Citation Nr: 18160797 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 15-27 063A DATE: December 27, 2018 ORDER Entitlement to an initial 50 percent rating for bilateral pes planus (flat foot) with arthritis (also claimed as bilateral heel swelling) is granted. FINDING OF FACT The Veteran’s bilateral pes planus is more closely described as pronounced with pain on use, pain on manipulation, pain accentuated on use, marked pronation not improved by orthopedic shoes or appliances, and marked deformity. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for bilateral pes planus with arthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.27, 4.71a, Diagnostic Code 5299-5276 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to January 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which reopened the Veteran’s claim for service connection for bilateral pes planus with arthritis and awarded a 10 percent disability rating, effective December 15, 2010. The Veteran testified at a decision review (DRO) hearing in March 2014. A copy of the transcript is of record. The issue was previously before the Board in December 2017, and the Board found that a disability rating greater than 10 percent was not warranted. The Veteran filed an appeal to the Court of Appeals for Veterans Claims (Court) contesting the Board’s December 2017 decision. In a July 2018 Order, the Court granted the parties’ July 2018 Joint Motion for Partial Remand (Joint Motion), vacated the Board’s decision, and remanded the matter to the Board for development consistent with the JMR. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2018). 38 U.S.C. § 7107 (a)(2) (2012). An initial disability rating of 50 percent for bilateral flatfoot with arthritis is granted Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection on December 15, 2010. In May 2012, the AOJ granted service connection for pes planus and assigned an initial 10 percent rating. The Veteran’s bilateral pes planus was evaluated under Diagnostic Code 5299-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the use of Diagnostic Codes 5299 and 5276 reflect that there is no Diagnostic Code specifically applicable to the Veteran’s bilateral foot disability and that this disability is rated by analogy to pes planus under Diagnostic Code 5276. 38 C.F.R. § 4.20 (2018). Under Diagnostic Code 5276, 10 percent evaluation is warranted for acquired bilateral flatfoot, that is moderate in severity with the weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a (2018). Severe bilateral flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, characteristic callosities, warrants a 30 percent evaluation. Id. Pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances, warrants a 50 percent evaluation. Id. The words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2018). The use of terminologies such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2018). The Veteran underwent a VA examination in January 2012. The examiner diagnosed bilateral pes planus and osteoarthritis of the first metatarsophalangeal (MTP) joint. The Veteran reported pain on use of the feet, which was accentuated on use. The Veteran also reported pain on manipulation of the feet that was accentuated on manipulation. No swelling or calluses were reported as caused by the Veteran’s pes planus. The Veteran reported that his symptoms were relieved by arch supports (or built up shoes or orthotics.) There was no extreme tenderness of the plantar surface of either foot was reported. There was decreased longitudinal arch height on weight-bearing of both feet. There was also objective evidence of marked deformity and marked pronation of the bilateral foot. The Veteran reported that this condition was not improved with orthotic shoes or appliances. The weight-bearing line did not fall over or medial to the great toe for either foot. The examiner reported no lower extremity deformity, other than flat feet, causing alteration of the weight-bearing line. The Veteran did not have “inward” bowing of the Achilles tendon of either foot or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of either foot. He also did not have any associated scars or other pertinent physical findings, complications, conditions, signs or symptoms related to his pes planus. The Veteran reported that he regularly used a cane as a normal mode of locomotion. Regarding the effective function of the extremities, the examiner reported that the Veteran’s disability did not result in functional impairment of an extremity such that no effective function remained other than that which would be well served by amputation with a prosthesis. Imaging studies of the bilateral foot were noted as having been performed and showed arthritis. Other test findings showed that the Veteran also had hallux valgus deformity. VA treatment notes dated in November 2012 indicate the Veteran’s complaint of chronic pain in his arches, big toes, and ankles. Upon examination, the clinician noted that his pedal pulses were palpable bilaterally and there was a loss of protective sensation to both feet. There was also painful motion about the first MTP joint and collapsed arches of both feet. There was some abduction of the ankle joints, as well as, painful range of motion of the ankle joints, and pain with palpation along the plantar fascia ligament, bilaterally. The Veteran was encouraged to continue wearing his orthopedic shoes and compression hose. An October 2013 VA treatment record indicates the Veteran’s return to the podiatry clinic with a request for “new shoes to accommodate his flat flatfeet.” Upon examination, it was noted that his pedal pulses were palpable bilaterally. There was a loss of protective sensation to both feet. He had a rigid, painful motion about the left first MTP joint. There were collapsed arches noted for both feet. There was some abduction of the ankle joint. There was a pain with range of motion of the ankle joints. There was a pain with palpation along the plantar fascia ligament bilaterally. The clinician assessed bilateral flatfeet, bilateral plantar fasciitis, and left foot hallux rigidus. New orthotic shoes and insoles were ordered. In a November 2013 statement, the Veteran’s attorney reported that since January 21, 2009, VA examination, the Veteran had lost the protective sensation of the plantar surfaces of the feet. Also, it was argued that the Veteran did not ambulate enough to generate the characteristic callosities on his feet, and he was prescribed multiple prosthetic podiatric devices to cushion the feet, including the multi podus boots. The Veteran and his attorney (at the time) reiterated that his lack of callosities was due to the limited use of his feet in the March 2014 DRO hearing, and an August 2015 statement from his (then) representative. Also, at his March 2014 hearing, the Veteran testified that he did not walk enough to get calluses. He also stated that this disability resulted in pain and unsteadiness that affect his ability to work. In May 2017 the Veteran underwent a second VA examination. The Veteran reported no current foot complaints, flare-ups, or functional loss/impairment. The Veteran also did not report pain on use of the feet, pain on manipulation of the feet, swelling on use, characteristic callouses, extreme tenderness of plantar surfaces on either foot, objective evidence of marked deformity on either foot, marked pronation of either foot, or “inward” bowing of the Achilles tendon of either foot, marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of either foot. There was also no lower extremity deformity, other than pes planus, causing alteration of the weight-bearing line. The Veteran reported that orthotics relieved the symptoms in both feet. It was noted that the Veteran had decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity or marked pronation of one or both feet. Also, the weight-bearing line did not fall over or medial to the great toe for either foot. The examiner reported no lower extremity deformity, other than flat feet, causing alteration of the weight-bearing line. The Veteran did not have “inward” bowing of the Achilles tendon of either foot or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of either foot. The examiner did not note any other injuries or other foot conditions, or the Veteran’s report of pain upon examination. Regarding the functional loss and the limitation of motion, the examiner noted there was no functional loss for the bilateral lower extremity attributable to the Veteran’s condition. He also noted that neither pain, weakness, fatiguability nor incoordination significantly limited the Veteran’s functional ability during flare-ups or when the feet were used repeatedly over a period of time. No other functional loss during flare-ups or when the feet were used repeatedly over a period of time was reported. The examiner noted that the Veteran did not have any associated scars or other pertinent physical findings, complications, conditions, signs or symptoms related to his pes planus disability. There were no other significant diagnostic test findings or results. The Board finds that the overall disability picture for the Veteran’s bilateral pes planus with arthritis is more closely approximated by the 50 percent criteria. The evidence of record, including the January 2012 VA examination and the clinical notes, shows that the Veteran’s bilateral foot condition is characterized by painful motion, collapsed arches, marked pronation not improved by orthopedic shoes or appliances and marked deformity. The evidence also shows that the Veteran treats his condition with orthotics, which do not relieve the symptoms, avoidance of prolonged standing and walking, and regularly uses a cane to ambulate. Accordingly, an initial disability rating of 50 percent is granted. 38 C.F.R. § 4.3 (2018). Concerning other Diagnostic Codes applicable to the foot, the Veteran has not been diagnosed with weak foot, claw foot, Morton’s disease, or malunion or nonunion of the tarsal or metatarsal bones during the period on appeal. Therefore, Diagnostic Codes 5277, 5278, 5279, and 5283 are not for application. 38 C.F.R. § 4.71a (2018). There are diagnoses of hallux valgus, hallux rigidus, and plantar fasciitis during the appeal period. However, they are not part of the Veteran’s flat foot disability and therefore separate ratings are not warranted for them. Diagnostic Code 5284 does not apply to the eight foot conditions specifically listed in the rating schedule under Diagnostic Codes 5276-5283. Copeland v. McDonald, 27 Vet. App. 333 (2015). Consideration of a separate rating under Diagnostic Code 5284 for other foot injuries is not warranted for the Veteran’s flat feet since it is listed in the rating schedule. Further, a separate rating is not warranted under Diagnostic Code 5284 to compensate the Veteran for his right heel pain because Diagnostic Code 5276 also contemplates foot pain. When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). TDIU granted by the RO in a June 2018 rating decision, with an effective date of December 12, 2011, which was the day after he reported that his gainful employment ended. As he was gainfully employed prior to December 12, 2011, TDIU is not for consideration prior to that date. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel