Citation Nr: 1752666 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-23 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for left foot pes planus. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kenneth M. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In December 2015, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. This issue was last before the Board in August 2016 when the Veteran's initial rating for left foot pes planus was increased to 10 percent, and then remanded for further development. FINDINGS OF FACT 1. The Veteran was scheduled for a VA examination, and the VA examination was necessary to decide the issue of entitlement to an increased initial evaluation for the service-connected left foot pes planus. 2. The Veteran failed to appear at the examination, and he has not presented good cause for the failure to appear. 3. The Veteran's left foot pes planus is manifested by pain. CONCLUSION OF LAW The criteria for assignment of an initial disability rating in excess of 10 percent for left foot pes planus are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.71a, DC 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an increased initial rating for left foot pes planus. The date of claim in this case is March 29, 2010, which begins the period of appellate review now before the Board. This disability has been assigned a 10 percent rating throughout the entire appeals period. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 will be assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Pes planus is rated under Diagnostic Code 5276, which provides for a 10 percent rating for moderate flatfoot, with the weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, whether bilateral or unilateral. 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 if unilateral, and 30 percent if bilateral. 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, not improved by orthopedic shoes or appliance, is rated 30 percent if unilateral, and 50 percent if bilateral. As an initial matter, in August 2016 the Board remanded this claim in order provide the Veteran a VA examination. The record reflects that a VA examination was then scheduled; however, the Veteran failed to respond to the RO's scheduling request, and the examination was subsequently cancelled. When entitlement to a benefit cannot be established without a current VA examination, and a claimant, without good cause, fails to report for such examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The VA examination was necessary to decide the issue on appeal. The Veteran did not provide an explanation for not responding to the scheduling request. As the Veteran did not provide good cause, the Board must adjudicate the Veteran's claims before the Board based on the evidence of record. Turk v. Peake, 21 Vet. App. 565, 569 (2008). With the above criteria in mind, the Board notes that at the December 2015 Board hearing the Veteran both competently and credibly testified that his left foot pes planus is manifested by left foot pain and cramping which symptomatology is not relieved by shoe inserts. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The only VA foot examination of record performed during the relevant period on appeal was in December 2010. During the examination, the Veteran reported that he has had pain in his foot since service, and that the pain is not resolved by the use of arch support. The examiner noted that the Veteran does not require walking assistance with a cane or other assistive device, and that there are no other foot deformities other than mild pes planus. Additionally, there was no local swelling, redness, calluses, or puffiness on examination. The examiner noted that the Veteran has slight and mild pes planus with normal range of motion. Additionally, no tenderness was noted on palpation. Further, the Veteran reported that pain worsens when he stops walking for a few days. The record does not reflect that Veteran's left foot shows evidence of marked deformity, is painful on manipulation, is swollen or contains callosities. Additionally, the record does not show that the Veteran's left foot pes planus is manifest by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. Thus, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent. Finally, the Board finds that the Veteran's symptoms have been stable throughout the appeal. Therefore, staged ratings are not appropriate ORDER An initial rating in excess of 10 percent for left foot pes planus is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs