Citation Nr: 20052982 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-31 823 DATE: August 10, 2020 ORDER The claim of entitlement to an evaluation in excess of 10 percent prior to November 21, 2010, for bilateral cold injury residuals is denied. The claim of entitlement to an evaluation of 30 percent as of November 22, 2010, for bilateral cold injury residuals is granted. The claim of entitlement to an evaluation in excess of 10 percent prior to August 1, 2011, for bilateral pes planus is denied. The claim of entitlement to an evaluation of 30 percent as of August 2, 2011, for bilateral pes planus is granted. The claim of entitlement to an evaluation of 50 percent, prior to February 27, 2018, for bilateral pes planus is denied. FINDINGS OF FACT 1. As of November 21, 2010, the Veteran’s cold injury residuals for both feet manifested as arthralgia or other pain, numbness, or cold sensitivity. 2. As of November 22, 2010, the Veteran’s cold injury residuals for both feet manifested as arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 3. Prior to August 1, 2011, the Veteran’s bilateral pes planus manifested as moderate with weight-bearing line over or medial to great toe, inward bowing of the achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral. 4. As of August 2, 2011, the Veteran’s bilateral pes planus manifested as bilateral severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities or unilateral pronounced 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. 5. As of February 27, 2018, the Veteran’s bilateral pes planus manifested as bilateral pronounced 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. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an evaluation in excess of 10 percent, prior to November 21, 2010, for cold injury residuals for both feet have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7122 (2019). 2. The criteria to establish entitlement to an evaluation of 30 percent, as of November 22, 2010, for cold injury residuals of both feet, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7122 (2019). 3. The criteria to establish entitlement to an evaluation in excess of 10 percent prior to August 1, 2011, for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5276 (2019). 4. The criteria to establish entitlement to an evaluation of 30 percent as of August 2, 2011, for a bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5276 (2019). 5. The criteria to establish entitlement to an evaluation of 50 percent prior to February 27, 2018, for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5276 (2019) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 1979 to June 1993. The Board acknowledges the lengthy service of the Veteran. These matters are before the Board of Veteran’s Appeals (Board) from the January 2010, April 2012, September 2013, and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied increased ratings for pes planus and residuals for cold injuries for the left foot and right foot. The Board in August 2017 remanded the Veteran’s claims on appeal for a VA examination for the Veteran’s feet to identify which service-connected disability were associated with the Veteran’s foot surgeries and the symptoms of each disability of the Veteran’s feet. The Veteran testified at a hearing before a Veterans Law Judge at the RO in Waco, Texas, in March 2017. A written transcript of that hearing has been prepared and associated with the evidence of record. Additionally, the Veteran was notified via correspondence dated April 6, 2020, by VA that the Veterans Law Judge (VLJ) who conducted the March 28, 2017, hearing was no longer employed by the Board and offered the Veteran another hearing with a VLJ who would be providing a decision on the issues on appeal. See 38 U.S.C. § 7107 (2012); 38 C.F.R. §§ 19.3, 20.707 (2019). As of the date of this opinion the Veteran has made no indication as to a desire for another hearing, as such the Board is proceeding with this opinion. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2019). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019). The Board notes that for the evaluation of cold injury residuals of the Veteran’s feet, each foot is entitled to their own separate rating under 38 C.F.R. § 4.104 Diagnostic Code 7122. However, for the ease of the reading of this opinion and based on thorough review of the evidence the evaluations for both feet are combined, but only for these purposes, as the Veteran is entitled to separate ratings for each individual foot. Entitlement to an evaluation in excess of 10 percent prior to November 21, 2010, for cold injury residuals for both feet The Veteran contends that he is entitled to an increased rating for his cold injury residuals for both feet prior to November 21, 2010. The Veteran’s cold injury residuals are governed by 38 C.F.R. § 4.104 Diagnostic Code 7122. The 10 percent rating requires arthralgia or other pain, numbness, or cold sensitivity. The next highest rating of 20 percent requires arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The next highest and maximum rating of 30 percent requires arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). Note (1): Separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. Separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under diagnostic code 7122. Note (2): Evaluate each affected part (e.g., hand, foot, ear, nose) separately and combine the ratings in accordance with §§4.25 and 4.26. The Veteran received a VA examination for cold injury residuals in October 2009. The Veteran indicated that he did not utilize orthopedic footwear, reported that his feet went numb when presented to the cold, and his skin seemed to crack easily. The Veteran’s symptoms were noted as cold sensitization, onychomycosis of both great toenails, and paresthesias and numbness when exposed to the cold. The examiner noted that there were no amputations or other tissue loss, no hyperhidrosis, no reflex sympathetic dystrophy, no breakdown or ulceration of frostbite scars, no disturbances of nail growth, no skin cancer in chronic ulcers or scars, no edema, no arthritis or joint stiffness, no limitation of motion of affected areas, no changes in skin color, no skin thickening or thinning, no excess sweating. The Veteran was noted as reporting pain, but this pain was linked to his bilateral pes planus. The Veteran indicated that he wore multiple pairs of socks when it was cold. The Veteran’s gait was normal, skin normal, color normal, no edema, normal hair growth, no scars, and normal texture. The Veteran’s sensory examination was normal, no pain, no stiffness, and normal strength of ligaments was noted. The Board finds that the VA examination is competent, credible, and with significant probative weight. After thorough review of the Veteran’s VA treatment records there were doctor’s notes in September 2010 and October 2010 indicating the Veteran had misalignment of his toe and foot, and a tight achilles tendon. The Board finds that the VA treatment records are competent, credible, and with significant probative weight. As the Veteran’s medical records noted the Veteran’s cold injury residual symptoms were numbness and cold sensitivity. As the Veteran’s cold injury residual treatment did not note tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The Veteran’s disability picture prior to November 21, 2010, was more closely approximated by the 10 percent rating in Diagnostic Code 7122 for both feet. Additionally, the Board notes that if the Veteran’s reported pain from the October 2009 VA examination was found to be due to his cold injury residuals and not pes planus this change would still only meet the 10 percent rating criteria and would not entitle the Veteran to a higher disability rating for his cold injury residuals. The Board finds that the preponderance of the evidence is against finding that the Veteran’s cold injury residuals manifested to a higher disability picture than 10 percent prior to November 21, 2010. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim for an evaluation in excess of 10 percent prior to November 21, 2010, is not warranted. Entitlement to an evaluation of 30 percent as of November 22, 2010, for cold injury residuals for both feet The Veteran contends that he is entitled to an increased rating for his cold injury residuals for both feet. The Veteran received a VA examination for his cold injury residuals in November 2010. The Veteran reported his symptoms as chronic pain with a persistent burning sensation or tenderness, cold feeling, and arthritis or joint stiffness including limitation of motion. The Veteran also indicated that he had pain on weight bearing and cold temperatures and walking caused pain, also reporting that he wore heavy socks to try to alleviate the symptoms. The examiner found that the Veteran’s carriage was normal, but his gait was abnormal as he had surgery 4 weeks prior due to an unrelated issue. The Veteran’s feet were examined, the examiner found normal skin color, normal temperature, no atrophy, normal texture, no ulcerations, no missing nails, and no deformed nails or atrophic nails. The examiner did note abnormal hair growth with no hair on ankles or feet and noted fungus on all of the Veteran’s toenails. The Veteran’s sensory changes as to pinpricks to the sole of the feet were noted as decreased, but with no weakness or atrophy. The examiner found pain or stiffness of the Veteran’s interphalangeal joints of his great toes due to his cold injury and noted his pes planus. The Veteran’s feet were both noted as having tenderness, no abnormal weight-bearing, no skin changes, and the presence of hammertoes in both feet with a surgical pin the right foot. The Veteran’s right foot x-rays noted mild degenerative changes in the foot and the left foot x-rays indicated degenerative changes seen of the interphalangeal joint of the great toe and calcaneal spur. The examiner found that the Veteran’s diagnosis had progressed to flexion deformity of the bilateral great toes secondary to the cold injury residuals, degenerative joint disease of both feet due to the cold injury, pes planus due to the cold injury of both feet, and onychomycosis of both feet due to the cold injury. The Veteran was also noted as having peripheral neuropathy related to his cold injury. The examiner noted that the Veteran’s occupation of working as a machine operator in a steel mill and in construction caused him pain when he stood on hard surfaces. An addendum opinion was provided by the same examiner that found that the Veteran’s right foot surgery in 2010 was not due to his cold injury residuals. The Board finds that the VA examination and addendum opinion of November 2010 are competent, credible, and with significant probative weight. The Veteran received another cold injury residual VA examination in September 2013. The Veteran’s diagnoses pertaining to his cold injury residuals was noted as degenerative joint disease due to cold injury with 3 surgical repairs and residual scars. The Veteran’s right foot was noted as having arthralgia or pain, numbness, and osteoarthritis, while his left foot was noted as having arthralgia or pain, numbness, cold sensitivity, nail abnormalities, and osteoarthritis. The examiner noted the Veteran’s July 2013 x-rays of both feet noting degenerative joint disease and surgical changes. The examiner also noted that the Veteran could not stay on his feel all day and would work part time construction. The examiner noted that the Veteran’s cold injury had progressed as there was multiple surgeries on top of the degeneration. The Board finds that the VA examination is competent, credible, and with significant probative weight. The Veteran received his most recent cold injury residual VA examination in February 2018. Both of the Veteran’s feet were noted with nail abnormalities, numbness, color changes, osteoarthritis, cold sensitivity, locally impaired sensation and tissue loss. The examiner noted the degenerative changes of the Veteran’s feet from x-rays in 2010 and 2017. The Veteran additionally was noted as having thick, hyperpigmented shiny hairless skin of both lower extremities from the knee down to his toes with decreased sensation to light touch yet hypersensitivity to deep palpation, and with a slow uneven antalgic gait. The Veteran’s cold injuries were noted as having a functional impact by the Veteran losing 2 to 4 weeks of work in the last 12 months, and issues with standing, walking, running, jumping, stair climbing due to foot pain paresthesias, and poor balance associated with his sequela of cold injuries. The Veteran was noted as reporting increased frequency, duration, and severity of his bilateral foot pain and paresthesias resulting in stiffness and poor balance, which prevented him from maintaining gainful employment. The examiner indicated that the diagnosis had changed to cold injury sequela and was a progression from the previous diagnosis. The examiner provided an individual unemployability statement that indicated that his cold injuries, which included his non-service-connected cold injury hands and service-connected cold injuries of his feet would limit if not completely prevent the Veteran’s ability to perform his work-related duties in construction. The Board finds the February 2018 VA examination competent, credible, with significant probative weight. The Veteran’s VA treatment records indicated x-rays in February 2013 and March 2013 of the left foot that noted mild to moderate degenerative changes of the first metatarsal phalangeal joint and then mild osteoarthritis of the same joint. In April 2016 the Veteran’s right foot was assessed and found to have chronic edema with reported pain at night when it swelled. In August 2017 the Veteran’s right foot was x-rayed and found increased degeneration of the metatarsal phalangeal joint with sesamoids prominent and sclerotic. The Board finds the Veteran’s VA treatment records are competent, credible, with significant probative weight. In reviewing the evidence of record the Board finds that the Veteran’s disability picture as of November 2010 more closely resembled a 30 percent rating for both feet. As indicated in the VA examination in November 2010 the Veteran had pain, numbness, and cold sensitivity along with nail abnormalities, locally impaired sensation, and degenerative joint disease of both feet as noted in x-ray findings. Additionally, as the VA treatment records, and additional VA examinations after November 2010 indicated in x-rays the Veteran continued to have increased progressions and continuing degeneration of his feet due to his bilateral cold injury residuals. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran is entitled to a 30 percent rating for each individual foot due to residuals of cold injuries as of November 22, 2010. INCREASED RATINGS FOR MUSCULOSKELETAL DISABILITIES In addition to the above requirements of increased ratings for disabilities, a disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2019); see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the rating decision issued June 2018 found clear and unmistakable error (CUE) in the RO’s determination in the April 2012 rating decision that provided different dates for the rating of the individual feet of the Veteran’s bilateral pes planus. The June 2018 rating decision indicated that the Veteran’s feet were to be rated bilaterally and not for each foot individually and found that the Veteran’s bilateral pes planus was to be rated initially at 100 percent effective October 25, 2010, based on 38 C.F.R. § 4.30 (2019) which governs periods of convalescence. Pursuant to 38 C.F.R. § 4.30 a total disability rating, 100 percent, will be assigned as indicated by this regulation for convalescence, however, the total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. Id. The June 2018 rating decision indicated the Veteran had 3 different periods of a total disability rating pursuant to 38 C.F.R. § 4.30; from October 25, 2010, to December 31, 2010, from May 24, 2012 to August 31, 2012, and from February 21, 2013 to May 31, 2013. The Board notes that the Veteran’s claim for service connection for pes planus was submitted October 25, 2010. As indicated above the Veteran had a total disability rating pursuant to 38 C.F.R. § 4.30, from October 25, 2010, to December 31, 2010. The Veteran then received a 10 percent disability rating as of January 1, 2011, which is the earliest date he could receive a regular schedular evaluation. Per the Board’s opinion contained herein, the Veteran is receiving a staged rating for his bilateral pes planus, therefore the window of consideration for the Veteran begins January 1, 2011. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also notes a typographical error in the rating decision issued June 18, 2018, that indicated the Veteran’s bilateral pes planus was given a rating of 10 percent disabling, effective June 1, 2013. The Board finds that this is an error and should indicate a 20 percent rating as of June 1, 2013. However, the Board finds that with this opinion, as indicated below, the Veteran has been granted a 30 percent rating as of August 1, 2011, to February 26, 2018, which encompasses the time frame that the typographical error affects. The Veteran’s bilateral pes planus is governed by 38 C.F.R. § 4.71a Diagnostic Code 5276. A 10 percent rating, of which the Veteran is already rated, requires moderate pes planus as indicated by the weight-bearing line over or medial to great toe, inward bowing of the achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral. The next highest rating requires 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 with unilateral finding reaching a 20 percent rating and bilateral finding reaching a 30 percent rating. The next highest rating requires pronounced pes planus 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, with the unilateral finding reaching a 30 percent rating and bilateral finding reaching the maximum rating of 50 percent. Entitlement to an evaluation in excess of 10 percent prior to August 1, 2011, for bilateral pes planus The Veteran contends that he is entitled to a disability rating higher than 10 percent for his bilateral pes planus prior to August 1, 2011. During the time between January 1, 2011 to August 1, 2011, the Veteran did not receive a VA examination. However, his VA treatment records indicated that in January 2011 the Veteran received custom fit inserts for his shoes for foot deformity and in April 2011 he began to experience stiffness in his right foot, pain, and neuritis. From April to July 2011 the Veteran began attending physical therapy and continued to have pain, stiffness, and increased stiffness with exercise, and fluctuating changes in his pain levels. While in July 2011 the Veteran indicated he began to experience increased pain from June, with swelling in his ankle and toes, and numbness, along with reports of continued stiffness in his right foot. The Board finds that at no time between January 1, 2011, and August 1, 2011, does the Veteran’s pes planus manifest as severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated by both or characteristic callosities. The Board does note that the Veteran indicated in July 2011 that he had begun to have swelling but did not indicate that either foot began to swell based on use. The Board finds that the Veteran’s disability picture was more accurately described by the 10 percent disability rating with pain on manipulation and use of the feet, bilateral or unilateral. The provisions of 38 C.F.R. § 4.40, 4.45, 4.59 were also considered as to the Veteran’s painful motion. The preponderance of the evidence of record is against the Veteran’s claim for an increased rating in excess of 10 percent prior to August 1, 2011. Therefore, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim for an evaluation in excess of 10 percent prior to August 1, 2011, for his bilateral pes planus is not warranted. Entitlement to an evaluation of 30 percent as of August 2, 2011, for bilateral pes planus The Veteran contends he is entitled to an increased rating for his bilateral pes planus. In August 2011 the Veteran received a pes planus VA examination that noted his bilateral pes planus diagnosis from 1979. The examiner found that the Veteran had bilateral pain on use of his feet that was accentuated on use, had bilateral foot pain on manipulation of his feet that was accentuated on use, and had an indication of swelling on use but only on the right foot. The examiner found no characteristic calluses, found that the symptoms were not relieved by arch support or orthotics in the left foot, and found the Veteran did not have extreme tenderness of the plantar surface of either foot. The examiner documented that only the Veteran’s left foot had decreased arch height on weight-bearing, objective evidence of marked deformity of the foot, marked pronation which could not be improved with orthopedic shoes or appliances, inward bowing of the achilles tendon, and the weight bearing line fell over or medial to the great toe. The examiner found that the Veteran’s feet did not show a marked inward displacement and severe spasm of the achilles tendon and no lower extremity deformity other than pes planus was causing the alteration in the weight bearing line. The Veteran was noted as having a leg length discrepancy on the right side secondary to his surgery to correct his pes planus of the right foot. The examiner documented the Veteran’s arthritis in both feet. The Board finds that the VA examination of August 2011 is competent, credible, and with significant probative weight. The Veteran received a total disability rating (100 percent) from May 24, 2012, to August 31, 2012. The Veteran received another total disability rating (100 percent) from February 21, 2013, to May 31, 2013. VA treatment records indicated x-rays of the Veteran’s left foot in February and March 2013 which found mild to moderate degenerative changes and calcaneal osteotomies along with mild osteoarthritis. Additional x-rays of the Veteran’s left foot were taken in May and August 2013 that noted moderate joint space narrowing with juxta articular sclerosis and changes shown at the first metatarsal-phalangeal joint. The Board finds the VA treatment records are competent, credible, with significant probative weight. The Veteran received a VA examination for his pes planus in September 2013 that noted the Veteran’s bilateral pes planus. The Veteran was noted as having pain on both feet with manipulation accentuated on manipulation, pain on use accentuated with use, swelling on use of both feet, no characteristic calluses, with symptoms relieved by arch supports of both feet, no extreme tenderness of plantar surface of either foot, no decreased longitudinal arch height on weight-bearing, no objective evidence of marked deformity of either foot, no marked pronation of either foot, and the weight bearing line did not fall over or medial to the great toe of either foot. The examiner also noted that the Veteran had both feet reconstructed. The examiner indicated that the Veteran did not have any inward bowing of the achilles tendon, no marked inward displacement and severe spasms of the achilles tendon on manipulation, and his foot pain was indicated as a limitation to his functional ability. The examiner noted the Veteran’s arthritis of both feet, and that his pes planus had a functional impact with the need to wear arch support and experiencing pain on walking on hard surfaces. The examiner further noted that there was no change in the Veteran’s diagnosis of bilateral pes planus. The Board finds that the VA examination of September 2013 is competent, credible, with significant probative weight. The Veteran received a VA examination for his feet in November 2017 that noted the Veteran’s reports of numbness and pain, swelling at times, and pain with walking and swelling which forced him to take breaks. The examiner found both feet had pain on use accentuated with use, pain on manipulation accentuated with manipulation, swelling on use, calluses on both feet, and no relief of symptoms with the use of arch supports or orthotics. The examiner found there was no tenderness of plantar surfaces, no decreased arch height on weight bearing, no marked deformity of either foot, no marked pronation of either foot, and neither foot had the weight bearing line falling over or media to the great toe. The examiner also noted no inward bowing of the achilles tendon, no marked inward displacement or severe spasms of the achilles tendon. The Veteran’s arthritis of the right foot was noted, with daily pain with swelling of his right foot at a moderate severity but found it did not chronically compromise weight bearing. The Veteran’s constant use of a cane was noted. The Veteran’s functional impact was noted as pain with swelling resulted in rest breaks. The examiner also provided an additional medical opinion that indicated that Veteran’s foot surgeries were due to his bilateral pes planus and not his cold injury residuals. The Board finds the VA examination and medical opinion of November 2017 to be competent, credible, and with significant probative weight. The Veteran’s VA treatment records indicated an April 2016 assessment of the Veteran’s right foot noting chronic edema with the Veteran reporting that the foot swelled and was painful at night. In August 2017, the Veteran’s right foot x-rays noted increased degeneration of his first metatarsal phalangeal joint (MPJ) with prominent and sclerotic sesamoids. Additional x-rays of the Veteran’s right foot in September and November 2017 found unchanged calcaneal spurs with his joint spaces maintained but also found greater soft tissue swelling about the first metatarsophalangeal joint and first metatarsal and phalanges noted, some deformity at first metatarsophalangeal joint and interphalangeal joint was again noted. The Board finds that the VA treatment records are competent, credible, with significant probative weight. After thorough review of the evidence of record, the Board finds that as of August 2, 2011, the Veteran’s medical treatment records and VA examinations indicated a 30 percent rating, but no higher, for the Veteran’s bilateral pes planus evidenced by bilateral pain on manipulation and use accentuated by both. However, there was only indication of swelling on the right foot initially, but eventually involved both feet, and only the left foot showed symptoms were not relieved by arch support or orthotics and had objective evidence of marked deformity of the foot, and marked pronation which could not be improved with orthopedic shoes or appliances. The Veteran’s feet also were then found to have swelling, characteristic calluses, and no relief of symptoms with the use of arch supports or orthotics. In considering that both feet met different criteria at different times, between the 20 percent and 30 percent rating, when there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Veteran’s disability picture as of August 2, 2011, to February 26, 2018, more closely resembled a 30 percent rating and not a 50 percent disability rating as he did not have bilateral marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasms of the achilles tendon on manipulation, all which were not improved by orthopedic shoes or appliances. The preponderance of the evidence of record is against the finding that the Veteran’s bilateral pes planus as of August 2, 2011, to February 26, 2018, is entitled to a higher rating than 30 percent disabling. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran is entitled to a 30 percent disability rating as of August 2, 2011, but no higher, until February 27, 2018. Entitlement to an evaluation of 50 percent prior to February 27, 2018, for bilateral pes planus The Veteran contends that he is entitled to an increased rating for his bilateral pes planus. The Veteran received a February 2018 VA examination for his feet that noted his bilateral pes planus, and additional diagnoses of the feet. The Veteran reported dull aching soreness, stiffness and throbbing, during flare-ups the Veteran also indicated sharp stabbing pain, soreness, stiffness, throbbing, and pins and needles. The Veteran also indicated that this caused difficulty in walking, running, standing for long periods of time, issues with driving and other daily physical activities. The examiner noted bilateral pain on use and manipulation, bilateral swelling on use, bilateral characteristic calluses, symptoms not relieved by arch supports or orthotics bilaterally, bilateral extreme tenderness of plantar surfaces of both feet, decreased arch hearing on weight bearing bilaterally, marked deformity bilaterally, and marked pronation bilaterally not improved with orthopedic shoes. The Veteran was found not to have weight-bearing line fall over or medial to the great toe, no lower extremity deformity other than pes panus that affected the weight bearing line, no inward bowing of the achilles tendon, and no marked inward displacement or severe spasms of the achilles tendon. The Veteran’s additional foot diagnoses and residuals from his foot surgeries were noted and evaluated. The Veteran reported difficulty standing, walking, squatting, kneeling, using stairs, running and jumping due to pain, weakness, and decreased range of motion of his feet. The Veteran’s feet were noted as having a functional impact with the loss of more than 5 weeks of time lost in the last 12 months and additional difficulties with standing and walking long periods due to pain, weakness, and decreased range of motion which decrease productivity. The Board finds that the VA examination of February 2018 is competent, credible, and with significant probative weight. As indicated above, the evidence of record prior to February 27, 2018, does not indicate that the Veteran’s bilateral pes planus met the requirements to grant a 50 percent disability rating at an earlier date. The preponderance of the evidence of record does not support the Veteran’s claims for an earlier date for the Veteran’s 50 percent disability rating. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for an earlier date for a 50 percent rating for his pes planus is not warranted. The Board notes that the Veteran was granted an award of a TDIU in October 2017 and based on this opinion he met the schedular criteria for entitlement to a total disability rating based on individual unemployability (TDIU) under 38 C.F.R.§ 4.16 (2019) prior to that date. However, the Veteran was employed full time until September 20, 2017, as he indicated in his VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability submitted December 2017. The Board has considered whether the entitlement to a TDIU prior to October 2017 is warranted. As the Veteran indicated he last worked full time in September 2017 an award of a TDIU earlier than provided by the RO is not applicable in consideration of 38 C.F.R. § 4.16(a). (CONTINUED NEXT PAGE) The Board further finds that the Veteran's disability picture is contemplated by the Rating Schedule. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); see also Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Moreover, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy, 27 Vet. App. at 484. [see also Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).] B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.