Citation Nr: 18156199 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-01 237 DATE: December 7, 2018 ORDER 1. Entitlement to an evaluation in excess of 10 percent for bilateral pes planus status post reconstructive surgery with surgical scars from March 1, 2009 to November 8, 2010 is denied. 2. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus status post reconstructive surgery with surgical scars from November 8, 2010 to October 1, 2012 is denied. 3. Entitlement to an evaluation in excess of 10 percent for bilateral pes planus status post reconstructive surgery with surgical scars from October 1, 2012 to August 23, 2013 is denied. 4. Entitlement to an evaluation of 30 percent, but no higher, for bilateral pes planus status post reconstructive surgery with surgical scars from August 23, 2013 to July 29, 2014 is granted. 5. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus status post reconstructive surgery with surgical scars from July 29, 2014 and after, is denied. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From March 1, 2009 to November 8, 2010, the evidence indicates that the Veteran’s pes planus manifested in moderate symptoms such as pain on use of feet. 2. From November 8, 2010 to October 1, 2012, the evidence indicates that the Veteran had severe pes planus, evidenced by bilateral peritalar subluxation and difficulty standing on one foot. 3. From October 1, 2012 to August 23, 2013, the Veteran’s symptoms improved to the point of ambulation in regular gear following surgery. 4. From August 23, 2013 to July 29, 2014, while the evidence indicates improvement in some symptoms, the Veteran’s pes planus manifested in extreme tenderness of plantar surface of the right foot. 5. From July 29, 2014 and thereafter, the Veteran’s pes planus manifested as severe with swelling of both feet and characteristic callouses, inward bowing of the Achilles tendon of both feet, and pain on physical examination of the feet. 6. The evidence of record is not sufficient to show that the Veteran’s service-connected disabilities, individually or in aggregate, prevent the Veteran from finding and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from March 1, 2009 to November 8, 2010 for bilateral pes planus, have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5276. 2. The criteria for a rating in excess of 30 percent from November 8, 2010 to October 1, 2012, for bilateral pes planus, have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5276. 3. The criteria for a rating in excess of 10 percent from October 1, 2012 to August 23, 2013, for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5276. 4. The criteria for a rating of 30 percent, but no higher, from August 23, 2013 to July 29, 2014 for bilateral pes planus, have been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5276. 5. The criteria for a rating in excess of 30 percent from July 29, 2014, and thereafter, for bilateral pes planus, have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5276. 6. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5102, 5103, 5103A 5107(b); 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from August 2002 to February 2009. 1. Increased Rating for Bilateral Pes Planus The Veteran contends that his bilateral pes planus is such that it warrants a higher rating throughout the appeals period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as “staged” ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran’s service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran is rated for bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate pes planus, with weight-bearing line over or medial to 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 severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is warranted for bilateral pronounced pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The Board notes that words such as ‘severe,’ ‘moderate,’ and ‘mild’ are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At the outset, the Board noted that the RO assigned several periods of temporary total evaluation for convalescence following various foot surgeries within the appeal period. These periods were effective December 13, 2011 to March 1, 2012, August 6, 2012 to October 1, 2012, February 18, 2015 to May 1, 2015, and April 4, 2016 to June 1, 2016. Therefore, the Board’s analysis for an increased rating for bilateral pes planus will not include these periods of temporary total evaluation. The Board also notes that throughout the appeals period, the Veteran’s scar status post-surgery has been non-compensable. Turning to the record of evidence, the Veteran reported painful feet during service. He was found to have compensable bilateral pes planus. The Veteran was service-connected at a compensable rate on March 1, 2009, the day following separation from service. In an April 2009 VA examination, the examiner reported that the Veteran had a diagnosis of bilateral pes planus. The examiner noted no other abnormalities. The examiner reported active motion of the metatarsophalangeal joints of the great toe. The examiner stated that palpation of the plantar surfaces bilaterally revealed no tenderness. The examiner also stated that the Achilles tendons were well aligned. The examiner found that the Veteran had a moderate degree of pes planus bilaterally, but no other deformities were noted. The examiner reported that dorsiflexion of the toes did not cause any pain, and palpation of the metatarsal heads of the toes did not cause any pain. The examiner stated that the Veteran had no hammertoes, no Norton’s metatarsalgia, no hallux valgus, and no hallux rigidus. The examiner observed that the Veteran did not appear to have limited ability for standing or walking, and he did not use supportive shoes or arch supports. The examiner noted that multiple-view, bilateral imaging studies revealed no fracture, dislocation, or lytic or blastic lesions. The examiner also observed that all the toes, as well as the metatarsals and tarsals, and ankle visualized were all intact, free of trauma, or other abnormality. The examiner noted that there were no changes in the soft tissues. In a November 2010 VA medical record, the Veteran reported painful flatfeet. The Veteran stated that only ankle foot orthotics helped. The examiner observed that, upon stance, the Veteran had “too many toes sign” present bilaterally. The examiner also noted that peritalar subluxation was also present bilaterally. The examiner stated that the Veteran had difficulty lifting his heel while standing on one foot bilaterally. Hubscher manuever does not recreate the arch bilaterally. The examiner stated that the Veteran had bilateral pes plano valgus deformity. In December 2012, the Veteran attended a one-week follow-up to right foot hardware removal following surgery. The VA examiner noted that the Veteran had very little pain and had been ambulating in his regular shoe gear without incident. In a two-week follow-up, the examiner noted that range of motion was smooth and uninterrupted for the pedal joint, and he had normal muscle strength. In an August 2013 VA examination, the examiner reported swelling of both feet on use. The examiner noted that the Veteran’s symptoms were not relieved by orthopedics. The examiner stated that there was no objective evidence of marked deformity of the foot (pronation, abduction, etc.). The examiner reported extreme tenderness of plantar surface of the right foot. The examiner also noted decreased longitudinal arch height of both feet on weight-bearing. The examiner stated that there was no pain on use of the feet or manipulation of the feet. There was no evidence of characteristic calluses. There was no abnormality of the Achilles tendon in either foot, or abnormalities with weight-bearing. The examiner noted surgical scars on both feet that were well-healed and non-tender. The examiner also stated there was no evidence of pain, weakness, incoordination, or fatigability with respect to the feet. In a July 2014 VA examination, the examiner reported that the Veteran had pain on use of feet. The examiner also documented swelling of both feet and characteristic callouses. The examiner noted that there was pain upon examination of both feet that contributes to functional loss. The examiner described the functional loss as less movement than normal, weakened movement, excess fatigability, pain on weight-bearing and nonweight-bearing, pain on movement, disturbance of locomotion, and interference with standing. The examiner further noted that the Veteran’s disability impacts occupational tasks in that walking and standing for extended periods of time becomes very painful and sore, causing fatigue to both feet, and weakness. In a September 2016 VA examination, the Veteran reported increased pain with walking barefoot, running, and walking more than one hour. The Veteran did not report flare-ups. The examiner stated that the Veteran had pain on use of feet. The examiner noted that the Veteran did not have pain on manipulation of feet, swelling on use of feet, or characteristic callouses. The examiner stated that the Veteran had decreased longitudinal arch height of both feet on weight-bearing. The examiner also reported “inward” bowing of the Achilles tendon of both feet. The examiner further reported hammertoe of the second, third, fourth, and little toes of the right foot. The examiner stated that there was pain on physical examination of both feet. The examiner noted that pain on weight-bearing contributed functional loss in that the Veteran had pain with prolonged walking. The examiner stated that the Veteran was not prescribed any arch supports, built-up shoes or orthotics, and he did not wear any over-the-counter arch supports. Therefore, a finding of the effects of their use would be mere speculation. In a September 2018 VA examination, the examiner reported pain on use of both feet. The examiner also noted accentuated pain on manipulation of the left foot. The examiner also noted that there was decreased longitudinal arch height of both feet on weight-bearing. The examiner stated that the Veteran had “inward” bowing of the Achilles tendon of both feet. On physical examination, the examiner noted that the right foot was not tender to palpation and there were no complaints of pain with walking. The examiner described functional impact on occupational tasks as the inability to run or jump and increased pain in the Veteran’s feet if he walks continuously over 4 hours. After review of the record, the Board finds that from March 1, 2009 to November 8, 2010, a rating in excess of 10 percent is not warranted. The medical evidence shows that, during this period, the Veteran had a moderate pes planus. Therefore, the Veteran’s disability more closely approximated to a 10 percent rating. A 30 percent rating is not warranted during this period because the evidence does not indicate that the Veteran experienced severe pes planus with evidence of marked deformity, pain on manipulation and use accentuated, swelling on use or characteristic callosities. The Board finds that a rating in excess of 30 percent from November 8, 2010 to October 1, 2012 is not warranted. During this period, the evidence indicates that the Veteran had severe pes planus, evidenced by bilateral peritalar subluxation and difficulty standing on one foot. A 50 percent rating during this period is not warranted. The evidence does not indicate that the Veteran’s pes planus manifested in bilateral pronounced symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo achillis on manipulation, not improved by orthopedics. The Board finds that a rating in excess of 10 percent between October 1, 2012 to August 23, 2013 is not warranted. During this post-surgery period, the Veteran had been ambulating in his regular shoe gear without orthopedics. A 30 percent rating is not warranted during this period because the evidence does not indicate that the Veteran experienced severe pes planus with evidence of marked deformity, pain on manipulation and use accentuated, swelling on use or characteristic callosities. The Board finds that from August 23, 2013 to July 29, 2014, a rating of 30 percent, but no higher, is warranted. During this period, the Veteran’s pes planus manifested in extreme tenderness of the surface of the right foot. Therefore, the disability more closely approximates to a 30 percent rating. A 50 percent rating during this period is not warranted. The evidence does not indicate that the Veteran’s pes planus manifested in bilateral pronounced symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo achillis on manipulation, not improved by orthopedics. The Board finds that from July 29, 2014, to the present, a rating in excess of 30 percent is not warranted. During this period, the Veteran’s pes planus manifested as severe with swelling of both feet and characteristic callouses. The Veteran also had “inward” bowing of the Achilles tendon of both feet and pain on physical examination of the feet. The medical evidence also indicates hammertoes; however, as to prevent pyramiding, one rating is assigned to address the overlapping symptomatology. A 50 percent rating during this period is not warranted. The evidence does not indicate that the Veteran’s pes planus manifested in bilateral pronounced symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo achillis on manipulation, not improved by orthopedics. In reaching this decision, the Board has considered the Veteran’s lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. 2. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unable to gain and maintain substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). The Veteran has compensable ratings for the following service-connected disabilities: posttraumatic stress disorder (PTSD) at 50 percent, tinnitus at 10 percent, right wrist strain at 10 percent, and pes planus, as discussed above. At the writing of this decision, the Veteran has met the combined rating of 70 percent since August 23, 2013. Therefore, the Veteran has met the schedular criteria for a TDIU. For the period prior to August 23, 2013, although the Veteran does not meet the schedular criteria for a TDIU, an extraschedular total rating based on individual unemployability may still be assigned in the case of a Veteran who fails to meet the percentage requirements, but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Veteran’s VA Form 21-8940 indicates that he has 3 years of a college education and that he became too disabled to work in January 2014. His reported occupational history included work as a call assistant in a call center and work as an information technologies operator and consultant. In a July 2014 VA examination, the examiner noted that the Veteran’s bilateral pes planus had functional impact on occupational tasks in that walking and standing for extended periods of time becomes very painful and sore, causing fatigue to both feet, and weakness. In a July 2018 lay statement accompanying an application for a TDIU, the Veteran asserted that he was employed as an IT consultant until 2014. The Veteran reported that he left employment due to the severity of his service-connected conditions in aggregate. The Veteran, through his representative, noted that the Veteran has attempted to work full time as a self-employed IT consultant since 2014; however, his work was infrequent and depended on word-of-mouth. The representative contended that this employment should be considered marginal employment in a protected environment. The representative further asserted that the severity of his PTSD would cause an overwhelming sense of anxiety, a reduced sense of focus, and subsequent daily panic attacks in which all would decrease his production. The representative further noted that the Veteran’s pes planus and right wrist would prevent him from climbing ladders, holding tools, or standing for a period of time. In a July 2018 affidavit, the Veteran reasserted that he resigned from his last employment in mid-2014 due to stress caused by his mental and physical service-connected disabilities and lack of accommodations. The Veteran explained that, prior to his resignation, he clashed with his managers due to his PTSD symptoms. He also noted that he had difficulty climbing ladders to access machinery as part of his job for his last employer. The Veteran stated that he began self-employment, but he noted that the symptoms of his disabilities hindered his productivity. The Veteran further explained that his anxiety makes following any potential employer’s instructions quite difficult and mentally frustrating. In a September 2018 VA PTSD examination, the examiner reported that the Veteran was capable of working in a work setting where work is routine, supervision is loosely applied, and contact with the public is minimal. The examiner noted that the Veteran continued to work in the same position he has worked in since 2014 where he attempts to get installation of wiring assignments. The examiner stated that, while he is not employed full-time, the Veteran is aware of the nature of his work that he is engaging in requires his bidding on work and that work will come in an erratic manner. However, despite this knowledge, he continues in this type of a work setting which meets the criteria of minimal to no supervision, work that is routine when he does receive it, and his contact with the public is minimal. In a September 2018 VA wrist examination, the examiner noted that occupational impact of the Veteran’s wrist disability is that he cannot use vibrating power tools for over 20 minutes a day or lift over 50 pounds more than twice a day. In a September 2018 VA bilateral foot examination, the examiner stated that occupational impact of the Veteran’s pes planus disability is that the Veteran cannot walk continuously for more than four hours, and he cannot run or jump. After review of the record, the Board finds that the evidence weighs against a grant of a TDIU. The medical evidence indicates that, even in the aggregate, while the Veteran may experience some limitations due to his service-connected disabilities, they are not such that he is prevented from finding and following substantially gainful employment. The evidence shows that the Veteran is able to maintain gainful employment if the work is routine, supervision is loosely applied, and contact with the public is minimal. Indeed, the Board notes that the Veteran has continued to be self-employed since 2014 in the same position he has previously worked in where he attempts to get installation of wiring assignments. While he is not employed full-time, this appears to be due to the erratic nature of his work rather than from being protected employment. At any rate, the ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether or not he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, given the Veteran’s education and prior work history, the Board finds that he is not unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. Therefore, a grant of a TDIU is not warranted since August 23, 2013, nor is a referral for extraschedular consideration of TDIU warranted prior to August 23, 2013. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel