BVA9508192 DOCKET NO. 92-54 385 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for bilateral pes planus, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to February 1946. This appeal arises from an October 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was last before the Board of Veterans' Appeals (Board) in March 1993, at which time it was remanded for further development. Following completion of the requested development, a rating decision entered in October 1994 continued to deny the benefit sought on appeal, and a Supplemental Statement of the Case was issued the same month. The appeal was returned to and redocketed at the Board in February 1995. The case is now ready for appellate review. By means of correspondence dated in April 1993, the veteran's representative, on the veteran's behalf, asserted a claim for secondary service connection for a throat disability. Inasmuch as such claim remains unadjudicated, it is referred to the RO for appropriate action. It is also noted that, subsequent to a November 1993 rating decision which denied secondary service connection for arthritis of the feet and secondary service connection for depression, the veteran's representative expressed disagreement with such denials on the veteran's behalf by means of correspondence dated in June 1994. The foregoing matter is, accordingly, brought to the attention of the RO for the issuance of a Statement of the Case. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he experiences severe pain in his feet, including extreme soreness on the bottoms of his feet, for which he takes medication. He states that he has been given orthopedic shoes which are of little help, and indicates that he is unable to walk more than one block or stand for more than 15 minutes. He emphasizes that he walks with his feet in an outward position in an attempt to keep pressure off the arches. He specifically contends that his service-connected bilateral pes planus is sufficiently disabling as to warrant a 50 percent rating. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's appeal for an increased rating for bilateral pes planus. FINDINGS OF FACT 1. Current manifestations of the veteran's service-connected bilateral pes planus include severe, persistent foot pain; severe pronation is present, bilaterally, without evidence of marked inward displacement or severe spasm of the tendo achillis on manipulation; overall disability of the veteran's bilateral pes planus is not more than severe. 2. No exceptional or unusual disability factors have been identified. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 5276 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that such claim is plausible. 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 38 U.S.C.A. § 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1994). Service connection is in effect for flat feet (pes planus), for which the RO has assigned a 30 percent rating under the provisions of Diagnostic Code 5276 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1994), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's bilateral pes planus, the disability for which entitlement to an increased rating is asserted. The Board has found nothing in the historical record which would lead it to conclude 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 which would warrant an exposition of the remote clinical history and findings pertaining to the disability for which entitlement to an increased rating is asserted on appeal. Under the schedular criteria, a 30 percent evaluation is warranted for severe bilateral acquired flatfoot (pes planus) manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities; a 50 percent evaluation is warranted for pronounced bilateral acquired flatfoot (pes planus) manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. The veteran alludes to experiencing persistent, severe pain in his feet, including extreme soreness on the bottoms of his feet, which precludes him from walking more than modest distances or standing for more than brief periods. In this regard, when seen for VA outpatient treatment in July 1991, palpation of the plantar surfaces of the veteran's feet was noted to elicit pain. When seen for VA outpatient treatment in March 1992, at which time the examiner commented that the veteran had a severe pronatory component of his bilateral subtalar joints, palpation of the plantar surfaces of his feet was noted to elicit "intense" pain. In August 1992, the veteran was casted for orthotics in an attempt to relieve pain particularly referable to his arches; the orthotics were noted to be helpful when the veteran was seen in March 1993. When examined by VA in August 1993, at which time the examiner noted that the veteran appeared to have second degree pes planus, he was noted to walk with obvious pain in both feet. The soles of the veteran's feet, when felt by the examiner, were noted to be "quite tender." Most recently, the veteran was examined by VA in August 1994. Objective examination findings included "marked" tenderness on the plantar as well as dorsal surfaces of both feet. Findings on X-ray examination of each foot included a hallux valgus deformity; a calcaneal spur on the left was also noted. The diagnoses included bilateral pes planus and severe fasciitis involving each foot. In considering the veteran's claim for an increased rating, the Board does not dispute his contention relative to experiencing severe, persistent pain in his feet, which complaint is shown to be well-substantiated on a number of presentations in recent years for VA outpatient treatment as well as on each of the veteran's recent VA examinations. However, following its review of the entire record, the Board is of the opinion that an increased rating for the veteran's service-connected bilateral pes planus is not warranted. In reaching the foregoing conclusion, the Board would point out that the above-addressed finding of severe bilateral pronation in March 1992 comprises a manifestation which is commensurate with the veteran's current 30 percent rating under Diagnostic Code 5276. The Board is cognizant that the finding on VA examination in August 1994 of "marked" tenderness of the plantar surfaces of the veteran's feet may equate with the requisite "extreme tenderness" involving such surfaces included in the criteria warranting a 50 percent rating under Diagnostic Code 5276. Notwithstanding the foregoing consideration, however, the Board must emphasize that the pertinent evidentiary record is negative for any clinical evidence in satisfaction of other criteria necessary for a 50 percent evaluation under Diagnostic Code 5276 such as marked inward displacement, severe spasm of the tendo achillis on manipulation, or, most crucially, any evidence suggestive of pes planus of "pronounced" overall severity. Comprising another consideration militating against entitlement to an increased rating, the Board further notes that, despite testimony from the veteran at his March 1990 hearing to the effect that special shoes with arch supports had been of minimal benefit in relieving foot pain, the orthotics with which he was fitted in the course of VA outpatient treatment in 1992 were noted when he was seen early the following year to have apparently been of at least some benefit. In view of the foregoing observations, the Board is of the opinion that current overall disability of the veteran's bilateral pes planus, as presently manifested, is no more than severe in degree, and that the preponderance of the evidence is against the veteran's appeal for an increased rating for such disability. In reaching the foregoing determination, the Board has given due consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where 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. However, the record, in light of the reasoning advanced above, does not show that the actual manifestations of this disability more closely approximate those required for a 50 percent rating than they do the disability rating currently assigned. Finally, the record reflects that the veteran discontinued working in the early 1970's due to medical considerations including low back problems and the Board is unable to identify any exceptional or unusual circumstances warranting a higher rating on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Accordingly, the Board is unable to identify a reasonable basis for a grant of this benefit on appeal. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 5276. ORDER An increased rating for bilateral pes planus is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals 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.