Citation Nr: 21072856 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 06-32 475 DATE: December 6, 2021 ORDER From May 3, 2012, a 30 percent rating for left foot disability is granted. From May 3, 2012, a 30 percent rating for right foot disability is granted. REMANDED Total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From May 3, 2012, the Veteran's left foot disability resulted in severe symptoms. 2. From May 3, 2012, the Veteran's right foot disability resulted in severe symptoms. CONCLUSIONS OF LAW 1. From May 3, 2012, the criteria for a 20 percent rating for left foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. From May 3, 2012, the criteria for a 20 percent rating for right foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1975 to May 1975 and from a later date in May 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, this appeal was before the Board in August 2018, where they were remanded for further development. The appeal was before the Board after the Veteran appealed a May 2017 decision to the Court of Appeals for Veterans Claims (Court) that denied a rating higher than 30 percent for bilateral plantar keratosis and pes planus from May 3, 2012, and entitlement to a TDIU. In an Order dated March 2018, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. Left Foot Disability Right Foot Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran contends that a higher rating is warranted for his bilateral foot disability. For the following reasons, the Board agrees. From May 3, 2012, the Veteran's bilateral foot disabilities are compensated as one disability under diagnostic code 5276. Diagnostic code 5276 corresponds to acquired flatfoot, and has varying ratings based on bilateral or unilateral flatfoot. The Veteran's is service connected for bilateral intractable plantar keratoses with pes planus, and as such a rating was assigned based on bilateral flatfeet. A 30 percent rating is assigned for bilateral flatfeet with severe symptoms with 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 rating is warranted for bilateral acquired flatfoot; 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. The Board notes that the Veteran's feet disabilities were not always rated as one disability. From May 22, 1979 to November 14, 2005, the Veteran's feet disabilities were rated separately under diagnostic code 5284 for other foot injuries. Under diagnostic code 5284, a minimum 10 percent rating is assigned for moderate other foot injury. A higher 20 percent rating is assigned for a moderately severe other foot injury. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that, with actual loss of use of the foot, rate as a maximum 40 percent. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. The evidence consists of multiple VA examinations and treatment records. In May 2012, the Veteran underwent an examination for his claim. At this examination it was noted that the Veteran has flatfeet that was diagnosed on his entrance examination. The Veteran reported pain in his feet that prevented him from working. He also stated that he had surgeries in his feet for hammertoes during service. The examiner documented pain on use and manipulation that was accentuated on use and manipulation. There was no swelling on use and characteristic calluses were found on both feet. The Veteran symptoms were relieved by arch supports. The examiner also found no deformity or alignment symptoms in the feet. The Veteran constantly used custom orthotics and was able to toe/heel walk. The Board notes that the examiner found the Veteran to have a normal arch on weight bearing and that they were able to slide their fingers under the arch. In December 2013, the Veteran underwent another VA examination. At this examination the examiner found the Veteran's arches to be normal in structure and that he did not have flatfoot. The examiner diagnosed the Veteran with hammertoes and plantar fascial fibromatosis. The Veteran stated that he lost a position at Wal-Mart because of his foot condition and that he has daily moderate pain of both feet, typically lasting for hours. The examiner found the Veteran to have mild or moderate symptoms of hallux valgus in both feet, but no surgeries for this. No claw foot was found by the examiner. The Veteran constantly used custom orthotics. His walking was limited to two to three blocks and he could stand for fifteen to thirty minutes. The Veteran underwent another VA examination in March 2016. This examiner also found the Veteran to not have pes planus (flatfeet), but instead plantar fasciitis. The Veteran described his symptoms as constant moderate pain in both feet and was now using a cane for his foot condition with his orthotics. The examiner diagnosed the Veteran with hammertoes, hallux valgus, and plantar fasciitis. The Veteran had pain on movement, weight-bearing, non-weight-bearing, disturbance of locomotion, and interference with standing. After the most recent remand, the Veteran underwent a VA examination in September 2020. The examiner found the Veteran to have flatfeet, metatarsalgia, and status post hammertoes surgery. They found the Veteran to still have pes planus but did not explain this finding in comparison with conflicting evidence finding the Veteran to not have pes planus. The Veteran reported weekly flare-ups that are only alleviated in his left foot with shoe inserts. He also stated that he cannot work any job that requires walking or standing. The examiner found pain on use and manipulation that was accentuated on use and manipulation. There was no swelling on use, characteristic calluses were found on both feet, arch supports, and built-up shoes relieved the Veteran's symptom, and extreme tenderness of plantar surfaces was found on both feet that was not relieved by orthotics. The examiner found decreased longitudinal arch heigh on both feet, but no marked deformity or pronation. The examiner rated the Veteran's status post hammertoes surgery to be moderately severe. Contributing factors of the Veteran's disability are pain on movement, pain on weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted that the Veteran cannot walk or stand even five minutes without pain in his feet. The Veteran's most recent VA examination was in March 2021. The examiner diagnosed the Veteran with plantar fasciitis, metatarsalgia, hammertoes, hallux valgus, irretractable plantar keratosis, and degenerative arthritis. The Veteran reported constant pain that increases with prolonged repetitive weightbearing usage which affects his stability with ambulating that requires a cane for support. The examiner found the Veteran to have functional loss of the feet due to plantar fasciitis described as pain and discomfort that limits repetitive and prolonged weightbearing activities. The Veteran's plantar keratosis was rated as moderate in severity and it chronically compromises weight-bearing requiring arch-support, custom orthotics, or shoe modifications which mildly decrease pain and discomfort but not impairment and functional limitations. The contributing factors of the Veteran's disability are deformity, disturbances of locomotion, and pain. The examiner explained that the diagnosis of pes planus is erroneous. They cited to radiographic studies and the current physical examination which revealed no symptoms of flatfeet, but instead showed the Veteran to have an elevated arch. VA treatment records are limited in their discussion of the Veteran's foot disabilities. The Veteran has reported pain to his providers, but the records do not indicate how this pain impacts the Veteran. The Board does note that the claims file includes December 2013 radiology records of the Veteran's feet that include an impression of normal. In an April 2012 statement, the Veteran reported that the Social Security Administration found him disabled due to his feet. VA attempted to obtain his Social Security records, but unfortunately in March 2010 the Social Security Administration reported that the Veteran's records were destroyed. The Board finds that the Veteran's foot disabilities should be rated separately as other foot injuries and not as one disability under bilateral flatfeet. The evidence does not support that the Veteran has flatfeet. The VA examinations that reported a diagnosis of flatfeet provided no explanations how they reached this conclusion. In contrast, the examinations that found no flatfeet all found the Veteran to have an arch, with the most recent examination citing radiographic evidence along with physical examination to support this conclusion. Furthermore, as will be explained below, rating the Veteran's foot disabilities as other foot injuries will provide greater compensation than if the Board continued the 30 percent rating for bilateral flatfeet. The Board finds that 30 percent rating is warranted for each foot. The Veteran has consistently reported that he has constant pain in his feet. This foot pain has been found to cause disturbances in locomotion and limit his ability to stand or walk. He reported that he lost a position at Wal-Mart due to his foot disability. Though the Veteran's Social Security records were destroyed, the Board finds nothing in the record to doubt his claim that he was found disabled due to his foot disability. Based on the Veteran's loss of work due to his foot disabilities and interference with standing or walking the Board finds that a 30 percent rating for severe foot injury is warranted. The Veteran's representative argues that a 40 percent rating should be assigned due to loss of use of feet. They base this argument on how the Veteran's foot disabilities interfere with his standing and walking and that he has been found to have contributing factors of disability that include disturbance of locomotion and interference with standing and requires the use of an assistive device. The Board does not find this to support a finding of approximate loss of use of either foot. Though it was found that he experiences pain after five minutes of standing, the evidence does not indicate that the Veteran is not able to continue standing. Furthermore, there is no evidence in the claims file that indicates that the Veteran's pain prevents him from walking. The Board recognizes the Veteran's pain and the interference in his ability to walk, but this is not at the extent to approximate loss of use of either foot. Accordingly, the Board finds that the Veteran's left and right foot disabilities should be each assigned separate 30 percent ratings for other foot injuries from May 3, 2012 and the claim is granted. REASONS FOR REMAND TDIU The Board notes that the Veteran does not meet the schedular requirements for a TDIU throughout the entire period on appeal. However, if there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, a claim for TDIU must be referred to the Director, Compensation Service for an initial determination whether an extraschedular TDIU is warranted. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). As explained above, the Veteran reported that he lost a job with Wal-Mart due to his foot disabilities and that he has been found disabled due to his foot disabilities by the Social Security Administration. This evidence shows that there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities. As such, a remand is necessary to refer this matter to the Director, Compensation Service for a determination whether an extraschedular TDIU is warranted. The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.