Citation Nr: 19129786 Decision Date: 04/17/19 Archive Date: 04/16/19 DOCKET NO. 17-58 051 DATE: April 17, 2019 ORDER Entitlement to a rating in excess of 20 percent for a left foot injury, to include pes planus and to include extraschedular consideration, is denied. Entitlement to a rating in excess of 20 percent for a right foot injury, to include pes planus and to include extraschedular consideration, is denied. FINDING OF FACT Beginning August 16, 2016, the Veteran’s bilateral foot disability due to bilateral pes planus and bilateral plantar fasciitis was manifested by no more than a moderately severe disability of each foot, with resulting pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a left foot condition have not been met, and the criteria for referral for an extraschedular rating are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Codes (DCs) 5276, 5284. 2. The criteria for entitlement to a rating in excess of 20 percent for a right foot condition have not been met, and the criteria for referral for an extraschedular rating are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.21, 4.71a, DCs 5276, 5284. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from December 1981 to May 1982. The record does not suggest that the Veteran’s service-connected disabilities render him unemployable. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the claims for higher initial ratings. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Entitlement to a rating in excess of 20 percent for left foot condition; and Entitlement to a rating in excess of 20 percent for right foot condition The Veteran is service connected for bilateral foot injuries to include pes planus. The Veteran is rated at 20 percent disabled under DC 5299-5284. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the ##99 format indicates a rating by analogy. Id.; see also 38 C.F.R. § 4.20. The Veteran’s bilateral foot injury is being rated by analogy to Diagnostic Code 5284 for foot injuries. The Board will analyze whether higher disability ratings are warranted. DC 5276 provides ratings for acquired flat foot (pes planus). A 30 percent rating is warranted for severe bilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achilles on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. DC 5284 provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5284. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. 4.6. Use of terminology such as “severe” by VA examiners and others, although 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. The Veteran was afforded a VA examination in September 2017. The examiner diagnosed the Veteran with bilateral pes planus. The Veteran reported trouble standing and walking for long periods of time, and the inability to run. Walking for prolonged periods of time caused flare-ups as well. The examiner found pain on use, pain accentuated on use, pain on manipulation, and pain accentuated on manipulation in both feet. The use of orthotics relieved symptoms in both feet. There was also evidence of extreme tenderness of the plantar surfaces and decreased longitudinal arch height on weight-bearing in both feet. The examiner did not find evidence of other foot injuries or conditions. Pain on movement and weight-bearing contributed to functional loss, and the Veteran reported constant use of a cane for locomotion. Based on the above, the Board finds the Veteran’s symptoms are adequately contemplated by the current 20 percent ratings. The continued use of the more general DC 5284 is most favorable for rating the service-connected bilateral foot disability because DC 5284 specifically provides subjective and objective rating criteria for the type of injury and considers functional impairment resulting from foot injuries rather than the more specific criteria for acquired flat foot under DC 5276. By rating the Veteran separately under DC 5284, the Veteran’s bilateral foot disability aggregates to a 40 percent rating. Under DC 5276, the Veteran’s bilateral pes planus would need to approximate a 50 percent rating to grant the current appeal. The Veteran’s symptoms throughout the period on appeal fail to show marked pronation, marked inward displacement, severe spasm of the tendo achillis on manipulation, and the ineffective use of orthotics. Therefore, the Board finds rating the Veteran’s bilateral foot condition under DC 5276 would not result in a higher rating. Separate 20 percent disability ratings under DC 5284 for the Veteran’s bilateral foot disabilities are appropriate, based on the overall level of disability as moderately severe. The Board notes that pain with use has been considered in assigning the Veteran’s 20 percent evaluations under DC 5284. The Board concludes that a rating in excess of 20 percent is not warranted, as severe disability is not shown. The medical evidence and the Veteran’s assertions indicate that he complains of daily pain, which he rates as 7/10. He uses a cane on a constant basis. Nevertheless, his pes planus is not manifested marked deformity, indication of swelling on use, characteristic callosities, the weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement and sever spasm of the Achilles tendon on manipulation. The Veteran did report flare-ups due caused by walking. Under DC 5276, the Veteran’s symptoms most closely approximate moderate pes planus symptoms. When affording the Veteran, the benefit of the doubt and rating the Veteran’s foot injury separately under DC 5284, the evidence of record does not support finding the Veterans’ bilateral foot injuries manifest in severe symptoms. The weight of the evidence demonstrates that no more than moderately severe symptoms are shown, even when considering the functional impairment reported by the Veteran. Ratings in excess of 20 percent for each foot is not warranted. In February 2019, the Veteran’s representative asserted the Veteran’s symptoms warranted extraschedular consideration. Under the provisions of 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” Id. If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Here, referral for extraschedular consideration for an increased rating for bilateral foot injuries is not warranted because all of the Veteran’s symptoms have already been contemplated by the current ratings. While the Veteran generally asserts that he presents a unique disability picture, he has not provided any evidence outside of the medical evidence to support a unique disability picture. The medical evidence, to include the September 2017 VA examination, was used to determine the Veteran’s current level of disability due to his bilateral foot condition. The criteria listed under DC 5284 allowed for the Board to consider all the Veteran’s symptoms because the DC did not use mechanical criteria. The Veteran’s pes planus symptoms and functional loss were considered in determining the Veteran’s bilateral foot injury manifested in moderately severe symptoms. The Veteran’s symptoms do not fall outside of the rating criteria of DC 5284 and are fully contemplated by the criteria of this diagnostic code. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel