Citation Nr: 1803954 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-34 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral flat foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his children, L.T. and M.T. ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from March 1953 to March 1955, to include service in the Republic of Korea. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in December 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. FINDING OF FACT The Veteran's bilateral flatfoot disability is manifested by severe pain in his feet, accentuated on use and palpation, almost total loss of longitudinal arch on weight-bearing, and inability to stand or walk for any length of time, which is not improved by the use of orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a 50 percent disability rating, and no higher, for bilateral flatfoot disability have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in June 2011. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. These include records from VA and private treatment providers. The Veteran has undergone VA examinations related to the disability on appeal. See VA examinations from July 2011 and September 2013. The Veteran asserted that the July 2011 VA examination was inadequate because the examiner did not address all of the rating criteria and because the Veteran was not able to demonstrate weight-bearing as he did not have his cane available. The Board notes that these deficiencies were addressed in the September 2013 VA examination. There is no argument or indication that this examination is inadequate or does not reflect the current severity of the disability. Additonally, the Board is granting the maximum schedular rating, as detailed below. As such, the Board will proceed with consideration of the Veteran's appeal. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings are not indicated by the evidence. Diagnostic Code 5276 provides ratings for acquired flatfoot. 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 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, which is not improved by orthopedic shoes or appliances, is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. Facts and Analysis The Veteran is currently service-connected for bilateral flat foot disability, which is currently rated as 30 percent disabling. He seeks a higher rating, asserting that his disability has continued to worsen progressively over the years. As discussed above, entitlement to a 50 percent disability rating requires evidence of pronounced flatfoot which is not improved by orthopedic shoes or other appliances, with symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon. 38 C.F.R. § 4.71a. At the July 2011 VA examination, the Veteran reported that he used orthopedic inserts which helped "a little bit." (See VA Exam, 07/25/2011, p. 1.) He had been using a wheelchair to get around for about 3 years and could only walk about 25 feet with a cane. He used his cane mostly to balance himself when transferring from a chair to his wheelchair. He needed help from his wife to dress in the morning and to get in and out of the shower. On physical examination, the Veteran had mild pes planus on non-weight-bearing, but he was unable to stand without his cane and weight-bearing could not be tested. There was no evidence of malalignment of the foot or Achilles tendon and no evidence of pain on manipulation of the Achilles tendon. He had tenderness to palpation of the plantar surfaces of the feet. At the September 2013 VA examination, the Veteran reported having constant pain in both arches. (See VAMC Other, 10/08/2015, p. 142.) He needed support to walk, whether with a cane or by holding on to furniture; he could walk about 20 feet with a walker, but mostly used a wheelchair to get around. On examination, the Veteran had pain on use which was accentuated and pain on manipulation, as well as bilateral swelling and extreme tenderness of the plantar surface. The Veteran's longitudinal arches were almost completely lost on weight bearing. The Veteran did not have any objective evidence of deformity or marked pronation and the weight-bearing line was over or medial to the great toe. There was no evidence of spasm of the Achilles tendon on manipulation. The examiner noted that the Veteran had significant functional impact as a result of his bilateral flat foot disability which would likely limit him to sedentary work because of his inability to stand or walk for any length of time. In a letter dated in February 2017, the Veteran's VA podiatrist described the disability as progressive and aggravated by prolonged standing or walking. (See Medical Treatment, 11/14/2017.) It was painful and was "recalcitrant to conservative care" and not expected to improve. At the Board hearing in November 2017, the Veteran testified that his bilateral flat foot disability was worse than when the 30 percent disability rating was assigned and that his orthopedic shoes did not help much. (See Hearing Testimony, 11/14/2017, pp. 3, 6.) He used a cane to get out of his chair and to transfer to a walker or wheelchair; he relied primarily on the wheelchair to get around. He described the level of tenderness on the bottoms of his feet as feeling like an ice pick was being driven into the arch of his foot when it was touched. After considering all of the evidence of record, to include the evidence discussed above, the Board concludes that the criteria for a 50 percent disability rating for bilateral flat foot disability have been met or are more nearly approximated. Specifically, the evidence shows that the Veteran has constant severe pain in his feet which is worse with use or palpation and is not relieved by the use of orthopedic shoes. He is unable to stand or walk independently, relying on a cane for balance, a walker for short distances, and a wheelchair for any remaining locomotion. While the Veteran did not have marked pronation, VA examinations showed that on weight-bearing his longitudinal arch nearly disappeared. Further, the September 2013 VA examiner stated that the Veteran's bilateral flatfoot disability would limit his ability to work. In light of this evidence demonstrating that the disability picture of the bilateral pes planus more nearly approximates a 50 percent disability rating than a 30 percent disability rating, the Board finds that the claim for increased rating is granted. Inasmuch as 50 percent is the highest schedular disability rating available for bilateral flatfoot, and the criteria have only been approximated, a disability rating higher than 50 percent, to include on an extraschedular basis, is not warranted. ORDER A 50 percent disability rating for bilateral flatfoot disability is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs