of pain on use, requiring the use of orthotics and medication. In addition, a moderate degree of pronation was found during the December 1998 VA examination. These symptoms are two of the criteria for the current 10 percent evaluation. However the examiner also found that the veteran had no tenderness, or swelling. The examiner did not specifically comment on the presence of callosities, but in the absence of any of the other criteria for an increased evaluation, the presence of callosities alone would not warrant an increased evaluation. The examiner noted only moderate inversion, and considered the veteran's feet to be asymptomatic, thereby suggesting that there was no marked deformity. The veteran is not entitled to an increased evaluation on the basis of scars under Diagnostic Codes 7804 or 7805 because there is no evidence of tenderness, pain, or limitation of motion, associated with the surgical scars on the veteran's feet. The scars were described as well healed, and no tenderness, inflammation or swelling of the feet was found. The rating schedule envisions that disabilities will be rated on the basis of functional impairment. Weakness is considered as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. It is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. In De Luca v. Brown, 8 Vet. App. 202 (1995) the United States Court of Veterans Appeals (the Court) held that a disability may be evaluated apart from the rating schedule and granted an increased rating on the basis of impairment envisioned under the provisions of 38 C.F.R. §§ 4.40, 4.45. Inasmuch as the veteran's feet have been described as asymptomatic, and the examiner described little functional impairment, noting no atrophy or painful motion, an increased evaluation on the basis of functional impairment is not warranted. 38 C.F.R. §§ 4.40, or 4.45. Extraschedular ratings are for consideration when there is an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b)(1). The veteran has not recently required hospitalization for his service-connected pes planus condition. There is no evidence in the claims file to suggest marked interference with employment. The veteran has maintained his present employment for the past 16 years. In addition, the veteran testified that he missed only 2-3 days annually because of his foot condition at a January 1997 VA RO hearing. On the 1998 examination it was found that the veteran's physical problems did not affect his work. Indeed, the veteran has not asserted or submitted evidence that this case should be referred for consideration of an extraschedular evaluation. In short, there has been no showing that the application of the regular schedular criteria is impractical. The Board finds, therefore, that remand of the case to the RO for referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extra-schedular rating is not appropriate. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board does not find that the evidence is in equipoise, so as to give rise to reasonable doubt, and ultimately concludes that the claim for an increased rating for bilateral pes planus must be denied. ORDER Entitlement to an increased evaluation for bilateral pes planus, currently evaluated as 10 percent disabling, is denied. Mark D. Hindin Member, Board of Veterans' Appeals