Citation Nr: 1711090 Decision Date: 04/06/17 Archive Date: 04/19/17 DOCKET NO. 09-32 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial compensable disability rating for bilateral flat feet, pes planus, prior to July 28, 2016, and in excess of 30 percent on or after July 28, 2016. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from March 1975 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In an April 2016 decision, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The October 2008 rating decision granted entitlement to an initial noncompensable disability rating for a bilateral foot disability, effective from November 13, 2007. The disability rating was then reconsidered and an increase denied in a December 2008 rating decision after the Veteran underwent a November 2008 VA examination. 38 C.F.R. § 3.156(b). The Veteran later submitted a December 2008 notice of disagreement with the initial assigned disability rating. He did not appeal the effective date of the award of service connection for his bilateral foot disability. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (holding that once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed decision). During the pendency of the appeal, an October 2016 rating decision increased the disability rating to 30 percent, effective from July 28, 2016. The rating decision also recharacterized the disability as bilateral flat feet, pes planus. As the assigned evaluations are less than the maximum available rating, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran submitted a November 2016 notice of disagreement for an effective date earlier than the one assigned by the RO for the 30 percent disability rating for his bilateral foot disability. Initially, the Board notes that freestanding effective date claims are not legally valid claims. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a claimant cannot file, and VA cannot adjudicate, a freestanding claim for an earlier effective date because it would vitiate the rule of finality). However, as the Veteran has appealed the rating assigned any increases during the appeal period are considered staged ratings, and the appropriateness of the rating assigned for those stages is part of the issue before the Board as part and parcel of any increased ratings assigned during the appeal period. Hart v. Mansfield, 22 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where factual findings during an appeal period show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such periods of time). Consequently, only the issue listed on the title page is before the Board at this time. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. From November 13, 2007 to July 24, 2016, the Veteran's bilateral flat feet, pes planus, disability has been manifested by symptomatology more nearly approximating moderate bilateral pes planus, but not severe bilateral pes planus. 2. From July 25, 2016 onward, the Veteran's bilateral flat feet, pes planus, disability has been manifested by symptomatology more nearly approximating severe bilateral pes planus, but not pronounced bilateral pes planus. CONCLUSIONS OF LAW 1. From November 13, 2007 to July 24, 2016, the criteria for an initial 10 percent disability rating for bilateral flat feet, pes planus, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276 (2016). 2. From July 25, 2016 to July 27, 2016, the criteria for an initial 30 percent disability rating for bilateral flat feet, pes planus, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276 (2016). 3. On or after July 28, 2016, the criteria for an initial disability rating higher than 30 percent for bilateral flat feet, pes planus, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his bilateral foot disability. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that the VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). In this case, the AOJ obtained the Veteran's service treatment records and all identified and available post-service treatment records. The Veteran was also afforded a VA examination in November 2008 and July 2016 in connection with the claim on appeal. In the April 2016 remand, the Board instructed the AOJ to send the Veteran a letter requesting that he identify and provide VA with any necessary authorization to obtain outstanding treatment records. After the AOJ sent the Veteran a May 2016 letter requesting this information, the Veteran submitted a VA Form 21-4142 identifying Walter Reed and Fort Belvoir as providers of relevant treatment. Treatment records from these facilities were subsequently obtained and associated with the claims file. In accordance with the remand, the Veteran was provided with a VA examination related to his bilateral foot disability in July 2016. The Board finds that this VA examination is adequate for rating purposes as it fully addresses the rating criteria and evidence of record relevant for rating the Veteran's bilateral foot disability. The Board acknowledges that the July 2016 VA examination to evaluate the Veteran's bilateral foot disability did not include range of motion testing. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 4.59 requires VA examinations of the joints to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). Although feet are comprised of bones, joints, and tendons, and by nature, involve weight-bearing, the Veteran's bilateral flat feet, pes planus, disability is currently rated under Diagnostic Code 5276, which is not based on specific ranges of motion, and this provision already considers the impact of weight bearing on the feet as part of its criteria. Moreover, as discussed below in more detail, while some other foot diagnostic codes are partially premised on limitation of ankle dorsiflexion, none of those diagnostic codes are applicable to this Veteran's foot disability, as the Veteran either does not have or is not service-connected for the applicable disability, or would not receive a higher compensation rating if that particular diagnostic code were applied. Accordingly, the Board finds that notwithstanding the holding of Correia, the July 2016 VA examination is adequate for rating purposes. As such, the Board finds that there is adequate medical evidence of record to make a determination on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board consequently finds that the AOJ has substantially complied with the instructions of the prior remand. Dyment v. West, 13 Vet. App. 11, 146-47 (1999). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied, and, thus, appellate review may proceed without prejudice to the Veteran. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C.A. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. As noted above, since there has been an increased rating for the bilateral foot disability during the pendency of the appeal, the Board must consider a staged rating for the claim. The Veteran's bilateral foot disability is currently rated based on the criteria for acquired flatfoot under 38 C.F.R. § 4.71a, Diagnostic Code 5276. For mild flatfoot, with symptoms relieved by built-up shoe or arch support, a 0 percent rating is warranted. Moderate acquired flatfoot, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, is rated as 10 percent disabling when either 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 as 20 percent disabling for a unilateral disability; and is rated as 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendon Achilles on manipulation which is not improved by orthopedic shoes or appliances is rated as 30 percent disabling for a unilateral disability; and is rated as 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2016). In an April 2008 statement, the Veteran reported that he was unable to able to walk or stand for longer than 20 to 30 minutes as a result of his foot problems. In November 2008, the Veteran was provided with a VA examination to evaluate his bilateral foot disability. The Veteran informed the examiner that he experienced difficulty standing and running due to bilateral foot discomfort. The examiner noted that the Veteran had not been absent from work in the past 12 months due to total physical incapacitation from flare ups or feet impairment. The Veteran had a diagnosis for bilateral flat feet, pes planus. The impression from a bilateral foot x-ray associated with the examination was marked bilateral foot deformity. The examiner noted that the Veteran had a mild bunion deformity on the big toe metatarsophalangeal joint bilaterally. He did not experience pain on manipulation bilaterally. Neither the right nor the left foot had a hindfoot valgus deformity, tightening tendo Achilles, malalignment, or callosity on the plantar aspect of the foot. In addition, no hammertoe or hallux valgus deformity was present bilaterally. The examiner observed that the Veteran was able to walk briskly in the hallway without an assistive device. The Veteran was also able to walk on his heels and toes. Both his gait and posture were normal. The examiner determined that the Veteran had a limitation in prolonged standing and running due to bilateral foot discomfort. However, there was no evidence that he had additional limitation due to symptoms such as pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare ups. In addition, he was not adversely impacted in his activities of daily living, personal grooming, hygiene, transportation, or occupation. The examiner noted that the Veteran had been provided with orthotics that helped in ambulation. However, he did not require an assistive device. After the examination, the Veteran reported that the examiner was incorrect in his assessment that the Veteran was not limited in prolonged standing and running. See December 2008 Notice of Disagreement. Instead, the Veteran stated that he had been completely unable to run for several years. He also reported difficulty commuting to work. Although the Veteran indicated that he used a bus, he stated that he needed to walk six blocks when there was no bus service. In doing so, he required one or two breaks due to foot pain. Regarding his limitations in standing, the Veteran stated that he could only stand for 10 to 15 minutes due to foot discomfort. A subsequent February 2009 treatment record from Walter Reed National Military Medical Center noted that the Veteran worked as an attorney and mostly sat a desk. In November 2011, a Walter Reed National Military Center record documented that the Veteran was seen for chronic foot pain. His primary diagnosis was foot pain (soft tissue). The Veteran wore orthotic shoe inserts, and he was referred to podiatry for a reevaluation and reissue of insert molding. Later this month, the Veteran received a pair of custom orthotics. In November 2013, a record from this facility stated that the Veteran wanted to replace his orthotics as they were wearing out. The note stated that he had bilateral pes planus requiring orthotic. The Veteran was subsequently fitted for custom foot orthotics and instructed on their use in December 2013. The Veteran was provided with another VA examination related to his bilateral foot disability on July 25, 2016. The Veteran reported that his congenital bilateral pes planus had been asymptomatic until service. The examiner indicated that the Veteran had been wearing orthotics on a daily basis since that time. The Veteran reported that his pain had increased approximately twenty years before the examination. As a result the Veteran had modified his physical activities, including limiting his walking distances and not running. His current symptoms included intermittent arch pain that was a 7 to 8 out of 10 in severity. The Veteran also experienced occasional calf tightness with overexertion. His symptoms were precipitated by prolonged walking, standing, and overexertion. They could be alleviated with rest and by ceasing activity. The Veteran's treatment consisted of his daily use of orthotics and annual visits to a podiatrist. He did not take medication or receive any other therapy. During the examination, the Veteran did not report any bilateral foot pain. He also denied suffering from flare ups that impacted the function of either foot. In addition, the Veteran did not report having any functional loss or functional impairment of his feet. However, the examiner determined that he experienced functional loss in the form of excess fatigability, pain on movement, and lack of endurance. The examiner stated that he was unable to determine whether the Veteran experienced functional loss in either foot during flare ups or when the foot was used repeatedly over a period of time without resorting to mere speculation. The Veteran had no history of surgery or any current scars related to his bilateral foot disability. The examiner noted that the Veteran had a bilateral 2 to 4 proximal phalanx hyperflexion with second proximal phalanx. The Board notes that the proximal phalanx refers to "any of the five bones of the toes that articulate with the metatarsal bones, and except in the great toe, the phalanx media." See Dorland's Illustrated Medication Dictionary 1424 (32nd ed. 2012). The examiner also determined that the Veteran did not experience functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. In addition, the examiner found that the Veteran's bilateral foot disability did not impact his ability to perform any type of occupational task. Regarding the Veteran's flatfoot disability, the examiner stated that the Veteran had bilateral foot pain that was accentuated on use of the feet. The examiner noted that his use of orthotics effected relief of symptoms. The Veteran also experienced decreased longitudinal arch height of both feet on weight-bearing. The Veteran did not have pain on manipulation of the feet, swelling on use, characteristic calluses, or inward bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel). There was also no extreme tenderness of plantar surfaces on one or both feet. According to the examiner, the Veteran did not experience objective evidence of marked deformity of one or both feet, or marked pronation of either foot. The examiner additionally determined that neither foot had the weight-bearing line fall over or medial to the great toe. The examiner also stated that there was no lower extremity deformity other than pes planus that caused alteration of the weight-bearing line. In addition, the Veteran did not have marked inward displacement with severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. The diagnoses were bilateral flatfoot and bilateral hallux valgus. The examiner stated that the hallux valgus caused mild or moderate symptoms bilaterally, and the Veteran had not undergone any related surgery. The examiner found that the Veteran did not have Morton's neuroma, other foot injuries or conditions, metatarsalgia, hammer toes, hallux rigidus, acquired pes cavus (claw foot), malunion/nonunion of tarsal/metatarsal bones, plantar fasciitis, arthritic conditions, or inflammatory conditions. The Board will first consider whether entitlement to an initial compensable rating for the Veteran's bilateral flat feet, pes planus, should be awarded for the period prior to July 28, 2016. In light of the above evidence, the Board finds that a 10 percent disability rating is warranted from November 13, 2007 to July 24, 2016, and a 30 percent disability rating is appropriate from July 25, 2016, the date of the most recent examination, that demonstrated an increase in symptomatology. Assigning this date to the staged increase provides an effective date of the increase three days prior to the one assigned by the RO, July 28, 2016. As noted above, Diagnostic Code 5276 provides for a noncompensable rating for mild flatfoot symptoms relieved by built-up shoe or arch support. A 10 percent evaluation is warranted for moderate flatfoot, characterized by weight bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation or use of feet. While the November 2008 VA examiner determined that the Veteran's orthotics helped in ambulation, it is clear from the record that they did not relieve his symptoms during this period. The examiner noted that the Veteran initially did well with his orthotics, but currently experienced discomfort. The Veteran additionally reported needing to take breaks when walking due to pain, and he was noted to have foot pain when being fitted for orthotics at the Walter Reed National Military Medical Center. The Veteran's description of pain and discomfort with walking and prolonged standing also indicates that he experienced pain on use of his feet. Although the Veteran displayed some, but not all, of the symptoms listed in the rating criteria, the Board finds that the Veteran's symptoms during this period more nearly approximated the moderate impairment associated with a 10 percent disability rating. However, the Board does not find that a rating higher than 10 percent should be awarded for the period prior to July 25, 2016. As previously discussed, a 30 percent disability rating is warranted for severe bilateral flatfoot, characterized by objective evidence of marked deformity (pronation, abduction), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The Board notes that the impression from the x-ray report associated with the November 2008 VA examination stated that the Veteran had a marked bilateral foot deformity. However, neither the results from the November 2008 VA examination or the other evidence from this period support the presence of symptoms sufficient to warrant a severe impairment as required for an evaluation of 30 percent. The November 2008 VA examiner determined that the Veteran did not experience pain on manipulation or characteristic callosities. The evidence from this period also did not reflect that there was an indication of swelling on use. Thus, the Board does not find that the Veteran's symptoms during this period more nearly approximated the severe symptomatology contemplated by a 30 percent disability rating under Diagnostic Code 5276. The Board has also considered whether a higher rating would be available under Diagnostic Code 5284. However, Diagnostic Code 5284 does not encompass the eight foot conditions that are listed under their own diagnostic codes in 38 C.F.R. § 4.71a. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that "DC 5284 does not apply to the eight foot conditions specifically listed in § 4.71a."). As the flat foot disability is listed under Diagnostic Code 5276, rating this disability by analogy to Diagnostic Code 5284 would represent "an impermissible rating by analogy." Id. In addition, the Board finds that the symptoms contemplated by Diagnostic Code 5276 would overlap with the symptoms contemplated by Diagnostic Code 5284. Consequently, assigning a separate rating for the Veteran's bilateral flatfeet would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board also notes that the evidence does not reflect that the Veteran had weak foot, hallux rigidus, hammertoes, metatarsalgia, malunion or nonunion of the tarsal or metatarsal bones, or claw foot (pes cavus) during the period prior to July 25, 2016. Thus, the diagnostic codes pertaining to those disabilities are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5281, 5282, 5279, 5283, 5278. Although the November 2008 VA examiner marked in the examination report that the Veteran did not have hallux valgus, he noted that the Veteran had a mild bunion deformity on the big toe metatarsophalangeal joint bilaterally. In addition, a prior August 2004 x-ray report for the bilateral feet stated that the Veteran had mild hallux valgus deformities of the first metatarsophalangeal joints bilaterally. See August 2004 X-ray report from RelayHealth. The July 2016 VA examiner also determined that the Veteran did not have hallux rigidus. Thus, it appears that the Veteran had bilateral hallux valgus during this period. However, there is no rating higher than 10 percent under Diagnostic Code 5280 for hallux valgus. The Veteran is also not service connected for this disorder. The Board additionally finds that a separate disability rating under this code would violate the rule against pyramiding under 38 C.F.R. § 4.14, as pain is implicitly contemplated by the code, and is already compensated in the Veteran's evaluation under Diagnostic Code 5276. 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. However, the Veteran's disability rating under Diagnostic Code 5276 is not based on limitation of motion, but rather, functional impairment resulting from the bilateral foot disability. Thus, a higher rating is not warranted pursuant to DeLuca or 38 C.F.R. §§ 4.40, 4.45. Thus, the Board concludes that the Veteran should be awarded a 10 percent disability rating, but no higher, for his bilateral flat feet, pes planus, from November 13, 2007 to July 24, 2016. 38 U.S.C.A. § 5107(b). The Board notes that the RO awarded the 30 percent disability rating based on the results of the VA examination conducted on July 25, 2017. However, the RO granted the increased rating effective from July 28, 2017, the date of the examiner's signature. As noted above, the July 25, 2017 VA examination provided evidence that the Veteran experienced pain on use accentuated, a symptom listed under Diagnostic Code 5276 for a 30 percent disability rating. The Board agrees with the RO that the evidence from the July 25, 2017 VA examination demonstrates that the Veteran's bilateral foot disability more nearly approximates the severe impairment that is best represented by a 30 percent disability rating. As such, a 30 percent disability rating should be awarded from July 25, 2017 to July 27, 2017. 38 U.S.C.A. § 5107(b). The Board notes the Veteran's argument that there would have been evidence of symptoms to warrant a 30 percent disability rating earlier than the July 2016 had his VA examination been provided on an earlier date. See November 2016 Statement in Support of Claim. While the evidence from the period prior to July 25, 2016 demonstrated that the Veteran had pain on use, there is insufficient evidence to support a finding that the Veteran's pain on use satisfied the criteria for a pronounced impairment for the period prior to July 25, 2016. The Board is unable to speculate whether this evidence would have been documented if the examination had provided earlier than July 25, 2016. The Board will next determine whether the Veteran is entitled to a disability rating higher than 30 percent on or after July 25, 2016. In evaluating the evidence of record, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for his bilateral flat feet, pes planus, during this period. A rating higher than 30 percent is only available under Diagnostic Code 5276 if the Veteran displayed pronounced flatfoot bilaterally with marked pronation, 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 or appliances. The July 2016 VA examiner found that the Veteran did not have symptoms in either foot of marked pronation, extreme tenderness of the plantar surfaces, or marked inward displacement with severe spasm of the Achilles tendon (rigid hindfoot) on manipulation. At the time of the examination, the examiner also found that the Veteran orthotics relieved his symptoms. The Board therefore finds that the Veteran did not have a pronounced bilateral pes planus disability such that a 50 percent rating would be warranted on or after July 25, 2016. Due to the fact that pes planus is specifically listed in the rating criteria, no other foot diagnostic code would be appropriate. See Copeland, 27 Vet. App. at 338. Furthermore, the Board reiterates that a separate rating under Diagnostic Code 5284 would function as pyramiding. See 38 C.F.R. § 4.14. The July 25, 2016 VA examiner additionally determined that the Veteran did not have hallux rigidus, malunion/nonunion of tarsal/metatarsal bones, Morton's neuroma and metatarsalgia, claw foot, or hammertoes. There has also been no indication that the Veteran has weak foot. Thus, a rating under Diagnostic Code 5281, 5283, 5279, 5278, or 5282 is not appropriate. See 38 C.F.R. § 4.71a. Although the July 2016 VA examiner noted that the Veteran had bilateral hallux valgus, the Board notes that there is no disability rating higher than 30 percent available under Diagnostic Code 5280 for hallux valgus. In addition, the Veteran is not service-connected for this disorder. The Board is additionally precluded from awarding a separate rating under this Diagnostic Code as the Veteran's symptoms of pain have already been considered in the assignment of the 30 percent rating. See 38 C.F.R. § 4.14. The Board notes that the July 2016 VA examiner found that the Veteran had functional loss due to excess fatigability, pain on movement, and lack of endurance. The Board also acknowledges that the July 2016 VA examiner did not provide an explanation for his conclusion that he was unable to determine whether the Veteran experienced functional loss in either foot during flare ups or when the foot was used repeatedly over a period of time without resorting to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). However, the Board does not find that the examiner's insufficient opinion on this subject is prejudicial to the Veteran. In this regard, the Board notes that the Veteran did not report experiencing flare ups during the July 2016 VA examination. Moreover, as discussed above, the award of a higher rating under DeLuca or 38 C.F.R. §§ 4.40, 4.45 is not appropriate as Diagnostic Code 5276 is not based on limitation of motion. Based on the foregoing, the Board finds that the Veteran is not entitled to an initial disability rating higher than 30 percent for bilateral flat feet, pes planus, in the periods on or after July 25, 2016. 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.A. § 5107(b); Gilbert v. Derwinski, 2 Vet. App. 49, 53 (1990). ORDER From November 13, 2007 to July 24, 2016, entitlement to an initial 10 percent disability rating, but no higher, for bilateral flat feet, pes planus, is granted. From July 25, 2016 to July 27, 2016, entitlement to an initial 30 percent disability rating, but no higher, for bilateral flat feet, pes planus, is granted. On or after July 28, 2016, entitlement to an initial disability rating higher than 30 percent for bilateral flat feet, pes planus, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs