BVA9505459 DOCKET NO. 92-16 308 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an increased rating for pes planus with degenerative arthritic changes, rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from January 1942 to December 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992, rating decision of the Sioux Falls, South Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in April 1992. The statement of the case was sent to the veteran in July 1992. The substantive appeal was received in July 1992. In a July 1994 decision, this case was remanded by the Board to the RO for further development. In an October 1994 decision, the RO granted entitlement to service connection for bilateral arthritis of the ankles, secondary to service-connected pes planus and awarded a 10 percent evaluation for each ankle and denied entitlement to service connection for a back disability, secondary to service- connected pes planus. The Board notes that service connection for a secondary back disability was denied based on the merits of the claim. The Board observes that the issue of service connection for a back disability, secondary to service-connected pes planus, was previously denied in a final October 1957 rating decision. Therefore, the RO should have considered whether new and material evidence had been submitted to reopen that decision. The Board refers that issue to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran currently contends that his service-connected bilateral pes planus is more disabling than is represented by the 10 percent rating. He asserts that he experiences pain, discomfort and arthritis, especially on prolonged standing. The veteran asserts that although he wears the cushioned insoles prescribed by the VA, the soles of his feet still become very sore and he experiences constant pain. 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 evidence does not support a rating of more than 10 percent for the veteran's service-connected pes planus. FINDINGS OF FACT 1. The veteran's service-connected pes planus is objectively manifested by a prominence of the talus and the tuberosity of the navicular bone bilaterally which are somewhat tender to palpitation; a prominent hallux valgus or bunion on the first metatarsal of the left foot; and hallux valgus deformity at both great toes. 2. There is no objective evidence of any marked deformity , indication of swelling on use, or characteristic callosity formation. CONCLUSION OF LAW The schedular criteria for a disability rating of more than 10 percent for pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5276 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). A review of the veteran's service medical records revealed that the veteran's feet were normal upon entrance examination in January 1942. In August 1943, he was treated for complaints of burning on the soles of his feet and aching radiating up his legs. The examiner noted that he was wearing arch supports. Physical examination revealed bilateral pes planus, third degree of the left foot and second degree of the right foot, with a bulge along the median border of each foot, and slight rotation at each ankle. The veteran related that he had pain in his feet, legs, and back, which was unrelieved by the arch supports. The examiner opined that he was unfit for military duty. The diagnosis was bilateral pes planus, third degree left and second degree right, with severe pronation on the left. The veteran was discharged in December 1945. In a February 1946 rating decision, entitlement to service connection for pes planus was granted and the veteran was assigned a 10 percent rating. In May 1947, the veteran was afforded a VA examination which revealed bilateral pes planus, first degree with slight bulging of the inner border, painful. The diagnosis was pes planus, first degree, symptomatic. Based on that examination, the veteran's rating was reduced to noncompensable in a June 1947 rating decision. In September 1950, the veteran was examined by the VA on an inpatient basis. Physical examination revealed pes planus, second degree, with combined longitudinal and transverse arches symptomatic with beginning inward and downward rotation of scaphoids, bulging of the inner border of the foot, and heavy callous formation under the entire row of metatarsal heads. The diagnosis was pes planus, second degree, bilateral combined symptomatic. Based on that examination, the veteran was granted an increased rating of 10 percent in a September 1950 rating decision. In September 1955, the veteran was afforded another VA examination. At that time, the veteran reported aching and burning pain on prolonged weight-bearing on the bottom of his feet. The examiner reported the following findings: the normal weight bearing line shifted medial to the great toe, arch supports were not very effective, the tendo-Achilles did not bow inward, pain was not manifested on manipulation or use of the foot, there were mild callouses on the mid tarsal arch, and there was no swelling. The examiner noted that the veteran ambulated with a typical flat foot slapping gait. The diagnosis was bilateral pes planus, third degree, combined type, acquired, symptomatic. In a subsequent September 1955 rating decision, the 10 percent rating was confirmed and continued. In an October 1957 VA examination, no change was noted in the severity of the veteran's bilateral pes planus. An October 1957 VA examination confirmed and continued the prior 10 percent rating. Thereafter, the veteran was treated in August 1966 for his pes planus disability. X-rays revealed flattening of the longitudinal arch with weight-bearing. No other significant abnormalities were seen. In September 1966, the veteran underwent a VA outpatient examination. Physical examination revealed second degree pes planus of the longitudinal arch and complete flattening of the transverse arch, minimal hallux valgue, bilateral. The feet were still pliable and manipulated without very much pain. There was no muscle spasm on standing, weight-bearing line had shifted to the medial border of the feet, and his ankles rolled downward and inward considerably. The Achilles tendons were bowed. There was no evidence of circulatory disturbance in either foot. The diagnosis was bilateral pes planus, second degree, combined type, symptomatic with mild hallux valgue bilateral. Based on that examination, the 10 percent rating was confirmed and continued in an October 1966 rating decision. Thereafter, an August 1973 VA medical record revealed that the veteran had degenerative arthritic changes in both first metatarsal phalangeal joints as shown on x-ray. In an October 1973 rating decision, the 10 percent rating was confirmed and continued and the veteran's disability was recharacterized as pes planus, second degree, symptomatic, with degenerative arthritic changes. The veteran continued to receive treatment by the VA for pes planus. An August 1974 examination revealed some toeing on weight-bearing and moderately severe pronated flat feet. The heel valgus element was quite marked, however, the feet were malleable. There was no swelling and no palpable tender areas of either foot. A subsequent September 1974 rating decision confirmed and continued the 10 percent rating. Further August and September VA records show continued treatment for the veteran's symptomatology associated with his pes planus. The 10 percent rating was again confirmed and continued in a September 1974 rating decision. A subsequent private physician's statement dated in December 1974 revealed a diagnosis of flattening of the transversal arches of the feet with generalized mixed arthritis. The 10 percent rating was again confirmed and continued in a January 1975 rating decision. The veteran was examined at a VA facility in August 1976. Physical examination revealed bilateral pes planus, which was slightly more marked in the left foot. There was bilateral hallux valgus. The left great toe presented a bunion which was nontender to palpitation. There was no palpable tenderness of the interphalangeal, metatarsophalangeal joints or metatarsal or tarsal bones of either foot. The skin of both feet was warm and dry, and there was no tyloma of the plantar surfaces of either foot. The posterior tibial and dorsalis pedis arterial pulsations were distinctly localized bilaterally, and were observed to be forceful and regular. Joint range of motion of the toes and ankles were normal. X-rays revealed bilateral hallux valgus, more marked on the left than the right. The diagnosis was pes planus, hallux valgus, bilateral, with a bunion on the left great toe. The 10 percent rating was again confirmed and continued in a September 1976 rating decision. In June 1977, the veteran was treated for his pes planus. Treatment records revealed a bilateral pes cavus, second degree. There was some eversion of both feet, bilaterally. There was some hallux valgus deformity of the great toes, bilaterally. The veteran walked fairly well on his heels and toes. Trophic changes were noted. The dorsalis pedes and posterior tibial pulsations were present and normal. The diagnosis was pes cavus, bilaterally, with moderate eversion, symptomatic, with degenerative arthritis of the metatarsal heads. The veteran was examined at a VA facility in August 1977. Physical examination revealed that the veteran ambulated with a normal gait and erect posture and he wore normal foot gear. The feet were not swollen or tender. There was flattening of the medial longitudinal arch with slight pronation of the feet on weight-bearing. Bilateral hallux valgus was noted, greater on the left foot. The plantar surface of the left foot revealed a thickened callous overlying the first metatarsophalangeal joint. Dorsalis pedis pulsation of both feet were distinctly palpable. X-rays revealed calcification of the dorsalis pedes artery bilaterally. The diagnosis was pes planus, hallux valgus, bilaterally and tyloma, left foot. In a subsequent August 1977 rating decision, the 10 percent rating was confirmed and continued. Treatment records dated from September 1977 to December 1977 revealed continued treatment for symptomatic bilateral pes planus. In May 1978, he was afforded a VA orthopedic examination. Physical examination revealed pes planus, second degree. Good peripheral pulses were noted. There was bilateral hallux valgus of the great toes, bilaterally, greater on the right. The veteran was able to stand on his toes well. He had slight dropping of the metatarsal heads with slight clawing of the toes, a little more prominent on the right than on the left. The dorsalis pedis and posterior tibial pulses were normal. He exhibited full range of motion of the knees, ankles, and feet; good eversion and inversion; and all tendons worked well. There was no heat or erythema, no pretibial edema, and no other abnormalities. X-rays revealed minimal degenerative changes at the first metatarsophalangeal joint and some hallux valgus associated with them. The examiner noted that the veteran's disability of the feet showed very little change from the last examination. In a June 1978 rating decision, the 10 percent rating was confirmed and continued. In correspondence received in July 1991, the veteran indicated that he was seeking an increased rating. In order to evaluate the veteran's claim, treatment records were obtained from the Sioux Falls VA Medical Center. The records revealed that the veteran had bilateral pes planus, greater on the left than the right. The examiner opined that the veteran's paresthesia of the feet was not due to his pes planus, but was due to peripheral vascular disease. It was also noted that the veteran was using orthotics, but still experienced pain. In a subsequent February 1992 rating decision, the previous 10 percent rating was confirmed and continued. The veteran appealed that decision. In a July 1994 decision, the Board remanded this case to the RO for further development. Specifically, the RO was requested to obtain recent treatment records and to afford the veteran a VA examination. In response, the VA treatment records were obtained dated from 1991 to 1994. The records revealed that the veteran continued to complain of burning on the soles of his feet and pain. The examiner again opined that any paresthesia of the feet was not due to his pes planus, but was due to peripheral vascular disease and also questioned whether the burning symptoms were due to pes planus. The veteran continued to report that he experienced discomfort from his orthotics. In September 1994, the veteran was afforded a VA examination. Physical examination of the feet revealed bilateral pes planus, greater on the left. The veteran had prominence of the talus and the tuberosity of the navicular bone bilaterally. Those areas were somewhat tender to palpitation. The left foot had a prominent hallux valgus or bunion on the first metatarsal. The veteran had tenderness in and around the ankle joint itself with some discomfort with palpitation over the ankle tendons, primarily the fibular talar ligaments. Again, the left was worse than the right. The veteran had dorsiflexion to approximately 15 degrees and had plantar flexion to 20 to 25 degrees. Range of motion was fairly normal bilaterally in regard to plantar and dorsiflexion of the ankles. There was some prominence of the lateral and medial malleoli. The veteran had crepitus on flexion and extension of both ankles. There was some tenderness over the talor navicular joint area by palpitation, especially on the left foot. The veteran's overall posture was unremarkable. He was able to go up on his heels and toes and his gait was only mildly slowed. He tended to walk with very slight favoring of the left foot. No secondary skin or vascular changes were noted. X-rays revealed hallux valgus deformity at both great toes and degenerative changes in both ankles. The examiner concluded that the veteran had at least mild degenerative arthritis of the talor navicular and probably ankle joints themselves which was secondary to pes planus. It is noted that following the examination, the RO granted entitlement to service connection for bilateral arthritis of the ankles, secondary to service-connected pes planus, and awarded a 10 percent evaluation for each ankle in an October 1994 decision. That decision is not the subject of this appeal, thus, the Board will not address the veteran's bilateral secondary ankle disability. Currently, the veteran asserts that he experiences pain, discomfort and arthritis, especially on prolonged standing. He asserts that although he wears the cushioned insoles prescribed by the VA, the soles of his feet still become very sore and he experiences constant pain. Currently, the veteran contends that his pes planus disorder is more disabling than is represented by the 10 percent rating. 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 (1994). 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 (1994). Under the rating schedule, bilateral pes planus is rated under Diagnostic Code 5276. The rating schedule provides a 10 percent rating for moderate bilateral flat feet 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 for severe bilateral flat feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; and a 50 percent rating for pronounced bilateral flatfeet manifested by 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. When all the medical evidence is taken into account, it appears that the veteran's bilateral pes planus disorder is objectively manifested by a prominence of the talus and the tuberosity of the navicular bone bilaterally which are somewhat tender to palpitation; a prominent hallux valgus or bunion on the first metatarsal of the left foot; and hallux valgus deformity at both great toes. There was no evidence of any marked deformity, indication of swelling on use, or characteristic callosity formation. The Board concludes that the veteran's current manifestations of his pes planus disorder are not consistent with a rating higher than 10 percent under Diagnostic Code 5276 since he does not have manifestations consistent with the criteria required for a higher rating. The Board notes that the veteran asserts that he experiences chronic pain in the soles of his feet. Under 38 C.F.R. § 4.40 (1994), functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. Clinical findings revealed that the veteran's bilateral pes planus is currently symptomatic, however, pain on manipulation and use is contemplated and encompassed within the veteran's present 10 percent rating. The Board finds that the veteran's objective findings, in addition to the complaints of pain, do not indicate more than a moderate disability. As noted, the evidence does not support a higher rating under Diagnostic Code 5276 because the criteria for severe or pronounced bilateral pes planus has not been met. Therefore, the Board concludes that the 10 percent rating adequately represents the current level of his service- connected disability. In addition, the disability picture is not so unusual such as to require frequent periods of hospitalization or marked interference with employment such as to render impractical the regular schedular standards. 38 C.F.R. § 3.321 (1994). The Board therefore finds that the negative evidence outweighs the positive evidence. 38 U.S.C.A. § 5107(b) (West 1991). Accordingly, the Board finds that the schedular criteria for a disability rating of more than 10 percent for pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5276 (1994). ORDER The appeal is denied. EUGENE A. O'NEILL Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.