Citation Nr: 0005222 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 99-11 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for bilateral pes planus, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to July 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran indicated in a June 1999 VA Form 9, and his representative confirmed in an August 1999 statement on behalf of the veteran, that he is appealing only the evaluation his of bilateral pes planus, currently evaluated as 30 percent disabling. This case was the subject of a Board hearing in December 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's bilateral pes planus is characterized by marked and severe pronation. There is tenderness in the medial arch area. Plantar palpation of the forefoot is painful. The condition is very painful overall. There is marked medial displacement. The condition is not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a 50 percent rating for bilateral pes planus have 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 Factual Background As reflected in a March 1999 written statement, and in his June 1999 VA Form 9, the veteran contends that he is entitled to a 50 percent rating for bilateral pes planus, rather than the 30 percent rating currently assigned this service- connected disability. VA records of treatment in November 1997 reflect diagnoses of pes planus and anxiety. VA records of treatment in December 1997 indicate that the veteran had severe pes planus and degenerative joint disease of the feet, and that an order had been written for shoes. A VA-X-ray report dated in December 1997 included an impression of extensive degenerative changes superimposed on pes planus. The findings were most evident on the left side. VA medical records dated in April 1998 showed severe pes planus and was in need of molded shoes. A letter dated in February 1998 from C. J. Abbondante, D.P.M., stated that X-rays taken on February 12, 1998, showed marked degenerative changes. The impression was bilateral pes planus with marked degenerative changes. A letter dated in February 1998 from Lawrence F. Lewis, D.C., stated that the veteran had been a patient of his for over ten years. Throughout this time the veteran had continually complained of problems with his feet. According to Dr. Lewis, the veteran had tried several remedies, including molded shoes, but the veteran still experienced pain every day and had difficulty walking. In a letter to VA dated in January 1999, Brian E. McCarthy, D.P.M., wrote that the veteran was seen in his office in December 1998 with a chief complaint of a very painful and deformed left foot. The veteran was noted to have a long history of painful and deformed feet and difficulty walking. Upon physical examination significant bilateral pes planus with forefoot abduction was identified with the left being greater than the right. Plantar palpation of the forefoot was painful in the area of the second and third metatarsal heads with associated swelling and fluctuance. The medial arch also exhibited tenderness with swelling and induration of the central medial column. The veteran ambulated with a completely appropulsive type steppage gait. This correlated with the type of deformity experienced by the veteran. Dr. McCarthy indicated that severe pronation and rear foot changes were clearly evident upon December 1998 radiographic evaluation. Radiographic evaluation further showed subtalar joint degenerative changes, severe pes planus, rear foot pronation, and possible posterior tibial tendon dysfunction. Further findings were associated with severe pes planus and forefoot derangement due to instability caused by rear foot breakdown and forefoot abduction. In an April 1999 letter to VA, Dr. McCarthy stated that the veteran related little or no progress with shoe modification and pads. The veteran's feet were noted to be pes planus type feet with marked medial and plantar displacement. The veteran continued to complain of difficulty ambulating or standing, and currently gave the impression of being extremely frustrated with his painful condition. The veteran was noted to have pes planus. No significant spasm of the Achilles tendon was identified; however, an equinus condition was clearly present with less than 5 degrees of ankle dorsiflexion present. Clinical diagnoses included severe bilateral pes planus with secondary subtalar joint degeneration and medial column changes; metatarsalgia and subluxation of the second metacarpophalangeal joint; and posterior tendon dysfunction and gastrosoleal equinus, bilaterally. Dr. McCarthy asserted that shoe or brace therapy would have no profound effect on the shape or function of the foot. Goals of shoe/brace therapy were improved function and decreased symptoms only. Surgical repair would be extensive and require forefoot, as well as rear foot, construction. With regard to the VA rating schedule for pes planus, Dr. McCarthy asserted that the veteran clearly had all conditions listed in the criteria for a 50 percent rating, with the exception of the severe spasm of the tendo achilles. He noted that the veteran did, however, have gastrosoleal equinus associated with severe pes planus and rear foot articular degeneration. Dr. McCarthy asserted that "[o]bviously this requirement for tendo achilles spasm is impossible as the tendo achilles is a tendon and not an active contractile tissue." He opined that the requirement for tendo achilles spasm should read "gastro soleal equinus or spasm," which the veteran clearly did experience. A letter from a VA medical center to the veteran shows that he was scheduled for an appointment with the RMS Function/Wheelchair Clinic in December 1999. During his December 1999 Board hearing, the veteran's representative discussed the findings of Dr. McCarthy. The veteran testified that, in light of problems with his feet, if it wasn't for his wife he couldn't do anything. The veteran showed arch supports which he had used in his shoes. The veteran's wife indicated that the veteran had great trouble waking and tended to fall. The veteran said he was taking pain pills for his pes planus and that he had to use a cane at all times. He said he could stand less than five minutes. He said his shoe supports did not ease the pain. The veteran testified he needed his wife to get him out of the bathtub. The veteran's wife testified that if he needed something at home she would have to get it for him because he couldn't get up. She said he could not walk on uneven surfaces such as grass. The veteran described charley horses or spasms in both legs. He described possible surgery involving rods in his feet, which he declined at his doctor's advice. He said he was being evaluated by VA for a wheelchair, and was to be seen in the near future for pain management and physical therapy. Analysis Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that it is plausible. Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected disability and has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. 38 C.F.R. § 3.326(b). Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination. 38 C.F.R. § 3.327(c). Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, bilateral acquired flatfoot is rated as 50 percent disabling if it 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. The condition is rated as 30 percent disabling if it is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The veteran's pes planus is currently rated as 30 percent disabling. The only medical evidence discussing all rating criteria of the veteran's pes planus is that submitted by Dr. McCarthy. His examination appears to be very thorough and includes details of radiographic findings. He has indicated explicitly that the veteran has marked pronation and marked medial displacement, and that the veteran's underlying condition would not be improved by orthopedic shoes or appliances, but instead only by reconstructive surgery. He has noted tenderness upon palpation and in the medial arch area, and that plantar palpation of the forefoot is painful. He has described the veteran's condition as very painful. That he has taken his analysis seriously is reflected by his offering criticism of what is in his view the medically impossible requirement of spasm of the Achilles tendon, rather than making a disingenuous finding of this condition upon examination. He has suggested a more articulate wording for this requirement, and contends that the veteran would meet the requirement if thus reworded. Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination. 38 C.F.R. § 3.327(c). Dr. McCarthy's letters are very thorough with respect to his physical findings (the descriptions of his letter, above, are somewhat abbreviated to reflect the most pertinent information), discuss all rating criteria, and are adequate for rating purposes. The Board is persuaded by Dr. McCarthy's findings. There being no evidence of comparable weight against the veteran's claim, the Board finds that a rating of 50 percent for bilateral pes planus is warranted. The Board acknowledges that additional medical records of treatment for pes planus very likely exist which have not been associated with the claims file, and that in December 1999 the veteran wrote that "I understand that I will be attending a VA exam to properly establish the degree of disability." However, since the decision in this case is a full grant of the explicit benefit sought on appeal, i.e., a rating of 50 percent, which is the maximum schedular rating for pes planus, the Board has determined that its decision not to remand the case for the purposes of a VA examination and obtaining further medical records is in no way prejudicial to the veteran. ORDER A 50 percent rating for bilateral pes planus is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals