Citation Nr: 18154116
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-08 541A
DATE:	November 29, 2018
ORDER
The claim of entitlement to a rating higher than 30 percent for pes planus with plantar keratosis, second metatarsal and atrophy of plantar fat pad, is denied.
REMANDED
The claim of entitlement to service connection for a vascular disability is remanded.
FINDING OF FACT
Prior to April 11, 2011, the Veteran’s bilateral pes planus manifested with severe symptoms.  On April 11, 2011, the Veteran’s right leg was amputated.  He is in receipt of the highest rating available for unilateral pes planus.
CONCLUSION OF LAW
The criteria are not met for a rating higher than 30 percent for pes planus with plantar keratosis, second metatarsal and atrophy of plantar fat pad.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5276.  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1958 to February 1960.
The claim of entitlement to a rating higher than 30 percent for pes planus with plantar keratosis, second metatarsal and atrophy of plantar fat pad is denied.
Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes (DCs) identify the various disabilities.  See generally 38 C.F.R. Part 4.  If two disability evaluations are potentially applicable, 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.  Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.
The Veteran’s pes planus is rated as 30 percent disabling under DC 5257.  38 C.F.R. § 4.71a.  
Under DC 5257, severe symptoms (objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use with characteristic callosities) are rated 30 percent bilaterally or 20 percent unilaterally.  Pronounced pes planus (marked pronation, extreme tenderness, marked inward displacement and severe spasm of the tendo achillis on manipulation, symptoms not improved with orthopedic shoes or appliances) warrants a 50 percent rating bilaterally, or a 30 percent rating unilaterally.  Id., DC 5257.
The Board notes that the Veteran’s claim for an increased rating was received in August 2009.  In general, when such a claim is received, the time frame for review includes the preceding 12-month period; and, if the evidence contained therein meets the rating criteria, then an effective date may be assigned prior to the date of receipt of the claim.  38 C.F.R. § 3.400(o).  However, in this case, the Board issued a decision granting the Veteran an initial 30 percent rating for his pes planus in a December 24, 2008, decision.  He did not appeal that decision, and it is now final.  Therefore, the relevant time frame from review starts on December 25, 2008.
The Board also notes that the Veteran had a right leg above-the-knee amputation on April 11, 2011.  His rating for pes planus will be considered as bilateral prior to the amputation, and unilateral thereafter.   
After review of the evidence, the Board does not find that a rating higher than 30 percent for pes planus is warranted.  
Prior to April 11, 2011, the record does not show marked pronation, nor does it show marked inward displacement and severe spasm of the tendo achillis on manipulation.  In July 2010, a private treatment record shows tenderness over the entire right foot.  The Board does not find this evidence sufficient to warrant a higher rating because the other criteria for “pronounced” severity are not shown, the tenderness was only shown in the right foot, and the symptoms were not attributed to his service-connected pes planus with plantar keratosis second metatarsals and atrophy of plantar fat pads.  Rather, they were attributed to osteopenia and vascular calcifications.  An October 2010 VA treatment record noted he had some increased symptoms in his feet that were attributed to the Veteran not being able to take Trental for the preceding month, which was prescribed for blood circulation, and not for his pes planus.  This evidence does not more closely approximate the criteria for a “pronounced” rating; rather, his symptoms for this time-period were severe.  Indeed, he was shown to complain of chronic swelling and to have characteristic callosities and pain.  38 C.F.R. § 4.71a, DC 5276.  
The Veteran argues that he was issued a wheelchair and that he could not stand for longer than a few minutes because of his service-connected pes planus, but this is not shown by the record.  Rather, the record shows that he was given the wheelchair because of upper-body disabilities that prevented him from being able to use his crutches.  The crutches were issued for his service-connected pes planus, but this evidence alone, without evidence of marked pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation, and extreme tenderness of the plantar surfaces, does not support a higher rating.  Id. 
After April 11, 2011, the Veteran has unilateral pes planus.  His right leg was amputated.  His rating of 30 percent is the highest rating available for unilateral pes planus.  Id.
The record does not show weak foot, claw foot, hallux rigidus, malunion of the tarsal or metatarsal bones, or other foot injuries, therefore DCs 5277, 5278, 5281, 5283, 5284.  The record does show metatarsalgia, but not anterior metatarsalgia or Morton’s neuroma, which is required for a separate rating.  38 C.F.R. § 4.71a, DC 5279.  See VA treatment record dated January 2009; January 2015 VA examination report.  The record shows he has a bunion, which is hallux valgus, but that it was characterized as “mild,” which does not meet the criteria for a separate rating.  38 C.F.R. § 4.71a, DC 5280.  He also has hammertoes of the left second through fifth toes, which does not meet the criteria for a separate rating.  38 C.F.R. § 4.71a, DC 5282.  See September 2009 VA examination. 
Accordingly, a rating higher than 30 percent is not warranted for the Veteran’s pes planus.   
REASONS FOR REMAND
The claim of entitlement to service connection for a vascular disability is remanded.
The February 2015 and May 2017 VA examination opinions are not adequate for adjudication.  The examiner did not provide an opinion as to whether the Veteran’s pes planus aggravated his vascular disability.  He opined against a direct relationship to service without providing sufficient explanation to support his opinion.  The Veteran has reported that he experienced the facial swelling he had during service persistently since his service, which was not adequately considered by the examiner.  Accordingly, another VA examination opinion should be obtained.
The matter is REMANDED for the following action:
1. Obtain a VA examination opinion as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran’s vascular disability is related to his service.  The examiner is asked to review the file and to conduct a search of the relevant literature prior to opining.
The Veteran’s STRs show swelling on the left side of the face in September 1958.  A September 1959 examination noted idiopathic swelling of the right side of the face during the winter months, that was probably neuro-vascular in origin.  
Private treatment records show total occlusion of the left internal carotid artery and very mild flattening of the posterior wall of the right internal carotid artery in February 1986.  A January 1995 record notes the Veteran complained of having circulation difficulties since the 1970s.
The examiner is asked to provide an opinion on whether it is as likely as not that the swelling in his face during service, attributed to a neuro-vascular mechanism, is related to his current vascular disabilities, including peripheral vascular disease.  
The examiner is asked to provide an opinion on whether it is as likely as not that pes planus aggravated his peripheral vascular disease.  (“Aggravated” means to cause any increase in severity that is beyond the normal progress of the disability.)  He has asserted that his atrophied fat pads made the development of pressure ulcers more likely and led to his amputation.  
The examiner is asked to provide supportive explanation for all opinions rendered.  It is up to the discretion of the examiner as to whether a full physical examination is required.  If so, the examiner is asked to notify the scheduling authority.


 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Gibson 


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