Citation Nr: 18153095 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-35 307A DATE: November 27, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is denied. FINDING OF FACT The Veteran’s bilateral pes planus has not been manifested by pronounced symptoms, including marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which were not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1996 to September 2000 and in the United States Air Force from January 2002 to February 2006. The appeal comes before the Board of Veterans’ Appeals from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Fort Harrison, Montana. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus. The Veteran contends that his bilateral pes planus disability should be rated higher than the currently assigned disability rating. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against granting a disability rating for bilateral pes planus in excess of 30 percent. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The Veteran’s bilateral flat foot disability is rated as 30 percent disabling under Diagnostic Code 5276, which assigns a 30 percent disability rating for “severe” symptoms with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities, bilaterally. Descriptive words “slight,” “moderate” and “severe” as used in the various DCs are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” See 38 C.F.R. § 4.6 (2017). A 50 percent rating is warranted when the evidence shows pes planus that is “pronounced” in nature, with symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and lack of improvement after use of orthopedic shoes or appliances. A 30 percent disability rating is assigned for these symptoms if occurring unilaterally. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran filed a claim for an increased rating in excess of 30 percent on September 2015. The Veteran stated in his Form 9 substantive appeal that he is entitled to a disability rating in excess of 30 percent due to reasonable doubt falling in his favor. For the following reasons, the Board finds that the Veteran’s symptoms do not entitle him to a higher rating in excess of 30 percent. Concerning the severity of the Veteran’s symptoms, in an August 2015 exam, the VA examiner found no marked pronation, no extreme tenderness of the plantar surfaces of the feet, no marked inward displacement and severe spasm of the tendo achillis on manipulation, and no response from the Veteran was provided concerning lack of improvement after using orthopedic shoes or appliances. The Board finds that if orthopedic shoes or appliances were not alleviating the Veteran’s symptoms, the Veteran would likely give the examiner a negative report, meaning that he would have reported that his symptoms were not improved by such items. This exam indicates that during the pendency of the Veteran’s claim, the Veteran’s symptoms have not become pronounced to the degree required by the VA for a higher disability rating. The Board notes the records cited by the Veteran, through his representative, in the Informal Hearing Presentation submitted in August of 2018. However, the Central Montana imaging records only confirm the Veteran’s diagnosis, and did not suggest whether the Veteran’s symptoms have become pronounced over the pendency of the claim. Also, to reiterate, the August 2015 exam confirms that while the Veteran’s symptoms continue to be severe, they are not pronounced as required by Diagnostic Code 5276 for entitlement to a 50 percent rating. Given this evidence, the Board finds that the Veteran’s bilateral pes planus has not manifested with pronounced symptoms, including marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which were not improved by orthopedic shoes or appliances. Specifically, while the medical and lay evidence noted above, including the August 2015 VA examination report, shows that the Veteran’s symptoms were severe in both feet, the record does not show that his symptoms were pronounced. In fact, the August 2015 VA examiner specifically determined that the Veteran did not have pronounced marked pronation, extreme tenderness of the planter surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation. Thus, a disability rating in excess of 30 percent is not warranted for the Veteran’s bilateral foot disability. The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that higher ratings are not warranted for the Veteran’s disability picture. The Veteran did not report having any flare-ups of his symptoms nor did the medical examination show any additional functional impairment due to such symptoms as pain, pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. However, even though there is evidence of severe symptoms of the bilateral flat feet, and even after considering the effects of pain and functional loss, the evidence does not show that the Veteran’s bilateral pes planus demonstrated pronounced symptoms, such as marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which were not improved by orthopedic shoes or appliances. Thus, a higher rating under these provisions is not approximated in the Veteran’s disability picture. Accordingly, as the preponderance of the evidence is against the claim of entitlement to a disability rating in excess of 30 percent for bilateral pes planus, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. H. Vasil, Associate Counsel