Citation Nr: 1634239	
Decision Date: 08/31/16    Archive Date: 09/06/16

DOCKET NO.  12-11 377A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable disability rating for bilateral pes planus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Alexander Panio, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from March 1983 to October 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.   


FINDINGS OF FACT

The Veteran's bilateral pes planus has manifested pain and weakness that has largely been relieved by shoe inserts and has not manifested weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, marked deformity, indication of swelling on use, marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation.


CONCLUSION OF LAW

The criteria for an initial disability rating of 10 percent for bilateral pes planus have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2015).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is currently in receipt of a noncompensable disability rating for bilateral pes planus under Diagnostic Code 5276 as acquired flatfoot.  The Veteran contends that a higher rating is warranted based on his current symptomatology.  Specifically, the Veteran maintains that he has to wear arch supports and that his pain gives him residual pain and weakness on a daily basis.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Disability evaluations are determined by application of a schedule of ratings based on the average impairment of earning capacity resulting from a service-connected disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 is to be assigned.  38 C.F.R. § 4.7.  

While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern as it provides the most accurate picture of the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The appeal period before the Board is from August 21, 2008, the date VA received the claim for increased rating, plus the one-year look-back period.  Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.

Diagnostic Code 5276 for acquired flatfoot provides that mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable (0 percent) disabling.  Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability.  Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability.  38 C.F.R. § 4.71a. 


At a September 2009 VA examination the Veteran complained of pain with some weakness with standing and prolonged walking but no history of recurrent fasciitis. The Veteran had been given inserts, which helped and was wearing wider, slightly larger footwear which was also helpful.  The Veteran reported no history of foot injuries.  He reported no impediment to his activities of daily living but stated that his job required a lot of standing, climbing and walking which causes some foot pain.  Upon examination the Veteran was found to be fully ambulatory with a normal gait and in no acute distress.  The examiner noted pes planus bilaterally but no hallux valgus.  Tenderness was noted along the plantar surface at the level of the calcaneus bilaterally but no midfoot or metatarsal head pain or discomfort was detected.  Small callous formation was noted on the dorsal aspect of the right foot at the level of the MTP joint but no callous formation was found on the left foot.  No functional limitations on standing or walking were found or any edema, weakness, or instability.  Achilles alignment and weightbearing were noted to be normal. 
Normal MTP, PIP and DIP joint function was found in all the digits of both feet. 
No evidence of any edema or painful motion of the foot.  No pain, fatigue, weakness, lack of endurance or incoordination was detected after repetitive motion. 
No discomfort or difficulty with motion testing nor effusion edema, erythema, tenderness palpable deformities or instability was found except as noted.

In March 2011 the Veteran reported pain in the right foot that waxes and wanes and worsens with activity but he nevertheless continued to run many miles every morning.  

At a March 2012 VA examination the Veteran reported acquiring arch supports for his shoes and having used them throughout the appeal period.  The Veteran stated that he was looking for an increase in compensation because he was not being compensated for the inserts.  The Veteran reported bilateral pain on use of feet, not accentuated on use.  No pain on manipulation, no indication of swelling on use, no characteristic callouses and no extreme tenderness was detected on examination.  The Veteran's symptoms were reportedly relieved by arch supports.  The Veteran was noted to have bilateral decreased arch height but no evidence of marked deformity of the foot, no marked pronation, no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasms of the Achilles tendon were found.  The Veteran's weight bearing line does not fall over or medial to the great toe no lower extremity deformity.  The Veteran was noted to have mild tenderness to palpation over bilateral first MTP joints, which the examiner related to mild bilateral hallux valgus and not pes planus.  No other tenderness on palpation was observed.  The examiner found no functional limitation owing to the pes planus.

The Veteran has stated that he has pain and weakness in his foot and is competent to make such observations.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Pain is contemplated in the rating criteria for pes planus however the Veteran has reported that his symptoms are relieved by his arch supports and that he is not limited in his activities of daily living and can run for many miles.  38 C.F.R. § 4.71a; see Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it).  While the Veteran's symptomatology appears to be mild and largely remedied by his arch supports, he has noted that with prolonged standing, climbing and walking he experiences some pain and even with inserts.  Therefore, resolving all doubt in the Veteran's favor, a compensable rating of 10 percent is granted.  38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5276.

The evidence of record does not show that the Veteran has manifested weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, marked deformity, indication of swelling on use, marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation.  Mild callouses were detected on the Veteran's right foot at the September 2009 VA examination but not at the March 2012 examination.  The Board does not find the Veteran's temporary mild right foot callous sufficient to warrant a rating in excess of 10 percent absent any of the above-mentioned manifestations.  Therefore, a rating in excess of 10 percent under Diagnostic Code 5276 is not warranted.  38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5276.

The Board has considered whether a separate rating is warranted for hallux valgus, but the Veteran's toes haves not been operated on and the Board finds that the condition is not equivalent to amputation of the great toe.  Thus, no compensable rating would be warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5280. 


ORDER

A disability rating of 10 percent and no higher for bilateral pes planus is granted. 


____________________________________________
Steven D. Reiss 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs