Citation Nr: 18149921 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-33 914 DATE: November 14, 2018 ORDER A 10 percent rating, and no higher, for bilateral pes planus with plantar fasciitis is granted from October 19, 2011 to April 2, 2014. REMANDED Entitlement to a rating higher than 10 percent for right knee disability is remanded. Entitlement to a rating higher than 10 percent for left knee disability is remanded. FINDING OF FACT During the appeal period, the Veteran’s bilateral pes planus with plantar fasciitis was more nearly manifested by moderate symptoms, but not severe pes planus or worse. CONCLUSION OF LAW During the appeal period, the criteria for 10 percent rating, and no more, for bilateral pes planus with plantar fasciitis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 22, 1993 to May 31, 2009. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to a compensable rating for bilateral pes planus with plantar fasciitis prior to April 2, 2014 A September 2010 rating decision granted service connection for bilateral pes planus at the noncompensable disability level under Diagnostic Code 5276, effective June 1, 2009. See 38 C.F.R. § 4.71a. VA notified the Veteran in a September 2010 letter of this decision and how to appeal. During the one-year period following this decision, VA received no VA treatment records demonstrating that his disability met the criteria for a higher rating or any indication from the Veteran that he disagreed with the initial rating or assigned effective date. Therefore, this decision became final. More than one-year later, on October 19, 2011, VA received from the Veteran VA Form 21-526b, Veterans Supplemental Claim for Compensation, wherein he requested an “increased evaluation” for foot disorder. In a June 2016 rating decision, the RO assigned a 50 percent rating from April 2, 2014—the date of Disability Benefits Questionnaire. As an initial matter, the Board notes that appeal period in this matter began with the claim for increase received October 19, 2011. Although the Veteran’s attorney asserts that the appeal dates back to June 1, 2009, because the October 2011 Supplemental Claim was a notice of disagreement, the record shows that this document may not be reasonably construed as a notice of disagreement for the following reasons: First, the Supplemental Claim form was received more than one-year following the notice of the rating decision that granted service connection for foot disability, which is beyond the appeal period; and second, the Supplemental Claim form expressly reflects that it is a claim for increase on looking at the plain language of that document. The Veteran contends that his bilateral foot disability warrants a compensable evaluation prior to April 2, 2014 (i.e. the period from October 19, 2011 to April 2, 2014). The Board concludes that the evidence supports the assignment of a 10 percent evaluation but no higher for the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5276. The Veteran’s feet are evaluated under Diagnostic Code 5276. Mild symptoms are rated as noncompensably disabling. Moderate pes planus (flat foot) with weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. For severe pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 30 percent evaluation is warranted, bilateral. For pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of plantar surface of the feet, marked inward displacement and severe spasm of the tendo-Achillis on manipulation, not improved by orthopedic shoes or appliances, a 50 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5276. 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 of 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 in order 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). During the appeal period, affording the Veteran the benefit of any doubt, his bilateral pes planus with plantar fasciitis was more nearly manifested by “moderate” symptoms, but not “severe” pes planus or worse. While the August 2013 VA examination reflects bilateral pes planus with plantar fasciitis with pain on use of both feet, accentuated on use, and decreased longitudinal arch, the objective findings are negative for marked deformity, swelling on use, and characteristic callosities. The criteria for a 10 percent are more nearly met, but not the criteria for a higher rating. The Board has considered the Veteran’s reported symptoms of throbbing and burning all the time, which he reported on August 2013 VA examination. However, neither the lay nor the medical symptoms more nearly reflect the functional equivalent of severe disability, particularly when considered in light of the Veteran’s self-report that he was deployed through his Defense Department job to Afghanistan in his August 2012 statement to VA. It is noted that the term “disability” refers to the functional impairment of earning capacity and that the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The August 2013 VA examination reflects that the Veteran’s bilateral foot disorder did not impact his ability to work, which is consistent with the Veteran’s report of travelling overseas for work. It further reflects that the Veteran’s gait was within normal limits. Neither the lay nor the medical evidence shows functional limitation on walking and standing due to symptoms that tend to support functional loss that more nearly approximates severe disability under the applicable schedular criteria of Diagnostic Code 5276. The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule. However, it is neither contended nor shown that he meets the criteria for a higher or separate disability evaluation under any other provision applicable to the feet. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-84. Also, there is no evidence of loss of use of a foot such that the Veteran would be better served by amputation and prosthesis. 38 C.F.R. §§ 4.63, 4.71a. The Board accepts that the Veteran is competent to report on his observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating that assigned here, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. Accordingly, 10 percent rating, and no more, is granted for the appeal period from October 19, 2011 to April 2, 2014. A uniform rating is warranted for this period prior because there is no distinct period of time that the disability warranted a higher evaluation. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings). There is no doubt to resolve. 38 U.S.C. § 5107(b). The Board has considered the attorney’s argument that the Veteran meets the criteria for a 30 percent rating based on April 2, 2014 Disability Benefits Questionnaire, which noted that the Veteran’s condition was not completely relieved by shoes or arch support. The Board disagrees that this evidence demonstrates that the criteria for a 30 percent or higher rating is warranted prior to April 2, 2014 because that medical evidence does not address either the lay or medical evidence for the appeal period between October 2011 and April 2014, which shows that the Veteran did not more nearly meet the schedular criteria for a 30 percent or higher rating, discussed above. Also, although the attorney states that the August 2013 VA examination is inadequate, the sentence to that effect ended with “because . . .” Hence, there is no specific argument advanced, the thought appears to have been abandoned. Moreover, the Board finds that the August 2013 VA examination report reflects comprehensive examination of the Veteran and consideration of the applicable rating criteria in addition to the Veteran’s complaints and symptoms. Therefore, the examination is adequate. REASONS FOR REMAND 2. Entitlement to a rating higher than 10 percent for right knee disability is remanded. 3. Entitlement to a rating higher than 10 percent for right knee disability is remanded. Issues 2-3. The Veteran reports that his bilateral knee disability has increased. He was last afforded a VA examination in August 2013. Because this evidence suggests a material worsening of the Veteran’s disability, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right and left knee disability. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel