Citation Nr: 1752490 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-33 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus with fibroma of the bilateral feet (excluding periods of temporary total evaluation). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted left foot pes planus, evaluated as 10 percent disabling, effective March 31, 2010. In an April 2015 rating decision, an increased 20 percent rating was awarded for the Veteran's service-connected left pes planus, effective March 31, 2010. In October 2014 and August 2016, the Board remanded the case for additional development. In an August 2017 decision, the Board granted service connection for a right foot disability, to include pes planus and remanded the matter along with the matter of an increased rating for left foot pes planus for the AOJ to assign a disability rating. Subsequently, in an August 2017 rating decision, service connection for bilateral pes planus with fibroma of the bilateral feet was granted and an evaluation of 30 percent was assigned effective March 31, 2010. Temporary 100 percent evaluations were also assigned from January 18, 2013 to March 31, 2013, May 21, 2015 to July 31, 2015, and January 19, 2017 to March 31, 2017 based on surgical or other treatment necessitating convalescence. As the maximum benefit allowable had been granted for those time periods which a temporary 100 percent evaluation was in effect, these periods are not on appeal. Since the RO did not assign the maximum disability rating possible for the entire period of time on appeal, this appeal for higher evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In May 2014, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the record. VA regulations require that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. 7107(c) (2012); 38 C.F.R. § 20.707 (2017). In June 2016, the Board advised the Veteran that the VLJ from the May 2014 hearing was no longer employed by the Board and offered him the opportunity for a hearing before a new VLJ. To date, the Veteran has not responded; therefore, the Board will proceed with adjudication of the appeal. The issue of entitlement to a TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT Excluding the periods of temporary total evaluation, the Veteran's bilateral pes planus with fibroma of the bilateral feet has been manifested by no worse than severe impairment, with pain on use, tenderness, and swelling; and functional impairments primarily due to pain, including limitations on standing and walking. CONCLUSION OF LAW Excluding the periods of temporary total evaluation, the criteria for an evaluation in excess of 30 percent for bilateral pes planus with fibroma of the bilateral feet have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran and his representative have not raised any issues with the duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In addition, while the Board's October 2014 and August 2016 remands determined that the September 2010 and April 2015 VA examinations were inadequate for the purpose of adjudicating the Veteran's claim for service connection for a right foot disability, as the examiners did not address numerous complaints of right foot pain in the record, as well as diagnoses of bilateral flat feet and pronated arches. However, the Board finds that the clinical findings in these examination reports, in particular with respect to the Veteran's left foot, are still relevant to the issue on appeal and will be discussed in the analysis below. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's service-connected bilateral pes planus with fibroma of the bilateral feet has been assigned a 30 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, bilateral pes planus is rated 30 percent disabling when the condition is severe and manifested by objective evidence of marked deformity (pronation, abduction, etc.), increased pain on manipulation and use, indications of swelling on use, or characteristic callosities. A higher 50 percent rating is available for pronounced pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achillis on manipulation, and the condition is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). VA treatment records from August 2009 indicate that the Veteran presented with bilateral flat feet. In October 2009, the Veteran complained of continued right foot pain, and in December 2009 it was noted that the Veteran had bilateral pronated arches. March 2010 records note the Veteran's reports of sharp pain in the bottom of his left foot radiating to his medial ankle, which was not relieved by shoe inserts. In May 2010 and July 2010, the Veteran continued to complain of left foot pain, more when he bended the arch of his foot and during physical activity. Acupuncture was used for treatment. The Veteran underwent a VA examination in September 2010. The Veteran complained of pain in the left foot while standing, walking, and at rest. He also had swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance in the left foot with walking. He was able to stand for 15-30 minutes, and unable to walk more than a few hundred yards. The Veteran used a cane, and had fair efficacy of corrective shoes, shoe inserts, or braces. Physical examination of the left foot showed no evidence of instability, weakness, or abnormal weight bearing. There was evidence of painful motion, swelling, and tenderness. There was objective evidence of swelling in the arch and objective evidence of tenderness over the arch of the foot. There was no skin or vascular foot abnormality and no evidence of malunion or nonunion of the tarsal or metatarsal bones. Achilles alignment in weight bearing and non-weight bearing was normal, and there was no forefoot malalignment. There was no midfoot malalignment and no pronation. There was an arch present on weight bearing and non-weight bearing and no pain on manipulation. There was no muscle atrophy of the foot. Regarding the right foot, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. The Veteran was diagnosed with left foot pes planus. He indicated that his feet problems made him unable to keep up with co-workers and he could not find a job in truck driving. A February 2011 letter from Dr. I.R. of the Rochester VA Medical Center indicated that the Veteran's left foot pain limited him from being able to work more than 15 to 20 hours a week and restricted his ability to do any type of work that required prolonged standing or walking for more than 15-30 minutes. While it limited his employment options, he was hopeful that the Veteran would find work suitable for him. Private treatment records from May 2011 from Rochester Orthopedic Laboratories note that the Veteran was experiencing sensitivity in the middle of his medial longitudinal arch plantar side of his right foot. He was diagnosed with bilateral arch pain. VA treatment records from March 2011 note left foot pain and right foot pain. In May 2011 and August 2011, the Veteran complained of continued pain in the feet, and indicated the support hose and foot brace he wore helped support his left foot arch and would keep his foot pain from becoming very high. The Veteran underwent another VA examination in July 2011. The Veteran complained of pain in the left foot while standing, walking, or at rest. The Veteran also complained of numbness in the big toe. The Veteran was unable to stand for more than 10 minutes, able to walk more than 1/4 mile but less than 1 mile, and used orthotic inserts. Physical examination of the left foot showed no evidence of instability, weakness, or abnormal weight bearing. There was evidence of painful motion and tenderness. There was objective evidence of pain on the inner foot and objective evidence of tenderness in the medial foot. There was no skin or vascular foot abnormality and no evidence of malunion or nonunion of the tarsal or metatarsal bones. Achilles alignment in weight bearing and non-weight bearing was normal, and there was no forefoot malalignment. There was no midfoot malalignment and no pronation. There was no arch present on weight bearing but present on non-weight bearing, and no pain on manipulation. There was no muscle atrophy of the foot. Regarding the right foot, there was no evidence of painful motion, swelling, tenderness, instability, weakness, and abnormal weight bearing. The Veteran's gait was antalgic. The Veteran was diagnosed with left foot pes planus. He indicated that his feet problems made him unable to keep up with co-workers. The Veteran underwent a VA examination in August 2012. A diagnosis of left foot pes planus was noted. The examiner indicated that the Veteran had pain on use of both feet, which was accentuated on use. The Veteran did not have pain on manipulation of the feet, and there was no indication of swelling on use. The Veteran also did not have characteristic calluses or extreme tenderness of plantar surface of one or both feet. Symptoms of the left foot were not relieved by arch supports. The Veteran did not have decreased longitudinal arch height on weight-bearing, and there was no objective evidence of marked deformity of the foot, and no marked pronation of the foot. The weight-bearing line did not fall over or medial to the great toe and there was no lower extremity deformity other than pes planus which caused alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon and did not have marked inward displacement and severe spasm of the Achilles tendon. There were no related scars. The Veteran had constant use of a brace and cane. The examiner indicated that the Veteran's pes planus impacted his ability to work as the Veteran could not walk or stand for more than several minutes, which was likely secondary to plantar fibroma. At the Veteran's May 2014 Board hearing, the Veteran stated that he suffered from pain in his left foot and that he tried inserts, foam, and pads which did not work. He indicated that he had to constantly wear a supportive boot. March 2015 VA treatment records note the Veteran's reports of left foot pain. May 2015 records show that the Veteran underwent an excision of a right foot plantar fibroma due to right foot pain. The Veteran was provided an additional VA examination in April 2015. The examiner noted the Veteran's diagnoses of left foot pes planus and bilateral plantar fibroma. The Veteran reported bilateral foot pain, but denied limitations with activities of daily living. The Veteran did not wear orthotics or shoe inserts as it would cause increased pain. He reported daily constant throbbing. He did not report that flare-ups impacted the function of his foot and did not report having any functional loss or functional impairment of the foot. The Veteran had pain on use of the left foot, which was accentuated on use. The Veteran did not have pain on manipulation of the feet, and there was no indication of swelling on use. The Veteran also did not have characteristic calluses or extreme tenderness of the plantar surface of one or both feet. There was no decreased longitudinal arch height on weight-bearing, and there was no objective evidence of marked deformity of the foot, and no marked pronation of the foot. The weight-bearing line did not fall over or medial to the great toe and there was no lower extremity deformity other than pes planus which caused alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon and did not have marked inward displacement or severe spasm of the Achilles tendon. There was pain on physical exam of the right and left foot which contributed to functional loss. Contributing factors of disability were pain on weight-bearing of both feet. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time. The Veteran used a brace and cane as assistive devices on a constant basis. Regarding functional impact, the examiner indicated that the Veteran's foot conditions impacted his ability to perform any type of occupational task, in that he could not walk or stand for more than several minutes, which was likely secondary to plantar fibroma. The examiner also indicated that the Veteran's pes planus would not prevent physical or sedentary employment. VA treatment records from September 2015 through August 2016 show continued complaints of foot pain, which was aching, throbbing, sharp, and some radiated to the medial leg on the left side. Treatment records from April 2017 through August 2017 note the Veteran's complaints of bilateral foot pain. He received acupuncture treatment. Based on review of the evidence of record, excluding the periods of time for which the Veteran was assigned a temporary total evaluation, the Board finds that an evaluation in excess of 30 percent for bilateral pes planus with fibroma of the bilateral feet is not warranted. During the periods on appeal, the Veteran had symptoms of pain, tenderness, and swelling, and experienced functional impairments such as limitations on standing and walking, which the VA examiner attributed to his plantar fibroma. However, marked pronation, marked inward displacement and severe spasm of the tendo Achillis on manipulation have not been noted at any time during the appeal period. Although tenderness was noted on the September 2010 and July 2011 VA examinations, neither of the examiners found marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation. As discussed above, the criteria in Diagnostic Code 5276 are conjunctive. While the Veteran may experience tenderness, without an objective showing of the other criteria, the Veteran's symptom of pain alone does not warrant an increased rating under Diagnostic Code 5276. Therefore, symptoms of the Veteran's bilateral pes planus do not more nearly approximate findings for a higher 50 percent evaluation. The Board has also considered whether any other Diagnostic Codes may be applicable to the Veteran's case. There is no evidence the Veteran has weak foot (Diagnostic Code 5277), claw foot (Diagnostic Code 5278), anterior metatarsalgia (Morton's disease), unilateral or bilateral (Diagnostic Code 5279), hallux valgus (Diagnostic Code 5280), hallux rigidus (Diagnostic Code 5281), hammer toe (Diagnostic Code 5282), or malunion of or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283). 38 C.F.R. § 4.71a. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that, "as a matter of law, [Diagnostic Code] 5284 does not apply to the eight foot conditions specifically listed in § 4.71a," and so listed conditions could not be rated by analogy under Diagnostic Code 5284 for other foot injuries. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). As the Veteran's bilateral pes planus is a listed condition, Diagnostic Code 5284 is not for application here. Thus, ratings under these Diagnostic Codes will not be discussed further. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45. While Diagnostic Code 5276 is not based on limitation of motion, the Court has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board has considered the Veteran's complaints of pain, stiffness, fatigability, weakness, and lack of endurance as causing functional loss. These symptoms have been reported and remarked upon by VA health care providers throughout the time period on appeal, and have been included and considered in the VA examinations and the symptoms are fully contemplated by the evaluation of 30 percent for bilateral pes planus. There is no objective evidence to suggest that the Veteran's bilateral pes planus with fibroma causes additional functional loss not contemplated in the currently assigned ratings at any point during the appeal period. The Board acknowledges that the evidence indicates that the Veteran has scars on the bilateral feet which have been attributed to his bilateral pes planus with fibroma of the bilateral feet. However, the Veteran was granted service connection for painful scars of the feet and is in receipt of a 10 percent evaluation. He has not appealed the rating assigned; therefore, the Board need not address that issue further. In light of the above, the Board finds that, excluding the periods of time for which the Veteran was assigned a temporary total evaluation, the Veteran is not entitled to a disability rating higher than 30 percent for bilateral pes planus with fibroma of the bilateral feet at any point during the periods on appeal. Although the Veteran is entitled to the benefit of the doubt where evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 2 Vet. App. 49, 53 (1990). ORDER Excluding the periods of temporary total evaluation, an evaluation in excess of 30 percent for bilateral pes planus with fibroma of the bilateral feet is denied. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. As indicated above, there is evidence that the Veteran's service-connected bilateral pes planus with fibroma of the bilateral feet has impacted his employability. At his September 2010 VA examination, the Veteran indicated that he had not been employed since 2008 and could not find a job in his career in truck driving due to his disability. Also, the Veteran's treating VA physician indicated in a February 2011 letter that the Veteran's foot disability affected his ability to work. Thus, the issue of entitlement to a TDIU has been raised as part and parcel of the claim for an increased rating for bilateral pes planus. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). This claim was not previously adjudicated by the AOJ. A remand is therefore warranted for the AOJ to provide the Veteran with proper notice regarding the information and evidence necessary to substantiate a TDIU and consider the merits of the claim in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, adjudicate the issue of entitlement to TDIU. If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. § 5109B (2012). ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs