Citation Nr: 1754468 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-07 585 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Nichole E. Knoll, Agent ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1977 to July 1985. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision from the RO in Montgomery, Alabama. FINDING OF FACT Bilateral pes planus most closely approximates the criteria for a 30 percent disability rating, but no higher. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for the Veteran's bilateral pes planus have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to 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 duty to assist argument). Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a rating of 50 percent is assigned for a bilateral condition, or a rating of 30 percent for a unilateral condition, that is pronounced. "Pronounced" is further defined as: marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. A rating of 30 percent is assigned for a bilateral condition, or a rating of 20 percent for a unilateral condition, that is severe. "Severe" is further defined as: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 10 percent is assigned for a bilateral or unilateral condition that is moderate. "Moderate: is further defined as: weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet. A rating of 0 percent is assigned for a bilateral or unilateral condition that is mild. "Mild" is further defined as: symptoms relieved by built-up shoe or arch support. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. In March 2007, the Veteran was granted service connection for bilateral pes planus assigned a noncompensable rating. In April 2011, the Veteran requested to be reevaluated for a higher disability rating for his service-connected bilateral foot disability. In March 2012, the RO evaluated the Veteran's bilateral pes planus at 30 percent disabling under Diagnostic Code 5276 with an effective date of April 21, 2011. The Veteran appealed the rating decision asserting that he warrants an increase to a 50 percent disability rating. After review of the pertinent medical evidence of record, the Board finds that the preponderance of the evidence is against the award of a 50 percent rating for bilateral pes planus. The reasons follow. VAMC medical records show a medical history of bilateral foot pain during the appeal period. VAMC treatment notes are negative for evidence showing that the Veteran's service-connected bilateral pes planus is pronounced warranting an increase to a 50 percent disability rating under Diagnostic Code 5276. For example, in the August 2011 VA examination report, the examiner reported the Veteran's feet had mild pronation. The examiner reported objective evidence of tenderness to palpation in the arch over the mid calcaneus. The examiner reported that there were no flare-ups. He reported that the Veteran was able to walk a quarter of a mile, but noted that it was less than one mile. The examiner diagnosed the Veteran with bilateral pes planus and noted how the following activities affected the Veteran's foot disability, as described by the Veteran: there is a mild effect upon chores and recreation; a moderate effect upon shopping and; a severe effect upon exercise. The report showed that there was no effect regarding sports, traveling, and personal care. In March 2017, the Veteran underwent another VA examination for his service-connected bilateral pes planus. The examiner reviewed the evidence in the claims file, recounted the Veteran's history and recited his complaints. The examiner reported that the Veteran wears orthotics in both the right and left shoes, but that it is without relief. The examiner reported that the Veteran's feet were negative for marked pronation in both feet, extreme tenderness plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation in both feet. The examiner reported that there were no flare-ups. The examiner reported weight-bearing pain, disturbance in locomotion and interference with standing. The examiner noted pain, weakness, fatigability and incoordination limit the Veteran's functional ability with repeated use of the joints over time (such as when the Veteran walks a lot). Based upon a review of the evidence of record, the Board finds the preponderance of the record the Board is against an increased rating for bilateral pes planus. The evidence of record does not establish that the Veteran has bilateral pes planus that is pronounced with bilateral symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. While the Veteran complains that the orthotics do not help his pes planus, which is one of the symptoms that fall under the 50 percent criteria, the Veteran's overall disability picture does not rise to the level of severity contemplated by the 50 percent rating, which contemplates marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, which examiners have not found upon physical examination of the Veteran's feet and which are not documented in the VA treatment records. Thus, while the Veteran meets one symptom that falls under the 50 percent criteria, he does not meet the other four symptoms that fall under this rating. 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, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. However, the Board notes that the rating under Diagnostic Code 5276 in this case is not based on limitation of motion, but, rather, the functional impairment resulting from the foot disability. Thus, a higher rating is not warranted pursuant to DeLuca or 38 C.F.R. §§ 4.40, 4.45. For the foregoing reasons, the Board finds the preponderance of the evidence is against entitlement to a rating higher than 30 percent for bilateral pes planus under Diagnostic Code 5276. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs