Citation Nr: 18142741 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-23 054 DATE: October 17, 2018 ORDER Entitlement to an effective date earlier than July 29, 2010, for the award of a 50 percent rating for bilateral pes planus is dismissed. Entitlement to a rating in excess of 50 percent for bilateral pes planus is denied. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. July 2018, the Veteran informed the Board that he desired to withdraw his appeal for an earlier effective date for the award of a 50 percent rating for bilateral pes planus. 2. The Veteran’s pes planus results in no worse than pronounced impairment. 3. The lumbar spine disability does not result in forward flexion limited to 60 degrees or less, combined range of motion limited to 120 degrees or less, spasm or guarding resulting in abnormal gait or spinal contour, or incapacitating episodes. 4. The radiculopathies have not resulted in worse than mild neurological impairment of either lower extremity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the issue of entitlement to an earlier effective date for the award of a 50 percent rating for pes planus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). 2. The criteria for entitlement to a rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2018). 3. The criteria for an initial rating in excess of 10 percent for the lumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a Diagnostic Code 5242 (2018). 4. The criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520 (2018). 5. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1991 to June 1996. Withdrawal of Appeal 1. Entitlement to an effective date earlier than July 29, 2010, for the award of a 50 percent rating for bilateral pes planus An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In a July 2018 statement, the Veteran’s representative withdrew the appeal with respect to the issue of entitlement to an earlier effective date. Hence, there remains no allegation of error of fact or law for appellate consideration with respect to the issue, and it must be dismissed. Increased Ratings 2. Bilateral pes planus Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 50 percent disability rating is assigned for pes planus that is “pronounced; 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. The word “pronounced” as used in the various Diagnostic Codes is not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The 50 percent rating currently assigned is the maximum rating available for this disability. Thus, a higher rating under Diagnostic Code 5276 is not available. The Veteran contends that a higher rating is warranted on an extraschedular basis because the Veteran’s pes planus results in symptoms not explicitly listed in Diagnostic Code 5276. In March 2018, the Director, Compensation and Pension service, issued a memorandum determining that an increased rating was not warranted on an extraschedular basis. After review of the record, the Board concurs. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. The Board finds the schedular criteria are not inadequate. Notably, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran’s circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. Diagnostic Code 5276 provides a 50 percent rating for pes planus that is “pronounced.” The use of the semicolon after “pronounced” indicates that the term is distinct from the subsequent list of symptoms that are not improved by orthopedic shoe or appliance. It is possible that pes planus could warrant a 50 percent rating even if those symptoms were not present, if the condition resulted in pronounced impairment. The Veteran contends that a higher rating is warranted because he has symptoms that are not listed in Diagnostic Code 5276 that are not improved by orthopedic devices. The Veteran has not contended, and the evidence does not suggest, that the Veteran’s pes planus results in impairment more severe than “pronounced,” however. VA treatment and examination records indicate that the Veteran is able to ambulate well or normally, though perhaps slowly and guarded, and there are no findings or assessments that could suggest worse than pronounced impairment. Notably, the records indicate that the Veteran has been diagnosed with both diabetic neuropathy and radiculopathy involving the feet, which are associated with numbness, tingling, pain, and functional impairment. Furthermore, the record indicates that the Veteran worked in the same occupational field, as a commercial driver, throughout the period of the claim until August 2017, and there is no indication that he ceased working due to the pes planus. In sum, the Board finds the manifestations of the Veteran’s pes planus are contemplated under Diagnostic Code 5276 (flatfoot, acquired), and under sections 4.40 and 4.45 of the regulations, which contemplate functional impairment due to factors such as pain, stiffness, aching, deformity, weakness, instability, fatigability, incoordination, swelling, and deformity of the joint, including on repeated use and during flare-ups. See 38 C.F.R. § 4.71a; see also DeLuca, 8 Vet. App. at 206-07. By regulation, the schedular ratings are assumed to provide adequate compensation for “considerable loss of working time from exacerbation or illness proportionate to” the nature and severity of the Veteran’s pes planus disability. 38 C.F.R. § 4.1. Their basis is the ability to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Viewed in this light, the rating criteria, which are usually cast in objective clinical terms, must be understood to serve as markers of disability in terms of the ability to function under the ordinary conditions of daily life and employment, including considerable loss of working time. They generally do not describe how a given disability may manifest in everyday life, and thus cannot be found inadequate solely because they do not mention a particular symptom, clinical finding, or example of functional impairment, when they are almost always devoid of any such description whatsoever. Pursuant to 38 C.F.R. § 4.1, the burden is not on the Board to show or explain how the rating criteria are adequate, whose broad net (even with all the gaps in terms of description of symptoms, pathology, functional impairment, etc.) must be assumed as a matter of law and policy to capture in its sweep a wide range of disabling manifestations in the context of daily life and work, but rather on the party seeking extraschedular referral to show how they are inadequate. Accordingly, although not every specific clinical finding pertaining to the Veteran’s pes planus may be mentioned in the rating criteria, the applicable diagnostic code and regulations effectively contemplate all disabling effects from them as shown by the evidence of record discussed above, including pain on use. See 38 C.F.R. § 4.71a, General Rating Formula; 38 C.F.R. §§ 4.40, 4.45. In short, there are no manifestations of the Veteran’s pes planus is not accounted for in evaluating it under the schedular criteria. See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321(b). Thus, the available schedular evaluations are adequate to rate this disability, and the first step of the inquiry is not satisfied and an increased rating on an extraschedular basis is not warranted. VA regulations provide special monthly compensation (SMC) based on loss of use of the foot. This issue has not been raised by the Veteran or the record. See 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (a)(2)(i); see also 38 C.F.R. § 3.155 (providing, in pertinent part, that the scope of a claim includes entitlement to any ancillary benefits that arise as a result of the adjudication decision, including SMC benefits under § 3.350, whether or not the claimant asserts entitlement to such benefits); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (entitlement to SMC is an “inferred issue” in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). VA law provides that loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i). The record does not support a finding of loss of use of the foot. As noted above, the record consistently demonstrates that the Veteran is able to walk without an assistive device, and VA examinations have consistently shown full motor strength in the feet. The Board finds the clinical evidence weighs against a finding that the issue of loss of use has been raised. Thus, further consideration of this issue is not warranted. 3. Lumbar spine disability 4. Radiculopathy of right lower extremity 5. Radiculopathy of left lower extremity Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59. 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, including for residuals of injuries in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Moreover, with respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017); Johnson v. Brown, 9 Vet. App. 7 (1996). Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Formula provides for a separate rating for any associated objective neurologic impairment. The Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes provides for a rating of 10 percent for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Higher ratings are warranted for incapacitating episodes having a longer duration during the 12 months period. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). Neuritis, which is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is rated on the scale provided for injury of the nerve involved. VA regulations indicate that the maximum rating for neuritis of the sciatic nerve is the rating for “moderately severe incomplete paralysis” unless the neuritis is characterized by organic changes. 38 C.F.R. § 4.123. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. The regulations state that, if the involvement is only sensory, the rating should be for the mild or, at most, the moderate degree of incomplete paralysis. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. VA treatment records report findings of no focal motor or sensory deficit, 2+ deep tendon reflexes, and normal range of motion and gait/posture. Additionally, a February 2015 VA treatment record reveals an examiner’s determination that the reported tingling and numbness in the toes were due to diabetic neuropathy in the feet. A February 2013 VA examination record reports that range of motion testing revealed painfree motion throughout, with flexion to at least 90 degree and extension, bilateral lateral flexion, and bilateral rotation to at least 30 degrees including after repetition. The Veteran reported that he had flares of pain that limited his ability to walk. The examiner determined there was no functional loss or impairment due to the thoracolumbar spine disability. There was no guarding or spasm, and motor strength, deep tendon reflexes, and sensory tests were normal. Straight leg raise was negative. The record reports the Veteran’s history of severe pain and paresthesias and/or dysesthesias. The examiner assessed the sciatic nerve impairment as mild in each lower extremity and determined the lumbar spine disability with radiculopathies did not affect the Veteran’s ability to work. A December 2017 VA examination reports that range of motion testing revealed pain with motion. Testing demonstrated flexion to 80 degrees, extension to 20 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The examiner noted that range of motion was restricted due to both truncal obesity and back pain. After repetition, range of motion testing revealed flexion to 70 degrees, and extension, lateral flexion, and rotation to 20 degrees. The examiner noted that the Veteran was examined after repetitive use over time. The examiner reported that pain, fatigue, and weakness would limit functional ability with repeated use over time, resulting in flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and right lateral flexion to 15 degrees. The examiner reported that the exam was conducted during a flare and that range of motion during a flare would be limited the same as after repeated use over time. The examiner determined there were palpable tender myospasm, but it did not result in abnormal gait or spinal contour. There was pain with weight-bearing. Motor strength and deep tendon reflexes were normal. Gait was slow and guarded due to pes planus and diabetic neuropathy of the feet. Sensation was normal except in the foot/toe bilaterally, where it was decreased. Straight leg raise was negative. The Veteran reported moderate intermittent pain, paresthesias and/or dysesthesias and numbness in the lower extremities. The examiner assessed the Veteran with moderate impairment of each sciatic nerve. The examiner determined the thoracolumbar spine disability would progressively interfere or restrict the Veteran’s home and work chores, shopping, and exercise activities. The examiner added that due to chronic pain, the Veteran had limited mobility and inability to function to his maximum potential at work and that the Veteran would be restricted in performing jobs requiring prolonged standing, sitting, walking, heavy lifting, repetitive bending, kneeling, squatting, climbing and crawling. The examiner determined the Veteran would be able to perform sedentary, light or desk jobs and would be able to drive, work with small machineries, and carry and lift small objects weighing less than 10 pounds for less than 30 minutes before resting. The examiner noted that the Veteran was able to remember, communicate with coworkers, follow instructions, adapt to changes or stress, interact, use judgment, and show insight and concentrate and that he could sit down for about 30 minutes before the pain begins. The Veteran was assigned a 10 percent rating for functional impairment of the spine and 10 percent for neuritis of each lower extremity due to the lumbar spine disability. After review of the evidence, the Board finds a rating greater than 10 percent is not warranted at any point during the period of the claim for functional impairment. There is no evidence, to include history, of incapacitating episodes, as defined by VA. Range of motion testing consistently revealed forward flexion to at least 70 degrees and combined range of motion to at least 160 degrees, even after consideration of functional loss during flares or after repeated use, and there is no evidence of abnormal gait or spinal contour due to the lumbar spine disability. The Board acknowledges that the Veteran has reported flares. The Veteran has not reported that the flares are associated with limitation of motion beyond that depicted on clinical testing, however. Moreover, the 2017 VA examiner estimated the effect of flares on the Veteran’s range of motion and range of motion remains too significant to warrant a higher rating. Thus, the Board finds a schedular rating higher than 10 percent is not warranted for the functional impairment at any time. (Continued on the next page)   A rating higher than 10 percent is not also warranted at any time for neuritis of either lower extremity. The probative evidence does not suggest that the neurological impairment more nearly approximated the moderate severity required for a higher rating for either lower extremity. The clinical evidence consistently reflects findings of normal strength and deep tendon reflexes, and the only finding of abnormal gait, notably that it was slow and guarded rather than antalgic, attributed the gait abnormality to diabetic neuropathy and pes planus rather than neuritis. The Board notes that the Veteran has reported moderate to severe symptoms and that the 2017 VA examiner determined that the radiculopathy was “moderate” in each lower extremity. An examiner’s assessment must be considered in light of the actual symptoms of the disorder, which provide the primary basis for the rating assigned. The record clearly and consistently indicates that the Veteran has normal motor functioning and reflexes and that the neuritis does not affect the Veteran’s gait. Furthermore, the record indicates that at least some of the reported symptoms, notably the numbness, tingling, and pain with use, have been attributed to the pes planus and diabetic neuropathy rather than the radiculopathies. The Board finds the clinical findings are more probative than the Veteran’s history and the 2017 VA examiner’s assessment, and based on the findings, notably that diminished sensation is the only clinical finding attributed to the bilateral radiculopathies, the Board finds the radiculopathies have not resulted in worse than mild impairment of either sciatic nerve. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel