Citation Nr: 21074756 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-46 456 DATE: December 16, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to June 30, 2016 for bilateral pes planus is denied. Entitlement to a disability rating of 50 percent, but no higher, for bilateral pes planus from September 1, 2016 to October 31, 2016 is granted. Entitlement to an extension of August 1, 2017 to September 30, 2017 for a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following a left foot surgery is granted. Entitlement to a disability rating in excess of 50 percent from November 1, 2016, excluding a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 from April 21, 2017 to September 30, 2017, for bilateral pes planus is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 30, 2016, the Veteran's bilateral pes planus manifested in symptoms that are most accurately described as "moderate" rather than as "severe" or "pronounced". 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's bilateral pes planus manifested in symptoms that are most accurately described as "pronounced" from September 1, 2016 to October 31, 2016. 3. As of August 1, 2017, the Veteran's foot condition was manifested by the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited so as to require an extension of convalescence following the surgery performed in April 2017. 4. From November 1, 2016, excluding a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 from April 21, 2017 to September 30, 2017, the Veteran's bilateral pes planus has manifested with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasms of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent prior to June 30, 2016 for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276. 2. The criteria for entitlement to a disability rating of 50 percent, but no higher, for bilateral pes planus from September 1, 2016 to October 31, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276. 3. The criteria for entitlement to an extension of August 1, 2017 to September 30, 2017 for a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following a left foot surgery have been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.30. 4. The criteria for entitlement to a disability rating in excess of 50 percent from November 1, 2016, excluding a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 from April 21, 2017 to September 30, 2017, for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during Peacetime and the Vietnam era on active duty from August 1972 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. In April 2021, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. In an August 2021 Board letter, the Veteran was notified that his previous representative, the Military Order of the Purple Heart, was no longer accredited to represent claimants in claims before VA. The letter informed the Veteran how to obtain accredited representation and that VA would continue review of his claim. The Veteran has not indicated that he wishes to obtain new representation in this matter. As such, the Board will consider the Veteran to be representing himself pro se. Increased Ratings Disability ratings are determined by comparing a veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 diagnostic codes 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). 1. Entitlement to a disability rating in excess of 10 percent prior to November 1, 2016 for bilateral pes planus 2. Entitlement to a disability rating in excess of 10 percent, from September 1, 2016 to October 31, 2016 for bilateral pes planus 3. Entitlement to an extension beyond August 1, 2017 of a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following a left foot surgery 4. Entitlement to a disability rating in excess of 50 percent from November 1, 2016, excluding a temporary total disability rating under the provisions of 38 C.F.R. § 4.30, for bilateral pes planus The Veteran's bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. This diagnostic code assigns a 10 percent rating for moderate flatfoot, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, either bilateral or unilateral. A 20 percent rating compensates for unilateral symptoms and a 30 percent rating compensates for bilateral symptoms of severe flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is provided for unilateral symptoms and a 50 percent rating for bilateral symptoms of pronounced 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 appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that revised provisions for musculoskeletal ratings were enacted effective February 7, 2021. However, there were no changes to Diagnostic Code 5276, which are the same both prior to, and after, February 7, 2021. Turning to the evidence of record, the Veteran has submitted June 2013 and September 2014 letters from his private doctor of 11 years, Dr. T.D. Dr. T.D. noted that the Veteran had chronic intermittent flare-ups that had worsened over the past year. Dr. T.D. further noted that the Veteran had limited mobility and could not stand for more than eight hours per day without significant pain. Dr. T.D. stated that the Veteran used braces that seemed to cause some swelling. Ultimately, Dr. T.D. determined that subtalar fusion may be beneficial for the Veteran at some point if he did not respond to more conservative treatments. The Veteran was afforded a VA examination in October 2015. The Veteran reported no surgery, and reported the use of inserts, experiencing pain in his feet after long walks, and being unable to walk or run for long periods. The Veteran reported flare-ups characterized by severe bilateral foot pain after heavy work. Examination of the Veteran revealed pain on use of both feet. There was no pain on manipulation, no swelling on use, and no calluses. The Veteran's symptoms were noted to be relieved with use of orthotics. There was no marked deformity, no pronation, no weight-bearing line over or medial to great toe, and no other lower extremity deformity causing alteration of weight bearing line. The Veteran also had no "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation of one or both feet. The examiner found no functional loss of the lower extremities due to the Veteran's foot condition and no additional functional loss during flare-ups or after repeated use over time. No use of assistive devices was noted, and the examiner determined that the Veteran's foot condition did not impact his ability to perform occupational tasks. The Veteran underwent surgery on his right foot in June 2016. The pre- and post-operative diagnosis was chronic painful right foot, posterior tibial tendon dysfunction, right. The Veteran was thereafter afforded a VA examination in November 2016. The Veteran reported flare-ups characterized by constant sharp pain radiating to the heels and calves bilaterally. Physical examination revealed pain on use of both feet, accentuated on use. Pain was also noted on manipulation, with pain accentuated with manipulation. There was also swelling on use and calluses noted. The Veteran's condition remained symptomatic after use of orthotics, and there was extreme tenderness of the plantar surfaces bilaterally which was not improved with orthotics. The examiner also noted decreased longitudinal arch height of one or both feet on weight-bearing, with objective evidence of marked deformity of the left foot. The marked pronation of the left foot was not improved by orthopedic shoes or appliances. There was no weight-bearing line over or medial to the great toe, and no other lower extremity deformity causing alteration of the weight bearing line. There was also no "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet. The Veteran regularly used a cane for ambulation. The Veteran was noted to have pain on weight-bearing and on non-weight bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance attributable to his foot condition. The examiner also noted additional functional limitation due to flare-ups or repeated use over time characterized by increased pain and decreased ability to bear weight with repetitive use over time. The examiner further noted that the Veteran's inability to stand or ambulate for extended periods impacted his ability to perform occupational tasks. Regarding scars from the right foot surgery, the Veteran reported pain, constant burning and tenderness of his scar. Upon examination, there was a linear scar of the medial right foot measuring six centimeters and a linear scar of the lateral foot measuring four centimeters. There were two superficial, nonlinear scars measuring one centimeter by one centimeter. The examiner noted objective evidence of painful scars as the Veteran grimacing and flinching during the exam. There were no unstable scars. The examiner noted no limitation of function due to scars, and no impact on the Veteran's ability to work. The Veteran underwent surgery on his left foot in April 2017. The Veteran subsequently developed complications of cellulitis and necrotic tissue and underwent a second procedure in May 2017. The Veteran was most recently afforded a VA examination in April 2021. The examiner noted residuals of the Veteran's foot surgery of bilateral foot pain. The examiner further noted that the Veteran experiences functional loss due to frequent swelling and pain, and that the Veteran had additional functional loss due to flare-ups and/or after repeated use over time characterized by an inability to stand and having to sit with his feet propped up to relieve the pain and swelling. The Veteran's inability to stand or sit for long periods was noted to impact the Veteran's ability to perform occupational tasks. Examination showed pain on use of both feet, accentuated on use, and bilateral swelling on use. There was evidence of pain with weight-bearing and upon rest/non-movement. There was no pain on manipulation, no characteristic calluses, no extreme tenderness of plantar surfaces, no decreased longitudinal arch height of one or both feet on weight-bearing, no objective evidence of marked deformity of one or both feet, no marked pronation of one foot or both feet, no weight-bearing line over or medial to the great toe, no "inward" bowing of the Achilles' tendon, and no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet. The examiner noted that the Veteran used arch supports but remained symptomatic. The Veteran was noted to use a wheelchair occasionally, with constant use of a cane. The examiner noted September 2017 x-rays of the left foot which showed good position of the foot and hardware. Upon examination of the Veteran's surgical scars, there were no painful or unstable scars noted. There were two scars of the right inner foot and heel area with total area of 1.4 centimeters and two scars of the left inner foot and heel area with total area of 1.3 centimeters. The examiner found no limitation of function due to scars, and no impact on the Veteran's ability to work. The Board notes that the April 2021 Board remand directed the RO to reconsider the issue of entitlement to a temporary total evaluation for the Veteran's April 2017 left foot surgery based on convalescence under 38 C.F.R. § 4.30. In a May 2021 rating decision, the RO assigned a temporary total evaluation from April 21, 2017 and assigned a 50 percent disability rating from August 1, 2017. The Board also acknowledges the Veteran's assertion during the February 2021 Board hearing that he was treated by private doctors for his foot condition. In the April 2021 remand, the Board directed the RO to attempt to obtain medical records related to the Veteran's treatment. In an April 2021 letter, the RO requested the Veteran's authorization to request the relevant records. The Veteran did not respond. VA's duty to assist a veteran in developing the facts and evidence pertinent to an appellant's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of appellants to cooperate with VA. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). In this case, the Board will have to evaluate the Veteran's severity of the Veteran's foot condition without the advantage of any information that may have been obtained from the private medical records. Prior to the June 2016 right foot surgery, the Veteran asserts that his feet were deformed bilaterally, particularly on the right side, and that this was evident in protruding arch bones and abnormal gait, as well as severe pain and swelling. See February 2021 Hearing Transcript. The Veteran also asserts that he had calluses bilaterally, as well as some Achilles' tendon spasms. Id. The Veteran also asserts that the severity of his foot condition warranted a 50 percent rating effective September 1, 2016, the date the temporary total evaluation for right foot surgery ended. Id. The Veteran further asserts, through his representative, that his recovery from the April 2017 left foot surgery was slow and that he is entitled to a temporary total evaluation from April 2017 to October 2017. Id. Based on the above, the Board finds that entitlement to a disability rating in excess of 10 percent prior to June 30, 2016 for bilateral pes planus is not warranted. As noted above, in June 2013 and September 2014, the Veteran's private doctor stated that the Veteran's foot condition was characterized by chronic intermittent flare-ups, limited mobility, inability to stand for more than eight hours per day without significant pain, and use of assistive devices which caused some swelling. The October 2015 VA examiner found no evidence of marked pronation or deformity, no pain on manipulation and use accentuated, no swelling on use, and no calluses. There was also no "inward" bowing of the Achilles' tendon and no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet. As such, none of the characteristics that would justify a 30 or 50 percent rating have been demonstrated prior to June 30, 2016. The Board therefore finds that the Veteran's foot disabilities do not warrant a rating in excess of 10 percent, even taking into account the personal statements from the Veteran and his spouse. In this regard, although the Veteran asserts that he experienced swelling and calluses, these statements are not supported by the assessments of his private doctor or the October 2015 VA examiner. The Board recognizes that Diagnostic Code 5276 is neither successive nor conjunctive, so the Veteran could satisfy the criteria in the 50 percent evaluation without establishing criteria in the 10 percent or 30 percent evaluations. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The overall impairment, however, is not credibly shown to be demonstrative of severe or pronounced impairment during the relevant period. As such, the Board finds that prior to June 30, 2016, the severity of the Veteran's foot condition was consistent with a 10 percent disability rating under Diagnostic Code 5276. However, the Board also finds that a 50 percent disability rating is warranted from September 1, 2016 to October 31, 2016. The Veteran is currently in receipt of a temporary total evaluation for right foot surgery convalescence from June 30, 2016, a 10 percent disability rating from September 1, 2016, and a 50 percent disability rating from November 1, 2016. The November 2016 VA examiner found pain on use of both feet, accentuated on use, and pain on manipulation, accentuated with manipulation. The Veteran had swelling on use and calluses, as well as extreme tenderness of plantar surfaces bilaterally. There was objective evidence of marked deformity of the left foot. The Veteran's symptoms were not relieved with use of orthotics. The Board notes that the Veteran completed post-surgery physical therapy in August 2016. At an August 2016 follow-up visit prior to the cessation of physical therapy, the Veteran's private doctor noted that he was using a knee walker and a "cam boot", and was non-weight bearing. However, upon placing weight upon the foot and manipulation of the foot, the November 2016 VA examiner found that that the Veteran's symptoms were characteristic of pronounced bilateral pes planus. Given the short period of time which elapsed between the end of the Veteran's physical therapy treatment in late August 2016 and the observation of pronounced symptoms in November 2016, the Board resolves doubt in the Veteran's favor and finds that a 50 percent disability rating is warranted effective from September 1, 2016 to October 31, 2016. Regarding his left foot surgery, the Veteran is currently assigned a temporary total evaluation from April 21, 2017, and thereafter assigned a 50 percent disability rating from August 1, 2017. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Total ratings for convalescence may be extended for 1, 2, or 3 months beyond the initial 3 months for any of the three reasons set forth under 38 C.F.R. § 4.30 (a). Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made for reasons (2) or (3) under 38 C.F.R. § 4.30 (a) upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b). In this case, the Veteran's representative asserted at the February 2021 Board hearing that the Veteran should be awarded a temporary total evaluation from April 2017 to October 2017. A review of the evidentiary record shows that in September 2017 the Veteran was ambulating with a pneumatic boot and bilateral axillary crutches. The Veteran had an abducted gait on the right, and the physical therapist recommended additional hip and gluteal strengthening. The Veteran thereafter completed physical therapy appointments in September 2017. As such, the evidentiary record shows that the Veteran meets the criteria under 38 C.F.R. § 4.30 (a) for an extension of a total rating for convalescence until September 30, 2017. Based on the above, the Board notes that the Veteran is in receipt of a 50 percent disability rating for bilateral pes planus effective September 1, 2016, excluding periods of temporary total evaluations under 38 C.F.R. § 4.30. The Board further notes that the Veteran has been awarded separate disability ratings for scars related to the Veteran's foot surgeries, and the Veteran's related symptoms are fully contemplated by those ratings. As the Veteran is in receipt of the highest schedular rating for pes planus, there is no basis to award a higher rating. The Board acknowledges the Veteran's assertion that he is unable to work due to his foot condition, and his claim for a TDIU is addressed in the Remand section below. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The April 2021 Board remand directed the RO to properly develop and adjudicate the Veteran's TDIU claim. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). In a June 2021 letter, the RO requested employment information from the Veteran's former employer. Later in June 2021, the Veteran's former employer requested additional information, specifically the Veteran's date of birth, from the RO to process the request. The RO subsequently sent a second letter to the Veteran's former employer, but did not provide the requested birth date information. As such, there has not been substantial compliance with the Board's remand directives and a remand is necessary to remedy this error. The matters are REMANDED for the following action: Appropriately develop the Veteran's TDIU claim, to include requesting employment information from the Veteran's former employer and providing full identifying information to the Veteran's former employer as requested in the June 24, 2021 Correspondence. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.