Citation Nr: 18146257 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 17-02 270 DATE: October 31, 2018 ORDER Entitlement to a rating in excess of 30 percent prior to September 8, 2016 for bilateral pes planus. Entitlement to a rating in excess of 50 percent on or after September 8, 2106 for bilateral pes planus is denied. FINDING OF FACT 1. Prior to September 8, 2016, the Veteran's bilateral pes planus was not manifested by marked inward displacement and severe spasm of the tendo achilles on manipulation, with no improvement by orthopedic shoes or appliances. 2. The 50 percent rating assigned bilateral pes planus as of September 8, 2016 is the maximum rating available for this disability, and it does not present such an exceptional or unusual disability picture as to render impractical application of the schedular criteria. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 30 percent for bilateral pes planus, for the period prior to September 8, 2016, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (b)(1) (2017), 4.71a, Diagnostic Code 5276 (2017). 2. The criteria for a disability rating in excess of 50 percent for bilateral pes planus, for the period following September 8, 2016, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (b)(1) (2016), 4.71a, Diagnostic Codes 5276 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1963 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, subsequent to the issuance of the October 2016 statement of the case and after certification of the appeal to the Board in January 2017, additional VA medical records were associated with the claim. These medical records were not accompanied by a waiver of initial RO consideration of the evidence. However, this evidence is essentially duplicative of evidence previously of record which has been considered by the RO in prior decisions, or is not relevant to the current claim. Thus, while the Veteran has not waived initial RO consideration of this evidence, a remand for such consideration is unnecessary, and the Board may proceed with a decision at this juncture with respect to an increased rating for the Veteran’s bilateral foot disability. See 38 C.F.R. §§ 19.37, 20.1304 (2017). Entitlement to a rating in excess of 30 percent prior to September 8, 2016, and in excess of 50 percent thereafter The Veteran was awarded service connection for his bilateral foot disability, pes planus, in an April 2014 rating decision, evaluated at 30 percent disabling. The Veteran was later awarded an increased rating of 50 percent in an October 2016 rating decision, effective September 8, 2016. The Veteran contends that his bilateral foot disability warrants a rating in excess of 30 percent prior to September 8, 2016, and a rating in excess of 50 percent thereafter. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. The Veteran’s bilateral pes planus is currently rated under Diagnostic Code (DC) 5276. Under DC 5276, a 30 percent rating is assigned when there is bilateral severe flatfoot characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use that is accentuated, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). A 50 percent is assigned when there is bilateral pronounced flatfoot characterized by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, which is not improved by orthopedic shoes or appliances. Id. This is the maximum schedular rating allowed under this code. Period Prior to September 8, 2016 During the March 2014 examination, the Veteran reported pain in both feet caused by standing, and the use of podiatrist prescribed shoes and inserts. The examiner noted that the Veteran had pain on use and manipulation of his feet, inward bowing of the achilles tendons, and weight-bearing line being over or medial to the great toe. There was no indication of swelling on use, calluses, or extreme tenderness of the plantar surface of either foot. The examiner also indicated that there was marked deformity and marked pronation of both feet, that was improved by the use of orthopedic shoes or appliances. The Veteran was not found to have marked inward displacement and severe spasm of the achilles tendon. The Veteran was also afforded an examination in August 2015, which the Board notes was amended in part in January 2016. See Medical Treatment Record – Government Facility, dated November 17, 2016. The examiner noted that the Veteran had pain on use and manipulation of his feet, inward bowing of the achilles tendons, and weight-bearing line being over or medial to the great toe. The examiner noted swelling on use of the feet and extreme tenderness of the plantar surface that that was improved by the use of orthopedic shoes or appliances. There was no indication of marked deformity of either foot, but marked pronation was noted as to both feet. The Veteran was not found to have marked inward displacement and severe spasm of the achilles tendon. The examiner also indicated that the Veteran did not suffer from other conditions of the foot including Morton’s neuroma, hammer toe, metatarsalgia, hallux valgus, or hallux rigidus. Finally, the examiner indicated that the pain did not contribute to functional loss. In this case, the preponderance of the evidence shows that the Veteran's bilateral pes planus was not manifested by marked inward displacement and severe spasm of the tendo achilles on manipulation prior to September 8, 2016. See 38 C.F.R. § 4.71a, DC 5276. Rather, it more nearly approximated the criteria for a 30 percent rating, which contemplates severe flatfoot characterized by objective evidence of marked deformity, pain on manipulation and use, and indication of swelling on use. Id. A 10 percent rating also already compensates for the weight-bearing line being over or medial to the great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet, either bilateral or unilateral. Id. The Board also notes the contention of the Veteran’s representative that the Veteran suffered from flare-ups that were not present at the time of the August 2015 examination, resulting in pain and the Veteran walking on the sides of his feet to attempt to resolve the pain. See Appellate Brief, submitted June 7, 2018. However, at the time of the of the August 2015 examination, the Veteran denied flare-ups of his bilateral foot condition. Additionally, the examiner indicated that there was no evidence of pain, weakness, fatigability, or incoordination that significantly limits functional ability or causes functional loss. Moreover, the Veteran’s foot condition was found to be improved by his orthopedic shoes or appliances. Here, the Board notes that the criteria for a 50 percent rating require that the symptoms not be improved by orthopedic shoes or appliances. See DC 5276. Thus, the preponderance of the evidence supports a finding that the criteria for a 50 percent rating prior to September 8, 2016 were not met or more nearly approximated. Period following September 8, 2016 A September 2016 VA examination indicated that the Veteran’s bilateral foot disability, manifested by extreme tenderness of the plantar surface that was no longer improved by his podiatrist prescribed arch supports. See C&P Exam, dated September 13, 2016. Accordingly, an October 2016 rating decision awarded an increased rating of 50 percent, effective September 8, 2016. The 50 percent rating for pes planus assigned as of September 8, 2016 is the maximum rating available for this disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). Thus, a higher rating under DC 5276 is not available. A separate or higher rating is not warranted under any other diagnostic code. The Veteran has not been diagnosed with weak foot (DC 5277), claw foot or pes cavus (DC 5278), metatarsalgia, anterior (Morton's disease) (DC 5279), malunion or nonunion of the tarsal or metatarsal bones (DC 5283) hallax valgus (DC 5280), hallux rigidus (DC 5281), or hammertoe (DC 5282). See C&P Exam, dated September 13, 2016. With regard to DC 5284, other injuries of the foot, this diagnostic code does not apply to pes planus as a matter of law, as it is already compensated under DC 5276. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) (holding that, as a matter of law, DC 5284 does not apply to the eight [other] foot conditions specifically listed in § 4.71a," and so other listed conditions could not be rated by analogy under this diagnostic code). The Veteran does not have any other diagnosed foot pathology that is encompassed by his service-connected pes planus or has been adjudicated as service-connected. With regard to staged ratings, although there may have been some fluctuations in severity of the Veteran's symptoms over the course of this appeal, the preponderance of the evidence shows that it has not met or more nearly approximated the criteria for ratings higher than those already assigned at any other point during the pendency of this claim, for the reasons explained above. Thus, further staging is not warranted for the time period under review. See Hart, 21 Vet. App. at 509-10; Fenderson v. West, 12 Vet. App. 119, 126 (1999). With regard to extraschedular consideration, comparison of the Veteran's pes planus with the schedular criteria does not show "such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Specifically, his pes planus has been manifested by deformity, including with regard to pronation, alteration of the weight-bearing line, pain including on manipulation and use, flattened arches, swelling, and extreme tenderness of the plantar surfaces. These manifestations are contemplated under DC 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 v. Brown, 8 Vet. App. 202, 206-07 (1995). In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to an initial rating greater than 30 percent for pes planus prior to September 8, 2016, and greater than 50 percent as of that date, is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel