Citation Nr: 21066738 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-53 425A DATE: November 2, 2021 ORDER An initial disability rating in excess of 30 percent for bilateral pes planus prior to August 3, 2012 is denied. A 50 percent rating is granted for bilateral pes planus from August 3, 2012, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to August 3, 2012, the Veteran's bilateral flatfeet more nearly approximated a severe disability, with symptoms including, but not limited to, marked pronation that was relieved by orthopedic shoes or appliances, objective evidence of marked deformity, pain on manipulation and use accentuated, and characteristic callosities; he did not demonstrate marked pronation that was not improved by orthopedic shoes or appliances, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. 2. From August 3, 2012, it is at least as likely as not that the Veteran's bilateral flatfeet more nearly approximated a pronounced disability, with symptoms of marked pronation and extreme tenderness of plantar surfaces of the feet, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. Prior to August 3, 2012, the criteria for an initial rating in excess of 30 percent for bilateral pes planus were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating for bilateral pes planus have been met since August 3, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1990 to July 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. In the October 2013 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for pes planus; assigned a noncompensable rating for right foot pes planus, effective November 20, 2011; and assigned a 30 percent rating for bilateral pes planus, effective October 2, 2012. The Veteran disagreed with that decision, arguing, in part, that the 30 percent rating should have been made effective from November 20, 2011. In an August 2016 rating decision, the AOJ granted the benefit sought by the Veteran, awarding a 30 percent rating for bilateral pes planus with hammer toes back to November 20, 2011. He subsequently perfected an appeal with respect to the issue of his entitlement to an initial disability rating in excess of 30 percent for that disability. In May 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In June 2020, the Board remanded this case to the AOJ for additional development. In December 2020, while the case was in remanded status, the AOJ increased the rating for the Veteran's bilateral pes planus disability to 50 percent under Diagnostic Code (DC) 5276, effective October 9, 2020; the date that a VA examination noted extreme tenderness of the plantar surfaces of the feet and that that his symptoms were not improved by orthopedic shoe/appliance. See December 2020 rating decision. Under the rating schedule, 50 percent is the maximum/highest schedular rating allowable for flatfeet. Accordingly, and because no further issues have been raised by the Veteran or the record with respect to extraschedular rating or otherwise, the Board finds that it need not address the matter of his entitlement to a still-higher rating. After taking additional action and effectuating the increase to 50 percent, effective October 9, 2020, the AOJ returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the AOJ provided the Veteran with a new examination and obtained outstanding VA treatment records. With respect to the Board's remand directive requesting "any results of X-ray imaging VA may have conducted in response to a July 2017 request" in a VA treatment report, the AOJ expressly acknowledged this portion of the Board's remand in the December 2020 supplemental statement of the case. However, the AOJ determined that a review of the Veteran's VA treatment records did not show any X-ray images subsequent to that date. Accordingly, as it was determined that the records do not exist, VA has fulfilled its duty to assist in obtaining the records under 38 C.F.R. § 3.159(c)(2) and the AOJ has substantially complied with the Board's remand. 1. An initial disability rating in excess of 30 percent for bilateral pes planus prior to August 3, 2012 is denied. 2. A 50 percent disability rating is granted for bilateral pes planus from August 3, 2012. The Veteran asserts that his bilateral flat feet should be rated higher than 30 percent disabling prior to October 9, 2020. Specifically, he testified, "I've had orthopedic appliances from VA [and] they've made little to no difference." See also November 2016 VA Form 9 ("I believe a 50% rating is in order due to the severity of my foot problems, and it is not relieved with the use of orthopedic appliances."). The Board notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended during the pendency of the appeal, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes to ensure that this portion of the rating schedule used current medical terminology and provided detailed and updated criteria for the evaluation of musculoskeletal disabilities. Id. However, no pertinent changes were made to the rating criteria for evaluating flatfeet. Flatfoot is rated under the criteria set out in 38 C.F.R. § 4.71a, DC 5276. That diagnostic code, both prior to the February 2021 amendment and afterward, provides that a 30 percent rating is warranted for severe bilateral flat feet with objective evidence of market deformation (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a. A higher, 50 percent rating, the maximum allowed under DC 5276, is warranted for pronounced bilateral flat feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. The Board has carefully reviewed the evidence throughout the appellate period and finds that, for the period prior to August 3, 2012, the Veteran's bilateral flatfeet did not more nearly approximate the criteria for an initial rating in excess of 30 percent associated with pronounced flatfeet. In this regard, during an August 2, 2012 VA examination, the examiner expressly noted the following findings with respect to the relevant rating criteria: (1) the Veteran's symptoms were relieved by arch supports (or built up shoes or orthotics); (2) his marked pronation, in particular, was improved by orthotic shoes or appliances (3) he did not have extreme tenderness on plantar surfaces of either foot; and (4) he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. Additionally, when asked to identify the functional impact of his disability, the examiner indicated that the Veteran's flatfeet did not impact his ability to work. During that time, he was employed in a prison and was "on feet for 12 hours." See October 2012 VA treatment report. Given the fact that the symptoms associated with a 50 percent rating were expressly denied at the time of the August 2, 2012 VA examination, and a review of VA treatment records and statements by the Veteran do not suggest symptoms more nearly approximating the highest 50 percent rating prior to the date of that examination report, the Board finds that the preponderance of the evidence is against a finding that the criteria for an initial disability rating in excess of 30 percent were met prior to August 3, 2012. To this extent, the claim for an increased rating for bilateral pes planus remains denied. However, the Board finds that a 50 percent rating is indeed warranted prior to October 9, 2020, the date of the VA examination that the AOJ used to award the maximum schedular rating. In this regard, the Board notes that, as early as an October 2012 Vocational Rehabilitation, and Education (VRE) application, the Veteran indicated that he had "chronic pain [upon] prolonged standing + walking" as a result of "foot injury." That same month, VRE documentation noted that the "Veteran is also experiencing painful issues in his foot," and in November 2012 the Veteran was given a podiatry consult due to his hurting feet. According to a January 2013 VA treatment report, the Veteran was assessed with "Pes planus with abnormal pronation" and he was scanned for custom inserts. Looking to the severity of the pain experienced by the Veteran, although a subsequent VA examination of May 2016 denied the presence of extreme tenderness on plantar surfaces, the examiner noted there was indeed pain on use of the feet, accentuated on use, as well as pain on manipulation of the feet, accentuated by manipulation, bilaterally. The VA examiner described functional impairment of difficulty standing, walking for longer than 10 minutes. While this at first glance appears to fall in line with the criteria for a 30 percent rating, the Veteran reported experiencing flareups, when his feet hurt even more, and the VA examiner estimated that there was additional functional loss during flare-ups and repeated use of the feet. It was noted that there was pain, weakness, fatigability, or incoordination that "significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of the time" for the right foot in particular, and that the Veteran experienced contributing factors of "disturbance of location" and "lack of endurance," bilaterally. Significantly, the Board notes that although the examiner did not expressly indicate whether "extreme tenderness" on the bottom of his feet were present after flares or repeated use, the Veteran's assessment of increased pain is suggestive of a functional equivalent to that. Additionally, following the August 2012 VA examination and throughout much of the appeal period, the Veteran has competently and credibly testified that his symptoms were not improved by his custom orthotic inserts. In July 2013, he reported that VA has "issued me inserts for my shoes, but cannot fix my poor flat feet . . . feet look bad and feel worse." See July 2013 statement. See also April 2016 Decision Review Officer hearing ("I've had orthopedic appliances from VA . . . they've made little to no difference" and "I'm wearing them right now . . . it still hurts."); November 2016 VA Form 9 ("the severity of my foot problems [] is not relieved with the use of orthopedic appliances"); May 2020 Board hearing transcript, p. 4 (noting the Veteran's custom inserts "don't seem to improve anything"). Indeed, the May 2016 VA examination report noted that the Veteran tried arch supports, but his flatfeet remained symptomatic bilaterally. Inasmuch as it is not clear at what point exactly after the August 2012 VA examination that the pertinent symptoms noted above were not improved by orthotics, the Board will resolve doubt in the Veteran's favor and grant the maximum 50 percent rating from the day following the August 2, 2012 VA examination, i.e., from August 3, 2012, onward. To that extent, the appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.