Citation Nr: 18141344 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 17-12 826 DATE: October 10, 2018 ORDER An initial rating of 20 percent from March 4, 2016 and continuing thereafter for the Veteran’s service-connected left ankle osteoarthritis secondary to service-connected bilateral pes planus is granted. An increased rating more than 30 percent from February 15, 2016 and continuing thereafter for the Veteran’s service-connected bilateral pes planus is denied. FINDINGS OF FACT 1. With resolution of the doubt in his favor, from March 4, 2016 and continuing thereafter, the Veteran’s left ankle osteoarthritis symptoms more nearly approximates marked limitation of motion. 2. The Veteran does not have marked pronation, extreme tenderness of plantar surfaces of both feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating of 20 percent for the entirety of the rating period on appeal for left ankle osteoarthritis secondary to service-connected bilateral pes planus have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.6, 4.7, 4.27, 4.71a, Diagnostic Code (DC) 5271 (2017). 2. The criteria to establish an increased rating more than 30 percent for the entirety of the rating period on appeal for bilateral pes planus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from October 1960 to August 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 and a November 2016 rating decision of the Anchorage, Alaska Regional Office (RO). Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Left ankle osteoarthritis The Veteran’s left ankle osteoarthritis is rated 10 percent disabling from March 4, 2016 and continuing thereafter under DC 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017). The additional code is shown after the hyphen. Id. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion and a maximum schedular rating of 20 percent for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. Id. at Plate II. The words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017). In a July 2015 VA treatment record, the Veteran reported experiencing left ankle pain from walking and standing. Muscle strength was normal and there was no crepitus. It was noted that the Veteran had edema and mild diffuse pain with palpitation. In a September 2016 written statement, the Veteran reported experiencing constant left ankle pain and swelling. In September 2016, the Veteran was afforded a VA examination. The Veteran reported experiencing constant left ankle pain. He also reported that his non-weight bearing pain was between 2 and 4 on a scale of 10, and weight-bearing pain was between 8 and 10 on a scale of 10. The Veteran indicated having functional loss due to his inability to stand and walk for prolonged periods due to his left ankle pain. Range of motion for the left ankle was dorsiflexion at 20 degrees and plantar flexion at 25 degrees. There was pain on motion. The examiner noted that the range of motion contributes to the Veteran’s functional loss because the painful motion results in trouble walking and standing. The examiner also noted that the Veteran experienced pain with weight-bearing and localized mild tenderness with swelling on the anterior, medial and lateral areas of his left ankle. There was no crepitus. The Veteran could perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. Additional factors that contributed to the Veteran’s left ankle disorder were swelling, deformity, disturbance of locomotion and interference with standing. The examiner noted that the left ankle was swollen and had a valgus deviation with a prominent navicular. Muscle strength and joint stability was normal. There was no ankylosis or other pertinent physical findings. The Veteran uses a brace occasionally. The Board will grant a 20 percent maximum initial rating for the entirety of the rating period on appeal based on the benefit-of-the-doubt doctrine. The VA examination revealed that the Veteran’s left ankle has limited motion due to pain, localized tenderness, swelling, deformity and a valgus deviation with a prominent navicular. The VA treatment record and VA examination identified several of the Veteran’s symptoms as mild; however, the relevant evidence indicates that the Veteran’s disability picture more nearly approximates marked limitation of motion. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased initial rating is warranted and the claim is granted. Bilateral pes planus The Veteran’s bilateral pes planus is rated 30 percent disabling from April 6, 2005 and continuing thereafter under DC 5276. The rating period on appeal is from February 15, 2016, the date of receipt of his increased rating claim. Under DC 5276, a 30 percent rating is warranted for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, DC 5276 (2017). A 50 percent rating is warranted for pronounced bilateral flatfoot manifested by 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 appliances. Id. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). In a February 2016 written statement, the Veteran reported experiencing left foot pain and numbness. He also reported an inability to stand for prolonged periods despite wearing an orthopedic boot. In June 2016, the Veteran was afforded a VA examination. The Veteran reported experiencing left foot pain due to walking on hard surfaces. He also reported having trouble standing and walking despite using orthopedic inserts and medication. The examiner indicated that the Veteran experienced left foot pain on manipulation and use accentuated. In addition, his left foot had indication of swelling on use, characteristic callouses and marked deformity. The examiner also indicated that the Veteran’s arch supports did not relieve his left foot symptoms. However, the examiner specifically noted that the Veteran did not have marked pronation, extreme tenderness of plantar surfaces of both feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. The examiner noted that the Veteran’s left foot had a decreased longitudinal arch height on weight-bearing and that the weight-bearing line did not fall over or medial to the great for one or both feet. There was no other lower extremity deformity other than pes planus that caused alteration of the weight-bearing line. The examiner also noted that the Veteran did not experience right foot pain and that his left foot pain contributed to functional loss manifested by pain on movement, pain on weight-bearing, swelling, deformity, disturbance of locomotion and interference with standing. As noted, the rating criteria for this disability are conjunctive. In an August 2016 statement, the Veteran reported experiencing left foot pain, numbness and difficulty standing on his left foot for prolonged periods. In a September 2016 statement, the Veteran claimed that his left foot has marked pronation, extreme tenderness of plantar surfaces, swelling, marked inward displacement and severe spasm in the tendo achillis on manipulation. The Veteran is competent to report his symptomatology, to include pain, discomfort, tenderness, and swelling. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (holding that a lay person is competent to testify to pain and visible flatness of his feet). However, the Veteran is not competent, as a layperson, to diagnose marked pronation, marked inward displacement, or severe spasm of the tendo achillis on manipulation, as such a diagnosis involves complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (holding that “sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). In a December 2016 statement, the Veteran discussed the details of his in-service event that resulted in his left foot disorder. The Veteran’s written statement is of low probative value because it is not relevant in ascertaining the current severity of his bilateral pes planus. A preponderance of the probative evidence is against a finding of an increased rating of more than 30 percent for the Veteran’s bilateral pes planus. The June 2016 VA examiner indicated that the Veteran did not have marked pronation, extreme tenderness of plantar surfaces of both feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. Although the Veteran argued that he has bilateral pes planus symptoms consistent with to a 50 percent rating, the Veteran is not competent, as a layperson, to diagnose such symptoms, especially considering the conjunctive rating criteria. Therefore, an increased rating is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel