Citation Nr: 21000087
Decision Date: 01/04/21	Archive Date: 01/04/21

DOCKET NO. 00-16 235A
DATE: January 4, 2021

ORDER

From August 26, 1993 to June 2, 1999, entitlement to an initial disability rating of 30 percent for bilateral pes planus, on the basis of substitution, is granted.

Entitlement to an earlier effective date of August 26, 1993 for the award of an extraschedular total disability rating based on individual unemployability (TDIU), on the basis of substitution, is granted.

FINDINGS OF FACT

1.  From August 26, 1993 to June 2, 1999, the Veteran’s bilateral pes planus was manifested by symptomatology more nearly approximating severe bilateral pes planus, but not pronounced bilateral pes planus.

2.  The Veteran's claim for entitlement to a TDIU arose from an initial increased rating claim for bilateral pes planus stemming from an August 26, 1993 service connection claim.

3.  The evidence of record shows that the Veteran’s service-connected bilateral pes planus prevented him from securing or following substantially gainful employment from at least August 26, 1993.

CONCLUSIONS OF LAW

1.  From August 26, 1993 to June 2, 1999, the criteria for an initial 30 percent disability rating for bilateral pes planus, on the basis of substitution, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276.

2.  The criteria for an effective date of August 26, 1993, but no earlier, for the award of an extraschedular TDIU, on the basis of substitution, have been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.157, 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Army from March 1959 to April 1962, and from February 1963 to February 1966.  The Veteran died in February 2016, and the appellant is his surviving spouse.  A May 2019 letter reflects that she has been accepted as the Veteran's substitute for purposes of processing his appeal to completion.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in May 1999 and July 2010.  

As an initial matter, the Board expresses its condolences to the appellant for the loss of her husband, and acknowledges the excellent service he provided this country in the United States Army.

The May 1999 rating decision granted entitlement to service connection for bilateral pes planus and assigned an initial 10 percent rating effective from August 26, 1993.  In decisions dated in June 2004, October 2005, and November 2007, the Board remanded the Veteran’s claim for entitlement to an initial increased rating for bilateral pes planus in excess of 10 percent and entitlement to a TDIU to the agency of original jurisdiction (AOJ) for additional development and adjudication.  During the pendency of the appeal, a November 2009 rating decision increased the initial disability rating for bilateral pes planus to 30 percent effective from January 25, 2008.  The record shows that the AOJ later reissued this same award in a February 2010 rating decision.  Following these rating decisions, a July 2010 rating decision granted entitlement to a TDIU effective from June 3, 1999.

In a subsequent December 2010 letter that was copied to the Veteran's representative, the AOJ notified the Veteran that his appeal was being returned to the Board for disposition.  Later in December 2010, the Veteran's representative submitted a statement noting that she had received notification that the Veteran's record had been transferred to the Board.  The representative indicated that she was aware of the recent TDIU award, but the representative was unaware of any other issues on appeal.  The representative requested clarification regarding what issue was on appeal before the Board to allow the Veteran to decide if wished to continue the appeal or to present additional evidence or argument.  In a January 2011 letter that was copied to the Veteran's representative, the Board notified the Veteran that his previously remanded appeal had been returned to the Board's docket.  In a February 2011 statement, the Veteran's representative again expressed a lack of awareness regarding what issues were on appeal.  However, the representative acknowledged that a person from the Board's status line had informed her that the issue before the Board was related to the Veteran's flat feet.  In this regard, the representative asserted that the Veteran had been granted a full rating for that disability and added that the issue was no longer in appellate status.  The representative noted that the Veteran did dispute the effective date assigned, but he had not yet filed a notice of disagreement. 

In a February 7, 2011 letter to the Veteran's representative, the Board explained that it had remanded the Veteran's initial increased rating claim for pes planus and his claim for a TDIU in November 2007.  The Board was later informed that the Veteran's claim for a TDIU was granted in July 2010.  Upon completion of the actions directed in the remand order, the Veteran's increased rating claim for pes planus was returned to the Board in January 2011.  Later in a February 2011 letter, the representative thanked the Board for the February 7, 2011 letter that clarified that the issue before the Board was the schedular rating for the Veteran's pes planus.  The representative added that she had assumed that this issue had been combined with the Veteran's claim for a TDIU.  The representative noted that the Veteran had been awarded a TDIU effective from July 1999, and the representative indicated that as a result, the schedular issue before the Board was limited to whether an increased rating in excess of 10 percent was warranted from the date of claim in August 1993 to that date.  The representative closed the letter by requesting for the Board to award an increased rating for the period from August 1993 to July 1999.  Later in February 2011, the Veteran's representative submitted a notice of disagreement with the AOJ's decision to limit the effective date of the Veteran's award of a TDIU to July 1999.  The representative clarified in subsequent statements within the notice of disagreement that the Veteran was disputing the specific effective date assigned of June 3, 1999.

Thus, the Veteran's representative expressly limited the scope of the Veteran’s appeal of his initial increased rating claim for bilateral pes planus.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise).  In light of the representative’s statements indicating that the Veteran was satisfied with his initially assigned disability rating for bilateral pes planus on and after the effective date of his TDIU award, the Board limited its consideration of the increased claim to the period from August 26, 1993 to June 2, 1999 in a May 2011 decision.  In that decision, the Board denied entitlement to an initial increased rating for bilateral pes planus in excess of 10 percent from August 26, 1993 to June 2, 1999.  The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court).  In a November 2011 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion).  In this regard, the Board notes that neither the Joint Motion nor subsequent statements from the Veteran's representative have indicated that the scope of the appeal period for the Veteran’s initial increased rating claim extended beyond the period from August 26, 1993 to June 2, 1999 that was addressed by the Board in the May 2011 decision.  See, e.g., May 2012 Statement from Representative; July 2015 Statement from Representative.  As such, the Board has characterized the issue as reflected below.

The Board remanded the issue once more in a July 2012 decision, and the issue has since been returned to the Board for appellate review.  The Board finds that the RO substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions).

The Board also notes that the Veteran's representative requested a Decision Review Officer (DRO) hearing in relation to the Veteran's current appeal in a February 2011 statement.  Although a June 2015 letter indicated that the AOJ had scheduled the requested hearing for July 2015, the Veteran’s representative responded that the Veteran expressly waived any right to a hearing in a July 2015 statement.  As such, there are no outstanding hearing requests.

I.  Duties to Notify and Assist

Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1.  Entitlement to an initial increased rating for bilateral pes planus in excess of 10 percent from August 26, 1993 to June 2, 1999, on the basis of substitution.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder.  38 U.S.C. § 1155.  The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007).  Such separate disability ratings are known as staged ratings. 

During the appeal period from August 26, 1993 to June 2, 1999, the Veteran's bilateral pes planus disability has been rated based on the criteria for acquired flatfoot under 38 C.F.R. § 4.71a, Diagnostic Code 5276.  See May 1999 Rating Codesheet.  The Board notes that the current rating criteria for Diagnostic Code 5276 as well as the rating criteria for other potentially relevant Diagnostic Codes related to the feet that are listed under 38 C.F.R. § 4.71a, specifically Diagnostic Codes 5277 through 5284, are unchanged from the rating criteria that were in effect from August 26, 1993 to June 2, 1999.  The Board additionally notes that although the Veteran's bilateral pes planus disability was initially noted to be rated under Diagnostic Code 5276 in the May 1999 Rating Codesheet associated with the May 1999 rating decision that awarded service connection for the disability, subsequent rating codesheets have listed the disability under 38 C.F.R. § 4.71a, Diagnostic Code 5275 related to shortening of the bones of the lower extremity.  See, e.g., June 2007 Rating Codesheet.  However, it is clear that this notation was representative of a clerical error rather than a change of diagnostic code as the subsequent rating decisions and supplemental statements of the case that have addressed the disability specifically discussed the rating criteria provided by Diagnostic Code 5276 rather than Diagnostic Code 5275.  See, e.g., November 2009 Rating Decision; February 2010 Rating Decision; May 2014 Supplemental Statement of the Case. Further, there is no evidence that the Veteran was service-connected for shortening of the bones in the lower extremity.

Diagnostic Code 5276 provides that for mild flatfoot, with symptoms relieved by built-up shoe or arch support, a noncompensable rating is warranted.  Moderate acquired flatfoot, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, is rated as 10 percent disabling when either bilateral or unilateral.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated as 20 percent disabling for a unilateral disability; and is rated as 30 percent disabling for a bilateral disability.  Pronounced flatfoot, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendon Achilles on manipulation which is not improved by orthopedic shoes or appliances is rated as 30 percent disabling for a unilateral disability; and is rated as 50 percent disabling for a bilateral disability.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

The criteria in Diagnostic Code 5276 are not conjunctive.  "Cases in which the Court has indicated that § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive."  Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Dyess v. Derwinski, 1 Vet. App. 448 (1991) (holding that 38 C.F.R. § 4.21 specifically applies to Diagnostic Code 5276).

Prior to the beginning of the appeal period, an April 1986 private treatment record discussed the findings from an orthopedic examination that was noted to be a prison visit.  The record stated that the Veteran was having some problems with pronation and painful feet.  The provider, Dr. L., indicated that the problems were present despite the Veteran's receipt of a pair of orthopedic shoes approximately one year ago.  He had some pronation, and his shoes appeared to be fairly well broken down.  Dr. L. did not think that the shoes were providing much help to the Veteran.  Dr. L. adjusted the heels of another available pair and provided the Veteran with instructions about adjusting the pad.  Dr. L. stated that these shoes might be more helpful than the ones the Veteran had been wearing, but he might have to consider surgical correction of his arch if he was not able to obtain adequate help from the shoes.

In July 1991, Dr. V., DPM, noted that the Veteran presented complaining of painful arches bilaterally with a duration of several years.  He reported that although he had appliances made in the past, they were less than optimally helpful.  The Veteran's discomfort was equal in nature bilaterally.  The Veteran appeared to be slightly pronated in stance.  However, a high degree of forefoot varus was noted upon further examination.  In September 1991, Dr. V. stated that the Veteran reported that his flexible arch supports were aggravating his condition.  He also reported that his orthopedic shoes were not helpful, and the Veteran wished to consider corrective surgery.  The examination revealed mild to moderate pronation bilaterally.  There was tenderness about the medial arch bilaterally.  Dr. V. advised the Veteran that he might benefit from a rigid-type appliance before he should consider corrective surgery as surgery for this type of issue could be very unpredictable.  

In December 1991, a podiatry treatment record stated the Veteran's appliances were doing ok, but his feet were still troublesome.  A plan was made for the Veteran to see Dr. V. to rule out arthritis or other pathology for his problem.  In January 1992, the Veteran was seen by Dr. V.  The Veteran reported that his condition was unchanged, and he stated that he could go between rigid appliances as well as the flexibles with no improvement.  Dr. V. also noted that the laboratory findings were negative.  Dr. V. gave the Veteran a prescription for Feldene.  Dr. V. noted that if the Veteran was still experiencing problems when he was reevaluated in one month, an orthopedic referral for flatfoot repair would be considered.

In February 1992, Dr. V. noted the Veteran's report that Feldene had offered him no help, and his condition was unchanged.  He continued to report receiving no relief from inserts.   Dr. V. advised the Veteran that his only alternative would be surgical consideration if the inserts and medication had not been helpful.  

In April 1993, a VA treatment record noted that the Veteran complained of aching pain in his feet at all times that was worse when standing.  He had orthotics from his podiatrist at state prison.  There was no tenderness to palpation of the metatarsophalangeal joint, talo-navicular joint, heels, or plantar facia bilaterally.  There was mild, bilateral pronation.  The impression was pes planus, and a plan was made to x-ray both feet.  The provider commented that he was skeptical of the Veteran's complaint as the physical examination was unremarkable, and the record indicated that the provider would check the x-rays.

Later in April 1993, a VA x-ray report for both feet noted under the clinical history that pain was present in both arches.  The report stated that there could be pes cavus, but standing views would be needed for confirmation.  Hypertrophic marginal lipping that was minimal was observed involving the posterior articulating margin of the navicular bone; a finding of very early beginning of degenerative joint disease.  There were no other significant findings.  

On October 21, 1993, a VA medical certificate noted that the Veteran had painful arches in both feet.  The record indicated that the pain began in the military and had been increasing since that time.  The Veteran's feet were painful most of the time, including while in bed or sitting.  The record indicated that he his pain caused problems walking on grass.  The impression included pes planus.

An October 21, 1993 VA consultation noted that the Veteran had painful feet no matter whether he was on or off his feet.  Bilateral pes planus was noted, and an evaluation was requested.  A VA x-ray report for both feet from that date stated that there was no evidence of bone joint pathology on either side.  The October 21, 1993 consultation report stated that the Veteran had a history of medial mid-plantar pain that had been severe in the last 12 years.  The examination showed no deformity and good motion of the ankle and foot.  He had mild tenderness at the mid-foot.  No significant abnormality was present in the x-ray.  The impression was chronic mid-arch pain.  The record also indicated that the Veteran could try a perifascial injection to the left foot.

Later in an October 28, 1993 private treatment record, Dr. C. noted that the Veteran was seen at the request of Michigan rehab service in relation to his painful feet.  He reported that it was mainly his arches that were painful.  The Veteran last worked in 1980 as an electronic technician before he was incarcerated from 1980 to 1993.  He worked as a clerk in prison and as a bus driver with jobs that mostly involved sitting down.  The Veteran was currently living on food stamps with no income.  Dr. C. noted that the Veteran had attended several training sessions regarding trying to find employment, but he had been unsuccessful and expressed frustration as he did not know where to go as a result of his discomfort and how that issue was going to affect his employability.  The Veteran had a wheelchair that he used intermittently.  The Veteran had recently seen Dr. G., a podiatrist, who took x-rays of his feet.  Dr. C. had reviewed the x-rays with a colleague and they surprisingly showed no degenerative changes at all, but they did show a very flattened arch.  Dr. C.’s examination showed that the Veteran had full range of motion in all of his extremities.  An examination of the Veteran's feet showed bilateral pes planus.  He had a very mobile flatfoot with an unusual wear pattern on the soles of his feet in that the lateral arch was heavily calloused.  There was almost no callous at all over his great toe and over the second, third, and fourth metatarsal heads.  The Veteran had no tenderness over the metatarsal head per se.  He also had less callous on his heel than would be normally expected.  Dr. C. observed the same degree of wear on his shoes.  The Veteran was wearing a loose fitting, 3/4 boot and the same outward heel wear and significant wear on the lateral aspects of his medial arch.  Dr. C. opined that the Veteran's inserts were probably under-corrected.  He did not have a Thomas heel.  The Veteran's standing balance and gait were normal.  

In the summary section of the record, Dr. C. stated that the Veteran had significant pes planus.  He also had a history of subjective complaints dating back to 1961.  Dr. C. additionally noted that the 1986 objective examination from Dr. L. basically showed the same complaints.  The Veteran had also seen Dr. V. and tried both nonsteroidal treatment and orthotics with limited success.  Dr. V. additionally felt that surgical consideration should be considered.  Dr. C. opined that the Veteran definitely had pes planus, and Dr. C. stated that the disability was severe and might eventually cripple the Veteran.  Although Dr. C. noted that he was not excited about the Veteran as a surgical candidate, Dr. C. did believe that the Veteran's functional limits were real.  Dr. C. added that the Veteran certainly could not work in a position where he would have to walk or stand for 8 hours a day.  Dr. C. added that he thought the Veteran did have the abilities to be gainfully employed in a position where he would not have to walk more than one half hour before being able to rest.  The Veteran would obviously be better off in a position where he would not do any walking.  Dr. C. felt that with the better shoes and a proper orthotic device, the Veteran would be employable and eligible for training where he could be competitive in the world of work.

In November 1993, the Veteran was provided with a VA examination related to his feet.  The Veteran reported that his feet began to hurt during his active service.  He initially worked as a hearing contractor after service between 1962 and 1963.  After 1966, he worked as an electronic technician for approximately one year.  In this job, the Veteran had less problems with his feet with the record noting that he participated in shift work and was on his feet very little.  He later worked for the Department of Defense as an instructor for two years before working as an electronics technician for approximately two years.  Following this position, the Veteran worked as carpenter, mechanic, and electronics technician.  From 1980 until August 1993, he served a prison sentence.  

The Veteran stated that his foot condition was chronic, but stable, from 1966 to 1980.  However, the severity progressively worsened during his time in prison.  The Veteran reported that he had been treated with orthotics and obtained a small amount of benefit.  He had also been treated with nonsteroidal antiinflammatory drugs.  The Veteran denied having any surgery or injuries since he was released from service.  His current symptoms included constant aching of his arches that was worse when the Veteran was on his feet.  He also had increased pain when on his feet, and the Veteran reported that standing was worse than walking.  The Veteran was unable to stand on his feet with his feet flat, and he instead had to stand on his heels or the sides of his feet.  The Veteran walked very little, and he reported that the pain was increased with walking.  However, the worst pain occurred when he had been off his feet for an hour or so following walking for a few minutes.

The Veteran's foot pain limited his mobility and interfered with his ability to go out and take of his needs through activities such as shopping, mowing the grass, snow removal, social interaction, or working.  The examiner described the Veteran as obese and noted that he was in a wheelchair.  When he rose from his wheelchair, he walked with a stable, but cautious, gait.  The Veteran arrived and left the examination via the wheelchair, and the examiner remarked that he did not handle the wheelchair very well.  Once standing, both of the Veteran's feet were flat with very little arch.  He squatted initially with his heels on the floor, and he then rose on the balls of his feet in a squat.  The Veteran was able to rise to his toes and heels as well as pronate and supinate on both feet.  The examination showed pes planus bilaterally with no skin or trophic changes.  The Veteran had tenderness to deep palpation in the arches of both feet.  In terms of function, both feet were flat in standing and walking.  The diagnostic/clinical test results showed that the Veteran's complete blood count was normal, his urinalysis was normal, and his serum chemistry profiles were normal apart from slightly elevated fasting blood sugar.  The Veteran's albumin was slightly decreased, and his triglycerides were minimally increased.  X-rays of the feet taken in October 1993 revealed normal findings.  The diagnoses were pes planus bilaterally and bilateral painful arch feet secondary to the bilateral pes planus.

In January 1994, a VA treatment record noted that the Veteran had arch problems.  His arch support was not helping, and the record indicated that his arches were still very painful.  The record indicated he was there for a consultation related to painful pes planus.  He had experienced painful feet bilaterally since 1961, and he currently had painful arches at all times.  Soaking his feet in hot water helped somewhat.  Motrin and Feldene medication did not provide relief.  Pain was present on palpation in the bilateral arch area, and pain was also noted in the plantar fascia bilaterally.  There was no pain in the tarsal arch area or the ankle area.  The assessment was chronic plantar fasciitis.  A plan was made for adjustment of orthotics and use of nonsteroidal antiinflammatory medications.  In February 1994, a VA treatment record noted that the Veteran still complained of sore feet, and his orthotic did not help.  The Veteran received a lidocaine and Aristocort injection in his left foot to alleviate the pain.

During a July 1994 Decision Review Officer (DRO) hearing related the Veteran's service connection claim for a bilateral foot disorder, the Veteran reported that his feet were currently pretty bad.  When one doctor asked the Veteran to walk for 5 minutes, it caused the Veteran to double over in pain.  Approximately 2 hours later, he had to go to bed.  When the severity became really bad, the Veteran had to lie down for quite a period of time.  The Veteran reported that he was attending college, and he did the least amount possible to get there.  He used a disability sticker to park close to buildings.  Although he did not use his wheelchair very often, his feet did hurt quite a bit sometimes.  

During the last month or so, the pain had been similar to, or worse than, a toothache.  Although it was hard, the Veteran was able to accomplish all his daily chores.  He also reported having no problem with driving.  The Veteran reported that the easiest way for him to shop was to go in and come right back out, only buying a few items.  The Veteran estimated that he was able to stand for approximately 15 minutes on hard surfaces.  On soft surfaces such as grass, the Veteran was able to perform tasks such as mowing the lawn for half an hour.  However, he indicated that he walked a lot on his heels during this task.  The Veteran reported that his current arch supports were not helping, and his disability was continually worsening.  He also reported that an orthopedic doctor who gave the Veteran a cortisone shot had told him that he would be in a wheelchair for the rest of his life.  The Veteran stated that the cortisone shot did not help, and medications such as Feldene and Motrin had also not helped him.  He obtained the most relief from just lying down, going to bed, and staying off his feet.  Elevating his feet had not been very helpful.  The Veteran also reported that his feet usually ache when he first rose in the morning and indicated that he experienced a milder aching at night.  He tried to lie down at least 10 to 12 hours during the day to ease his pain.  The Veteran used his wheelchair when he was not walking.

In September 1994, a VA consultation sheet noted that the Veteran had chronic plantar fasciitis bilaterally.  The provider requested instructions regarding plantar fascial stretching and for phonophoresis to be administered in both plantar fascia three times a week for two weeks.  The provisional diagnosis was chronic plantar fasciitis.

In December 1994, Dr. G., DPM, noted that Veteran was being seen for a check of his arches.  Since the last time Dr. G. had seen him, the Veteran felt he was about the same.  He reported that he had orthotics that helped very little.  The Veteran had recently received extensive physical therapy at VA, but Dr. G. stated that it did not sound like any mobilization of the joints was done.  It appeared that the physical therapy had been limited to ultrasound and some stretching.  Dr. G.'s inspection of the feet showed that there still appeared to be a problem about the cuboid area.  However, there was no reaction when pressing laterally on the fifth metatarsal area as was sometimes typical of cuboid syndrome.  Dr. G. believed the Veteran could still receive great benefit from manipulation and mobilization of the feet.  Dr. G. indicated that he would try to help the Veteran with an orthopedic referral.  Dr. G. added that before the Veteran had a triple arthrodesis or some similar type of surgery with fusions, Dr. G. would try to let another doctor, Dr. P., help him out.

In July 1995, a letter from Dr. K. to the Veteran stated that a bone scan the Veteran had performed showed a fairly symmetric uptake of the technetium isotope in both feet.  Dr. K. was unable to identify any structural or mechanism explanation for all of the Veteran's unusual symptoms.  Dr. K. added that it might be reasonable to the Veteran to undergo additional testing, such as rheumatologic screening tests including a complete blood count, anti-nuclear antibody, rheumatoid factor, and sedimentation rate; and Dr. K. indicated that the Veteran should see a rheumatologist.  Dr. K. also stated that it might be reasonable for the Veteran to see a physical medicine and rehabilitation specialist who could design a foot and ankle rehabilitation program for him.  Dr. K. further stated that might be reasonable for the Veteran to obtain inserts for his shoes.  Dr. K. did not recommend rigid orthotics and instead suggested for the Veteran to start with a prefabricated Spenco insole that could be obtained at a drugstore.  Dr. K. also did not believe that the Veteran needed surgery at that time.

In a February 1997 record, Dr. G. noted that the Veteran was apparently now receiving SSA disability and seeking VA disability.  The Veteran's service treatment record indicated that he had problems with his feet, and Dr. G. thought that it was probable that the Veteran's flat foot pain came with increased time on his feet in service.  Dr. G. indicated that he informed the Veteran he would provide a nexus opinion.  Dr. G. added that apparently, the Veteran was not on his feet much.  With everything else that had been tried. Dr. G. was not sure what else to do for him as was apparently anyone else.  In June 1998, Dr. G. noted that the Dr. V. had called about the Veteran's case to discuss just how flat his feet were.  Dr. G. told Dr. V. that he did not think that the flat feet were pathologic.  They were somewhat on the flat side and may have contributed to cuboid syndrome from before, but Dr. G. could not say much else.

Another VA examination related to the feet was conducted in September 1998.  A VA examination noted that the Veteran began to have pain in the arches of both feet during service, and he was told he had pes planus.  The Veteran received arch supports at that time and they improved his foot pain.  He had continued to wear the arch supports since service, and he currently used them almost constantly.  The Veteran's foot pain had been progressing.  He experienced flare ups of moderately severe pain that were preceded by walking too much.  Walking long distances or standing for a long period increased pain in the arches.  The Veteran obtained some relief from warm water soaks.  There continued to be no history of surgeries or injuries.  He had also experienced edema of his left leg that began approximately six weeks ago.  Although the examiner stated that the Veteran had been given any medication to treat the pain, he did use Naprosyn twice a day in addition to ice packs on the arch of his right foot twice a day.  He was also treating his right foot with electrical stimulation.  

The physical examination revealed that the right foot had 13 degrees of dorsiflexion and 20 degrees of plantar flexion, while the left foot had 10 degrees of dorsiflexion and 15 degrees of plantar flexion.  The joints of the feet were not painful.  However, range of motion or function was painful when he stood on his feet for a long period or walked long distances.  Dorsiflexion and plantar flexion of the feet showed no evidence of painful motion, edema, or instability.  The Veteran’s gait and functional limitations on standing and walking were painful.  There was no evidence of calluses, breakdown, or unusual shoe patterns.  There were also no skin or vascular changes.  The examiner noted that the Veteran did complain of pain when squatting and rising on his toes and heels.  

The Veteran did not have hammertoes, and there was no valgus on either foot.  The forefoot and mid-foot were not maligned, and there was no hallux valgus.  The examiner stated that one was barely able to position the ends of the examining fingers in the arches of either foot.  Non-weight bearing alignment of the Achilles tendon was straight and down to the Achilles posteriorly.  The Achilles tendon was straight, and there was "little or no the patient is on manipulation."  In addition, x-rays obtained in September 1998 showed no evidence of fracture, dislocation, or soft tissue abnormalities.  The impression from the radiologist was that it was an unremarkable study.  The final diagnosis was pes planus of both feet of moderate severity that was somewhat relieved with the use of arch supports.

During a subsequent March 1999 VA examination that addressed the Veteran's feet, the examiner noted that the Veteran did not report any chronic medical problems such as hypertension; cardiac disease; or lung, liver, or kidney disease.  He had no symptoms other than pain in his feet.  Similar to the September 1998 VA examination, the examiner noted that the Veteran's bilateral foot pain had slowly worsened over time since service despite the use of arch supports.  The pain was especially present in the arches.  The Veteran had not been on any medications.  He continued to experience moderately severe flare ups of pain, especially of the joints of the feet, that were provoked by excessive walking and climbing of stairs.  The Veteran reported that walking long distances or standing for long periods caused increased pain in is arches.  Warm water soaks somewhat alleviated the Veteran's discomfort.  The Veteran also reported having occasional problems with edema of his left leg than began in the summer to fall period of 1998.  The Veteran still treated his symptoms with twice daily usage of Naprosyn and ice packs on the arch of his right foot as well as electrical stimulation.

An examination of the Veteran's extremities did not show any clubbing, edema, or cyanosis.  There was a full range of movement of all extremities.  The right foot showed 13 degrees of dorsal flexion and 20 degrees of plantar flexion.  The left foot showed 10 degrees of dorsiflexion and 15 degrees of plantar flexion.  The joints of the feet were not painful to palpation.  There was no instability or edema during dorsiflexion or plantiflexion of either foot.  The examiner indicated that the Veteran's gait in terms of functional limitations on standing or walking revealed painful ambulation.  However, there was no evidence of callus, breakdown, or unusual shoe patterns.  There was no limp noted, and no favoring or either extremity.  The examiner also found no evidence of hammertoes.  The alignment of the Achilles tendon was additionally normal in both feet.  There was no valgus deformity of either foot, the forefoot and midfoot were not maligned, and there was no hallux valgus.

The assessment was pes planus of both feet to a moderate degree that was somewhat relieved with the use of arch supports.  The assessment also stated that there were no other chronic medical illnesses.  The examiner, a medical doctor, added that there was no board-certified podiatrist at that VA facility.  If a podiatric examination by a board-certified podiatrist was required, this examination would need to be performed by a podiatrist at another facility.  However, the examiner added that his examination did not differ in any way from the previous examination conducted by a doctor in September 1998.

In August 1999, an additional VA examination was conducted by the same VA examiner who conducted the March 1999 VA examination.  The examiner noted that the same VA examination had been conducted three months ago.  The examiner stated that the Veteran had been experiencing increasing pain in his arches when working or standing on hard surfaces.  Many times, the Veteran would walk on the sides of his feet just to reduce his pain.  In the past, the Veteran had used numerous types of special shoes, including arch supports and orthotics.  The examiner indicated that the Veteran was currently receiving Social Security Administration (SSA) disability benefits for his pes planus.  The Veteran's income for the past 12 months had been 6,300.00 dollars, and he was not working.  An examination of the extremities did not show painful, swollen, or hot joints.  No peripheral pallor, cyanosis, or clubbing was present.  There was also no muscle atrophy or hypertrophy.  The Veteran's strength was symmetrical at varus/valgus, and his pulses were intact.  He had minimal tenderness over the arches of his feet bilaterally.  The examiner stated that when walking, the Veteran definitely tended to walk on the outside edges of his feet due to discomfort.  An x-ray examination of both feet, including weight-bearing views, was totally normal without bone or joint pathology.  The impression was pes planus.

In a September 1999 statement, the Veteran reported that he took a job in 1979 that required much less standing until he went to prison in 1980.  While in prison in 1990, he was unable to perform prison work as it was too painful to walk to work and do the standing required.

In July 2001, Dr. G. noted that the Veteran presented with a chief complaint of painful arches.  This issue had been ongoing since Dr. G. had known the Veteran in the early 1990's.  The Veteran had multiple arch supports, and the situation had become frustrating as no one had been able to offer him anything.  The Veteran reported that he just could not stand for any real length of time.  He could walk, and he actually walked rather well for short distances.  Dr. G. noted that he originally thought in 1994 the Veteran could have subluxed cuboid that would need treatment.  Dr. G. stated that whether he was right or not could not be proved by x-rays.  The biomechanical examination showed a pes planus foot type, but Dr. G. stated he would not consider it extreme.  The range of motion in the major joints seemed to be good.  Palpation of the posterior tibial tendon insertion bilaterally elicited a reaction from the Veteran.  Otherwise, the collapse of the arch was observable with standing.  However, the collapse was not total and the strength seemed to be good.  Tests that were done for tarsal tunnel as well as a regular neurologic examination seemed to be negative.  The impression was posterior tibial tendonitis bilaterally.  In the recommendations section of the record, Dr. G. noted that it was hard to prove and there was really no definitive test even with an MRI.  Dr. G. opined that the Veteran could be working at a job with a desk without any problem.  He was also in good enough shape to either drive a little or ride a bus to get to work.  However, Dr. G. stated that standing for long periods would be difficult based on the Veteran's report. 

The record shows that in July 2001, the Veteran completed a total and permanent disability cancellation request in which he requested for the cancellation of his federal education loan as he was unable to work or earn money to go to school due to illness or injury that was expected to continue indefinitely or result in death.  The physician's certification on the form signed by Dr. G. in July 2001 noted that the Veteran had pes planus foot with posterior tibial dysfunction bilaterally.  Dr. G. certified that in his best professional judgement, the Veteran was unable to work and earn enough money to go to school as a result of an injury or illness that was expected to continue indefinitely or result in death.  Dr. G. certified that he understood that any borrower able currently or in the future t work and earn money or go to school, even on a limited basis, was not considered to have a total and permanent disability.  In August 2001, the same form was completed by the Veteran and signed by Dr. E., MD.  Dr. E. noted a diagnosis of pes planus foot and posterior tibial dysfunction bilaterally with paresthesia.

In August 2001, a physician statement from C.E. completed a form from C.B.A. Inc. that provided that its definition of totally and permanently disabled required that the patient/borrower must be unable to engage in any substantially gainful activity as a result of a medically determinable impairment that was expected to continue for a long and indefinite period of time, or to result in death.  The form requested for the physician to provide a clear and complete diagnosis, in laymen's terms, of the patient/borrower's condition.  The form also requested further clarification as to how the diagnosis would impact the patient/borrower's ability to work.  In response to questions on the form, C.E. marked that the percentage of the disability was considered to be 100 percent, and the disability was not temporary.  Regarding a question requesting for C.E. to specify the nature, duration and severity of the condition, C.E. stated that the Veteran had pain in the arches/soles of his feet with ambulation that had been present since the 1960's.  It was a very severe, sharp, and burning pain.  C.E. also opined that the Veteran would never have the ability to engage in any form of employment.

In November 2001, the Veteran was seen for a check of his feet by Dr. G.   Dr. G. stated that although the Veteran did have a pes planus foot type, it was really not one of the worst ones.  Dr. G. believed that it was subluxed cuboid, a disorder which Dr. G. again indicated was hard to prove clinically.  The Veteran was very tender over the cuboid area.

In January 2002, a Vocational Assessment was completed by W.C., a Certified Vocational Evaluation Specialist (CVE).  W.C. noted that he had reviewed an October 2001 letter from Dr. G. as well as the Veterans application for SSA disability benefits that included a description of his vocational history.  W.C. noted that the Veteran had severe flat feet and experienced physical limitations as a result of this disability.  Regarding educational history, the Veteran had graduated from high school.  In terms of the Veteran's work history, W.C. summarized that from 1963 to 1980, the Veteran worked as an electronics technician/maintenance worker, food service worker, and security guard.  As an electronics technician/maintenance worker, the Veteran was responsible for repairing and servicing electrical equipment.  This semi-skilled job was performed at the medium level of physical demand, and it required the Veteran to be on his feet for the majority of the workday.  In addition, the tool usage and equipment operation skills that the Veteran acquired through the performance of this job did not transfer to positions performed at lighter levels of physical demand.  As a food service worker, the Veteran was responsible for performing general kitchen clean-up tasks. This unskilled job was performed at the medium level of physical demand and required him to be on his feet for the majority of the workday.  As a construction laborer, the Veteran was responsible for performing basic construction duties.  This semiskilled job was performed at the medium level of physical demand and required him to be on his feet for the majority of the workday.  W.C. added that the tool usage and equipment operation skills that the Veteran acquired through the performance of this job did not transfer to positions performed at lighter levels of physical demand.  As a security guard, the Veteran was responsible for patrolling a specific area.  This unskilled job was performed at the light level of physical demand.

W.C. noted that in Dr. G.'s October 2001 letter, he stated that the Veteran had extreme tenderness on his plantar surface and pain on manipulation as well as with use.  Dr. G. reported that the Veteran could stand or walk for no more than 3 minutes at one time on a hard surface, and for no more than 30 minutes in an entire 8 hour workday as a result of his service-connected disability.  The Veteran could stand or walk without pain for no more than 30 minutes at one time on a soft surface, and for no more than 1 hour in an entire 8-hour workday.  W.C. added that in experiencing pain and other symptoms, the Veteran could stand or walk for no more than 30 minutes in an entire 8-hour workday.  He could stand or walk without pain for no more than 1 hour at a time on a soft surface, and for no more than 2 hours in an entire 8-hour workday as a result of his service-connected disability.  

W.C. indicated that the Veteran's limitations in standing and walking described by Dr. G. would only allow for consideration of sedentary work.  The Veteran had the experience in jobs performed at the medium and light levels of physical demand, and he had acquired skills that can only be used in medium or heavy level positions.  The Veteran had no experience or skills that transferred to work performed at the sedentary level of physical demand.  Therefore, only unskilled and perhaps semiskilled sedentary work could be considered as appropriate for the Veteran based on Dr. G.'s described limitations.  Dr. G. restricted the Veteran to standing for no more than 15 minutes at one time, and for no more than 30 minutes in an 8-hour workday on hard surfaces, with pain.  However, unskilled and semiskilled sedentary work was only performed in environments with hard surface footing.  These reported limitations precluded work at this level as even sedentary work required up to 2 hours of standing and walking in an 8-hour workday.  There were no sedentary positions existing at these skill levels that required only 30 minutes of standing or walking in an 8-hour workday.  This limitation could only be accommodated in skilled sedentary work, and the Veteran did not possess skills of this kind.  Therefore, W.C. opined that the Veteran was permanently and totally occupationally disabled.  There were no jobs in the local or national economies that he was able to perform.  This conclusion was reached considering his education, manual trade work history, and the relevant physical limitations reported by Dr. G.  W.C. further indicated that any vocational experts who identified unskilled and semiskilled sedentary jobs as appropriate for the Veteran in light of the limitations described by Dr. G. were not correctly analyzing the comprehensive impact of the restrictions provided by the foot specialist medical professional.

In February 2005, the Veteran attended a VA examination related to his feet.  The Veteran reported that he had painful arches all the time and had been diagnosed with foot strain.  He worked in electronics while in service, and he described having odd job when he left service.  Although the Veteran went to school to be a medical transcriptionist, he reported that he could not tolerate the filing duties associated with the job as it necessitated standing for 1 to 2 hours.  The Veteran also had shoe inserts, but they provided minimal help.  Cortisone injections had similarly provided no relief.  He had pain in his feet when standing or walking more than 5 minutes.  He reported that on a good day, he might be able to walk about 1/8 to 1/4 mile in the morning before the pain worsened as the day progressed.  Nevertheless, he described needing to walk on the outer sides of his feet.  The Veteran reported that he could drive without a problem, and he denied significant difficulties with sitting.

On examination of the feet, the left foot had dorsiflexion of 20 degrees and plantar flexion of 40 degrees.  The right foot had dorsiflexion of 15 degrees and plantar flexion of 35 degrees.  The soles of the Veteran's feet appeared to be flat, and there was minimal room for a pencil to be inserted under the arch of the foot when standing.  The Veteran additionally had particular tenderness in the mid-foot with palpation of the plantar regions of the foot.  The Veteran complained of pain at a 6 out of 10 that was similar to a toothache.  His shoes showed mild outer shoe-wear that was not significant.  X-rays showed mild degenerative disease of the first metatarsophalangeal joints with minimal narrowing of the joint spaces on both sides.  A very mild varus deformity of the first metatarsal and valgus of the first toe was present on the left, and there was minimal soft tissue prominence medial to the first metatarsal heads on both sides consistent with small bunions.  No fracture, dislocation, additional arthritis, pes planus, or other abnormality was seen.  The impression was minimal degenerative disease of the first metatarsophalangeal joints bilaterally, very mild metatarsus primus varus and hallux valgus on the left, small bilateral bunions, and otherwise normal feet.  The diagnosis from the examination was left and right foot metatarsalgia without radiologic evidence of pes planus.

In February 2006, the same VA examiner who conducted the February 2005 VA examination conducted another VA examination concerning the Veteran's feet.  The examiner indicated that the claims file had previously been unavailable, and the Veteran had been rescheduled so he could be seen after the examiner was able to review the claims file.  The Veteran reported that there had been no change in the Veteran's feet since his February 2005 VA examination.  The examiner restated the x-ray findings and diagnoses that were noted in the February 2005 VA examination.  The Veteran continued to complain of pain in the mid-arch on a daily basis that he reported was unchanged.  He rated the pain as a 6 to 7 out of 10, and standing for more than 5 minutes remained the precipitating factor.  Sitting was an alleviating factor.  Although the Veteran had shoe inserts, they were old and appeared to have signs of deterioration.  He also continued to have tenderness with pressing of the plantar metatarsals.  No lumpiness or ropiness was found in the fascia.  The Veteran had additionally had normal shoe wear.  The examiner noted the same diagnoses from the February 2005 VA examination and stated that there was no radiologic evidence of bilateral pes planus.  The examiner also opined that it was not as likely as not that the Veteran had total disability or individual unemployability due to his service-connected disability.

In March 2007, the VA examiner provided an addendum opinion.  The examiner noted that he was unable to reconcile the current diagnoses with the diagnosis of pes planus found in the September 1998 and March 1998 VA examinations without resorting to conjecture.  In responding to a question concerning whether there was evidence of a severe manifestation of bilateral pes planus, the examiner noted that no severe evidence of pes planus was found in the February 2005 VA examination.  The examiner also highlighted a February 2003 treatment record reporting that the Veteran's extremities moved through a normal range of motion, and there was no ankle edema or varicosities.  Holman signs were negative, the peripheral pulses were 2+ bilaterally, and the foot arches were within normal limits.  The assessment was flat feet by history only.  The examiner also addressed a question regarding whether there was evidence of pronounced bilateral pes planus, indicating there was no such evidence based on the February 2005 VA examination.  The examiner added that he was unable to answer a question related to whether the posterior tibial dysfunction with paresthesia or subluxed cuboid joint were related to the service-connected flat feet without resorting to mere speculation.  

The examiner also repeated the opinion from the February 2006 VA examination that it was not as likely as not that the Veteran had total disability or individual unemployability due to his service-connected disability.  The examiner pointed to the Veterans ability to walk as required for activities of daily living.  He was also able to drive without apparent problem.  The examiner further indicated that he was unable to address the medical conclusions of W.C. and Dr. G. without resorting to mere speculation.

In May 2007, Dr. G.  noted that the Veteran was seen for a check of his feet, and there was no real change other than his feet could be considered worse.  The amount of standing he could do was limited.  Tests for tarsal tunnel, the one thing that could cause painful feet that would be nerve-related, seemed to be negative.   There was a high degree of eversion.  In the chair, a relatively normal arch height was seen.  However, the Veteran's feet were flat when standing.  He did have tenderness over the posterior tibial tendon insertion area medially, but nothing proximally that Dr. G. could detect.  He still seemed to be a little tender over the calcaneal cuboid joint, that the problem appears to be basically the same as Dr. G. had found it in the past.

In an associated May 2007 letter to the Veteran's representative, Dr. G. noted that it was his impression that the Veteran would be considered to have flat feet.  However, Dr. G. did not consider them to be pathologic in terms of their overall alignment.  The problem that Dr. E. must have alluded to in 2001 of posterior tibial dysfunction was often considered a secondary problem from ambulating with flatfeet.  The problem that Dr. G. had been mentioning over the years of the chronically subluxed calcaneal cuboid joint also tended to go with flat feet.  Neither of these problems could be seen on x-ray, and the diagnosis was made clinically based on the area where the pain was located.  The limitations that were placed on the Veteran's feet in the past were due to these conditions.  It was consequently unrealistic to say that he could not do certain things as a result of his structure as people with feet of similar structure were able to ambulate without problems.  It was likely that the Veteran's disorders started or were aggravated in service.  Dr. G. added that to analyze flatfeet on x-ray, most podiatrists would say that x-rays should be taken standing.  The x-rays taken in conjunction with the record showed some the classic signs of flat feet, such as calcaneal inclination angle, no navicular cuneiform sag, and a talus that was not totally congruous to the navicular.

In an August 2007 statement, the Veteran reported that he had to limit what he did on a daily basis.  When the Veteran grocery shopped, he used an electric cart provided by the store when one was available.  If the Veteran had to use a regular cart, he walked on his heels and limited his shopping to 15 minutes.  The Veteran indicated that he also limited all of his activities to 15-minute increments, including standing or walking, cleaning, cooking, and bathing.  Even during this limited period, the Veteran's feet hurt.

An additional VA examination related to the Veteran's feet was conducted in January 2008.  The examiner summarized that the February 2006 VA examination diagnosed the Veteran with left and right foot metatarsalgia.  At that time, the Veteran rated his pain at 6 to 7 out of 10.  He now reported that his pain at its worst was a 10 out of 10, and the severity was activity dependent.  The pain could increase to at least an 8 out of 10 every day, and it was worse if he spent more time on his feet.  The Veteran tended to spend only approximately 5 minutes on feet, but there was pain regardless of what activity he did.  In this regard, the Veteran reported that he limited the time he spent shopping to 15 minutes as this was shortest amount of time the Veteran could accomplish the task.  However, the Veteran still felt pain during this limited period.  He also tried to use a wheelchair whenever he could as a result of his disability and claimed that he had been unable to work due to his disability.  

The Veteran also informed the examiner that he went through approximately one pair of shoes every 6 months, and he tended to have a wear pattern where he beveled off the back of the heels.  Although the Veteran indicated that he wanted to continue to use his shoe inserts, he also reported that they did not help much.  The examiner noted the x-ray findings from the February 2005 VA examination as well as the May 2007 letter from Dr. G. reporting that the Veteran did have x-ray evidence of misalignment in that the talus was medial to the navicular, and that type of alignment indicated that that there were flat feet.  The examiner also noted that the Veteran had diagnosed bilateral metatarsalgia in August 1961 and was given low combination supports.  The Veteran reported that depending on the amount of use, there was weakness that developed secondary to pain and stiffness.  He did not particularly note swelling, heat, redness, lock of endurance, or fatigability.  The Veteran had been suffering from these problems for years, and standing on concrete or hard surfaces worsened its severity.  The Veteran reported that he had not worked since 1980 as a result of the disability.  The Veteran was vague regarding whether he experienced flare ups as he reported that the condition bothered him so frequently every day that it was not worth it for him to think of the issue in terms of flare ups.  The examiner noted that he was functionally limited from being on his feet for longer than 5 minutes, and activities such as standing and walking worsened the disability.  The Veteran reported that he was no longer able to obtain much relief from hot soaks of his feet, and he was not on specific medications for pain.

The physical examination of the Veteran's feet revealed that he had essentially normal appearing arches.  However, upon standing, the examiner was unable to successfully insert a pencil beneath the arches.  There were also heavy callosities in the bilateral toes, metatarsal areas, heel area, and lateral edge of the feet.  The Veteran had food Achilles alignment bilaterally.  There was no significant motion identified between the forefoot and midfoot on palpation, and there were no clicking sounds.  There was some pain bilaterally on palpation over the calcaneal cuboid joints.  No hammertoe deformities were noted, but the Veteran did have small bilateral bunions on inspection.  The feet were not erythematous.  He did have decreased sensation in the area of the callosities, but he still demonstrated the ability to sense both the toes, the arches, and the heel scenarios.  He was also able to feel the dorsum of the foot with monofilament testing.  The Veteran had left ankle dorsiflexion at 10 degrees and plantar flexion to 15 degrees.  The right foot had 12 degrees of dorsiflexion, and the examiner indicated that 18 degrees of plantar flexion.  An inspection of his shoes revealed beveling of the heels that was even.  The Veteran had a non-antalgic gait during the examination, but the examiner also stated that the Veteran was in a wheelchair and demonstrated a sensitive-guarding type of gait.

The diagnoses included left and right foot metatarsalgia.  The examiner also noted under the diagnosis section the references made by Dr. G. in May 2007 indicating that the type of alignment shown on x-ray suggested flat feet deformities.  Other diagnoses included small bilateral bunions and very mild metatarsus primus varus and hallux valgus on the left as well as mild degenerative disease in the first metatarsophalangeal joints of both feet bilaterally.  The examiner remarked that during the brief ambulation from the examination, the Veteran's gait was on the slow side, and he was rather timid or guarding of the feet with the gait as if they were uncomfortable.  He did have a flat-footed appearing type of walk.

The January 2008 VA examiner opined that it was at least as likely as not that the Veteran was unable to engage in any gainful employment on account of functional loss occasioned by service-connected foot symptomatology.  The examiner noted that while the x-rays from Dr. G. did not specifically show pes planus, and the February 2005 x-rays did not specifically note pes planus or flat footedness, the fact remained that flat footedness must also be a clinical diagnosis that might not necessarily be commented on or recognized by radiologists if it was of low or intermediate grade.  The interpretation of this finding could also be subjective and not noted unless it was specifically requested.  Regardless, on clinical examination, one was not even able to insert a pencil beneath either foot on standing, and the Veteran was clearly a flat-footed individual.  The examiner noted that the Veteran had worn arch supports for years, and the condition was clearly diagnosed while he was in service, and there was no evidence to substantiate him having the condition prior to service.  

Although the x-rays referenced by Dr. G. in May 2007 were not included in the record, the examiner noted that it was assumed that Dr. G. was qualified to review the x-rays as he was a podiatrist.  The Veteran's functional disability based on his pes planus was evidenced by his only brief ability to stand and ambulate for a very limited amount of time before the condition became exacerbated and he was obliged to stop.  The examiner also found it significant that the Veteran preferred to use his wheelchair for any type of distance, and he took his wheelchair with him if he anticipated any activity that would take him beyond the distance that he could handle or to which he was normally accustomed based on his pes planus condition.  The examiner, a medical doctor, noted that he had been asked to examine the Veteran as there was no podiatrist at the VA facility who participated in compensation and pension examinations.

The record reflects that in August 2009, Dr. R., MD, reviewed the January 2008 VA examination for the Veteran's representative and found that the examiner did not fully address several questions from the Board's November 2007 remand.  The examiner indicated that the answers to some questions had been commented on or implied, such as the presence of deformities, accentuated pain with manipulation, and calluses.  The concept of pronation was implied with the statement that the Veteran's arch was collapsed with weightbearing bilaterally.  Although there was no statement of tenderness in his feet, Dr. R. stated that it would br amazing not to have such tenderness associated with the remarkable instability described by the examiner.  In addition, no spasm was referenced as present or absent.  Regarding a question as to whether there was functional loss in terms of limitation of motion, a review of the report indicated limited range of motion with even shoe wear, but also beveling of the heels evenly with a guarded gait.  Dr. R. noted that the normal ranges of motion were not discussed or even presented, and expression of the same in terms of alterations in daily activities was not clear.

In October 2009, the AOJ obtained another VA examination from a podiatrist.  The examiner noted the Veteran's report that he still had the same pain in both of his feet.  Although the pain was a 10 out of 10 on same days, it was mostly a 7 to 8 out of 10.  There had been no change since the January 2008 VA examination.  The Veteran's response to his current treatments was poor.  Rest, elevation, and the application of heat were only partially effective in relieving symptoms.  He also used custom-made orthotics.  The Veteran did not take medications.  There continued to be no history of foot-related hospitalizations or surgery.  The Veteran did not experience flare ups of foot joint disease.  The Veteran was functionally limited from standing for more than few minutes or walking for more than a few years.  His assistive devices included corrective shoes, orthotic insert, and wheelchair.  He used his wheelchair to move around.  The efficacy of the orthotic inserts was described as poor.  The examiner noted that the Veteran arrived at the examination in a wheelchair and walked with a normal gait.  The examiner indicated that in addition to the Veteran's pes planus, he had a right hallux valgus toenail medial border that was ingrown with some drainage.

The examiner addressed specific questions regarding the severity of the Veteran's bilateral foot disability.  Regarding whether there was evidence of marked deformity pronation abduction that was not improved by orthopedic shoes or appliances, the examiner noted that the Veteran had a pronated-type foot bilaterally with calcaneal valgus.  He could not wear orthotics that caused pain, and he was wearing a metal feather spring arch support that seemed to help.  The Veteran was positive for pronation and calcaneal valgus bilaterally.  Regarding whether there was evidence of accentuated pain on manipulation and use of the feet that was not improved with orthopedic shoes or appliances, the examiner stated that the Veteran had pain on palpation of the plantar fascia bilaterally with impingement pain on the lateral sinus tarsi bilaterally at the lateral ankle.  Arch supports helped out approximately one percent according to the Veteran, and the examiner stated that he did have pain.  

Regarding whether there was evidence of swelling or manipulation that was not improved by wearing arch supports or shoes, the examiner noted that the most apparent swelling was at the lateral aspect of the ankles bilaterally.  Regarding whether there was evidence of callosities that were not improved by orthopedic shoes or appliances, the examiner state that the Veteran had no callous formation or hyperkeratoses.  The Veteran indicated that he was in a wheelchair approximately 70 percent of the time.  Regarding whether there was evidence of marked pronation that was not improved by orthopedic shoes or appliances, the examiner noted that the Veteran did have marked pronation bilaterally that was not improved by orthotics.  The examiner indicated that he arrived at this conclusion after putting the Veteran's spring arch supports on the floor and having the Veteran stand on them.  The examiner noted that there was no improvement without the arch supports.  Regarding whether there was evidence of extreme tenderness of the plantar fascia plantar surfaces of the feet, the examiner noted that there was evidence of extreme tenderness on palpation of the plantar fascia bilaterally; and he indicated that it was not improved by orthopedic shoes or appliances.  Regarding whether there was evidence of marked inward displacement and severe spasm of the tendon Achilles on manipulation that was not improved by orthopedic shoes or appliances, the examiner stated that there was evidence of some inward displacement of the Achilles tendon that was more severe on the left than the right.  However, the severity of the left side was noted be moderate.  The right-side severity was mild, and the examiner indicated that it did not seem to improve with shoes or arch supports.

The examiner also reported that there was really no objective evidence of pain on motion associated with the Veteran's pes planus.  He did have pain on palpation of the plantar fascia, but the examiner indicated that range of motion of the foot that did not elicit pain.  He did have pain with walking.  In addition, there was no weakness in muscle strength in his foot or ankle.  The Veteran had good range of motion.  Regarding whether there was objective evidence of fatigability, the Veteran reported that his feet became fatigued if he walked any distance.  The examiner indicated that apart from pain on palpation was pain on palpation in the plantar fascia in the lateral ankle, there was no other objective evidence of this fatigability.  Regarding whether there was objective evidence of incoordination associated with the Veteran's service-connected disability, the examiner stated that there was no such objective evidence.  Although he did appear to have pain and discomfort, he did not have a coordination problem.  

Regarding whether there was functional loss due to pain and/or other symptoms, the examiner that the Veteran did have pain and discomfort in the feet and ankle that made it difficult for him to ambulate.  As far as functional loss, he was not able to walk due to the pain in his feet.  There was no measurable functional loss as far as range of motion that the examiner could observe at that time.  Regarding whether there was functional loss during flare ups, the examiner stated that the Veteran did not really experience flare ups.  However, the examiner also stated every time the Veteran walked, his feet were painful.  Repeated use and increased ambulation increased his pain.  The examiner stated that it was very difficult to express the functional loss in terms of additional degrees of limitation of motion.  The Veteran reported that he had pain and discomfort with any walking, and he was unable to ambulate as a result.  The examiner opined that it was at least as likely as not that the Veteran was unable to engage in any gainful employment as a result of his painful feet.  Although the examiner highlighted the Veteran's age, the examiner noted that the Veteran was unable to work due to his foot pain.  The examiner noted that the Veteran had pain in the right hallux medial border with some drainage and pain, and he had an ingrown toenail.  The assessment was onychocryptosis of the right medial border; and an abcess/perionychia of the right hallux medial border.  

In June 2012, Dr. M, MD, provided an independent medical review related to the Veteran's claims.  Dr. M. noted that he was board certified by the American Academy of Orthopedic Surgeons in 1977.  Dr. M. noted that the Veteran was seeking an increased in respect to both of his feet for the time period from 1993 to 1999.  The purpose of the independent medical review was to determine the symptoms pertaining to the Veteran's feet during this period, and Dr. M. indicated that he had conducted a detailed review of the Veteran's claims fie.  The Board notes that the Dr. M. summarized the contents of several of the treatment records discussed above, beginning with the September 1991 record from Dr. V.  Dr. M. noted that the documented facts showed objective evidence bilateral flat feet, including Dr. V.'s September 1991 podiatric note and Dr. G.'s May 2007 DPM evaluation that noted the x-ray finding that the calcaneus was almost parallel to the supporting surface.

The Veteran also had severe symptoms from 1993 to 1999 that were well-documented on numerous records.  Dr. M. highlighted the October 21, 1993 record's documentation of severe pain and report that the Veteran had to walk on the lateral side of his feet.  In addition, Dr. C.'s October 28, 1993 record documented that the Veteran had significant pes planus and had to use a wheelchair intermittently, noted that there was an unusual wear pattern on the soles of his feet in that the lateral border of the arches of the Veteran's feet were heavily calloused, and reported that his functional limitations were real.  Dr. M. also pointed to the fact that surgical intervention was considered by Dr. L., an orthopedic surgeon, and the November 1993 VA examination documented that the Veteran walked very little, had worse pain after walking for a few minutes, and his foot pain limited his ability to perform chores of everyday living.  Dr. G.'s December 1994 DPM examination also recommended possible triple arthrodesis surgery.

Dr. M. further found that the Veteran's bilateral foot symptoms that were noted from 1993 to 1999 were similar to evaluations performed after January 1, 2008.  To support this conclusion, Dr. M. noted that the January 2008 VA examination documented that the Veteran could only spend 5 minutes on his feet before he experienced bilateral foot pain, and he limited his shopping to 15 minutes.  Dr. M. also stated that the range of motion of the feet documented in that examination was almost identical to the findings noted in the September 1994 VA examination, apparently referencing the findings from the September 1998 VA examination that were noted by Dr. M. elsewhere in the independent medical evaluation.  Dr. M. also highlighted the February 1994 record showing that the Veteran's pain was so severe that his foot was injected with lidocaine and Aristocort.  In addition, Dr. C.'s October 28, 1993 record described the Veteran's functional limitation as being real and reported that surgery had been mentioned as an alternative treatment in the face of failed nonoperative treatment.  The final diagnoses were severe bilateral pes planus and moderate, severe bilateral loss of ankle motion.

In the analysis section of the report, Dr. M. noted that from 1993 to 1999, the Veteran had very well documented symptoms compatible with severe bilateral pes planus.  During these years, the Veteran's symptoms were very similar to what had been documented after January 1, 1998.  In this regard, the Board notes in light of Dr. M.’s previous statements, it appears that Dr. M. was referencing the January 2008 VA examination.  Dr. C., who was a rehabilitation specialist and not a surgeon, evaluated the Veteran in October 1993 and documented an unusual pattern of heavy calluses on the lateral aspect of both feet with a similar wear pattern on his shoes.  Despite these objective findings, Dr. C. was not sure if the Veteran would qualify as having a severe problem as of the date of the October 1993 evaluation.  Dr. M. found it interesting that Dr. C. recommended that the Veteran would be better off living the rest of his life by limiting his walking rather than having surgery.  Dr. C. also stated that he thought the Veteran's functional limitations were real.  The possibility of surgical intervention as a reasonable treatment alternative was mentioned in two different examinations, including the December 1994 examination from Dr. G., and suggested by surgeons who were trained in the treatment of foot and ankle pathology.  The triple arthrodesis was a major surgical undertaking, and it was not recommended lightly.  Even Dr. C. documented that in order to get around, the Veteran had to use a wheelchair on an intermittent basis.  In February 1997, Dr. G. documented that he was of the opinion that the Veteran's flatfoot pain became worse while in service and noted that the Veteran was not on his feet that much.  It was also documented from 1993 to 1997 that the Veteran had always experienced pain in his feet.  If he walked for approximately five minutes he would subsequently experience significant pain in both feet.  A similar history was noted in the January 1998 VA examination.  The Board again notes that Dr. M. appears to have been referencing the January 2008 VA examination.

Based on Dr. M.'s training, experience, and review of the relevant records, he opined that within a reasonable degree of medical probability, it was at least as likely as not that the Veteran had symptoms and physical findings of severe bilateral pes planus pathology during the time period from 1993 to 1999.  There was structural loss of the Veteran's arches as noted on weightbearing x-rays of his feet.  There was also documentation of malalignment of the calcaneus (abduction) and pronation of the forefoot that were compatible with flat feet (pes planus).  It was also well-documented that the Veteran had severe bilateral foot pain associated with use (walking or standing for minimal periods of time).  It was at least as likely as not that the Veteran's progressive increase in symptoms following his discharge from the Army was the direct result of the original pathology diagnosed during his time in the military.  Dr. M. added that his opinion was actually much higher than the at least as likely as not standard as he supported his conclusion with a high degree of certainty.   Dr. M. summarized that his review of the evidence from the period from 1993 to 1997 showed x-rays revealing severe flattening of both feet secondary to weight-bearing.  Dr. M. also noted that the finding from Dr. G.'s 2007 x-rays that the calcaneus was almost parallel with the supporting surface was evidence of severe loss in the normal arch.  Dr. M. also found it significant that the Veteran was treated with the available nonoperative modalities, including physical therapy, a steroid injection in February 1994, various types of foot orthotics, feather spring arch supports, nonsteroidal antiinflammatory medication, and the use of a wheelchair.  Dr. M. noted that a physical examination was not indicated in order to substantiate his opinions as the material he reviewed was more than sufficient for him to reach his opinions.

After reviewing the above evidence, the Board finds that an initial 30 percent disability rating under Diagnostic Code 5276 is warranted for the Veteran’s bilateral pes planus for the period from August 26, 1993 to June 2, 1999.  The Board finds that objective evidence of marked deformity was present during the appeal period.  The Veteran was noted to have pronation as early as April 1986, and pronation continued to be noted in subsequent treatment records dated in July 1991, September 1991, and April 1993.  Although pronation was not specifically documented during the VA examinations from the appeal period in November 1993 September 1998, and March 1999, the examiners also did not state that no pronation was present.  The Board additionally finds it significant that objective evidence of bilateral pronation was found a relatively short time before the appeal period in April 1993.  

In addition, the evidence supports that the Veteran had pain on manipulation and use accentuated.  During the November 1993 VA examination and July 1994 DRO hearing, the Veteran indicated that he had constant aching foot pain that was worsened by activities such as walking and standing; and he often limited his activity and walked on his heels to manage his arch pain.  During the September 1998 VA examination, the examiner noted that he experienced flare ups of moderately severe pain that were preceded by walking too much.  In the June 2012 opinion, Dr. M. also highlighted the October 1993 report that the Veteran had to walk on the lateral sides of his feet and intermittently used a wheelchair as evidence of the Veteran’s symptoms of severe pain.  Pain was also present to palpation of the bilateral arch area in January 1994.  The record additionally indicates that characteristic callosities were present during this period.  Although the March 1999 VA examiner stated that there was no evidence of callus, breakdown, or unusual shoe patterns; Dr. M. found that the unusual wear pattern on the soles of the Veteran's feet noted by Dr. C. in October 1993 was consistent with the heavy calluses on the lateral aspect of both feet that were later documented during the January 2008 VA examination.  Resolving all doubt in favor of the Veteran, the Board finds that his symptoms of bilateral pes planus more nearly approximated a 30 percent rating under Diagnostic Code 5276 during the period from August 26, 1993 to June 2, 1997.  38 U.S.C. § 5107(b).  

The Board notes that the most recent statements from the Veteran's representative who now represents the appellant have also indicated that a 30 percent rating is warranted for the disability under Diagnostic Code 5276 for the period from August 26, 1993 to June 2, 1999.  See May 2012 Statement; July 2015 Statement, June 2016 Statement.  Nevertheless, the Board has considered whether a further increase in the rating to 50 percent may be warranted.  Although the evidence shows some marked pronation and suggests the presence of extreme tenderness of plantar surfaces of the feet which are listed in the criteria for a 50 percent rating, there is no evidence of marked inward displacement and severe spasm of the tendo Achillis on manipulation.  The Achilles tendon was noted to be straight during the September 1998 VA examination, and the examiner did not indicate that there was marked inward displacement or a severe spasm on manipulation.  The Achilles tendon was similarly described as normal during the March 1999 VA examination.  Although the Board acknowledges that Dr. M. highlighted the documentation of malalignment of the calcaneus in the June 2012 opinion, the record reflects that this finding was not made until after the appeal period by Dr. G. in May 2007.  The Board also notes that although the Veteran indicated at different times during the appeal period that his orthotics were not helpful, both the September 1998 and March 1998 VA examinations reported that the Veteran’s arch supports did provide some relief.  The Board recognizes that it is not necessary for the Veteran to meet all the manifestations listed in the criteria for a 50 percent rating; however, the Board has considered the Veteran's overall disability picture and finds that it is more nearly approximates the severe bilateral pes planus considered by the 30 percent rating.  Therefore, a rating of 30 percent, but no higher, is granted.

The Board also acknowledges the representative’s argument that in the alternative, the Veteran is entitled to a minimum 30 percent disability rating for each foot under Diagnostic Code 5284.  The Board also notes that diagnoses of plantar fasciitis were noted in January 1994 and September 1994 after pain was found in the plantar fascia bilaterally.  However, the Veteran is not service-connected for bilateral plantar fasciitis.  Moreover, although the Board has considered whether a higher rating would be available under this Diagnostic Code, Diagnostic Code 5284 does not encompass the eight foot conditions that are listed under their own diagnostic codes in 38 C.F.R. § 4.71a.  See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that "DC 5284 does not apply to the eight foot conditions specifically listed in § 4.71a.").  As the flat foot disability is listed under Diagnostic Code 5276, rating this disability by analogy to Diagnostic Code 5284 would represent "an impermissible rating by analogy."  Id.  In addition, the Board finds that the symptoms contemplated by Diagnostic Code 5276 would overlap with the symptoms contemplated by Diagnostic Code 5284.  Consequently, assigning a separate rating for the Veteran's bilateral flatfeet or plantar fasciitis under the Diagnostic Code would constitute impermissible pyramiding.  38 C.F.R. § 4.14.  The Board further notes that the Veteran's bilateral foot symptomatology (bilateral plantar surface pain, pain on weightbearing, pain with use) is best encompassed by Diagnostic 5276 for pes planus as the criteria includes "pain on manipulation and use."

In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use.  DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40. However, because Diagnostic Code 5276 does not pertain to limitation of motion, the DeLuca factors are not for consideration.  Thus, the Board concludes that the Veteran should have been awarded a 30 percent disability rating, but no higher, for his bilateral pes planus, from August 26, 1993 to June 2, 1999.  38 U.S.C. § 5107(b).

The Board also notes that the evidence does not reflect that the Veteran had weak foot, hallux rigidus, hammertoes, malunion or nonunion of the tarsal or metatarsal bones, or claw foot (pes cavus) during the period from August 26, 1993 to June 2, 1999.  Thus, the diagnostic codes pertaining to those disabilities are not for application.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5281, 5282, 5283, 5278.

Although the April 1993 x-ray report suggested that Veteran could have pes cavus, the record also noted that additional findings would be needed to confirm the diagnosis.  However, there is no indication that the diagnosis was confirmed at any other point during the appeal period.  The Board also notes that December 1994 and June 1998 treatment records from Dr. G. indicated that in addition to pes planus, the Veteran had cuboid syndrome; and he explained in May 2007 that the disorder was associated with the Veteran’s flat feet.  Dr. G. also indicated that the Veteran’s painful arches as well as symptoms of pain on palpation over the calcaneal cuboid joints were associated with the Veteran’s cuboid syndrome.  See July 2001 treatment record; May 2007 treatment record.  However, the Board finds that the described symptoms of pain on manipulation and use are already contemplated in the assigned evaluation under DC 5276.  As such, a separate rating for cuboid syndrome would constitute impermissible pyramiding.  38 C.F.R. § 4.14.  

Although Dr. G. also discussed the association between the Veteran’s posterior tibial dysfunction and his bilateral pes planus in May 2007, the record shows that the diagnoses of posterior tibial dysfunction from Dr. G. and posterior tibial dysfunction with paresthesia from Dr. E. were not provided until after the appeal period in July 2001 and August 2001.  Similarly, the diagnoses of minimal degenerative disease of the first metatarsophalangeal joints bilaterally, very mild metatarsus primus varus and hallux valgus on the left, and small bilateral bunions noted during the February 2005 VA examination were not documented during the appeal period from August 26, 1993 to June 2, 1999.  The September 1998 and March 1999 VA examiners specifically noted that the Veteran did not have any hallux valgus.  While Dr. V. suggested in December 1991 that arthritis needed to be ruled out, and the April 1993 x-ray report noted that the Veteran could have the beginnings of degenerative joint disease; subsequent x-rays in October 1993 showed no degenerative changes.  X-rays associated with VA examinations in September 1998 and August 1999 also failed to reveal arthritis.  Consequently, consideration of the symptoms of these foot disorders diagnosed after the appeal period is beyond the scope of the current increased rating claim before the Board.

The record additionally shows that the Veteran did not receive a diagnosis of metatarsalgia during the appeal period from August 26, 1993 to June 2, 1999.  The Board acknowledges that the Veteran was subsequently diagnosed with bilateral metatarsalgia during the February 2005 and February 2006 VA examinations, and the January 2008 VA examiner stated that this diagnosis was also noted during service.  To the extent that this finding suggests that metatarsalgia was present during the appeal period from August 26, 1993 to June 2, 1999, the Board notes that the Veteran was not service-connected for this disability.  In addition, the assignment of a separate rating for this disability under Diagnostic Code 5279 is precluded by the rules against pyramiding as its symptom of pain under the metatarsal heads is duplicative of pain on manipulation and use already considered in the evaluation under DC 5276 throughout the entire appeal period.  Therefore, a separate rating under DC 5279 would be pyramiding.  38 C.F.R. § 4.14.

For the foregoing reasons, the weight of the evidence is in favor of granting of 30 percent rating, but no higher, for the Veteran's bilateral pes planus from August 26, 1993 to June 2, 1999.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as that doctrine is not applicable to these facts.  38 U.S.C. § 5107(b).

2.  Entitlement to an effective date prior to June 3, 1999 for the award of an extraschedular TDIU, on the basis of substitution.

The effective date for an award of an increased rating (including TDIU) will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (1993).  If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to the receipt of the claim, the increase will be effective on the date of the claim.  In addition, if the increase occurred after the date of claim, the effective date will be the date of increase.  38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2), VAOPGCPREC 12-98 (1998).

For purposes of effective date rules, the issue of entitlement to a TDIU may be considered as part of a claim for underlying benefits (i.e., the service connection claim) or may be considered part of an increased compensation claim (i.e., in conjunction with an increased evaluation claim or as a freestanding claim to obtain an increased evaluation based on unemployability).  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (stating that a claim for individual unemployability benefits "involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a total disability rating based on individual unemployability is based has already been found to be service connected, as part of a claim for increased compensation"); see also Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (noting that an award of individual unemployability may not amount to award of increased compensation where individual unemployability is awarded as part of initial award of disability compensation benefits).

The Board notes that the Veteran's TDIU claim was raised in the context of his initial increased rating claim for his bilateral pes planus disability.  In the Veteran's June 3, 1999 notice of disagreement for the initially assigned disability rating awarded for his bilateral pes planus disability, the Veteran's representative indicated that a TDIU was warranted as a result of the Veteran's service-connected bilateral pes planus.  The claim that resulted in the grant of service connection for the Veteran’s bilateral pes plans disability was filed on August 26, 1993.  Thus, the current appeal period begins on August 26, 1993.  See Rice, 22 Vet. App. at 453; see also Harper v. Wilkie, 30 Vet. App. 356 (2018) (determining that the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal).

The regulations that were in effect from August 26, 1993 to June 2, 1999 regarding entitlement to a TDIU were similar to those currently in effect.  During this period, 38 C.F.R. § 4.16(a) provided that total disability ratings for compensation may have been assigned, where the schedular rating was less than total, when the disabled person was, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability. This was so, provided that if there was only one such disability, the disability shall have been ratable at 60 percent or more, and that, if there were two or more disabilities, there shall have been at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  It was provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status would be disregarded where the percentages referred to in the paragraph for the service-connected disability or disabilities were met and in the judgment of the rating agency such service-connected disabilities rendered the veteran unemployable.  See 38 C.F.R. § 4.16(a) (1993).

In addition to TDIU on a schedular basis, the regulations provided that it was the established policy of VA that all veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, it was provided that an extraschedular basis could be considered for cases of veterans who were unemployable by reason of service-connected disabilities, but who failed to meet the percentages of 4.16(a).  Employment history, educational and vocational attainment, and other factors could have a bearing on the issue.  See 38 C.F.R. § 4.16(b) (1993).

During the portion of the appeal period prior to November 7, 1996, the regulations included 38 C.F.R. § 4.16(c).  The subsection stated that the provisions of 4.16(a) were not for application in cases in which the only compensable service-connected disability was a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation.  In such cases, the mental disorder would be assigned a 100 percent schedular evaluation under the appropriate diagnostic code.  See 38 C.F.R. § 4.16(c) (1989).  Effective November 7, 1996, section 4.16(c) was removed.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007).  VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

In light of the Board’s decision herein, the Veteran was in receipt of a 30 percent disability rating for his bilateral pes planus disability during the period from August 26, 1993 to June 2, 1999.  He did not have any other service-connected disabilities during this period.  Consequently, the Veteran's service-connected bilateral pes planus did not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Accordingly, the question becomes whether entitlement to a TDIU on an extraschedular basis is warranted.  The record shows that in February 2010, the AOJ referred the case to the Director Compensation Service.  In June 2010, the Director determined that a TDIU was warranted on an extraschedular basis.  As this step has been completed, the Board may address whether entitlement to an earlier effective date is warranted for the award of an extraschedular TDIU.  See Wages v. McDonald, 27 Vet. App. 233, 236 (2015).

Following the Director’s determination, the July 2010 rating decision granted entitlement to a TDIU effective from June 3, 1999 based on the AOJ's finding that the Veteran's claim for a TDIU was received on that date.  However, as noted above, the Veteran’s claim stemmed from the initial increased rating claim for bilateral pes planus which was service-connected effective from August 26, 1993.  As such, the Veteran is potentially entitled to a TDIU as early as August 26, 1993.   

In addition to the relevant evidence discussed above, the Veteran’s September 1999 VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, included his report that his painful bilateral pes planus prevented him from securing or following a substantially gainful occupation.  He reported that the disability affected his employment in 1980, and the date he last worked fulltime was in 1980.  He identified the date he became too disabled to work as 1990.  The Veteran reported that his recent employment history included working 40 plus hours a week as an electronics technician in 1980.  His SSA records and the VA Form 21-8940 reflect that he worked in a maintenance or mechanic position for 40 plus hours a week from 1979 to 1980.  He also worked fulltime as a supervisor for a human services company in 1977, fulltime as a carpenter from 1976 to 1977, and fulltime as a factory worker in 1976.  In the Veteran's SSA records he also reported that between 1976 and 1978, he worked in positions involving fence welding, construction and repair, and as a laborer.  Between 1971 and 1975, he held positions as a laborer, in maintenance, and as a security guard.  His prior work history from 1967 to 1971 consisted of work as an electronics technician or instructor.  The Veteran denied earning any income in the past 12 months or having any current earned monthly income in the last 12 months in his September 1999 VA Form 21-8940.  The findings from the SSA disability determination similarly noted that the Veteran not engaged in substantially gainful activity since June 17, 1980.  Although the Veteran marked that he attended four years of college in the VA Form 21-8940, his SSA records reflect that he had a high school education.  Since becoming too disabled to work, the Veteran had received education in the role of a medical secretary from 1994 to 1997.  The Veteran indicated that since becoming too disabled to work, he had attempted to obtain employment as a medical secretary in 1997, 1998, and 1999.  

In the Veteran’s SSA records, he detailed that his last employment position as an electronics technician involved the use of machines, tools or equipment and technical knowledge or skills.  It did not involve writing or supervisory responsibilities.  The Veteran reported that his typical included 1 hour or walking, 1 hour of standing, 6 hours of sitting, occasional bending, and lifting 25 pounds about 10 feet.  His prior position in maintenance involved similar use of tools and technical skills without writing or supervisory responsibilities.  He also reported similar amounts of time and frequency for walking, standing, sitting, and bending in a typical day.  He additionally indicated that he typically lifted 25 pounds about 25 feet.  The knowledge and skills as well as the physical activities associated with his work as a laborer were largely consistent with those noted in his position as an electronics technician apart from that he lifted very little.  The Veteran summarized that the additional jobs he previously held had similar responsibilities and physical activities.

The findings from the SSA disability determination also noted that the medical evidence established that the Veteran had severe pes planus with pain, and the objective medical evidence supported the Veteran's assertions regarding functional limitation to the extent that the he would be precluded from performing substantially gainful activity beyond the sedentary exertional level.  The Veteran had residual functional capacity to perform the physical exertion requirements of work apart from lifting more than 10 pounds; and the Veteran's past relevant work as an electronics technician did not require the performance of work-related activities precluded by this limitation.  The findings added that the Veteran's impairments did not prevent him from performing his past relevant work as an electronics technician, and he had the residual functional capacity to perform the full range of sedentary work.  The findings also stated that the Veteran did not have any acquired work skills that were transferrable to skilled or semiskilled work activities.  The SSA decision determined that the Veteran had been disabled since August 9, 1993.

Based on the foregoing, the Board finds that an earlier effective date of August 26, 1993 is warranted for the Veteran’s award of an extraschedular TDIU.  Throughout the appeal period, the Veteran reported having functional limitations in standing and walking as a result of pain from his bilateral pes planus disability.  The November 1993 VA examination included the Veteran’s report that his foot pain was worsened with standing and walking; and he felt the need to walk on his heels and the sides of his feet as a result of the pain.  He also reported using his wheelchair when he was not walking during the July 1994 DRO hearing.  In addition, the Veteran’s testimony indicated that he was only able to stand for approximately 15 minutes at a time on hard surfaces and 30 minutes on soft surfaces.  The September 1998 VA examination similarly noted that walking long distances or standing for a long period increased pain in the arches, and the examiner indicated that he had associated functional limitations in standing and walking.  The March 1999 VA examination was also consistent with prior records in noting that walking long distances or standing for long periods caused increased pain in the Veteran’s arches.  

Several medical opinions have also been provided to support the conclusions that the Veteran is unable to secure or follow substantially gainfully employment as a result of his bilateral pes planus.  The January 2002 evaluation from W.C. concluded that the Veteran’s work history of unskilled and semiskilled positions that required him to be on his feet for the majority of the day did not equip him with skills that transferred to a position that would allow him to sit long enough to accommodate his disability.  Although W.C. concluded that only unskilled and perhaps semiskilled sedentary work could be considered as appropriate for the Veteran based on the Veteran’s work history and Dr. G.'s reported limitations in standing and walking, W.C. explained that no such positions existed at these skill levels that required only 30 minutes of standing or walking in an 8-hour workday.  The Board also finds that the severity of the functional limitations in standing and walking that W.C. described in the January 2002 evaluation are generally consistent with the limitations reported by the Veteran during the July 1994 DRO hearing.  The Board finds that this determination is highly probative as it reflects W.C.’s consideration of the Veteran’s relevant functional limitations and work history.  Moreover, W.C.’s opinion is supported by the July 2001 and August 2001 physician certifications from Dr. G. and Dr. E. reflecting that the Veteran was unable to work at least partly as the result of his service-connected bilateral pes planus disability.  W.C.’s determination is also consistent with the subsequent conclusions of the January 2008 and October 2009 VA examiners who considered similar functional limitations in standing and walking before concluding that it was at least as likely as not that the Veteran was unable to engage in any gainful employment on account of functional loss occasioned by service-connected foot symptomatology and painful feet.  The February 2005 VA examination also reflects that despite the fact that the Veteran received education to work as a medical transcriptionist, this job also required more standing than the Veteran was able to tolerate due to his pes planus disability.  

The Board acknowledges that Dr. C. opined in October 1998 that the Veteran would be able to work in a sitting position where he would not have to walk more than one half hour before being able to rest.  Dr. G. also opined in July 2001 that the Veteran could be working at a job with a desk without any problem.  In addition, the March 2007 negative VA medical opinion concerning the Veteran’s claim for a TDIU was based on the Veteran’s ability to walk to accomplish activities of daily living and his ability to drive.  However, the Board finds that these opinions provide minimal probative value as there is no indication that they considered the Veteran’s relevant work and educational history.  Moreover, the March 2007 VA examiner did not consider whether the Veteran’s functional limitations nevertheless precluded him from securing or following substantially gainful employment despite the Veteran’s ability to perform activities of daily living.  

The Board has considered the Veteran's functional capacity and work experience in determining that no type of employment would appear to be appropriate for the Veteran.  38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

The Board notes that an effective date prior to August 26, 1993 is not possible.  By its nature, entitlement to TDIU, whether on a schedular or extraschedular basis, is dependent on the presence of at least one service-connected disability which results in the inability of the Veteran to obtain or maintain substantially gainful employment.  38 C.F.R. § 4.16(a), (b).  As service connection was not in effect for any disabilities prior to August 26, 1993, it is not possible to award an earlier effective date for extraschedular TDIU. 

For the reasons explained above, the Board finds that an earlier effective date of August 26, 1993, but no earlier, for the award of extraschedular TDIU is warranted.  

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.C. Spragins, 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.