Citation Nr: 21003489 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-22 768 DATE: January 21, 2021 ORDER Entitlement to an increased rating of 50 percent for pes planus, effective August 4, 2011, for substitution and/ or accrued benefits purposes, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 50 percent disabling, effective August 26, 2015, for substitution and/ or accrued benefits purposes, is denied. FINDINGS OF FACT 1. Effective August 4, 2011, the Veteran’s pes planus was manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 2. Effective August 26, 2015, the Veteran’s pes planus is rated as 50 percent disabling, which is the maximum schedular rating permitted for acquired flatfoot. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for pes planus are met, effective August 4, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. Effective August 26, 2015, the criteria for a rating in excess of 50 percent for pes planus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from January 1968 to January 1970. He died during the pendency of his appeal in October 2016. The appellant has been properly substituted as the appellant/claimant. See June 2020 VA letter. This matter comes to the Board of Veterans’ Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) which granted an increased rating of 30 percent for bilateral pes planus, effective August 4, 2011. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ in April 2015. In July 2015, the Board remanded the case for additional development. On remand, the AOJ in a November 2015 rating decision granted an increased 50 percent rating for the Veteran’s service-connected pes planus effective August 26, 2015. After receiving notice of the Veteran’s October 2016 death, the Board dismissed the Veteran’s appeal in September 2017. However, after the appellant was substituted for the claimant in June 2020, the prior appeal was reinstated. The Board remanded the case for additional development in August 2020 so that efforts could be made to obtain additional treatment records from Maxwell Air Force base. This facility responded to VA that no additional records were available. The claimant was notified of this response. The directives of the Board’s remand having been substantially complied with the case is returned for appellate review. 1. Entitlement to an increased rating for pes planus, rated as 30 percent disabling prior to August 26, 2015; and higher than 50 percent disabling, thereafter, for substitution and/ or accrued benefits purposes The Veteran contended that he was entitled to a higher rating because he used diabetic shoes and his right foot had corns, calluses, and bunions that prevented him from walking. See April 2015 Board hearing transcript, p. 4. He further noted that his feet were always swollen, and he could not wear sneakers or get around much. Id. at 5. He testified that he had diabetic shoes and an Arizona brace that helped with pain in the back of the legs, but he also mentioned that the brace did not work too well. Id. at 7-8. He further mentioned locking and shaking of his feet. Id. at 8. The Veteran’s pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, 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 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 achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (holding that 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168 (2016) can also apply to evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful whether or not they are being evaluated under a diagnostic code predicated on range of motion (ROM) measurements). The Board finds that a rating of 50 percent is warranted for the entire appeal, i.e., since August 4, 2011. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups, and during repetitive use over time. When considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he would have flare-ups after prolonged standing and walking would result in symptoms more nearly approximating pronounced bilateral acquired flatfoot prior to August 26, 2015. An August 2011 VA examination report shows that symptoms in the left foot included pain and swelling while standing, walking, and at rest. There was also fatigability, weakness, and lack of endurance while standing and walking. There was redness and stiffness at rest; and pain on the inside of the arch of the left foot and outside of the left toes. Other symptoms included muscle cramps with walking and corns on the toes that hurt with walking. Right foot symptoms included pain while standing, walking, and at rest. Swelling, heat, redness, fatigability, weakness, and lack of endurance occurred while standing and walking. Stiffness occurred at rest. There was a flare-up of foot joint disease about one to three times per month for less than one day. Being on the feet more and walking precipitated the flare-ups. The Veteran related being able to walk and stand for about 15 minutes with the need for rest for 5 to 10 minutes; then he could go about 15 minutes and continue through the day. The left foot was worse than the right. He was able to stand for 15 to 30 minutes and walk about a quarter of a mile. He used corrective shoes and a cane to decrease pressure to the left foot. He used diabetic style shoes for both feet. The efficacy of the corrective shoes was fair. Physical examination of the left foot showed swelling, tenderness, and abnormal weight-bearing. There was mild edema in the bilateral lower extremities with sock depression and increase in skin lines on the dorsal foot indicative of decrease in edema. There was tenderness in the posterior calves of both legs. There also were callosities as evidence of abnormal weight-bearing. In addressing the Achilles alignment in the left foot, there was normal nonweight-bearing; but on weight-bearing there was inward bowing that was not correctable with manipulation. There was pain on manipulation. There also was forefoot and midfoot malalignment that was not correctable by manipulation. The manipulation was not painful. There was marked pronation. An arch was present on nonweight-bearing; but there was no arch present on weight-bearing. The calcaneus was in 6-degrees of valgus in stance and was correctible by manipulation. The location of the weight-bearing line was medial to great toe. The Veteran resupinated minimally on the left foot with toe raise. There was minimal arch elevation with toe raise and pain at the medial arch with single limb support on the left. Physical examination of the right foot showed swelling, tenderness, and abnormal weight-bearing. There was swelling at the posterior tendon at the inferior aspect of the navicular proximal to the ankle and the distal 1/3 of the lower extremity. There was tenderness at the medial arch of the posterior tibial tendon. There also was evidence of abnormal weight-bearing callosities. Examination of Achilles alignment on the right showed normal alignment on nonweight-bearing and inward bowing on weight-bearing. There was partial correction with manipulation. There was forefoot malalignment that was correctable by manipulation. There also was midfoot malalignment that was correctable by manipulation. There was moderate pronation; and an arch was present on nonweight-bearing and weight-bearing. There was a valgus angulation in the rearfoot with slight lateral bowing of the Achilles tendon. There was a 3-degree valgus angulation correctible by manipulation. The location of the weight-bearing line was over the great toe. There was pain at insertion of the posterior tibial tendon navicular and inferior aspect of the talo-navicular joint at the end range of motion abduction and dorsiflexion of the right foot. X-ray examination showed stable bilateral pes planus with minor calcaneal spurs. The diagnosis was pes planus with medial arch strain, and posterior tibial tendonitis. The dysfunction on the left was greater than the right. In addressing this evidence, while the Veteran had marked pronation in the left foot, there was moderate pronation on the right. It also was noted that the effectiveness of the corrective shoes was fair. However, the Veteran testified at the Board hearing that the Arizona brace he wore did not work too well. See April 2015 Board hearing transcript, pp. 7-8. He testified that the corns, calluses, and bunions on his right foot prevented him from walking. Id. at 4. He further mentioned locking and shaking of his feet. Id. at 8. While physical examination did not mention any severe spasms on manipulation, the Veteran testified that his feet would shake sometimes. Id. These findings more closely approximate the criteria for a 50 percent rating under Diagnostic Code 5276, which is the maximum rating warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board has considered the applicability of Correia v. McDonald, 28 Vet. App. 158 (2016), where the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017) the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” To the extent that the examination findings of record relative to the bilateral foot disorder are not completely in compliance with Correia and/or Sharp, as the highest rating under Diagnostic Code 5276 has been assigned, a remand for a retrospective medical opinion would serve no useful purpose. Effective August 26, 2015, the Veteran’s pes planus is rated as 50 percent disabling, which is the maximum rating warranted for bilateral acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. As the Veteran is in receipt of the highest schedular rating for acquired flat foot, (now) effective August 4, 2011, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the foot. 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). In Scott v. Wilkie, the United States Court of Appeals for the Federal Circuit (Federal Circuit) expressly adopted the holding of the United States Court of Appeals for Veterans Claims that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. 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 had any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.   In conclusion, the Board finds that the evidence supports a 50 percent rating for pes planus for the entire appeal, i.e., effective August 4, 2011 for substitution and/or accrued benefits purposes. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.