Citation Nr: 18150150 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-26 247 DATE: November 14, 2018 ORDER An initial 50 percent rating for bilateral flat feet is granted, effective September 23, 2007. The claim of entitlement to an initial rating higher than 10 percent prior to October 25, 2016, and higher than 20 percent thereafter, for degenerative arthritis of the spine is denied. REMANDED The claim of entitlement to an initial rating higher than 10 percent for varicose veins of left lower extremity is remanded. The claim of entitlement to an initial rating higher than 10 percent for varicose veins of right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral flat feet have manifested with pronounced symptoms for the entire period under consideration. 2. Prior to October 2016, the preponderance of the evidence weighs against finding the Veteran’s degenerative arthritis of the back manifested with flexion of the thoracolumbar spine limited to less than 60 degrees, or with a combined range of motion less than 120 degrees, or with muscle spasm or guarding severe enough to result in abnormal spinal curvature or abnormal gait, or with symptoms of functional loss equivalent to this level of disability. Starting from October 2016, the preponderance of the evidence weighs against finding his back has manifested with flexion limited to 30 degrees or less, or with functional loss equivalent to this level of loss, or with favorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria are met for an initial 50 percent rating for bilateral pes planus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.3, 4.7, 4.30, 4.45, 4.59, 4.71a, DC 5276. 2. The criteria are not met for a higher rating for degenerative arthritis of the spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to July 1981, and from May 1986 to May 2003. The Board notes the Veteran asked for a personal hearing before a VLJ. A hearing was scheduled for March 2012, but the Veteran did not attend the hearing. He has not since asked for it to be rescheduled, and therefore his request is considered withdrawn. Increased Rating Disability ratings are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of time under review on appeal, that is, the rating may be “staged.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. An initial 50 percent rating for bilateral flat feet is granted. The Veteran’s flat feet are initially rated 10 percent disabling prior to October 2016, and 50 percent disabling thereafter. Under DC 5276, a 10 percent rating is warranted for moderate symptoms, where the weight-bearing line is over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted for bilateral pes planus with severe symptoms, where there is objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted when the symptoms are pronounced, there is 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. 38 C.F.R. § 4.71a, DC 5276. After reviewing the evidence, the Board finds that all doubt should be resolved in his favor, and that her 50 percent initial rating is warranted. The October 2016 VA examination report showed marked pronation of both feet, extreme tenderness of plantar surfaces, which were not improved by orthotic inserts. This meets the criteria for pronounced, as also found by the AOJ in assigning the 50 percent rating. In February 2018, the October 2016 VA examiner noted that he had reviewed the Veteran’s records, and he noted the Veteran’s flat feet had been at the same level of severity for the entire period on review. The Board notes that treatment records from October 2007 showed deformity of both feet and extreme pain that was not alleviated by orthotic inserts. Without belaboring the point, the evidence of record meets the criteria for an initial 50 percent rating. Id. That is, the 50 percent rating is warranted from the date of service connection, September 23, 2007. A 50 percent rating is the highest rating available under DC 5276 for bilateral pes planus. 38 C.F.R. § 4.71a, DC 5276. 2. The claim of entitlement to an initial rating higher than 10 percent prior to October 25, 2016, and higher than 20 percent thereafter, for degenerative arthritis of the spine is denied. The Veteran’s lumbar spine disability rating is currently staged. See Fenderson, supra. It is initially rated as 10 percent disabling starting from September 23, 2007, then 20 percent from October 25, 2016. He has appealed for higher ratings. The Veteran’s lumbar spine is currently rated under DC 5242, which pertains to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The rating criteria for this code is contained within the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 10 percent rating is warranted for forward flexion o the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. A footnote (1) to the General Rating Formula indicates that any associated neurological disabilities are to be separately rated under the appropriate diagnostic code. Id. The Board notes the rater must consider any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, along with the schedular criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40 and 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); 38 C.F.R. § 4.59. As mentioned, the Veteran’s rating is staged. After review of the evidence, the Board does not find that an initial rating higher than 10 percent is warranted for arthritis of the spine. Prior to the October 2016 VA examination, the record does not show limited flexion, or that his combined range of motion was less than normal. He was not shown to have an abnormal spinal contour or abnormal gait due to guarding or spasming. In February 2009, he was diagnosed with mild degenerative changes, and in May 2009, the record shows he had painful flexion. This evidence meets the criteria for a 10 percent rating, but no higher. 38 C.F.R. § 4.71a, DC 5242. The Board considered whether evidence of functional loss warranted a higher rating. Prior to October 2016, he complained of constant pain that annoyed him. The record does not contain any complaints or suggestion of any other type of functional loss due to arthritis of the spine, nor does it suggest that he ever had flexion reduced to less than 60 degrees, or a combined range of motion to less than 120 degrees, or an abnormal gait or spinal contour due to the spine, which is required for the next higher rating. Deluca, supra. Similarly, the Board does not find that a rating higher than 20 percent is warranted for arthritis of the spine after October 2016. The October 2016 VA examination report shows flexion to 60 degrees, which meet the criteria for a 20 percent rating. The VA examination also showed the Veteran had some functional loss, including the inability to drive for more than an hour, and difficulty bending, which limits his ability to do activities of daily living. The examiner opined that pain would significantly limit the Veteran’s functional ability during flares and after repetitive use, but there is no suggestion from the record that his flexion was ever reduced to 30 degrees or less, or that he has favorable ankylosis, which is required for the next higher rating for the thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242; Deluca, supra. The Board will continue the 20 percent rating assigned by the AOJ. The record does not show neurologic abnormalities that have been attributed to the spine. The Veteran has not raised any argument with the adequacy of the October 2016 VA examination, nor has he asserted an increase in the severity of his symptoms. The record does not suggest an increase in his symptoms since the October 2016 VA examination. Accordingly, the Board finds that it this claim has been appropriately developed.   REASONS FOR REMAND 1. The claim of entitlement to an initial rating higher than 10 percent for varicose veins of left lower extremity is remanded. 2. The claim of entitlement to an initial rating higher than 10 percent for varicose veins of right lower extremity is remanded. The October 2016 VA examination report attributes the Veteran’s “night clump” with his varicose veins, but does not explain what symptoms are encompassed by these complaints. The Veteran was also noted to have restless leg syndrome, but it is unclear whether that is attributed to the varicose veins. On remand, an attempt to obtain a clarified opinion from the same VA examiner, who is in Japan, should be made. The matters are REMANDED for the following action: Ask the VA examiner that prepared the October 2016 VA examination report to provide a supplemental opinion report that defines the symptoms of “night clump,” which the examiner attributed to the Veteran’s varicose veins. The examiner is also asked to provide an opinion on whether it is as likely as not that restless leg syndrome is caused or aggravated by the varicose veins. If this examiner is not available, a similarly qualified examiner should provide the opinion.   The examiner is asked to review the Veteran’s medical history to provide responses. If the examiner determines that an updated physical examination is required, please notify the scheduling authority. If a physical examination is required and scheduled, the examiner is asked to conduct a complete updated examination. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson