Citation Nr: 18140669 Decision Date: 10/05/18 Archive Date: 10/04/18 DOCKET NO. 15-27 376A DATE: October 5, 2018 ORDER A rating in excess of 50 percent for bilateral flat feet is denied. A rating in excess of 20 percent for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating assignable for bilateral flat feet. 2. The Veteran is in receipt of the maximum schedular rating assignable for a left ankle disability not manifested by ankylosis. CONCLUSIONS OF LAW 1. There is no basis for the assignment of a disability rating in excess of 50 percent for bilateral flat feet. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.124a, Diagnostic Code 5276. 2. There is no basis for an assignment of a disability rating in excess of 20 percent for a left ankle disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to March 1983. The Board takes jurisdiction of the above issues, which the Regional Office (RO) denied in a September 2011 rating decision to which the Veteran filed a timely notice of disagreement. The RO has certified these issues to the Board without the Veteran having appealed them. See Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). Increased Rating The Veteran contends that her bilateral flat feet and left ankle disability have worsened since her last evaluation. She complains of pain, difficulty ambulating, and swelling. She further contends that her left ankle hardly bends, leaving her unable to walk. She further expressed difficulty preforming daily functions, like chores. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 1. Bilateral flat feet The Veteran’s bilateral flat feet are rated under Diagnostic Code 5276. A 50 percent rating is the maximum rating allowed under this diagnostic code. Therefore, the Veteran has been in receipt of the maximum schedular rating for her bilateral flat feet throughout the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Throughout the appeal period, based on VA foot examinations on April 2011 and September 2014, the Board finds that the Veteran’s bilateral flat feet manifested by symptoms associated with a 50 percent rating under Diagnostic Code 5276, and functional impairment due to pain on movement, pain on weight-bearing, disturbance of locomotion, and lack of endurance. Review of the record reveals that a rating higher than 50 percent cannot be assigned. Fifty percent is the maximum schedular rating under Diagnostic Code 5276. The Board finds that this diagnostic code directly contemplates the Veteran’s disability and lay complaints. Diagnostic Code 5276 specifically contemplates pronounced flat feet, marked pronation, extreme tenderness to the plantar surface of the feet, marked inward displacement and severe spasm of the achilles tendon on manipulation, and no improvement by orthotics. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. There is no indication that the Veteran’s disability picture exhibits other factors not contemplated by this diagnostic code. The Board has considered the lay assertions of the Veteran, to include symptoms of pain, swelling, stiffness, and fatigability with standing, walking, and at rest. The Board also has considered that the Veteran utilized assistive devices due to her flat feet, such as orthotics, braces, custom shoes, a walker, and a wheelchair. These symptoms and use of assistive devices comport with the 50 percent rating based on foot pain, abnormal gait, and no improvement with orthotics. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and the absent of an arch of the foot, which have been clinically observed and measured in the evidence of record. As such, these lay statements do not provide any basis upon which to assign a higher rating. See, e.g., Spellers v. Wilkie, No. 16-4053, slip op. at 6 (U.S. Vet. App. Sept. 7, 2018). The Board does not find that the Veteran’s bilateral flat feet would be more appropriately rated under a different diagnostic code as the currently applied code directly contemplates the Veteran’s disability and her lay complaints. No other diagnostic code would provide for a rating in excess of 50 percent based on these symptoms. Simply stated, there is no legal basis to assign a schedular rating in excess of 50 percent for this period. The Veteran’s representative has asserted that a separate rating under Diagnostic Code 5284, for other foot injuries, should be awarded in light of the findings of arthritis. The record, however, does not reflect that the arthritis manifests in symptoms not contemplated by the rating in effect. A separate rating, considering the evidence of record, for “other foot injuries” would represent impermissible pyramiding. In sum, as the maximum rating has been awarded throughout the appeal, the Board concludes that the Veteran is not entitled to a higher rating. Therefore, a schedular rating in excess of 50 percent for bilateral flat feet is not warranted. 2. Left ankle The Veteran’s left ankle disability is rated as 20 percent disabling under Diagnostic Code 5271. A 20 percent rating is the maximum rating allowed under this diagnostic code. Therefore, the Veteran has been in receipt of the maximum schedular rating for her left ankle disability throughout the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Throughout the appeal period, based on VA examinations on April 2011 and April 2016, the Board finds that the Veteran’s left ankle disability resulted in limited range of motion, but not ankylosis. The left ankle disability further resulted in functional impairment due to decreased mobility, weakness, fatigue, and pain. Increased pain with prolonged standing, walking, stair climbing was also noted. A May 2012 private podiatry note indicated range of motion and muscle strength testing for the left ankle was normal. Following the April 2016 VA ankle examination, the VA treatment records associated with the claims file are not indicative of continued complaints of and treatment of the left ankle disability. Review of the record reveals that a rating higher than 20 percent cannot be assigned. Twenty percent is the maximum schedular rating under Diagnostic Code 5271. The Board finds that this diagnostic code directly contemplates the Veteran’s disability and lay complaints of limited motion of her left ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. There is no indication that the Veteran’s disability picture exhibits other factors not contemplated by this diagnostic code. The Board has considered the lay assertions of the Veteran, to include symptoms of aching, stiffness, and pain with prolonged standing and walking. The Board also has considered that the Veteran used a wheelchair and walker due to difficulty ambulating. These symptoms and use of assistive devices comport with the 20 percent rating based on marked limitation of motion of the left ankle. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the evidence of record. As such, these lay statements do not provide any basis upon which to assign a higher rating. See, e.g., Spellers v. Wilkie, supra. The Board finds that a rating higher than 20 percent cannot be assigned. While the Veteran had limitation of motion in her left ankle, as well as symptoms such as pain and swelling, 20 percent is the highest rating that can be assigned under Diagnostic Code 5271. No higher rating can be assigned unless the Veteran’s left ankle demonstrates ankylosis. The preponderance of the evidence shows that the Veteran does not have ankylosis. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992). None of the VA examiners have opined that the Veteran suffers from ankylosis, and all of the remaining medical evidence indicates that while the Veteran has limitation of motion in her left ankle, she nonetheless has always had at least some degree of range of motion. Moreover, in this case, as the Veteran has been assigned the maximum rating for her left ankle based on limitation of motion, the manifestation of pain alone does not allow for a higher rating. See 38 C.F.R. § 4.59; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).   In sum, as the maximum rating has been awarded throughout the appeal, the Board concludes that the Veteran is not entitled to a higher rating. Therefore, a schedular rating in excess of 20 percent for a left ankle disability is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel