Citation Nr: 21066361 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-42 233 DATE: October 29, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for bilateral pes planus, prior to January 23, 2020, is granted. Entitlement to a rating in excess of 50 percent for bilateral pes planus, from January 23, 2020, is denied. Entitlement to an effective date of December 14, 2018, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) at the housebound rate, from January 3, 2020, is granted. FINDINGS OF FACT 1. Prior to January 23, 2020, the Veteran's bilateral pes planus was manifested by functional loss more closely resembling pronounced flatfeet with chronic pain, marked pronation, marked inward displacement of the tendo achilles, and extreme tenderness on prolonged use that has not improved with orthopedic shoes or appliances. 2. From January 23, 2020, the Veteran is in receipt of the maximum rating for bilateral pes planus under the appropriate Diagnostic Code. 3. From December 14, 2018, the Veteran is unable to obtain or maintain substantially gainful employment due to her service-connected disabilities. 4. From January 3, 2020, the Veteran's somatic symptom disorder alone warrants TDIU and she has additional service-connected disabilities rated at least 60 percent that are separate and distinct. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but no higher, for bilateral pes planus, prior to January 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for a rating in excess of 50 percent for bilateral pes planus, from January 23, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 3. The criteria for an effective date of December 14, 2018, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. 4. The criteria for SMC based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate), from January 3, 2020, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to July 2003. The Veteran appealed a December 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In April 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 Veteran's bilateral pes planus is rated under Diagnostic Code 5276. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 30 percent rating is warranted for severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Tendo Achillis on manipulation, and not improved by orthopedic shoes or appliances. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran's rating regarding bilateral pes planus. Therefore, the Board will not address them in this decision. A July 2020 rating decision granted an increased rating of 50 percent for the Veteran's bilateral pes planus effective January 23, 2020. 1. Prior to January 23, 2020 The Board finds the Veteran's bilateral pes planus symptoms have remained consistent throughout the appeal period and, resolving doubt in favor of the Veteran, have more closely resembled pronounced flatfeet. See 38 C.F.R. §§ 4.2, 4.7. January 2011 treatment records noted excess pronation of the feet. The September 2012 examination report noted pain on manipulation, extreme tenderness, and occasional use of a cane. The Veteran stated in her July 2013 notice of disagreement (NOD) that her feet hurt so bad that she can barely walk, that she cannot work, and that she cannot stand or sit for long periods due to the pain. See also November 2015 VA Form 9. The Veteran further stated in May 2019 that she has sleep issues due to her feet hurting, she has to take her shoes off and walk bare foot since her feet hurt, she wasted money on shoes and inserts that do not help, and that she cannot wear closed-toe shoes for more than two hours without her feet swelling up. The Veteran's complaints are corroborated by statements made by her family in January 2020. Dr. E.B.'s January 2020 DBQ also noted severe pain and interference with standing and walking. Overall, the Veteran's bilateral pes planus has been manifested by severe and constant chronic pain that prevents sleeping and prolonged standing, walking, and sitting. Such symptoms have not been alleviated by orthopedic shoes or appliances. Based on these facts, and resolving doubt in the Veteran's favor, the Board finds the Veteran's symptoms are pronounced and more closely resemble the 50 percent criteria throughout the period on appeal prior to January 23, 2020. 38 C.F.R. §§ 4.2, 4.7. As such, the Veteran's service-connected pes planus has been assigned the maximum schedular rating available for that disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. There currently is no basis upon which to award a disability rating greater than 50 percent for bilateral pes planus. 2. From January 23, 2020 As noted above, the Veteran's service-connected pes planus has been assigned the maximum schedular rating available for that disability for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5276. There currently is no basis upon which to award a disability rating greater than 50 percent for bilateral pes planus. TDIU TDIU was granted in a July 2020 rating decision effective January 3, 2020. The Veteran claimed TDIU due to her service-connected bilateral pes planus. See May 2019 VA Form 21-8940. As such, consideration of entitlement to TDIU must be made back to the Veteran's date of claim regarding her pes planus. See January 2012 Veteran statement. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). As noted above, the Veteran's bilateral pes planus is rated at 50 percent disabling for the entire period on appeal and her combined rating is at least 70 percent for the entire period on appeal. The Veteran has a Bachelor's degree in criminal justice degree and worked as a full-time probation officer until 2013 making $35,000 a year, then worked in retail full-time from May 2014 until December 13, 2018 making $2,000 a month, then worked in retail part-time from March 2019 until August 2019 making $400 a month. See May 2019 and March 2020 VA Form 21-8940; May 2020 VA Forms 21-4192. Therefore, the record demonstrates that the Veteran had gainful employment throughout the period on appeal until December 13, 2018. The record does not demonstrate that the Veteran's employment was in a protected environment or that she had significant accommodations. Although there was a brief period the Veteran was in between jobs, she was able to find full-time gainful employment within months of leaving her job as a probation officer. Regarding employment after December 13, 2018, the Veteran was only working part-time and had minimal pay. Therefore, such employment after December 13, 2018 is marginal at best. As noted above, medical evidence and the Veteran's statements noted that her bilateral pes planus prevents prolonged standing, walking, or sitting. The Veteran's feet are in constant pain. Even the use of special shoes and inserts do not alleviate the pain and she must take her shoes off periodically. The Veteran's family members submitted statements noting the severity of the Veteran's foot pain and her inability to work or do certain activities. The Veteran stated that she had to miss days of work due to her feet hurting. See May 2019 VA Form 21-8940. For the entire period on appeal, the Veteran is also service connected for a low back condition, right wrist carpal tunnel syndrome, and a bilateral knee disorder. As such, the Veteran has several musculoskeletal conditions that impact the Veteran's performance in physical activities. September 2017 and February 2020 examination reports regarding the Veteran's back and knees noted pain and issues with lifting, walking, and standing while working. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts she personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran's various service-connected musculoskeletal conditions cause significant pain that prevents her from being on her feet and working as a probation officer or in retail. Given constant pain in the feet and limitations with bending and lifting, the Veteran would require a position in which she could sit and allow her to take off her shoes as needed. However, the Veteran does not have training or experience in such jobs. Nevertheless, the Veteran's typing is limited due to her carpal tunnel syndrome. See February 2020 examination report. Therefore, the Veteran would not be able to find gainful employment in such a field. Nevertheless, the Veteran's feet hurt while sitting as well. As such, the Board finds the Veteran credible as to her functional limitations attributable to her various service-connected musculoskeletal disabilities in concert. Overall, the Veteran was gainfully employed prior to December 14, 2018. However, she stopped working or had marginal employment from December 14, 2018. This is the day after the Veteran stopped working full-time. The record demonstrates that the Veteran was unable to work due to her various service-connected musculoskeletal disabilities. As TDIU is part and parcel of the increased rating claim, the Veteran is entitled to an effective date of December 14, 2018, but no earlier, for entitlement to TDIU. SMC SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board notes the Veteran is in receipt of a combined 100 percent rating since January 3, 2020. The Veteran was granted service connection for her mental condition, somatic symptom disorder, at 70 percent disabling from January 3, 2020. Based on the following, the Board finds the Veteran would be entitled to TDIU based on her service-connected somatic symptom disorder alone. The April 2020 opinion noted several difficulties with employment due the Veteran's mental disorder. The April 2020 opinion noted difficulty staying on task, maintaining concentration, accepting supervision, remembering instructions, and functioning around other people, the Veteran cannot tolerate being around people except for a couple minutes, that she has irritability and low frustration tolerance which interferes significantly with the ability to work, and that the Veteran's forgetfulness causes work errors. The April 2020 examination report also noted anxiety, daily panic attacks, and an intermittent inability to perform activities of daily living. See also January 2020 examination report. As noted above, the Veteran worked as a probation officer and in retail related jobs. However, medical evidence suggests that she is unable to function appropriately around others and that she has severe cognitive symptoms that prevent satisfactory work performance. Therefore, the Veteran would not be able to work in a law enforcement or customer service position. The Veteran does not have education or training to work in an isolated position without supervision or needing to communicate to others. This includes computer related jobs or possibly certain construction positions. However, the Veteran's lack of concentration and memory would not make such positions suitable for her. As such, the Board finds that the Veteran warrants TDIU based on her service-connected somatic symptom disorder alone. This satisfies a single disability rated as total as required for SMC purposes. The Veteran's other service-connected disabilities combine to at least 60 percent disabling for the entire period on appeal. As such, the Veteran is entitled to SMC at the housebound rate from January 3, 2020. See 38 U.S.C. § 1114(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.