Citation Nr: 21073409 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 11-29 248 DATE: December 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral pes planus is denied. FINDING OF FACT The bilateral pes planus does not result in worse than moderate impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral pes planus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1983 to September 1990. The Veteran presented sworn testimony at a hearing before the undersigned in March 2013. This matter was previously before the Board, most recently in June 2021. The record includes a July 2021 appellate brief. The Board notes that in the brief, the representative reported that a June 2021 medical addendum had not been provided to the Veteran. The brief does not request a copy of the addendum, however, and there is otherwise no indication that the representative has not had the opportunity to review the addendum opinion if so desired. Thus, the Board finds the matter is ready for adjudication. INCREASED RATING Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 10 percent rating is assigned for moderate flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is assigned 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 assigned for pronounced bilateral flatfoot 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 appliance. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter Diagnostic Code 5276. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). An October 2009 VA examination record reveals the Veteran's history of arch pain and sole stiffness while standing. The Veteran denied flares. He reported inability to stand for longer than a "few minutes" but also ability to walk a quarter-mile. Examination revealed no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight-bearing. The Achilles was in normal alignment, and there was no forefoot or midfoot alignment. There was no pronation. An arch was present with and without weight-bearing, there was no pain on manipulation, and the varus/valgus angulation of the os calcis was normal. There was no muscle atrophy or other foot deformity. Gait was normal. The examiner reported that the pes planus was mild. A November 2011 VA treatment record reports that the Veteran had normal gait. The record reports that the Veteran could heel walk but had difficulty with toe walk. An October 2014 VA examination record reveals the Veteran's history of numbness in the soles of the feet with weight-bearing. The Veteran reported flares of numbness that increase with weight-bearing. The Veteran reported accentuated pain on use of the feet and manipulation of the feet. There was no indication of swelling on use or characteristic callouses. The Veteran used orthotics bilaterally with relief. There was not extreme tenderness of plantar surface. There was decreased longitudinal arch height of the feet on weight-bearing. There was not objective evidence of marked deformity of a foot or marked pronation. The weight-bearing line fell over or medial to the great toe, and there was not another lower extremity deformity causing alteration of the weight-bearing line. There was not inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon with manipulation of the feet. The examiner reported that there was pain on examination that contributed to functional loss due to pain on weight-bearing. The examiner reported that there was not additional significant limitation of functional ability or other functional loss during flares or with repeated use over time. January, April, September 2015 VA treatment records reveal findings of normal gait, and the April 2015 VA treatment record reports normal station. April 2015 VA medical records also indicate that the reported foot numbness is due to lumbar radiculopathy. A September 2020 VA examination record reveals the Veteran's history of pain in the feet. He reported that it felt like the foot had a crack and arthritis in it. He denied flares. The record reports that the Veteran had pain on use, but it was not accentuated. There was not pain on manipulation or indication of swelling on use. There were not characteristic callouses. There was not extreme tenderness of plantar surface, decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity, or marked pronation. The weight-bearing line did not fall over or medial to the great toe. There was not inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles on manipulation of the foot. The Veteran reported use of arch supports without relief. There was pain on examination and pain on movement. Functional ability was not significantly limited during flares or with repeated use over time. There was not other functional loss during flares or with repeated use. A January 2021 VA treatment record reveals that the Veteran denied numbness/tingling or gait disturbance, and the record reports that gait was normal. A March 2021 VA examination record reveals the Veteran's history of heel pain and pain with walking. The Veteran reported use of insoles which provide some relief. The Veteran reported difficulty standing due ot toe numbing. The Veteran denied flares. The Veteran did not have pain on use, pain on manipulation, or indication of swelling on use. There were not characteristic calluses. The Veteran reported use of orthotics with relief. There was not extreme tenderness of plantar surfaces, objective evidence of marked deformity, or marked pronation. There was decreased longitudinal arch height. The weight-bearing line fell over or medial to the great toe and it was not caused by a condition other than pes planus. There was not inward bowing of the Achilles or marked inward displacement and severe spasm of the Achilles tendon with manipulation of the foot. The examiner determined there was no functional loss due to the pes planus, including with repeated use over time or flares. In a June 2021 addendum, a medical opinion was provided that the Veteran's neuropathy/radiculopathy was unrelated to the pes planus. The opinion states that the neuropathy was secondary to chemotherapy. The opinion adds that pes planus does not cause radiculopathy or neuropathy of the feet. After consideration of the record, the Board finds a rating in excess of 10 percent is not warranted for the bilateral pes planus. Specifically, the Board finds the Veteran's pes planus does not result in impairment more severe than "moderate" at any time during the period of the claim. The record consistently reveals normal clinical findings for gait and station and negative findings of marked deformity, swelling on use, or characteristic callosities. The Board acknowledges that the October 2014 VA examination reveals evidence of accentuated pain on manipulation and use. However, that is the only finding of accentuated pain, the record notes that the Veteran had relief with orthotics, and the October 2014 examiner determined the only impairment associated with the pain was pain on weight-bearing; the examiner determined the pain did not result in limitation of motion or additional limitation during flares or with repeated use. The Board finds the October 2014 finding of accentuated pain, with at least some relief with orthotics, is not more nearly analogous to "severe" pes planus alone. The Board acknowledges that the record includes lay evidence of limping, numbness, and imbalance. These reported symptoms have not been attributed to the pes planus, however, and the record reveals consistently negative histories of fall or imbalance risk. In light of the evidence of neurological disorders affecting the lower extremities, the Board finds the pes planus does not warrant a higher rating under Diagnostic Code 5276. The Board has considered whether a separate rating is warranted under an alternate diagnostic code but finds none is applicable. Although the Veteran has reported neurological symptoms in the feet, notably numbness in the toes, the numbness has been attributed to neuropathy and radiculopathy and not the pes planus. There is no indication that the neurological symptoms are related to the pes planus, and the June 2021 addendum reveals the determination that the radiculopathy and neuropathy are not related to the pes planus. The Board acknowledges the contention that the June 2021 addendum did not fulfill the remand instructions. In December 2020 and June 2021, the Board remanded for a determination whether the Veteran's reported neurological symptoms, notably numbness, were related to the pes planus. The Board finds now that there has been substantial compliance with the prior Board instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The March 2021 VA examination record and June 2021 opinion consider the Veteran's reported neurological symptoms, attribute them to radiculopathy and neuropathy, and determined the radiculopathy and neuropathy are not related to the pes planus. The Board finds the record is sufficient to adjudicate the matter at this time and that the preponderance of the evidence shows that a separate rating for neurological impairment is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.