Citation Nr: 21077361 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 08-30 197A DATE: December 29, 2021 ORDER The appeal pertaining to the issue of entitlement to service connection for a bilateral hip disorder is dismissed. The appeal pertaining to the issue of entitlement to service connection for a bilateral knee disorder is dismissed. A rating of 30 percent, but no higher, for bilateral pes planus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial rating in excess of 10 percent prior to May 12, 2009, and in excess of 30 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a November 2021 written statement, prior to the promulgation of a decision, the Veteran, through his representative, withdrew his appeal as to the issues of entitlement to service connection for bilateral hip and bilateral knee disorders. 2. For the entire appeal period, the Veteran's bilateral pes planus is manifested by pain, which is accentuated on manipulation and use and is not improved by orthopedic shoes or appliances, with characteristic callosities, but without objective evidence of marked deformity, swelling on use, or manifestations that more nearly approximate pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasm of the tendo achillis on manipulation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for a bilateral hip disorder by the Veteran's representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for a bilateral knee disorder by the Veteran's representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for a rating of 30 percent, but no higher, for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. A September 2017 letter notified the Veteran that the Veterans Law Judge who conducted the June 2013 hearing is no longer employed at the Board and afforded him an opportunity for an additional hearing. In a September 2017 response, the Veteran indicated that he does not want another Board hearing. In a July 2014 decision, the Board denied the Veteran's claims of entitlement to service connection for bilateral hip and bilateral knee disorders, as well as entitlement to a higher rating for pes planus. Thereafter, he appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Court granted a Joint Motion for Partial Remand (JMPR), thereby vacating the July 2014 decision as to those issues and remanding the matter to the Board for further adjudication. As the July 2014 Board decision remanded the claim of entitlement to a higher rating for PTSD, the Court lacked jurisdiction over that claim. It also returned to the Board for further adjudication and remains on appeal. Finally, in January 2018, the Board remanded the Veteran's claims of entitlement to service connection for bilateral hip and bilateral knee disorders, and entitlement to higher ratings for pes planus and PTSD for additional development. Furthermore, the Veteran submitted an Application for Increased Compensation Based on Unemployability, VA Form 21-8940 in September 2017 in which he alleged that his service-connected disabilities rendered him unemployable. The Board, therefore, assumed jurisdiction over such claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims now return for further appellate review. The Board also notes that additional evidence, to include updated VA treatment records, was associated with the record subsequent to the issuance of the May 2020 supplemental statement of the case. The Veteran, through his representative, waived AOJ consideration of such evidence in a November 2021 Appellant's Brief. 38 C.F.R. § 20.1304(c). Claims Withdrawn from Appeal 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for a bilateral knee disorder. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a November 2021 written statement, prior to the promulgation of a decision, the Veteran, through his representative, withdrew his appeal pertaining to the issues of entitlement to service connection for bilateral hip and bilateral knee disorders. In this regard, such statement was in writing, authored by the Veteran's representative, included the correct file number, and explicitly identified the issues to be withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of such issues and they are dismissed. Increased Rating 3. Entitlement to a compensable rating prior to October 17, 2013, in excess of 10 percent from October 17, 2013, to September 11, 2017, and in excess of 30 percent thereafter for bilateral pes planus. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on March 7, 2006, the date VA received the Veteran's intent to file a claim for an increased rating for his bilateral pes planus, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's pes planus has been rated as noncompensably disabling prior to October 17, 2013, 10 percent disabling from October 17, 2013, to September 11, 2017, and 30 percent disabling thereafter, pursuant to DC 5276. Under DC 5276, which concerns acquired flatfoot (pes planus), a 10 percent rating is warranted where there is moderate bilateral or unilateral flat foot, with weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral flat foot 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 flat foot with marked pronation, extreme tenderness of plantar surfaces of the feet, and 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. As an initial matter, the Board notes that the parties to the JMPR agreed that in the prior July 2014 denial, the Board failed to adequately address evidence of callosities and abnormal weight bearing in a December 2006 VA examination report. Thereafter, the Veteran's representative argued in a November 2021 Appellant's Brief that the Veteran's pes planus should have been rated as 30 percent disabling for the entire period on appeal, as the evidence shows that the Veteran has had characteristic callosities throughout the period on appeal, to include on the December 2006 VA examination report. After further review of the evidence of record, the Board agrees that such evidence warrants a 30 percent rating for the entire period on appeal. However, the Veteran has not argued, and the evidence does not show, that his symptoms warrant a rating in excess of 30 percent at any point during the period on appeal. Turning to the evidence of record, the Veteran was afforded VA examinations of his feet in December 2006, October 2013, and June 2019, at which time he reported symptoms of pain, excess fatigability, and lack of endurance due to his foot disability. Upon examination each time, the Veteran had pain on use of the feet, which was accentuated on manipulation, without swelling of the feet, or extreme tenderness of plantar surface of either foot. It was noted in December 2006 and June 2019, but not in October 2013, that he had characteristic calluses. The use of orthotics with only some resulting relief was noted in all three examination reports. While the Veteran had decreased longitudinal arch height on weight-bearing of both feet, he did not have objective evidence of marked deformity, to include pronation, of either foot. Additionally, while the Veteran did have inward bowing of the Achilles' tendon, the weight-bearing line did not fall over or medial to the great toe and there was no marked inward displacement or severe spasm of the Achilles' tendon on manipulation. It was also noted that there was pain on movement with active and passive range of motion, weight-bearing, and nonweight-bearing, and he experienced pain and tenderness upon walking and standing following repeated use over time. VA treatment records dated throughout the course of the appeal confirm that the Veteran sought treatment for symptoms of his pes planus, reporting pain and only limited relief with orthotics. Furthermore, treatment providers repeatedly noted characteristic callosities. At the June 2013 Board hearing, the Veteran again reported that he needs arch supports or else has trouble with his flat feet. Based on the foregoing, the Board finds that a rating of 30 percent, but no higher, for the Veteran's bilateral pes planus is warranted for the entire appeal period. Specifically, such disability is manifested by characteristic callosities and pain, which is accentuated on manipulation and use, and not improved by orthopedic shoes or appliances. However, the Board finds that the evidence does not show that such disability resulted in objective evidence of marked deformity, indication of swelling on use, or pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation. In this regard, the Veteran does not meet all of the criteria necessary for the assignment of the current 30 percent rating based on severe bilateral pes planus as his disability is not shown to result in objective evidence of marked deformity or swelling. Nonetheless, the evidence reveals repeated documentation of characteristic callosities, and his reported symptoms are not relieved by orthopedic shoes or appliances. Furthermore, the resulting functional impairment includes limitations in walking and standing, to include with repeated use over time or during flare-ups. Accordingly, the Board finds that his bilateral pes planus more nearly approximates, at most, severe bilateral flat foot. Consequently, a rating of 30 percent, but no higher, under DC 5276 for such disability is warranted for the entire period on appeal. The Board further finds that the Veteran's bilateral pes planus does not result in additional foot symptoms or conditions such that a higher or separate rating under a different DC is warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy). Importantly, as previously noted, in the November 2021 Appellant's Brief, the Veteran's representative alleged that a 30 percent rating for the Veteran's pes planus was warranted for the entire appeal period. Consequently, as the Board herein awards such a rating, the instant decision is a full grant of the benefit sought on appeal. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral pes planus; however, the Board finds that his symptomatology has been stable the throughout the entire appeal period. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that the criteria for a 30 percent rating, but no higher, for the Veteran's bilateral pes planus has been met for the entire appeal period. REASONS FOR REMAND 4. Entitlement to an initial rating in excess of 10 percent prior to May 12, 2009, and in excess of 30 percent thereafter for PTSD. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his PTSD. In this regard, the Board observes that he was most recently underwent a PTSD VA examination in June 2019. However, the Veteran was interviewed by a private psychiatrist, Dr. M.C., in November 2021, at which time the Veteran testified to increased PTSD symptomatology. In this regard, he specifically stated that he had experienced a progressive worsening of his PTSD symptomatology and now experiences daily nightmares, frequent dissociative episodes, persistent intrusive memories, avoidance behavior, denial, anger, insomnia, and an extensive sense of despair. Importantly, the Veteran's wife was present at the interview and stated that she now must help the Veteran with everything, including basic hygiene tasks. The Veteran also confirmed that he now relies on his wife for everything. Further, the Veteran stated that he no longer pursues activities that he used to enjoy, such as gardening, watching TV, and completing simple tasks around the house. Finally, Dr. M.C. reported that the Veteran's thought process was positive for intermittent, passive suicidal ideation. The Board notes that the November 2021 psychiatric evaluation report alone does not reliably assess the current nature and severity of the Veteran's PTSD, as Dr. M.C. did not accurately report certain parts of the Veteran's psychiatric and social history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Specifically, he stated that the Veteran had been severely mentally ill for decades with extremely minimal social interaction, even with family. However, extensive evidence shows that for much of the period on appeal, the Veteran maintained relationships with friends and family, provided childcare for his granddaughter, participated in hobbies and stayed involved in a group at his local veterans' center. Nonetheless, as the report suggests that the Veteran's PTSD symptomatology may have increased in severity since the June 2019 VA examination, a remand is necessary in order to afford him an appropriate VA examination so as to assess the current nature and severity of such service-connected disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 5. Entitlement to a TDIU. The Veteran contends that he is unable to work due, in part, to his service-connected PTSD. Thus, the claim for a TDIU is inextricably intertwined with the initial rating claim remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the initial rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: (Continued on the next page) Afford the Veteran an appropriate VA examination so as to determine the nature and severity of his PTSD. The record, to include a copy of this Remand, should be provided to the examiner and all indicated tests should be conducted. Thereafter, the examiner should describe the nature and severity of all manifestations of the Veteran's PTSD, to include the resulting impact on his occupational and social functioning. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.