Citation Nr: 20037168 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 13-20 182 DATE: June 1, 2020 ORDER Entitlement to an initial 50 percent rating for bilateral flat feet, effective January 30, 2012, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The functional impairment resulting from the Veteran’s bilateral flat feet has more nearly approximated a pronounced flatfoot disability since the effective date of service connection. 2. The Veteran is entitled to a combined 60 percent rating for disabilities resulting from a common etiology, and these disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a 50 percent initial rating for bilateral flat feet, effective January 30, 2012, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 2. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial 50 percent rating for bilateral flat feet, effective January 30, 2012, is granted. The Agency of Original Jurisdiction (AOJ) has assigned a staged initial rating for the Veteran’s service-connected bilateral flat feet with the disability being rated as 10 percent disabling prior to May 1, 2018 and 30 percent disabling thereafter. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran has appealed the initial rating assigned by the AOJ, consistently asserting VA examiners have not adequately assessed the impairment of his achilles tendons in the context of his appeal of the rating assigned for his bilateral flat feet. The Board notes disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret examination reports 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. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s bilateral flat feet are rated under Diagnostic Code 5276, 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a 10 percent rating is assigned when there is a moderate flatfoot disability, bilateral or unilateral, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet. A 30 percent rating is warranted for a severe bilateral flatfoot disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The maximum 50 percent rating is reserved for a pronounced bilateral flatfoot disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. As previously noted, the Veteran has consistently asserted VA examiners have overlooked the effect of his bilateral flat feet on his achilles tendons, one of which ruptured in the appeal period. In November 2019, the Board remanded the Veteran’s appeal for an expert opinion in this regard. Specifically, the Board asked the selected examiner to review the evidence of record and provide an opinion as to whether the Veteran’s functional impairment more nearly approximates a pronounced bilateral flatfoot disability when compared with the lower levels of disability listed in Diagnostic Code 5276. In March 2020, a VA examiner reported the Veteran’s bilateral flat feet has more nearly approximated a pronounced disability during the appeal period. The March 2020 VA examiner explained the February 2019 assessment by a private podiatrist that the Veteran has “excessive pronation” that caused his achilles to spontaneously rupture equates to “marked pronation” as contemplated by Diagnostic Code 5276. Although the March 2020 examiner conceded extreme tenderness of plantar surfaces of the feet has not been noted on examination, he determined there was objective evidence to support a finding equivalent to “marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances.” The March 2020 VA examiner pointed out the February 2019 podiatry note should be considered the “definitive assessment” of the scope of the Veteran’s disability when compared with the findings of previous VA examiners due to the author’s expertise. The Board recognizes it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; therefore, the absence of extreme tenderness of plantar surfaces of the feet does not preclude a finding of a pronounced disability in the Veteran’s case. See 38 C.F.R. § 4.21. Accordingly, the Board finds it is at least as likely as not the functional impairment resulting from the Veteran’s bilateral flat feet has more nearly approximated a pronounced flatfoot disability since the effective date of service connection, warranting the maximum 50 percent rating under Diagnostic Code 5276 throughout the appeal period, and, to that extent, his appeal is granted. 2. Entitlement to TDIU is granted. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. As previously explained, the Board finds a 50 percent initial rating is warranted for the Veteran’s service-connected bilateral flat feet. The Veteran is also entitled to a 20 percent rating for a service-connected back disability associated with his bilateral flat feet. Since the Veteran’s service-connected back disability is secondary to his service-connected bilateral flat, the combined 60 percent rating is sufficient to satisfy the requirements for TDIU because the disabilities resulted from a common etiology and are therefore considered one disability for the purpose of meeting the percentage thresholds for TDIU. The record also establishes the Veteran’s service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. The Board notes the Social Security Administration (SSA) has determined the Veteran meets its requirements for disability benefits, primarily due to the functional impairment resulting from his service-connected disabilities. While not dispositive on the issue of TDIU, the SSA grant of disability compensation constitutes highly probative evidence regarding the Veteran’s TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA’s favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). The merits of awarding TDIU are even more clear when viewed in the context of the Veteran’s individual work history. The record establishes the Veteran has worked as a surgery technician throughout his post-military career. VA examiners have reported his bilateral flat feet and related back disability would prevent him from holding an occupation that requires long periods of standing and weight-bearing, which would preclude him from working in his past occupation. The back disability has also been noted to prevent extended periods of sitting, making even sedentary work difficult for the Veteran. The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is no such evidence in this case. To the contrary, the record establishes the nature and severity of the Veteran’s service-connected disabilities prevent him engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. As result, the criteria for an award of TDIU have been met in the Veteran’s case. The AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.