Citation Nr: 18147013 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 18-20 286 DATE: November 2, 2018 ORDER From March 10, 2010, an initial rating of 50 percent for bilateral pes planus with calluses is granted. FINDING OF FACT Since March 10, 2010, the Veteran’s bilateral pes planus is manifested by symptoms that equate to pronounced flatfeet with marked pronation, extreme tenderness of the plantar surfaces and arch of the feet that result in significant limitations in walking and standing, and his overall symptoms are not improved by orthotic shoes or appliances. CONCLUSION OF LAW Since March 10, 2010, the criteria for an initial 50 percent rating for bilateral pes planus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to May 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which found clear and unmistakable error in the September 2010 rating decision which assigned separate, initial 10 percent ratings for left and right pes planus. In a January 2018 rating decision, the RO increased the rating for the Veteran’s service-connected bilateral pes planus to 50 percent from June 3, 2017. However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In a March 2015 decision, the Board remanded the issues of entitlement to service connection for hypertension; service connection for a liver disorder; service connection for a skin disorder; service connection for a bilateral leg disorder; service connection for a bilateral knee disorder; service connection for a bilateral shoulder disorder, service connection for a bilateral hip disorder; and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder for additional evidentiary development. To date, it does not appear that the Agency of Original Jurisdiction (AOJ) has adjudicated the claims and issued a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). Therefore, the Board does not have jurisdiction, and the claims are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). 1. Entitlement to an increased initial rating for bilateral pes planus with calluses (previously rated as right foot pes planus with calluses and left foot pes planus with calluses), currently evaluated as 30 percent disabling from March 10, 2010 to June 3, 2017 and 50 percent disabling thereafter. The Veteran is currently in receipt of a 30 percent rating from March 10, 2010 to June 3, 2017 and a 50 percent rating thereafter for his bilateral pes planus, under 38 C.F.R. § 4.71a, Diagnostic Code 5276, throughout the claim period. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as here, 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Under Diagnostic Code 5276, and as relevant here, a rating of 30 percent is assigned for bilateral pes planus that is severe. “Severe” is defined as: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 50 percent is assigned for bilateral pes planus that is pronounced. “Pronounced” is defined as: 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. In May and September 2017 notices of disagreement, the Veteran contends that a higher rating is warranted for his bilateral pes planus as he has pain, despite the use of orthotics, and requires a cane for walking. The Veteran also asserts that due to his painful calluses he walks using the sides of his feet which results in sores. The Veteran additionally contends that separate ratings are also warranted for bilateral metatarsalgia and plantar fasciitis as associated with his bilateral pes planus. In an April 2010 letter, the Veteran’s podiatrist reported that his diagnosis included painful deformities of both great toes resulting in dense hyperkeratosis limiting the Veteran’s ability to wear shoes and ambulate. The podiatrist further explained that the Veteran’s pes planus had resulted in the development of painful bone hypertrophy at the interphalangeal joints of both great toes. The bone hypertrophy secondarily has resulted in painful lesions that have made it difficult for the Veteran to ambulate and perform his duties at work. The Veteran was afforded a VA examination in September 2010. The examiner noted that the Veteran was seen on a regular basis for the shaving of calluses to temporarily improve the pain that was associated with shoe-wearing but that he reverts to his baseline pain when the calluses reoccur. The examiner further determined that although the Veteran wore specifically formed shoe inserts he continued to still have pain in both feet. During the physical examination, he determined that the Veteran had objective evidence of painful motion on manipulation of both feet. There was no edema, weakness, instability, tenderness, or redness. The Veteran had bilateral calluses on the interphalangeal joints of the great toes of both feet in the lateral aspect of the toes, which was an indication of abnormal weightbearing. The Achilles tendon was midline and in alignment. A June 2012 x-ray examination of the bilateral feet revealed a minimal hallux valgus deformity. Medical records from March 2013 to October 2017 further document the Veteran’s treatment for pain attributed to his bilateral pes planus and calluses. A February 2017 VA thoracolumbar spine examination report indicated that the Veteran used a single point cane to walk outside the home due to his bilateral pes planus. The Veteran was afforded another VA examination for pes planus in February 2017. The Veteran endorsed pain in the arches of both feet and on the top of his feet and toes. He also had calluses on his toes. The examiner diagnosed the Veteran with bilateral pes planus, bilateral metatarsalgia, calluses, and plantar fasciitis. He stated he used inserts but still had pain at his toes and feet, including the sides of the feet, which was accompanied with numbness. He reported that his condition began to affect how he walks. The Veteran endorsed flare-ups of the foot characterized by nerve pain, burning pain, and numbness. The examiner determined that he Veteran had accentuated pain on manipulation and use of both feet and characteristic calluses. He used orthotics on both feet and had decreased longitudinal arch height of both feet on weight-bearing. He did not have swelling on use, extreme tenderness, marked deformity or marked pronation. The Veteran’s weight-bearing line fell over or medial to the great toe but he had no inward bowing, displacement, or severe spasm of the Achilles’ tendon. The examiner concluded that the Veteran had chronically compromised weight bearing and that the Veteran’s pain contributed to functional loss, with pain on movement, weight-bearing, and nonweight-bearing and disturbance of locomotion. At a subsequent VA examination in June 2017, the Veteran again endorsed worsening pain on his feet and that he walked on the sides of his feet to alleviate the pain caused by his calluses. The examiner diagnosed the Veteran with bilateral pes planus, bilateral metatarsalgia, calluses, and plantar fasciitis. The examiner determined that the Veteran had accentuated pain on use of both feet but not manipulation and characteristic calluses. He had no indication of swelling on use or extreme tenderness. He had marked deformity and marked pronation of both feet. The Veteran’s weight-bearing line did not fall over or medial to the great toe and no inward bowing, displacement, or severe spasm of the Achilles’ tendon. The Veteran’s pain contributed to functional loss, with pain on movement and with weight-bearing. The examiner opined that the Veteran has multiple large calluses, plantar fascitis and calluses over the heels that limits his ability to walk for prolonged periods and thereby causes increased pain and weakness with repetitive use. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran’s bilateral pes planus more closely approximates pronounced flat foot with marked pronation and extreme tenderness of plantar surfaces of the feet, and that his overall symptoms are not improved by orthopedic shoes or appliances. In this regard, the Veteran’s private and VA treatment records show that the Veteran has difficulty ambulating, despite orthotics, due to calluses of the bilateral feet. An April 2010 letter by the Veteran’s private podiatrist documented painful deformities of both great toes resulting in dense hyperkeratosis limiting the Veteran’s ability to wear shoes and ambulate. The September 2010 VA examiner also documented that the Veteran had pain on manipulation and exhibited abnormal weightbearing. The February 2017 and June 2017 VA examinations and private treatment records demonstrate that the Veteran has also consistently reported pain and difficulty walking throughout the appellate period. The private treatment records and VA examinations reveal that the Veteran continued to have pain in both feet even with the use of orthotics. The Board also finds it significant that the VA examinations reveal that the Veteran’s bilateral pes planus significantly impact his ability to stand and walk. The Board also notes that the June 2017 VA examination found marked deformity and pronation of both feet whereas the February 2017 VA examination did not. As such, any doubt in this regard is resolved in the Veteran’s favor. Accordingly, the evidence of record shows that the Veteran’s symptoms of bilateral pes planus more closely approximates a 50 percent disability rating and that his disability picture has been consistent over the entire appellate period. A 50 percent rating is the maximum disability rating assignable for pes planus, and includes consideration of pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. No higher rating is provided by the rating schedule. Thus, for the period from March 10, 2010, the Veteran is in receipt of the maximum rating assignable for his bilateral pes planus, and higher ratings may not be assigned by analogy pursuant to other diagnostic criteria. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) citing Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’”). To assign a separate rating for symptoms of pain due to plantar fasciitis or metatarsalgia would amount to prohibited pyramiding. 38 C.F.R. § 4.14. As such, a rating in excess of 50 percent for the period from March 10, 2010, is denied. 38 U.S.C. § 5107 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel