Citation Nr: 21067625 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-41 242 DATE: November 4, 2021 ORDER Entitlement to an increased rating greater than 60 percent for degenerative disc disease of the lumbosacral spine with neurological manifestations is denied. Entitlement to an increased rating greater than 10 percent prior to October 1, 2019, for lumbar radiculopathy, right lower extremity, is denied. Entitlement to a compensable rating from October 1, 2019, for lumbar radiculopathy, right lower extremity, is denied. Entitlement to an increased rating of 30 percent for bilateral pes planus with callosities is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's low back disorder is primarily manifested by such symptoms as radiculopathy, pain, and limitation of motion. 2. The Veteran's lower extremity radiculopathy symptoms are fully contemplated in his 60 percent disability rating under DC 5243. 3. The Veteran's service-connected bilateral flat foot condition is manifested by complaints of pain, bilateral calluses, deformity of the feet, and the need to wear orthotics. 4. The Veteran's combined service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 60 percent for degenerative disc disease of the lumbosacral spine with neurological manifestations have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2021). 2. The criteria for a disability rating greater than 10 percent prior to October 1, 2019, for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.59, 4.124a, DC 8520 (2021). 3. The criteria for a compensable disability rating from October 1, 2019, for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.59, 4.124a, DC 8520 (2021). 4. The criteria for a disability rating of 30 percent, but no higher, for bilateral pes planus with callosities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5276 (2021). 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1968 to February 1971. This matter is before the Board from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues in a March 2019 for the issuance of a Supplemental Statement of the Case (SSOC). Following the March 2019 Board remand, in a July 2019 rating decision the RO discontinued the separate 10 percent rating for the Veteran's right lower extremity lumbar radiculopathy, effective October 1, 2019. Despite this determination, as the issue was in appellate status the Board will continue to evaluate the propriety both of an increased rating prior to October 1, 2019, and a separate compensable rating from October 1, 2019. Increased Rating 1. Entitlement to an increased rating greater than 60 percent for degenerative disc disease of the lumbosacral spine with neurological manifestations 2. Entitlement to an increased rating greater than 10 percent prior to October 1, 2019, for lumbar radiculopathy, right lower extremity 3. Entitlement to a compensable rating from October 1, 2019, for lumbar radiculopathy, right lower extremity Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). During a December 2015 VA peripheral nerves examination, the Veteran reported a history of the right leg giving out at intermittent times. The examiner indicated that the Veteran had no symptoms attributable to any peripheral nerve condition. The Veteran had normal muscle strength and no muscle atrophy. Reflexes, sensation, and gait were normal. There were no trophic changes. The peripheral neuropathy did not impact the Veteran's ability to work. A December 2015 VA back examination report is of record. The Veteran reported worsening symptoms. The Veteran had flare-ups that involved worsening pain. There was functional loss due to difficulty with range of motion. Thoracolumbar range of motion testing showed forward flexion to 75 degrees, extension and right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. There was no further loss of motion with repetitive motion testing. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal and there was no muscle atrophy. Reflexes and sensation were normal. Straight leg raising testing was normal. The Veteran had no radicular pain or any other signs or symptoms of radiculopathy. There was no ankylosis of the spine. There were no neurologic abnormalities. There was intervertebral disc syndrome, but no episodes requiring bed rest in the past 12 months. The Veteran did not use any assistive devices. The back disability affected the Veteran's ability to work in that it limited manual labor. During a December 2015 VA examination report, the Veteran reported a history of the right leg "giving out" at intermittent times. Muscle strength was normal and there was no muscle atrophy. Reflexes and sensation were normal. There were no trophic changes and the Veteran's gait was normal. There was no functional impact due to neurological symptoms. During a July 2017 private treatment visit, the Veteran stated that he had no joint pain, joint stiffness, joint swelling, muscle aches, muscle cramps, muscle weakness, or limited range of motion. A January 2018 VA contract examination report is of record. The Veteran reported that sometimes when walking he was not able to raise his right foot as much as he used to, which affected his ability to use stairs. The Veteran also was unable to stand for long periods of time, lift objects, or assist with cleaning all due to severe back pain. The Veteran reported intermittent flare-ups that occurred every couple of months and resulted in 10 out of 10 pain levels. There was functional loss due to his inability to raise his right leg that caused him to stumble and made climbing stairs difficult. Prolonged standing caused the right leg to give out and the Veteran was unable to drive for long periods of time without having to stretch due to pain. Thoracolumbar range of motion testing showed forward flexion to 90 degrees and extension, right and left lateral flexion and rotation all to 30 degrees. Muscle strength was normal and there was no muscle atrophy. Right lower extremity reflexes were absent and left lower extremity was normal. Sensation was normal. Straight leg raising testing was positive bilaterally. The Veteran had no left lower extremity radiculopathy symptoms, but there was moderate right lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. There was no ankylosis of the spine or neurologic abnormalities associated with the spine disability. The Veteran did not have intervertebral disc syndrome. The right lower extremity radiculopathy and back disabilities affected the Veteran's ability to work in that there was increased weakness and numbness to the right lower extremity and back pain limited his ability to walk or stand for long periods of time. The Veteran underwent a VA peripheral nerves examination in August 2019. The Veteran stated that he could not work anymore, work around the house, pick up his grandkids, walk long distances, or do any kind of sports. The Veteran had moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity. Muscle strength was normal other than right knee extension that was 4 out of 5. There was no muscle atrophy. Reflexes were normal. Sensation was normal. The Veteran had trophic changes, specifically loss of hair and shin of the right lower extremity. The Veteran had an antalgic gait due to right lower extremity radiculopathy. Phalen's sign and Tinel's sign were negative. The examiner found that the Veteran had moderate, incomplete paralysis of the right sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), anterior crural (femoral), internal saphenous, obturator, and external cutaneous nerves. The Veteran did not use any assistive devices. The Veteran's peripheral neuropathy impacted his ability to work in that he was unable to perform job duties that included lifting more than 3 pounds, bending, standing, and walking for an extended amount of time. Sitting in the same position for an extended amount of time increased his nerve pain. The Veteran could not reach overhead without increased back pain. The Veteran was afforded a VA examination in August 2019. The Veteran's current symptoms were back pain. He stated that he was unable to do anything around the house, could not work anymore, and could not push, pull, or pick up any items. The Veteran reported flare-ups 2 to 3 times per month that were moderate to severe in nature. The flare-ups lasted from 1 to 2 days to 3 weeks. The back flare-ups were precipitated, sometimes from picking up an item, or turning the wrong way. There was functional loss due to decreased range of motion and an inability to walk or stand for an extended amount of time. The Veteran also had increased pain with bending and decreased range of motion. The Veteran could not pick up heavy objects without increased pain. Thoracolumbar range of motion testing showed forward flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. There was pain noted on examination in all motion and caused functional loss. There was pain with weight bearing and localized tenderness. Repetitive use testing showed no further loss of motion. There was functional loss due to pain that would result in decreased motion of 5 degrees in all arcs of motion. There was guarding or muscle spasm that resulted in an abnormal gait or abnormal spine contour. Muscle strength was normal other than muscle strength of 4 out of 5 in right hip flexion and right knee extension. There was no muscle atrophy. Reflexes and sensation were normal. Straight leg raising tests were positive on the right and negative on the left. There was moderate constant and intermittent pain, paresthesias and/or dysesthesias, and numbness. There was no ankylosis of the spine. There was intervertebral disc syndrome, but no episodes requiring prescribed bed rest in the past 12 months. The Veteran did not use any assistive device. The back disability affected the Veteran's ability to work in that he was unable to perform job duties that included bending over, walking, and standing for an extended period of time, as well as picking up heavy objects. The Veteran had evidence of pain on passive range of motion testing, as well as non-weight bearing testing. A December 2019 VA peripheral nerves contract examination is of record. The examiner noted diagnoses of bilateral sciatica, bilateral intervertebral disc syndrome, and lumbar radiculopathy. The Veteran reported intensified pain over the years with constant numbness and dysesthesia in the right leg and foot and intermittent paresthesia in the left leg and foot. The Veteran experienced moderate constant pain in the right lower extremity, moderate intermittent pain in the left lower extremity, severe right lower extremity dysesthesias, moderate left lower extremity paresthesia, moderate right lower extremity numbness, and mild left lower extremity numbness. Lower extremity muscle strength was decreased bilaterally, 3 out of 5 right knee extension, 4 out of 5 left knee extension, 3 out of 5 right ankle plantar flexion and dorsiflexion, and 4 out of 5 left ankle plantar flexion and dorsiflexion. There was no muscle atrophy. Bilateral knee reflexes were hypoactive and bilateral ankle reflexes were absent. Sensation was decreased in the bilateral lower extremities, other than the right lower leg/ankle and foot/toes. There were no trophic changes. The Veteran had an antalgic gait with difficulty raising his right foot that was a residual of his in-service low back injury. There was moderately severe, incomplete paralysis of the right sciatic nerve; moderate, incomplete paralysis of the left sciatic nerve; and mild, incomplete paralysis of the external popliteal (common peroneal) nerve. The Veteran occasionally used a cane for assistance in walking. The peripheral nerve disabilities affected the Veteran's ability to work. The Veteran would have missed 2 to 4 weeks in the last 12 months had he been working. The Veteran's degenerative disc disease caused lower extremity paresthesia, dysesthesia, pain, and numbness that interfered with walking, standing, or sitting for prolonged periods. The Veteran was unable to drive for long periods due to his condition. The Veteran retired due to his lower extremity condition. Entitlement to an increased rating greater than 60 percent for degenerative disc disease of the lumbosacral spine with neurological manifestations The Veteran's low back disability is rated as 60 percent disabling under DC 5243. The Veteran alleges his low back disability is more severe than currently rated. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id, Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id, Note (3). Further, the term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id, Notes (2) and (4). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. For the period on appeal, the Veteran is in receipt of the highest rating available under DC 5243 based on intervertebral disc syndrome. As an initial matter, the Board notes that during the appellate time period the Veteran has not had any incapacitating episodes, as defined under DC 5243. That said, as the Veteran's rating for intervertebral disc syndrome under DC 5293 and/or 5243 has been in effect for more than 20 years it is protected and a change to a rating under the General Rating Formula based on limitation of motion or other factors is not for application herein. See 38 C.F.R. § 3.951. Even if the Board were to evaluate the Veteran's claim under the General Rating Formula with separate ratings assigned for the right and left lower extremity radiculopathy (as discussed more fully below), the Veteran would not warrant a combined rating greater than the assigned 60 percent rating. The Veteran's worst recorded forward flexion (even when reporting for limitation with repetitive motion) was 40 degrees. This would warrant a 20 percent rating under the General Rating Formula. Even assuming that the Veteran's right lower extremity radiculopathy resulted in, at most, moderately severe, incomplete paralysis (40 percent under DC 8520) and that the left lower extremity resulted in mild, incomplete paralysis (10 percent under DC 8520), the combined rating for these disabilities would be 60 percent. See 38 C.F.R. §§ 4.25, 4.26. Following a review of the available evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the evidence does not warrant a rating greater than 60 percent under any of the spine DCs. A 100 percent rating is warranted based on unfavorable ankylosis of the entire spine. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The medical evidence simply does not indicate that for any period on appeal that the Veteran's spine is ankylosed (frozen). Indeed, the Veteran has not asserted such. The Veteran retains considerable motion in all aspects of his spine, albeit with pain at some points in the arc of motion. This pain does not render the Veteran's spine effectively ankylosed, as evidenced by the absence of muscle atrophy, which indicates that the Veteran is able to and does use the muscles in his back for the purposes of movement. See 38 C.F.R. § 4.40 (noting that, "A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."). As such, a 100 percent rating is not warranted for any period on appeal. The Board has considered whether separate ratings would be warranted under DCs (DCs 5235 - 5242) based on limitation of motion. DC 5243, however, specifically contemplates painful motion that results in incapacitating episodes. As such, a separate rating under the DCs for limitation of motion would constitute impermissible pyramiding. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, the Veteran has consistently denied bowel and bladder impairment. Records do document erectile dysfunction, but the problem has not been attributed to the service-connected low back disability. Indeed, all the VA examinations of record agree that the Veteran had no neurologic abnormalities related to the lumbar spine disability. The Veteran's functional loss was considered. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. The Board accepts that the Veteran has experienced functional impairment and pain. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion (or total lack thereof, as evidenced by ankylosis) nor the functional equivalent of symptomatology required to warrant the next higher evaluation for the period considered. Moreover, as noted in VAOPGCPREC 36-97, and Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997), the Veteran's 60 percent rating represents the maximum rating available for his spinal disability that contemplates a loss of motion aside from ankylosis. Accordingly, consideration for additional disability under the above regulations is not required. In sum, the General Rating Formula for Diseases and Injuries of the Spine would not result in a higher rating for the Veteran's disability for the reasons discussed in detail above. Entitlement to an increased rating greater than 10 percent prior to October 1, 2019, and for a compensable rating from that date for lumbar radiculopathy, right lower extremity As noted above, a July 2019 rating decision discontinued the separate 10 percent rating for right lower extremity radiculopathy. The rating decision stated that "a separate evaluation for radiculopathy, right lower extremity was not warranted because neurological impairments from a lumbar spine disability may not be separately evaluated and combined with a rating for the lumbar spine that is based on incapacitating episodes of [intervertebral disc syndrome]. Neurological complications may only be evaluated separately if the lumbar spine evaluation is based on the alternate criteria for limitation o[f] motion. In your case, a 60 percent evaluation was assigned for your lumbar spine disability based on incapacitating episodes, so assignment of a separate evaluation for radiculopathy was in error." Under 38 C.F.R. § 4.71(a), evaluation of the musculoskeletal system, provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The regulation further provides that separate ratings for objective neurologic abnormalities are available only in tandem with evaluations under the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a, Note (1). Additionally, under 38 C.F.R. § 4.71(a), a veteran may be rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, but the rating formula that results in the higher evaluation should be the one utilized. If a veteran is rated based on incapacitating episodes, he is unable to obtain a separate rating for radiculopathy as the diagnostic code for IVDS contemplates the effects of related neurological manifestations. Evaluating a veteran under intervertebral disc syndrome along with the assignment of separate ratings for radiculopathy would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Here, the Board finds that the RO was correct in finding that a separate rating for radiculopathy when the Veteran's spine rating was assigned under DC 5243 constitutes impermissible pyramiding. The Veteran is assigned a 60 percent based on intervertebral disc syndrome of his lumbar spine resulting in incapacitating episodes and pain on movement. As discussed above, the Veteran prior to October 1, 2019, also has a separate 10 percent rating for right lower extremity radiculopathy and seeks a compensable rating from that date. As provided above, a rating under DC 5243 for intervertebral disc syndrome contemplates the effects of related neurological manifestations such as radiculopathy of the lower extremities. Accordingly, a separate rating for radiculopathy constitutes impermissible pyramiding and, therefore, an increased rating prior to October 1, 2019, or a compensable rating from that date is not warranted. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). 4. Entitlement to an increased rating greater than 10 percent for bilateral pes planus with callosities An evaluation of 10 percent is currently assigned to the Veteran's bilateral flat foot condition under DC 5276. The Veteran alleges his bilateral foot disability is more severe than currently rated. Under DC 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Id. 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 30 percent disabling for bilateral disability. Id. A 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopaedic shoes or appliances. Id. As noted above, the words "marked," "severe" and "pronounced" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. During a December 2015 VA foot examination, the Veteran reported using arch supports for his foot problems and stable symptoms overall. The Veteran had pain at the calluses. He denied flare-ups impacting the function of the feet or functional impairment of the feet. The Veteran had bilateral foot pain with use. There was no pain on manipulation of the feet or swelling on use, but did have bilateral calluses. The Veteran used arch supports bilaterally. There was not extreme tenderness of the plantar surfaces of the feet, but there was decreased longitudinal arch height of both feet on weight-bearing. There was marked deformity of both feet, but not marked pronation. The weight-bearing line did not fall over or medial to either great toe. The Veteran did not have inward bowing of the Achilles tendon of one or both feet. There was not marked inward displacement or severe spasm of the Achilles tendon on manipulation of one or both feet. There was bilateral pain of the feet on examination, but the pain did not contribute to functional loss. There was no other factor contributing to functional loss. The bilateral flat feet did not impact the Veteran's ability to perform any occupational task. In January 2018, the Veteran underwent a VA contract foot examination. The Veteran reported consistent problems on the bottom of his feet and that his feet hurt while standing. He also had stiffness in the feet. The Veteran denied flare-ups of the feet. There was functional loss because he was not able to stand for very long periods or stand on his tiptoes due to pain. There was pain on the use of his feet, but no indication of swelling on use. There were bilateral calluses and the Veteran used arch supports in both shoes. There was not extreme tenderness of the plantar surfaces on one or both feet. There was decreased longitudinal arch height of both feet on weight bearing. There was marked deformity and marked pronation of both feet. The weight bearing line of both feet fell over or were medial to the great toes. There was inward bowing of the Achilles tendon of both feet. The Veteran did not have Morton's neuroma, metatarsalgia, hallux rigidus, hallux valgus, pes cavus, or hammer toe. There was no pain reported in either foot on examination. There was functional loss due to pain on weight bearing, interference with standing, or lack of endurance. There was an impact on the Veteran's ability to perform any type of occupational tasks in that standing for prolonged periods of time led to weakness and foot pain. In August 2019, the Veteran was afforded a VA examination for his bilateral foot disability. The Veteran's foot pain prevented him from standing or walking for an extended amount of time. The Veteran reported flare-ups in that at times he could hardly walk when his calluses had built up and due to bilateral foot pain. During those times, he ended up walking on the side of his feet. There was functional loss in that he was unable to walk or stand for an extended period of time. He had pain on use and manipulation of the feet. There was bilateral swelling on use and calluses on both feet. He used bilateral arch supports with some relief of symptoms. The Veteran did not have extreme tenderness of the plantar surfaces of the feet on examination. There was a decreased longitudinal arch height with weight-bearing with both feet. There was a marked deformity of both feet. There also was marked pronation of both feet that was improved with orthopedic appliances. In both feet, the weight-bearing line fell over or medial to the great toe. In addition to the pes planus, the Veteran had multiple painful calluses and hallux valgus. The Veteran had inward bowing of the bilateral achilles tendon both of which were improved by an orthopedic appliance. The Veteran did not have Morton's neuroma or metatarsalgia. The Veteran had hammertoe of the bilateral second toe. The Veteran had mild or moderate symptoms due to hallux valgus bilaterally. There was functional loss due to pain on movement, weight-bearing, and non weight-bearing; deformity; and interference with standing. There was documented arthritis of both feet. The bilateral pes planus affected employment in that the Veteran was unable to perform job duties that included standing or walking for an extended period of time. Based on the foregoing, an increased rating of 30 percent under DC 5276 is warranted for the entire appellate time period, based on the consistent findings of deformity of the feet (including pronation during the August 2019 examination) and bilateral calluses attributable to the pes planus. A rating higher than the assigned 30 percent is not warranted for any period on appeal, as the evidence does not reflect that this disability is sufficient to meet the criteria for a 50 percent rating under DC 5276. While the Veteran has marked pronation and inward bowing of the Achilles tendon noted during the August 2019 VA examination both symptoms were measurably improved with the use of orthotics in the shoes. There has not been documented extreme tenderness of plantar surfaces of the feet or severe spasm of the tendo achillis on manipulation. For these reasons, a 50 percent rating or higher is not warranted for any period on appeal. The Board has reviewed the remaining DCs relating to foot disabilities, but finds DC 5276 is the most appropriate DC available, in light of the Veteran's diagnosis and symptoms. See 38 C.F.R. § 4.71a, DCs 5277-5284 As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. The Board finds that a 30 percent rating, but no higher, is warranted for the entire appellate time period for the Veteran's bilateral pes planus disability. Furthermore, the Board concludes that the Veteran's symptomatology has been consistent throughout the appellate time period and that assignment of staged ratings is not for application. 5. Entitlement to TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities include his low back disability (including neurological manifestations), rated as 60 percent disabling; bilateral pes planus, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling from October 29, 2019; and bilateral hearing loss, rated as noncompensable from October 29, 2019. In addition, the Board notes that the Veteran had separate ratings for right and left lower extremity radiculopathy that have been found to be not warranted because such manifestations are contemplated in the 60 percent rating for the back and separate ratings constitute impermissible pyramiding. As such, the Veteran has met the schedular requirements for TDIU during the entire appellate time period. In this case, there is no lay or medical evidence to suggest that the Veteran's service-connected disabilities, either singly or combined, render him unable to secure and follow a substantially gainful occupation. During the appellate time period the Veteran has been unemployed for the entire period. Prior to the appellate time period, the Veteran had worked in janitorial services as a supervisor for many years. He is a high school graduate and reported two years of college education. In October 2015, the Veteran twisted his left ankle while working in his garage. An April 2016 Residual Functional Capacity Evaluation indicated that that consistently the Veteran would be able to stand or walk for less than 2 hours, sit for 2 to 4 hours, and consistently lift and carry less than 10 pounds. The Veteran would be required to miss or leave work early 3 or more work days per month. The Veteran also would require more than 1 extra breaks per day at work. An August 2017 statement from the Veteran's friend indicated that the Veteran's increased back pain had caused him to stop working and the back problems had made it difficult for the Veteran to work as long as he had. The Veteran had to drive almost 2 hours to work every day and sitting in a car for that long made his back stiff and sore, so the Veteran would already be in pain by the time he got to work. As a supervisor, the Veteran had to walk around a lot, which also hurt the back. The Veteran's supervisor duties meant that there was no light duty work to which he could be assigned. Ultimately, the Veteran retired early because he could not handle the pain anymore. In a September 2017 VA Form 21-8940, the Veteran reported that he had worked at the San Francisco Airport as a custodial supervisor from November 1973 to August 2013 and had missed 90 days of work due to illness. The Veteran had completed 2 years of college. The Veteran reported problems sitting, standing, and walking. He also could not drive for very long. The Veteran's job at the airport required him to do a lot of walking and the lower back and feet hurt all the time. A June 2018 medical opinion from a private family practitioner is of record. After discussing some of the evidence of record, the physician concluded, "Based upon review of the veteran's complete VA claims file, residuals of functional capacity report from the veteran's treating physician, and statement from [M.A.], as well as speaking with the veteran on 06/14/2018, it is my expert opinion that [the Veteran's] service connected impairments, especially his chronic spinal complications, hinder him [sic] unable to sustain gainful work in any employment base. His pain, weakness, fatigability, and slow ambulation prevent him from sustaining even light physical work, and when he is in a sedentary position, his concentration and focus is routinely interrupted by pain, and he must constantly shift seated positions, and must also frequently stand to stretch or lie down to alleviate increasing back pains while sitting. He has undoubtedly been unable to sustain gainful employment as a result of service connected problems since at least 06/17/2015 when the veteran filed his current claim for benefits." A July 2018 opinion from a private vocational consultant noted that the Veteran had served as a light weapons infantryman and thereafter worked in the janitorial industry before retiring in 2013 due to pain from his service-connected disabilities. The vocational consultant indicated that most employers would allow no more than 8 days of absence per year. The Veteran would be expected miss more than that amount according to the vocational consultant "based on the reports of his physical and mental symptoms, the results of the evaluations and his prior work history." In addition, due to concentration issues the Veteran would be "off-task" more than 5 percent of his work hours, which was the minimum required in an employment setting. The Veteran also would need one or more extra breaks per day of at least 15 minutes to regain focus due to pain or the side effects of medication. Based on the foregoing, the vocational consultant concluded that the Veteran was prevented from his former work as a janitor, as these duties were medium in exertion and required frequent postural positions. The Veteran was unable to sustain an 8-hour workday and would require extra breaks and concentration problems on even simple work tasks. As such, the vocational consultant concluded that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected impairments of degenerative disc disease of the lumbosacral spine and the bilateral pes planus with callosities. An August 2019 VA medical opinion indicated that as to the effect of the Veteran's service-connected disabilities on his ability to work, he could not do any chores around the home (loading dish washer, could not cut the grass, and could not clean up around the home). He could not pick up his grandchildren due to pain. The Veteran could not go walking with his wife, due to increased foot pain. The Veteran could not go on long trips due to his increased pain in the back and not being able to stay in one position for an extended amount of time due to his right lower extremity condition. The Veteran could not ride in a car for an extended amount of time due to increased pain. The Veteran enjoyed fishing, but could not go anymore due to twice falling in the water when trying to get out of the boat. The Veteran had to be very careful on stairs due to a sense of right leg position. In June 2020, the Veteran submitted several articles discussing managing absenteeism from work and acceptable levels of absenteeism. Affording the Veteran the benefit of the doubt, the Board concludes that the Veteran's combined service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The Board recognizes that the Veteran has been unemployed for the entirety of the period. The Veteran also would be unable to perform his prior duties as a supervisor of janitorial services because the position required the Veteran to do extensive walking to get to the various areas of the airport requiring cleaning. In addition, the evidence demonstrates that the Veteran would be unable to do physically demanding jobs due to the limitations of his back and bilateral foot disabilities. While on first review the Veteran's back and foot disabilities do not preclude occupations that involve primarily seated activities, given that the Veteran's back pain would necessitate regular changes of position and periods of standing to stretch and that his bilateral pes planus makes periods of standing difficult, with resulting loss of concentration and focus due to the associated pain, the Board finds it difficult to determine a type of occupation that could accommodate the Veteran's combined low back, bilateral foot and concentration symptoms. The Board also considered the nature of his long period of work. Although he was a supervisor, the nature of his janitorial work required extended mobility to properly inspect and supervise the work. As such, affording the Veteran the benefit of the doubt the Board concludes that entitlement to TDIU is warranted for the entire appellate time period. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.