Citation Nr: 1341463 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-49 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for bilateral pes planus prior to January 14, 2011, in excess of a 30 percent rating from January 14, 2011, to May 10, 2013, and in excess of a 50 percent rating from May 10, 2013, to include on an extraschedular basis. 2. Entitlement to a separate compensable rating for right first metatarsophalangeal joint bunion, to include on an extraschedular basis. 3. Entitlement to a separate compensable rating for left first metatarsophalangeal joint bunion, to include on an extraschedular basis. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from March 1994 to June 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in March 2013 at which time the issues on appeal were remanded to request additional relevant treatment records (from September 2007 to September 2009), and to afford the Veteran VA examinations. There has been substantial compliance with these remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Also before the Board in March 2013 was the issue of entitlement to higher ratings for restrictive and obstructive pulmonary disease; however, the Board decided this issue at that time. This appeal was processed using the Virtual VA AND Veteran's Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of entitlement to increased ratings for service-connected bilateral foot disabilities on an extraschedular basis is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Effective September 23, 2008, to January 14, 2011, the Veteran's bilateral pes planus results in severe disability with pronation and pain on manipulation and use of the foot, without evidence of marked pronation or inward displacement, extreme tenderness, or severe spasm of the Achilles tendons, not relieved by orthopedic shoes or appliances. 2. Effective January 14, 2011, to May 10, 2013, the Veteran's bilateral pes planus was not productive of marked pronation or inward displacement, extreme tenderness, or severe spasm of the Achilles tendons, not relieved by orthopedic shoes or appliances. 3. From May 10, 2013, the Veteran's bilateral pes planus was productive of extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes. 4. Throughout the pendency of this appeal, symptoms associated with the Veteran's right first metatarsophalangeal joint bunion are not equivalent to amputation of the great toe. Additionally, the Veteran did not undergo a great toe operation with resection of the metatarsal head. 5. Throughout the duration of this appeal, symptoms associated with the Veteran's left first metatarsophalangeal joint bunion are not equivalent to amputation of the great toe. Additionally, the Veteran did not undergo a great toe operation with resection of the metatarsal head. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent, but no higher, for bilateral pes planus from September 23, 2008, to January 14, 2011, but no earlier, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5276-84 (2013). 2. The criteria for entitlement to a disability rating higher than 30 percent for bilateral pes planus from January 14, 2011, to May 10, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5276-84. 3. The criteria for entitlement to a disability rating higher than 50 percent for bilateral pes planus from May 10, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5276-84. 4. The criteria for entitlement to a separate compensable rating for right first metatarsophalangeal bunion joint have not been met at any point during the pendency of this appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5280-84. 5. The criteria for entitlement to a separate compensable rating for left first metatarsophalangeal bunion joint have not been met at any point during the pendency of this appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.71a, Diagnostic Codes 5276-84. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2008 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently adjudicated in August 2013. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony, though he declined a hearing. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). II. Facts The Veteran's service treatment records show that he was found to have severe symptomatic pes planus at his entrance examination in January 1994 and was treated for foot problems in service. In an August 2001 rating decision, the RO granted service connection for left and right first phalangeal joint bunion with pes planus by aggravation and assigned each foot a noncompensable rating. The Veteran was seen for a VA podiatry consult in September 2007 complaining of periodic foot pain approximately three times a month with most of the problem with standing and walking too long. Findings revealed decreased "cal inlin" angle left foot without edema or erythema. There was pain on palpation of the TP insertion left greater than right. There was also talar beaking left foot. X-rays of the Veteran's feet revealed bilateral pes planus and left tarsal beak possibly from tarsal coalition. He was assessed as having probable "TP" or spring ligament injury, and painful pes planus. VA records show that the Veteran attended an orthotics consult in December 2007 for semi-rigid foot orthotics. In January 2008, the Veteran filed an increased rating claim for his right and left first metatarsophalangeal joint bunions with pes planus asserting that he had difficulty at his place of employment as a floor nurse and experienced constant swelling. He further reported difficulty climbing stairs and walking long distances. Private medical records show that the Veteran was treated in January 2008 for complaints of a left ankle strain of a two and a half week duration. The Veteran reported in a February 2008 statement that he experiences foot complications which have increased from three incidents a month to four or five. He said there are days when he can barely stand due to pain and is unable to perform his job as a nurse. At a VA foot examination in March 2008, the Veteran reported that he was a full time nurse and had worked in that capacity for two and a half years. He said that his flat feet condition slows him down at work and prevents him from spending more time with his patients because he has to take more breaks to rest his feet. He was noted to be able to perform all activities of daily living. He reported weekly feet flare ups which he described as severe in the left foot, occurring four to five times a week lasting one to two days, and moderate in the right foot, occurring three to four times a week lasting one day. He further reported having 100 percent limitation of motion in the left foot during a flare up and no limitation of motion in the right foot. He also reported being able to stand for up to two hours and walk up to one mile. Examination of both feet revealed no evidence of abnormal weight bearing, objective evidence of painful motion, swelling, instability, weakness or hammertoes. There was tenderness mid arch in the left foot, and no tenderness in the right foot. Both feet had a 22 degree angle of hallux and there was no evidence of malunion or nonunion of the tarsal or metatarsal. Additional findings at the March 2008 VA examination revealed flatfeet with normal weight bearing and non weight bearing. There was no forefoot malalignment and no pronation. There was also no arch present on nonweight bearing or weight bearing. Left and right heel valgus was 0% and there was no muscle atrophy of either foot or other foot deformity. The Veteran was diagnosed as having bilateral pes planus and left talar beak possibly from tarsal coalition. X-rays of the feet were performed. The examiner noted that the Veteran's medical records, but not his claims file, had been reviewed. On September 23, 2008, the Veteran presented to a VA medical facility complaining of increasing foot pain radiating to the shin area after prolonged standing as a nurse at a VA emergency room facility. He said he has been wearing shoe inserts for a year and takes over the counter Motrin (200 milligrams occasionally), and does not like taking medication daily. He was assessed as having chronic pes planus. A March 2009 VA primary care record shows that the Veteran was being seen earlier than scheduled due to continuing bilateral foot pain. He was assessed as having worsening chronic pes planus condition. An April 2009 VA outpatient record shows that the Veteran was seen for complaints of right and left foot pain. It was noted that he had been seen for this problem in 2007 with relief of discomfort with foot orthotics. It is also noted that within the last three to four months, the pain had increased in the left foot. Findings revealed pain to "TP" tendon at insertion of navicular left foot and spring ligament left foot without edema or erythema. There was severe pronation, left foot greater than right. A magnetic resonance imaging (MRI) was recommended to rule out tarsal coalition, "TP" partial tear, spring ligament - left, and semi-rigid foot orthotic. A MRI of the lower extremities performed in May 2009 revealed on the left mild thickening of the spring ligament consistent with prior injury; attenuation of the "ATFL" calcaneotibular ligaments consistent with prior injury; and small ganglion cyst in the sinus tarsi. There was no bony or fibrous tarsal coalition seen, bilaterally. A June 2009 VA outpatient record shows that the Veteran was being followed for pes valgo planus. According to this record, an MRI was negative for tarsal coalition. It was also noted that the Veteran picked up new orthotics. On examination there was no edema or erythema of either foot. There was pain to anterior "talo fib lig left" and deltoids left. The Veteran was noted to need varus posting to the left orthotic. An August 2009 VA podiatry record shows that the Veteran was wearing orthotics more and having less problems. The left orthotic was found to still be in pronation and "Rf" varus posting was to be applied to the left orthotic. The assessment was flex pes valgo planus. The Veteran reported to his primary care provider at a six month follow up in September 2009 that things were "going well". His chronic foot pain had improved with orthotics and he took Naprosyn (500 mg) as needed. The Veteran reported on his substantive appeal, dated in December 2009, that he is a nurse and has to be on his feet all day and that because of this his feet hurt all the time. He requested that his disability ratings reflect his foot pain, bilaterally. The Veteran reported to a VA examiner in January 2011 that he has had continuing foot pain since service and uses naproxen with partial relief. Flare-ups were reported weekly or more often lasting one to two days. The Veteran reported being able to stand for 15-30 minutes and walk a quarter of a mile. He said he wore orthotic inserts for his flat feet. On examination of the left foot there was no evidence of swelling, instability, or weakness, but there was painful motion, tenderness, and abnormal weight bearing. Moderate pronation was observed in the left foot. There was minimal deviation of the varus/ valgus ambulation of the OS calcis in relationship to the long axis of the tibia/fibula in both feet. Left heel valgus was less than 5 degrees. There was no muscle atrophy of the left foot. Examination of the right foot revealed no swelling, instability or weakness, but there was painful motion, tenderness and abnormal weight bearing. Painful motion was noted with plantar flexion when walking and tenderness was noted at the sole of the foot along the mid foot. The Veteran had an unusual shoe wear pattern. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. Non weight bearing and weight bearing were normal. There was no midfoot malalignment, but pronation was noted to a moderate degree. There was no muscle atrophy of the foot. The Veteran was diagnosed as having bilateral pes planus and left talar beak possibly from tarsal coalition. The effects on the Veteran's occupation were noted to be significant with decreased mobility, pain, and having to rearrange his schedule to take more breaks. Effects of the Veteran's foot disabilities on activities of daily living were none to moderate in degree. He was not noted to have missed any work in the past 12 months due to his foot disabilities. In an August 2011 rating decision, the RO assigned a separate increased rating for bilateral pes planus to 30 percent, effective January 13, 2011. The RO also continued noncompensable ratings for right and left first metatarsophalangeal joint bunion. VA records in October 2012 show that the Veteran was being evaluated for steroid injections in his feet. X-rays were performed revealing left greater than right flat foot configuration with left hindfoot valgus. The Veteran complained at a VA podiatry clinic in February 2013 of spasms to the left greater than right feet for several months with no history of trauma. He reported being seen in the past for pes planus. He said he had received new orthotics and was doing better. Findings revealed severe pronation of the left foot without edema or erythema. Tight gastroc left, collapse of longitudinal arch, left. There was pain to anterior ligament and deltoids, left. The Veteran was assessed as having charcotoid left foot. At a VA examination in May 2013, the Veteran reported that his bilateral foot pain was disabling at times. He also reported that he gets spasms that he estimated at a level 8 out of 10 lasting 20 minutes and taking him off his feet. He said this slows him down with activities, especially with children. He said he has daily dull pain which he assessed as a four or five out of 10 which increases in intensity with activity. He reported flare ups two to three times a week which he described as sharp pain in his feet bilaterally, left greater than right, and close to 10 on a pain level to 10. He said he has to sit down, take Tramadol, and put his feet up. On examination there was tenderness to palpitation at the bilateral medial arch and plantar surfaces of the feet, left greater than right. There were also noted callosities bilateral plantar surfaces of the feet, and overlapping third and fourth toes bilaterally of the feet. There was first metatarsal phalangeal (MTP) bilateral bunions/hallux valgus angulation, right greater than left. The examiner indicated that within the realm of feasible physical examination testing of bilateral feet, repetitive ambulatory and manipulative motion was observed. There was no change, nor did a flare up occur. He said it would be pure speculation to state to what degree the foot joints would be affected with a flare up. The Veteran was noted to use braces regularly and inserts as assistive devices. His flat feet were noted to impact his ability to work by decreased tolerance for standing and walking more than 20 minutes due to foot joint pain. The Veteran reported that with respect to his feet he experiences pain, weakness, fatigability or incoordination which could significantly impact and/or limit his functional ability during flare-ups, or when the joint is used repeatedly over a period of time. He said he has to stop and take a rest/break from activity producing painful flare. The examiner responded that since a flare of his claimed foot joints was not observed on examination, under observation or feasible repetitive range of motion, ambulation and manipulation conducted of foot joint, he would at that time, without resort to mere speculation, be unable to provide specific degrees of any possible decrement in range of motion due to a flare of the "SM" foot joint condition. Following a review of the Veteran's VBMS medical record and physical examination, the examiner characterized the Veteran as having a severe level of left foot pes planus with a moderate degree of right foot pes planus. He said there was dejenerative joint disease in the " [Veteran's] left foot that likely contributes to the severity of the [Veteran's] disability of the left foot condition. He went on to report that the Veteran had right greater than left hallux valgus joint deformity associated with first metatarsophalangeal joint tenderness, redness and swelling symptomatic to a mild degree of "PN", that occurs after protracted periods of standing/ambulation range of motion activity. He said the Veteran reports that his hallux valgus/bunion condition was a lesser degree of disability, than that which was caused by his pes planus. He said although his hallux valgus is a separate physical foot bone deformity condition, it is reasonable to conclude that the biomechanics of his pes planus condition was a contributing/exacerbating factor to the symptomatology consistent with his hallux valgus condition. The Veteran was diagnosed as having pes planus, bilateral feet, and degenerative joint disease, left foot (by x-ray). Additional findings revealed hallux valgus deformity first metaphalangeal joint bilaterally, right greater than left, resulting in mild to moderate symptoms. This condition was found to impact the Veteran's work during flare ups which cause the Veteran to call out sick, approximately three days every two months. By rating decision in August 2013, the RO increased the Veteran's rating for bilateral pes planus from 30 to 50 percent disabling, effective May 10, 2013. III. Analysis A. Pertinent Criteria Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1, Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). An acquired flatfoot disability is evaluated under Diagnostic Code (Code) 5276. Under this code, a noncompensable rating is warranted for a mild disability with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, Code 5276. A 10 percent rating is warranted for moderate flatfeet (bilateral or unilateral) with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A severe flatfoot disability, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, warrants a 20 percent rating if unilateral and a 30 percent rating if bilateral. A pronounced flatfoot disability, 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, warrants a 30 percent rating if unilateral and a 50 percent rating if bilateral. Id. The words "moderate," "severe," "pronounced" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." Webster's New World Dictionary, Third College Edition (1988) 871. "Marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." Id at 828. Under DC 5277, a maximum 10 percent rating is warranted for bilateral weak foot, which is described as a symptomatic condition secondary to many constitutional conditions characterized by atrophy of the musculature, disturbed circulation and weakness. Under DC 5279, a maximum 10 percent rating is warranted for metatarsalgia, anterior (Morton's disease), unilateral or bilateral. Under DC 5280 for hallux valgus, unilateral, a maximum 10 percent rating is assigned if there has been an operation and resection of the metatarsal head; or if the hallux valgus is severe, if equivalent to amputation of the great toe. Diagnostic Code 5280 does not provide criteria for a noncompensable rating. However, in every instance where the Rating Schedule does not provide a noncompensable rating for a diagnostic code, a noncompensable rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Under DC 5284, a 10 percent rating is warranted for moderate foot injury. A 20 percent rating is warranted for moderately severe foot injury. A 30 percent rating is warranted for severe foot injury. In Deluca v. Brown, 8 Vet. App. 202 (1995), the Court held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45. The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). B. Discussion The Veteran seeks a higher rating for his service-connected bilateral pes planus and right and right and left first metatarsophalangeal joint bunions. At the outset, the Board notes that for the period prior to January 14, 2011, the Veteran's right and left first metatarsophalangeal joint bunions were rated together with his bilateral pes planus as noncompensably disabling. Subsequently, by a rating decision in January 2011, the RO separately rated the Veteran's bilateral pes planus, increasing this disability to 30 percent disabling, and continuing noncompensable ratings for his right and left first metatarsophalangeal bunion joint disabilities. With this in mind, in order to properly rate these disabilities for the period prior to January 14, 2011, consideration has likewise been given to separate ratings. 1. Bilateral Pes Planus Compensable Rating Prior to January 14, 2011 In specific regard to his bilateral pes planus, the Veteran asserts he should be rated for foot pain. The evidence that pertains to the period prior to January 14, 2011 shows that symptoms of the Veteran's bilateral pes planus had worsened. In this regard, he reported to a VA medical facility in September 2008 that he had increasing foot pain radiating to his shin area after prolonged standing as a nurse in a VA emergency room, and he was assessed by VA in March 2009 as having worsening chronic pes planus. The following month, in April 2009, he reported increasing left foot pain over the last three to four months. Findings at that time included severe pronation, left foot greater than right. Findings also revealed pain to "TP" tendon at insertion of navicular left foot and spring ligament left foot without edema or erythema. VA Records in April and June 2009 similarly revealed pain to anterior talo fib ligament left and deltoids left. Podiatry findings in August 2009 revealed that the left orthotic was still in pronation. Moreover, pain on use accentuated is evident by the Veteran's consistent reports that the pain increases when standing and walking for prolonged periods while performing his duties as a full time nurse. In light of findings as noted above of severe pronation, left greater than right, pain on examination, and multiple notations of pain on use accentuated, the Board finds that the evidence prior to January 14, 2011, approximates the criteria for a 30 percent rating under Code 5276 for the Veteran's bilateral pes planus. The Board finds this rating to be effective as of the September 23, 2008, VA outpatient record reflecting the Veteran's complaints of increasing bilateral foot pain. While the Veteran did report in a February 2008 statement that his foot "complications" had increased from three incidents a month to four or five, the weight of evidence does not meet the criteria for a 30 percent rating prior to September 2008. This is so when considering findings at a March 2008 VA examination that included no evidence of pronation and no objective evidence of painful motion or swelling. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's bilateral pes planus more nearly approximates the criteria and impairment warranting a 30 percent rating effective from September 23, 2008. 38 C.F.R. § 4.7. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for a compensable rating of 30 percent must be granted to the extent indicated. 38 U.S.C.A. § 5107. Higher Than 30 Percent Rating From September 23, 2008, to May 10, 2013 A higher than 30 percent rating is not warranted at any point from September 23, 2008, to May 10, 2013, for the Veteran's bilateral pes planus due to the absence of findings required for a 50 percent rating. That is, while the Veteran is shown by the evidence to have moderate to severe pronation, he has not been found to have marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, Moreover, he has been noted to experience improvement with orthotics as shown in VA podiatry records dated in August and September 2009. In short, the evidence does not show that the Veteran's disability picture more nearly approximates the 50 percent disability picture at any point from September 23, 2008, to May 10, 2013, for his bilateral pes planus under the diagnostic code for pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. See also Hart, supra. The Board also considered a higher rating under other applicable rating criteria for the feet; however, there was no evidence of claw foot (Diagnostic Code 5278) and/or malunion of or nonunion of, the tarsal or metatarsal bones (Diagnostic Code 5283). Id; Butts, 5 Vet. App. at 583. The Board also considered Diagnostic Code 5284 for foot injuries. There is a rating for the disorder he has, but consideration of this code does not provide a basis for an increase. No more than moderately severe impairment is shown in the left foot which is worse than the right. Neither approximates severe impairment during this time. Further, there was also no actual loss of use of the foot to warrant a 40 percent rating. The Board finds there is no persuasive evidence of pes planus symptomatology not otherwise contemplated by Diagnostic Code 5276. Higher Than 50 Percent Rating From May 10, 2013 The rating criteria found at 38 C.F.R. § 4.71a, Code 5276 provide for a maximum 50 percent rating for bilateral pes planus. A review of the other rating criteria for the feet shows that there are none that would be more appropriate and none that provide for more than a 50 percent rating. Therefore, the Veteran has been in receipt of the maximum schedular evaluation since May 10, 2013. As the maximum scheduler evaluation is in effect, no additional discussion is necessary for this period. Johnston v. Brown, 10 Vet. App. 80, 85 (1995). However, entitlement to an extraschedular evaluation remains potentially applicable as discussed in the remand below. It is noted that a higher rating would not result from rating the feet individually. Again, even if it were concluded that each foot were severe that would combine to a 50 percent rating. Moreover, as one foot appears worse than the other, separate ratings might result in a lower overall disability rating. Thus, it is to the Veteran's advantage to be rated under the code for pes planus. 2. Right and Left Metatarsophalangeal Joint Bunions The evidence does not support separate compensable ratings for the Veteran's right and left first metatarsophalangeal joint bunions at any point during the pendency of this appeal. In this regard, the Veteran did not assert, and the evidence does not otherwise demonstrate, that he underwent an operation with resection of the metatarsal head of his right or left foot. Moreover, he did not assert and the evidence of record does not otherwise demonstrate that his right hallux valgus is "severe," as defined in the rating criteria as being equivalent to amputation of his right great toe. There are essentially no documented findings with respect to this disability prior to May 2013. And while the Veteran did exhibit symptoms of this disability at the May 2013 VA examination which the examiner described as first metatarsophalangeal joint tenderness, redness, and swelling, symptomatic to a mild degree occurring after prolonged periods of standing/ambulation range of motion activity, these symptoms are not deemed to be the equivalent of amputation of the right and/or left great toes. Moreover, these symptoms are already contemplated in the 30 percent rating for bilateral pes planus under Code 5276 for pain on manipulation and use accentuated. As such, to rate these symptoms under Code 5284 for other foot injuries would violate the rule against pyramiding. 38 C.F.R. § 4.14. Finally, as none of the criteria in the diagnostic codes applicable to the foot involve limitation of motion, the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 are not applicable. Lastly, the evidence does not reflect that the Veteran's bilateral foot disabilities cause unemployability. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Rather, the evidence shows that he is currently working as a full time nurse at a VA medical facility. Therefore, consideration of a total disability rating based on individual unemployability due to service connected disability is not for application here. ORDER An increased rating of 30 percent for bilateral pes planus, but no higher, is granted, effective September 23, 2008. The appeal is allowed to this extent, subject to the law and regulations governing the award of monetary benefits. A rating in excess of 30 percent for bilateral pes planus at any point prior to May 10, 2013, is denied. A rating in excess of 50 percent for bilateral pes planus at any point from May 10, 2013, is denied. A separate compensable rating for right first metatarsophalangeal joint is denied. A separate compensable rating for left first metatarsophalangeal joint is denied. REMAND When a service-connected disability markedly interferes with employment, it might make it impractical to apply the regular standards of the rating schedule and may warrant consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). More information is needed to determine whether the Veteran's bilateral foot disabilities have markedly interfered with employment. In this case, the record is replete with notations that the Veteran's bilateral foot disabilities impede his work as a full time nurse, notably by decreasing his tolerance for standing and walking. Moreover, a VA examiner in May 2013 relayed the Veteran's report that he has to call out sick approximately three days every two months due to his bilateral foot disabilities. Accordingly, further consideration and development of an extraschedular rating is warranted. On remand, the Veteran should be provided an opportunity to submit employment records that show what days he missed work and, if recorded, the reason for each missed day. He also should be provided an opportunity to submit any medical or other documentation that may help to show how his bilateral foot disabilities affect her work attendance (i.e., a doctor prescribed light duty or time off from work) and his productivity at work. Thereafter, the RO should consider whether referral to appropriate VA officials for consideration of extraschedular ratings is appropriate. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit any employment records showing the days he missed work from January 2008 forward and, if recorded, the reason for each missed day. Also, he may submit any medical or other documentation that addresses the effect of his bilateral foot disabilities on employment from 2007 forward (e.g., a recommendation for light duty or time off from work, evidence of decreased productivity). 2. Obtain all outstanding records of VA evaluation and/or treatment for the Veteran's service-connected bilateral foot disabilities. All records/responses received should be associated with the claims file. 3. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for his service-connected bilateral foot disabilities in light of all pertinent evidence and legal authority. The RO must specifically consider and discuss whether the procedures for referral for consideration of extraschedular evaluations for the bilateral foot disabilities, pursuant to 38 C.F.R. § 3.321(b), is appropriate. 4. Thereafter, if the benefit remains denied, the RO must furnish the Veteran an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered, particularly 38 C.F.R. § 3.321(b), as well as clear reasons and bases for all determinations. The appellant must be afforded an appropriate time period to respond before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs