Citation Nr: 21001534 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 10-35 125 DATE: January 8, 2021 ORDER Entitlement to increased disability ratings for bilateral acquired flat feet, rated as 10 percent disabling prior to April 18, 2011, and 30 percent disabling since April 18, 2011, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. During the period prior to April 18, 2011, the Veteran’s bilateral flat feet were manifested by no more than moderate symptoms. 2. Since April 18, 2011, the Veteran’s bilateral flat feet have been manifested by no more than severe symptoms. 3. In October 2018, the Veteran indicated that he did not wish to pursue a claim of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to April 18, 2011, and in excess of 30 percent from that date, for bilateral flat feet have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5276. 2. The claim of entitlement to a TDIU is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to March 1997. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in April 2012. The claim for an increased rating for flat feet was previously before the Board in February 2013, when it was remanded for additional development. In September 2013, during the pendency of the appeal, the RO increased the evaluation for the Veteran’s flat foot disability from 10 to 30 percent, effective April 18, 2011. As the grant of a 30 percent rating, effective April 18, 2011, does not constitute a full grant of the benefit sought, the issue of entitlement to an increased rating for flat feet remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In November 2016, the Board took jurisdiction of the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Accordingly, the issue of a TDIU is before the Board. The Board remanded the increased rating and TDIU claims for further development in August 2018. Legal Criteria A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s bilateral flat feet are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276.deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Analysis The Veteran contends that he is entitled to increased disability ratings for bilateral acquired flat feet, rated as 10 percent disabling prior to April 18, 2011, and 30 percent disabling since April 18, 2011. In December 2018, the Veteran was afforded a VA examination for his pes planus. The examiner diagnosed bilateral flat foot (pes planus) and noted degenerative arthritis. The Veteran described the onset of the condition during service in the 1990s with tenderness to the soles, the examiner described it is a progressive condition that continues to worsen ad custom made orthotics have not been effective in relief of the condition. The Veteran’s current symptoms include tenderness to soles, burning feet pain, difficulties and decreased capacity of prolonged walking. The Veteran was not undergoing current treatment for the pes planus. The Veteran described flare ups and decreased mobility with prolonged walking. The Veteran had characteristic calluses but did not have extreme tenderness of the plantar surfaces of the feet. There was no marked deformity of one or both feet, no marked pronation, and no “inward” bowing of the Achilles’ tendon or marked inward displacement or severe spasm of the Achilles’ tendon. There was no Morton’s neuroma or metatarsalgia. No hammer toe, hallux valgus or hallux rigidus was noted. The Veteran did not have any symptoms of pes cavus (claw foot). No other foot injuries or other foot conditions were observed or noted by the examiner. The Veteran has not undergone foot surgery in the past. The Veteran regularly used a cane. The Veteran currently worked from home as an IT manager. The Veteran was afforded a VA examination for his feet in April 2017. He was diagnosed with bilateral pes planus dating back to the 1990s. The examiner reported that the Veteran continued to have pes planus issues, including tender soles. The Veteran continued to wear orthotics daily. The Veteran reported decreased capacity for prolonged walking. Characteristic callouses were observed, and there were indications of swelling with use. There was not extreme tenderness of plantar surfaces, nor was there objective evidence of marked deformity of one or both feet. The examiner opined that the Veteran is capable of a sedentary desk job. The Veteran was afforded a VA examination for his feet in September 2016. The Veteran had bilateral pain on manipulation of his feet but did not have swelling on use. No characteristic callouses were observed. No lower extremity other than pes planus was observed. No assistive device use was noted. A higher evaluation of 50 percent is not warranted for acquired flat foot unless the evidence shows bilateral involvement with pronounced symptoms; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The Veteran’s examination of his feet reflected that he did not experience these symptoms during the relevant period, as required for a 50 percent rating. Accordingly, the Veteran’s claim for a rating in excess of 30 percent since April 18, 2011 for pes planus is denied. For the period prior to April 18, 2011, the Veteran’s pes planus symptomatology was most consistent with moderate symptoms. A 10 percent evaluation for pes planus is granted whenever the weight bearing line is over or medial to the great toe with inward bowing of the tendo Achilles pain on manipulation and use of the feet. A higher evaluation of 30 percent is not warranted unless there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use and characteristic callosities. These symptoms were not present prior to April 18, 2011. A September 2013 Administrative Review conducted by the Director of Compensation Services reviewed VA examinations from August 2008, July 2010, April 2011, and January 2013. Evidence of record dated September 2004 and April 2007 showed no tenderness or callouses. An April 2011 VA examination noted no relief with inserts and severe flat feet, marking the beginning of the Veteran’s increased evaluation to 30 percent. However, the August 2008 and July 2010 VA examinations reflected more moderate symptomatology. For example, the July 2010 VA examination reported no pain in full range of motion maneuvers, no characteristic callouses or unusual appearances of the plantar and dorsum surfaces of the feet. There was preservation of the normal longitudinal and transverse plantar arches. The Veteran’s gait was described as normal. The August 2008 VA examination report that the alignment of the Achilles’ tendon was normal bilaterally. There was no hallux valgus. There was active motion of the metatarsal phalangeal joint of both great toes. There was no history of edema or instability or weakness. The Veteran’s gait was normal and there were no ulcers or calluses on the ventral surfaces of either foot. There were no skin or vascular changes. There was no indication of hammertoe, high arch, claw foot, or other deformity other than the pes planus. Based on the findings contained in the VA examinations and treatment records, the objective evidence prior to April 18, 2011, does not reflect marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use and characteristic callosities. Accordingly, the Veteran’s claim for a rating in excess of 10 percent prior to April 18, 2011 for pes planus is denied. The Board has also considered the other Diagnostic Codes pertaining to the foot. As noted, other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017); Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70. As noted, the Board previously took jurisdiction of a claim for a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in an October 2018 correspondence, the Veteran reported that he is employed and he specifically indicated that he did not wish to pursue a TDIU claim. Accordingly, the claim of entitlement to a TDIU is dismissed. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.