Citation Nr: 21075319 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-30 242 DATE: December 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to February 18, 2020, for bilateral pes planus is denied. Entitlement to a rating of 30 percent, but not higher, beginning February 18, 2020, for bilateral flat feet is granted. Entitlement to an initial compensable rating prior to February 18, 2020, for muscle spasms is denied. Entitlement to a rating of 10 percent, but not higher, beginning February 18, 2020, for muscle spasms is granted. FINDINGS OF FACT 1. Prior to February 18, 2020, the Veteran's bilateral pes planus was moderate and manifested by pain on manipulation and use of the feet. 2. Beginning February 18, 2020, the Veteran's bilateral pes planus was severe and manifested by marked pronation, pain on manipulation and accentuated by use, swelling on use, and characteristic callosities. 3. Prior to February 18, 2020, the symptoms of the Veteran's muscle spasms were productive of a slight disability. 4. Beginning February 18, 2020, the symptoms of the Veteran's muscle spasms were productive of a moderate disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for bilateral pes planus have not been met prior to February 18, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2020). 2. The criteria for a rating of 30 percent, but not higher, for bilateral pes planus have been met beginning February 18, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2020). 3. The criteria for an initial compensable rating for muscle spasms have not been met prior to February 18, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.56, 4.73, Diagnostic Code 5321 (2020). 4. The criteria for a rating of 10 percent, but not higher, for muscle spasms have been met beginning February 18, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.56, 4.73, Diagnostic Code 5321 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1978 to April 1982 and January 1991 to June 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of that hearing is of record in the claims file. This case was previously before the Board in February 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. In a July 2020 rating decision, the Veteran's rating for his bilateral pes planus was increased to 10 percent, effective May 20, 2013, and increased to 50 percent, effective June 16, 2020. In a September 2020 rating decision, the Veteran's rating for his muscle spasms was increased to 10 percent, effective June 16, 2020. Those decisions do not constitute a full grant of the benefits sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating Bilateral Pes Planus The Veteran asserts that he is entitled to a higher rating for his bilateral pes planus because the severity of his symptoms is worse than contemplated by the currently assigned rating. At an August 2014 VA examination, the Veteran reported pain with prolonged standing and flare-ups in both feet. Upon physical examination, the examiner noted the following: pain in both feet that was accentuated on manipulation, pain in both feet on manipulation, swelling on use, use of arch supports and orthotics for both feet, and decreased longitudinal arch height of both feet on weight-bearing. There was no evidence of characteristic calluses, extreme tenderness of the plantar surfaces, marked deformity, marked pronation, weight-bearing line falling over or medial to the great toe, lower extremity deformity other than pes planus causing alteration in weight-bearing line, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon. The examiner noted the contributing factors of disability to include pain, excess fatigability, pain on weight-bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance. re was pain in both feet upon physical examination, and that the pain contributed to functional loss. However, the examiner found that the Veteran would not experience significant limitation of function due to pain, weakness, fatigability, or incoordination in either foot following repeated use over a period of time or during a flare-up. There were no other physical findings, complications, conditions, signs, symptoms, or scars related to pes planus noted. The examiner confirmed the diagnosis of flat foot. At a June 2020 VA examination, the Veteran reported that his pes planus symptoms had continued to increase in severity. He reported episodes of pain in the inside arch, heel, and ankle; pain on the outside of the foot, just below the ankle, and foot fatigue. He reported that he used insoles and special shoes. The Veteran reported that his feet would hurt very badly in the morning when he woke up, and that he had to sit on the side of the bed for approximately 30 minutes before getting up. He also reported sharp, painful flare-ups in both feet that burned and ached, that occurred almost daily. The Veteran reported that his functional impairment consisted of an inability to perform yard work, stand for prolonged periods, or walk for prolonged periods. Upon physical examination, the examiner noted that the Veteran experienced the following: pain in both feet that was accentuated on use; pain on manipulation of the feet; swelling of the feet; characteristic calluses on both feet; use of orthotics without relief; extreme tenderness of plantar surfaces of both feet; decreased longitudinal arch height of weight-bearing in both feet; and, marked pronation of both feet. The Veteran did not experience marked deformity, weight-bearing line fallen over or medial to the great toe, lower extremity deformity other than pes planus, inward bowing of the Achilles tendon, or marked inward displacement of the Achilles tendon. The Veteran was noted to experience pain on examination, and the examiner noted that the pain contributed to functional loss. The examiner noted additional contributing factors to the Veteran's disability included less movement than normal, weakened movement, pain on weight-bearing, disturbance of locomotion, interference with standing, lack of endurance, and limitation in the ability to walk or stand for prolonged periods. The examiner further noted that the Veteran would experience additional pain, fatigue, weakness, and limitations in mobility during a flare-up or following repeated use over a period of time. The examiner noted that the Veteran required the constant use of a cane as a result of his bilateral pes planus. The examiner noted that the Veteran's disability limited his ability to work in that he should avoid tasks that required extensive walking. The examiner further noted that there was pain on weight-bearing, active motion, and passive motion. The Board notes that the Veteran has received treatment at the VA Medical Center and from private providers for various disabilities, to include his bilateral pes planus. However, a review of those records does not show that the Veteran has symptoms of his disability that are worse than those described at his VA examinations. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his bilateral pes planus prior to February 18, 2020. In this regard, there is no indication from the record that the Veteran's pes planus was severe, either bilaterally or unilaterally, prior to that date. Specifically, the Veteran was not found to have marked pronation, abduction, or any other deformity in either food. Additionally, there was no indication from the record that the Veteran experienced characteristic callosities prior to that date. Additionally, at his August 2014 VA examination, the Veteran reported that he experienced painful flare-ups only after prolonged standing, and the VA examiner found that the Veteran was not significantly limited by pain, weakness, fatigability, lack of endurance, or incoordination following repeated use over a period of time or during a flare-up. therefore, even with consideration of all pertinent disability factors, there remains no basis for assignment of a rating in excess of 10 percent prior to February 18, 2020, for the Veteran's bilateral pes planus. As such, a higher rating prior to February 18, 2020, is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5276. The Board finds that the Veteran is entitled to a rating of 30 percent, but not higher, for bilateral pes planus beginning February 18, 2020. In this regard, the Board notes that the Veteran reported at his hearing before the Board in February 2020 that his pes planus disability had increased in severity. At the June 2020 VA examination in response to that assertion, the Veteran's pes planus was found to be severe. Specifically, the Veteran was noted to experience marked pronation, pain on manipulation of both feet that was accentuated by use, swelling, and characteristic callosities. However, there is no indication from the record that the Veteran's pes planus was pronounced beginning February 18, 2020. In this regard, the Veteran was not shown to have marked deformity, weight-bearing line fallen over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement of the Achilles tendon. While the Veteran was noted to experience marked pronation and extreme tenderness of the plantar surfaces of the feet, the Board notes that when his disability picture was considered as a whole, the severity of the Veteran's pes planus did not more closely approximate the criteria required for a pronounced pes planus. Additionally, the VA examiner considered the additional limitation that the Veteran experienced as a result of pain, fatigue, weakness, lack of endurance, and incoordination following repeated use over a period of time and during a flare-up when describing the Veteran's symptoms and limitation of function. As such, even with consideration of all pertinent disability factors, there remains no basis for assignment of a rating in excess of 30 percent beginning February 18, 2020, for the Veteran's bilateral pes planus. Therefore, the Board finds that a rating of 30 percent, but not higher, is warranted beginning February 18, 2020. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5276. Accordingly, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for bilateral pes planus prior to February 18, 2020; and against a rating in excess of 30 percent thereafter. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Muscle Spasms The Veteran asserts that he is entitled to a higher rating for his muscle spasms because the severity of his symptoms is worse than contemplated by the currently assigned rating. At a June 2015 VA examination, the examiner noted that the Veteran developed chest wall/muscle spasm and pain during service. The examiner described the injury as a non-penetrating muscle injury affecting muscle group XXI (torso and neck). There was no history of rupture, muscle hernia, or injury to facial muscles. There were no scars, fascial defects, or effect on muscle substance or function. Muscle strength testing was normal and there was no muscle atrophy. The Veteran did not require assistive devices. There were no other pertinent physical findings, complications, conditions, signs, or symptoms associated with the Veteran's service-connected muscle disability. The examiner noted that the Veteran's muscle spasms did not impact his ability to work. At a June 2020 VA examination, the Veteran reported that he currently experienced symptoms of chest tightness that occurred mostly at night. The Veteran did not have a history of rupture, hernia, or injury to the facial muscles. There were no associated scars, fascial defects, or effect on the muscle substance or function. The examiner noted that the Veteran experienced the following cardinal signs and symptoms of a muscle disability: consistent weakness, consistent lowered threshold of fatigue, and consistent fatigue and/or pain. Muscle strength testing was normal, and there was no muscle atrophy. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms associated with the Veteran's service-connected muscle disability. The examiner found that the Veteran's muscle disability impacted his ability to work in that he should avoid tasks that over-exerted him with physical activities classified as high-stress careers such as with management or sales, working on production lines, tasks that required heavy lifting, and tasks requiring physical strength and energy such as a distribution center worker. At an August 2020 VA examination, the Veteran reported that he experienced intermittent muscle spasms in the chest and left upper extremity which could last for up to 4-5 hours at a time. He reported that he took muscle relaxers for treatment. The Veteran was noted to have decreased grip strength in the left upper extremity, but muscle strength testing was otherwise normal. Deep tendon reflexes were decreased in the left biceps and triceps, but were otherwise normal. There was no muscle atrophy present. There was mild muscle weakness noted in the left upper extremity. There were no other pertinent physical findings complications, conditions, signs, or symptoms associated with the Veteran's muscle disability. The Board notes that the Veteran has received treatment at the VA Medical Center and from private providers for various disabilities, to include his muscle spasms. However, a review of those records does not show that the Veteran has symptoms of his disabilities that are worse than those described at his VA examinations. The Board finds that an initial compensable rating for the Veteran's muscle spasm is not warranted prior to February 18, 2020. In this regard, there is no indication from the record that his disability was worse than slight for that period. Specifically, there is no indication from the record that the Veteran experienced a through and through injury, or a deep penetrating wound. Further, there is no indication from the record that the Veteran's muscle disability was productive of loss of deep fascia or muscle substance, impairment of muscle tonus, loss of power, or lowered threshold of fatigue. In fact, the Veteran was noted to have a non-penetrating muscle injury without rupture, muscle hernia, or injury to facial muscles. There were no scars, fascial defects, or effect on muscle substance or function. Muscle strength testing was normal and there was no muscle atrophy. As the Veteran's muscle disability was slight in nature, an initial compensable rating is not warranted. 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5321. The Board finds that the Veteran is entitled to a 10 percent rating, but not higher, for his muscle disability beginning February 18, 2020. In this regard, the Board notes that the Veteran reported at his hearing before the Board in February 2020 that his muscle disability had increased in severity. At his June 2020 VA examination, the Veteran was noted to have signs and symptoms consistent with a moderate muscle disability. Specifically, the Veteran was noted to experience consistent symptoms of weakness, lowered threshold for fatigue, and fatigue and/or pain. Additionally, at his August 2020 VA examination, he was shown to have mild weakness. However, there is no indication from the record that the Veteran was shown to have loss of deep fascia or muscle substance, soft or flabby muscles in the injured area, swelling or hardening abnormally in contraction, severe impairment of function, or atrophy. As such, even with consideration of all pertinent disability factors, there remains no basis for assignment of a rating in excess of 10 percent beginning February 18, 2020, for the Veteran's muscle disability. Therefore, the Board finds that a rating of 10 percent, but not higher, is warranted beginning February 18, 2020. 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5321. To the extent that, by filing his claim for an increased rating, the Veteran believes his symptoms to be more severe than contemplated by the currently assigned noncompensable disability rating, the Board notes that the Veteran is competent to report on factual matters of which he first-hand knowledge, such as experiencing an increased level of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than any subjective complaints of increased symptomatology. Accordingly, the Board finds that a preponderance of the evidence is against an initial compensable rating for muscle spasms prior to February 18, 2020; and against a rating in excess of 10 percent thereafter. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.