Citation Nr: 21069795 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-07 774 DATE: November 19, 2021 ORDER An initial rating in excess of 30 percent for bilateral pes planus is denied. FINDING OF FACT During the entire appeal period, the disability most nearly approximated severe bilateral pes planus due to accentuated pain on use and manipulation, tenderness of the plantar surfaces of the feet that did not improve with orthopedic shoes or appliances, and flare-ups of pain that affected the ability to walk and stand. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 for bilateral pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to January 1993. This matter comes before the Board on appeal of a March 2014 Agency of Original Jurisdiction (AOJ) rating decision issued by the Department of Veterans Affairs (VA). The Veteran withdrew his request for a Board of Veterans' Appeals (Board) hearing in March 2020. 38 C.F.R. § 20.704(e). The March 2014 rating decision on appeal granted service connection for bilateral pes planus associated with a right foot condition and assigned a 30 percent rating under Diagnostic Code (DC) 5276, effective April 17, 2013. The issue was remanded to the AOJ in July 2020 and May 2021. Most recently, the Board directed the AOJ to issue a supplemental statement of the case (SSOC) that addressed the claim for an increased rating under DC 5276 and a March 2021 rating decision that found clear and unmistakable error (CUE) in the March 2014 rating decision and proposed to discontinue a rating for bilateral pes planus under DC 5310-5276 (previously rated as residuals of a right foot gunshot wound). See May 2021 Board decision, at 17. The September 2021 SSOC readjudicated the issue for an increased rating for bilateral pes planus associated with a right foot condition under DC 5276. The Board finds substantial compliance with the prior remand directive as severance of the evaluation for bilateral pes planus under DC 5310-5276 was not effectuated. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal has returned to the Board. The Veteran contends his bilateral pes planus warrants a 50 percent rating. See December 2014 Notice of Disagreement. He and his wife reported he has difficulty standing due to pes planus, blisters, and diabetic neuropathy. The Veteran stated that he is constantly in pain due to the severity of his flat feet and a VA podiatrist told him his case was severe. See February 2016 VA Form 9. 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. When considering 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); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If a reasonable doubt arises regarding the degree of disability after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. VA revised the criteria for evaluating musculoskeletal disorders during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The rating criteria for DC 5276 were not revised and remain as follows: A 30 percent rating is warranted for severe bilateral flatfoot with 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 flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. The Board finds a rating in excess of 30 percent is not warranted at any point during the appeal period because the manifestations of the disability did not more nearly approximate pronounced bilateral pes planus than severe. In this regard, the Board finds the February 2021 VA examination is probative evidence against the claim. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). The VA examiner noted bilateral pes planus was productive of decreased longitudinal arch height with weight-bearing and pain that is accentuated on use and with manipulation and not relieved by arch supports that required use of a cane, but no swelling or characteristic callosities, marked deformity, marked pronation, weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles tendon upon manipulation. Additionally, the VA examiner did not find extreme tenderness of plantar surfaces even though he found pain was not improved by orthopedic shoes or appliances. The Board acknowledges that a September 2013 VA examiner found bilateral pes planus productive of extreme tenderness of the plantar surfaces that was not improved by orthopedic shoes or appliances. However, the Board notes that the examiner also found accentuated pain on use and manipulation of the feet were relieved by arch supports and no evidence of swelling, marked pronation, marked inward displacement, or severe spasm of the tendon on manipulation. Further, the examiner described pes planus as mild to moderate in severity based on imaging studies of the foot. As such, the Board finds this notation of extreme tenderness of the plantar surfaces that was not improved by orthopedic shoes or appliances does not more nearly approximate the criteria for pronounced symptomatology that would warrant a higher rating. 38 C.F.R. § 4.7. This is supported by the other evidence of record that similarly does not reflect evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances to support a finding for a 50 percent rating. See, e.g., February 2016 VA treatment record (reporting heel pain with examination revealing decreased arch height and mild tenderness); March 2017 VA treatment record (reporting improvement with new orthotics). Further, the Board acknowledges the Veteran's contentions that he believed his pes planus warranted a higher rating due to blisters and diabetic neuropathy but notes that there is no evidence he possesses the training or expertise to determine whether such symptoms are related to his service-connected pes planus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Rather, the VA medical records indicate that burning and tingling foot pain was associated with painful sensory diabetic neuropathy and non-service connected diabetes. See, e.g., February 2016 VA treatment record. Although VA treatment records indicate blisters on the Veteran's feet were related to orthotics prescribed for diabetic neuropathy and pes planus, the increased pain on weight-bearing due to blisters is nevertheless encompassed in the 30 percent rating that contemplates pain accentuated on use. See, e.g., October 2015 VA treatment record; Mittleider, 11 Vet. App. at 182. The Board also considers whether functional loss due to pain during flare-ups warrants a higher evaluation. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The February 2021 examiner noted the Veteran's reports of flare-ups three to five times per week were moderate to severe and limited the Veteran's ability to stand and walk. They were described as lasting up to 15 minutes at a time, were precipitated by weather, dehydration, standing on a cold floor, or moving wrong and alleviated by medication, a hot foot bath, or getting off the feet. The Board finds the rating for severe bilateral pes planus adequately compensates for exacerbations or flare-ups of pain that result in short periods of difficulty standing that are alleviated by medication, hot foot baths, or rest. As such, the preponderance of the evidence is against an initial disability rating greater than 30 percent for bilateral pes planus under DC 5276. The Board next considers whether any separate ratings may be assigned under the other DCs pertaining to the foot. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019) (VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability that are expressly raised or are reasonably raised by the record, including, but not limited to, secondary service connection and analogous ratings). For conditions that are not specifically listed in the rating schedule, VA regulations provide that those conditions may be rated by analogy under the DC for "a closely related disease or injury." 38 C.F.R. §§ 4.20, 4.27. Here, a February 5, 2021VA foot examination diagnosed bilateral plantar fasciitis and degenerative joint disease of the left foot and found these diagnoses to be a progression of bilateral pes planus because pes planus predisposed the Veteran to early degenerative changes and the development of plantar fasciitis. These diagnoses are previously noted the record but there is no indication that bilateral plantar fasciitis or left foot degenerative joint disease were related to active service or service-connected disability prior to the February 5, 2021, VA examination report. See 38 C.F.R. §§ 3.303, 3.310(a). As such, the Board limits consideration of any separate evaluations from February 5, 2021. 38 C.F.R. § 3.400. Plantar fasciitis was an unlisted disability until the revised criteria added DC 5269 for plantar fasciitis. Therefore, the Board considers whether plantar fasciitis warrants a separate rating by analogy and also considers the claim pursuant to the revised regulations under DC 5269 from February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Arthritis that is not post-traumatic is listed under DC 5003 and was recharacterized as degenerative arthritis in the revised criteria. Regardless, the old and revised criteria directs that the disability be rated on the basis of limitation of motion under the appropriate DCs for the specific joint involved. The Board considers whether left foot degenerative joint disease warrants a separate rating under DC 5284 for other foot injuries. The Board concludes that the preponderance of the evidence weighs against a finding that bilateral plantar fasciitis or left foot degenerative joint disease were manifested by any additional disability not contemplated in the 30 percent rating for bilateral pes planus. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (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). Specifically, the February 2021 examiner found bilateral plantar fasciitis productive of functional loss due to pain that caused difficulty standing and walking and the left foot condition compromised weight-bearing and required arch supports. Such symptomatology is contemplated by the 30 percent rating that accounts for flare-ups of pain, pain accentuated on use that required use of orthopedic appliances and a cane and resulted in functional loss affecting standing and walking during flare-ups. Therefore, separate ratings for bilateral plantar fasciitis or left foot degenerative joint disease are not warranted. As the Veteran is not service-connected for bilateral weak foot, acquired claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or tarsal/metatarsal malunion or nonunion, separate ratings under DCs 5277-83 are also not warranted. Scott v. Wilkie, 920 F.3d 1375 (2019) (disabilities specifically listed in the rating schedule may only be rated under DCs that specifically pertain to them). Finally, the Board notes that the September 2021 SSOC considered whether the referral for extraschedular consideration was appropriate in this case. Yancy v. McDonald, 27 Vet. App. 484 (2016). There is a three-step analysis to determine whether an issue should be referred for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Board finds the first step is not met as the schedular rating adequate contemplates the Veteran's disability picture. Id. The Board concludes that the available schedular rating reasonably describes the Veteran's disability level and symptomatology. His symptomatology of decreased longitudinal arch height on weight-bearing, accentuated pain on use and manipulation, tenderness of the plantar surfaces of the feet that did not improve with orthopedic shoes or appliances, and functional impairment during flare ups and due to pain that affects the Veteran's ability to walk and stand are fully contemplated in the defined regulations and rating criteria. Therefore, the threshold factor for extraschedular consideration has not been met and the Board need not reach the second step of the Thun analysis. Referral of the Veteran's bilateral pes planus for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. (Continued on the next page) In conclusion, the Board finds the preponderance of the evidence is against an initial disability rating greater than 30 percent for bilateral pes planus. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.