Citation Nr: 21069964 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-30 681 DATE: November 22, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for service-connected bilateral pes planus is denied. FINDING OF FACT The Veteran's bilateral pes planus does not more nearly approximate pronounced acquired flat feet and does not include symptoms of marked pronation, marked inward displacement of the Achilles tendon, and severe spasm of the Achilles tendon on manipulation. CONCLUSION OF LAW The criteria for rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1962 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the Veteran filed a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in June 2015. This TDIU claim is part of a separate appeal stream and the issue remains pending as it was most recently remanded in a separate Board decision in August 2021. Hence, the Board will not address entitlement to a TDIU in this decision, as it will be fully addressed in a separate appeal stream. As a brief matter of procedural background, the Board notes that a December 2018 rating decision decreased the evaluation for bilateral pes planus from 30 percent disabling to 10 percent, effective November 28, 2018. The record is void of notification being provided to the Veteran of a proposal to reduce the rating prior to decreasing the rating. However, this decrease did not result in a reduction of compensation payments. Rather, the Veteran was still in receipt of a 100 percent combined schedular rating. The matter then initially appeared before the Board in March 2021, at which time the Board remanded the issue, finding the November 2018 VA foot examination inadequate. Then, in an August 2021 rating decision, the RO restored the Veteran's 30 percent evaluation for bilateral pes planus, effective November 28, 2018, restoring the 30 percent rating. Pursuant to 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. The 30 percent evaluation for bilateral pes planus had been in effect since September 17, 2014, a period of less than five years prior to the reduction effectuated in the December 2018 rating decision. Further, as noted, the 30 percent rating was restored in an August 2021 rating, effective to the original service connection date. Thus, the procedural safeguards for rating reductions outlined in section 3.105(e) and clear requirements imposed by 38 C.F.R. § 3.344 are not for application. VAOPGCPREC 71-91 (Nov. 7, 1991); see also Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). It is not contended otherwise. In the March 2021 Board remand, the Board noted that there were private treatment records that had not been obtained or reviewed by the November 2018 VA examiner in accessing the claimed disability. In March 2021, the RO provided the Veteran a subsequent development letter requesting that he complete a VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information. Further, the Veteran underwent a VA examination in August 2021. A completed and returned authorization is not of record. The Board finds that the RO is in substantial compliance with the March 2021 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an increased rating in excess of 30 percent for service-connected bilateral pes planus is denied. The Veteran's bilateral pes planus has been rated under Diagnostic Code 5276. Under this diagnostic code, a noncompensable evaluation is warranted for a mild disability with symptoms relieved by built-up shoe or arch support. A 10 percent disability rating requires a moderate impairment, with the weightbearing line position over or medial to the great toe, with inward bowing of the tendo Achilles, and pain on manipulation and use of the feet, either bilateral or unilateral. A 30 percent evaluation is warranted when there is a severe disability bilaterally, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent disability rating requires a bilateral impairment that is pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all conditions listed in the provision must be met); see also Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); see also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the U. S. Court of Appeals for Veterans Claims (Court) has clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Instead, the Mitchell Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Therefore, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. As such, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, in Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of painful motion (38 C.F.R. § 4.59) is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stems from joint or periarticular pathology. Effective February 7, 2021, Diagnostic Code 5269, specifically for plantar fasciitis, was added to 38 C.F.R. § 4.71a. For the period from February 7, 2021, the Board will consider the Veteran's claim under the previous regulations and the current regulations, applying whichever regulations are most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). Under Diagnostic Code 5269, a 30-percent rating is warranted where there is bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. 38 C.F.R. § 4.71a. Otherwise, a 10-percent rating is warranted. Id. A December 2017 VA medical center (VAMC) treatment record reflects that the Veteran reported fungal toenails to bilateral feet. The examiner noted black nails, excessive dry skin, dorsal pedis and posterior tibial arteries, lateral deviation of the bilateral hallux valgus, decreased arch height, medical deviation of the metatarsal head, diminished sensation to feet, a relative risk for future amputation of moderate risk. The examiner assessed the Veteran with peripheral neuropathy, pes planus and hallux valgus. An April 2018 treatment record reflects an x-ray of the right foot revealed no fracture or other acute skeletal abnormality. There was moderate bunion and hallux valgus deformities and small enthesophyte at the Achilles tendon insertion with moderate size enthesophyte at the plantar calcaneus. The examiner noted severe pes planus. The examiner recommended continued use of custom molded orthoses and pain medication. A June 2018 VAMC treatment record reflects an MRI of the right foot revealed pes planus, hallux valgus deformities, and calcaneal enthesopathy present. An August 2018 VAMC podiatry note reflects that the Veteran had a cast placed on his right foot for extensor tendon rupture. A November 2018 VAMC treatment record notes callosities. The Veteran underwent a VA examination in November 2018. A diagnosis of bilateral flat foot (pes planus) was confirmed. The examiner noted that no records were reviewed but acknowledged the Veteran's report of pain, soreness, tenderness, pain on weight-bearing, flare-ups resulting in functional loss with prolonged walking or jogging, and bilateral decreased longitudinal arch height. The examiner found no swelling, characteristic calluses, extreme tenderness of plantar surfaces, objective evidence of marked deformity, or marked pronation. Additional findings included weight-bearing line fall over or medial to the great toe, no lower extremity deformity other than pes planus, no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasm. The examiner indicated that the Veteran regularly used assistive devices, identified as braces and a cane. The examiner opined that the condition impacts the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) and described such impact as foot tenderness, and pain with prolonged walking. A May 2019 VAMC podiatry note reflects there was swelling of the left foot and callosities. The Veteran underwent a VA foot examination in August 2021. The examiner noted review of the Veteran's records and confirmed a diagnosis of bilateral flat foot (pes planus). The examiner noted symptoms of pain intermittently, swelling bilaterally and treatment with Epsom salt soaks and comfortable shoes. The examiner indicated that the Veteran also reported cramping but no flare-ups. The examiner indicated that the Veteran reported that his symptoms cause functional loss or impairment resulting in a decrease in physical activities, bilaterally on passive motion and on rest/ non movement. The physical examination revealed pain upon manipulation of the Veteran's feet. The examiner reported that the Veteran has bilateral pain, which is accentuated on use and manipulation of the feet, and swelling in the right foot on use. The examiner found pain in the right foot upon physical examination. The examiner found decreased longitudinal arch height, bilaterally. The examiner indicated that the Veteran did not have characteristic calluses, tenderness of the plantar surfaces, marked deformity, marked pronation, lower extremity deformity, inward bowing of the Achilles tendon, or marked inward displacement and severe spam. The examiner further found no Morton's neuroma, metatarsalgia, hammer toes, symptoms of hallux valgus or rigidus, pes cavus nor any other foot conditions or injuries not already described. The examiner further reported that the Veteran does not use assistive devices for the condition. The examiner indicated that no imaging was performed. The examiner opined that the Veteran's condition impacts his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) but indicate that he never lost time from work for feet specifically. After careful consideration of the claims file, the Board determines that the preponderance of the evidence is against the assigment of a disability rating in excess of 30 percent for the period on appeal. The Board finds that the weight of the evidence does not show symptoms more nearly approximating the 50 percent rating criteria under Diagnostic Code 5276. A 50 percent rating for bilateral pes planus requires pronounced symptomatology contemplated as 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. While the August 2021 examination did report pain intermittently, swelling bilaterally, cramping, and functional loss, the preponderance of the evidence does not more nearly approximate the criteria for a 50 percent rating. None of the competent evidence of record indicates that the Veteran suffers from marked pronation of the Veteran's feet, marked inward displacement of the Achilles tendon, or severe spasm of the Achilles tendon on manipulation. Rather, the August 2021 examination describes none of the latter conditions. Moreover, the August 2021 examination report reflects no marked pronation of the Veteran's feet or marked inward displacement of the Achilles tendon. Additionally, the examination report indicates treatment of the Veteran's symptoms only consists of Epsom salt soaks and comfortable shoes. The Board observes that the description of pronounced pes planus symptoms of marked pronation, extreme tenderness, marked inward displacement and severe spasm are listed in the conjunctive. 38 C.F.R. § 4.71a, DC 5276. While the Veteran's bilateral pes planus notes functional loss or impairment resulting in a decrease in physical activities, along with symptoms that include pain and swelling, such does not meet one of the criteria for a 50 percent rating such as evidence of record of the presence of most of the symptoms enumerated by the pronounced flat foot rating criteria (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). Further, the Board does not find the additional functional impairment described by the examiner (pain intermittently, cramping, swelling pain on manipulation and on accentuated use) more nearly approximating the criteria for a 50 percent rating. The Board notes the Veteran's reports of pain on use of his feet and his restriction of daily activities due to his pain. However, the Board considers severe bilateral pes planus pain from these reports to be contemplated by the 30 percent rating criteria under DC 5276 and not more nearly approximating the 50 percent rating criteria for pronounced pes planus. Again, the Board highlights that there are no objective findings indicating the Veteran's bilateral foot disability is of a greater severity. Overall, the Board finds that the evidence does not suggest the Veteran's bilateral pes planus more nearly approximates the pronounced disability contemplated by the 50 percent rating. The Board acknowledges that the August 2021 VA examiner did not note flare-ups or calluses, as did the March 2015 VA examination report. However, the Board finds that the August 2021 VA examination is adequate to fully inform the Board of the severity level of the Veteran's condition. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Illustratively, although the March 2015 examination indicated that the Veteran experienced flare-ups, the March 2015 examination report further described the frequency and impact of the flare-ups as very rarely but sometimes he had a burning pain, which usually lasts less than one minute and when this occurs, he has a seat and it usually resolves quickly after non-weight bearing and no functional loss. Moreover, unlike the symptoms associated with a 50 percent rating, here, the March 2015 examiner found no pain on manipulation bilaterally, extreme tenderness of plantar surfaces, objective evidence of marked deformity, marked pronation, lower extremity deformity other than pes planus, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon, just as the August 2021 examiner failed to find such symptoms. Hence, even if the August 2021 examiner found flare-ups or calluses, the combination of such symptoms with the Veteran's additional symptoms would still fail to more closely approximate a 50 percent rating. The Board finds that the Veteran's symptoms are essentially consistent with the March 2015 examination report to meet the 30 percent rating criteria. Further, in considering the disability under Diagnostic Code 5269, the record reflects that the August 2021 examiner did not find that the Veteran has plantar fasciitis. However, even if found, the Veteran is already in receipt of a 30 percent rating under Diagnostic Code 5276, whereas the highest rating under Diagnostic Code under 5269 is 30 percent. Hence, evaluating the disability under Diagnostic Code 5269 would not result in a rating higher than 30 percent. In making this determination, the Board has also acknowledged and considered the record reflecting a diagnosis of hallux valgus and the potential applicability of other rating criteria used for rating disabilities of the feet. Schafrath v. Derwinski,1 Vet. App. 589, 592(1991); see also Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code dependent on the facts of a particular case). The Veteran, however, is not shown to have hallux valgus that is severe, if equivalent to amputation of the great toe or operated with resection of the metatarsal head, under Diagnostic Cide 5280. Neither is he shown to have and just as importantly, service connection is not in effect for these other disabilities of metatarsalgia, bilateral weak foot, claw foot, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones; thus, Diagnostic Codes 5277, 5278, 5279, 5281, 5282, and 5283 are all inapplicable as such that any symptoms associated with them, in turn, could be indistinguishable from those stemming from the pes planus and resultantly have to be compensated. See Mittleider v. West, 11 Vet. App. 181 (1998). Pain attributable to the pes planus cannot be rated twice if, as an example, the Veteran also has pain owing to his hallux valgus and pes planus since this would twice compensate him for this same symptom and contravene VA's anti-pyramiding regulation 38 C.F.R. § 4.14. For these reasons, the Board finds that a rating in excess of 30 percent for pes planus is not warranted during the period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.