Citation Nr: 21007351 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-26 964 DATE: February 9, 2021 ORDER Entitlement to a compensable rating for bilateral pes planus prior to September 16, 2017, is granted. REMANDED Entitlement to a rating in excess of 10 percent for bilateral pes planus prior to September 16, 2017, is remanded. Entitlement to a rating in excess of 30 percent for bilateral pes planus from September 16, 2017, is remanded. FINDING OF FACT The Veteran's bilateral pes planus resulted in pain on use prior to September 16, 2017. CONCLUSION OF LAW The criteria for an initial 10 percent rating for bilateral pes planus are met prior to September 16, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1996 to August 2002 and October 2004 to October 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was granted service connection for hypertension with a zero percent evaluation in the March 2009 rating decision. In the October 2009 Notice of Disagreement (NOD), the Veteran appealed the 0 percent evaluation for her hypertension along with her pes planus. The Board notes that the RO has not issued a statement of the case (SOC) for the issue of a compensable rating for hypertension following the Veteran’s filing of the October 2009 NOD. This matter is REFERRED back to the RO for appropriate action. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Actually painful joints are entitled to the minimum compensable evaluation, here 10 percent. 38 C.F.R. § 4.59. The Veteran's bilateral pes plans is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot, with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot, 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 warranted for severe bilateral acquired flat foot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for bilateral acquired flatfoot, with 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. Id. The Board finds that an initial 10 percent rating is warranted prior to September 16, 2017. The record shows the Veteran has been experiencing pain from walking and standing. In a July 2008 VA examination, the Veteran was found to have localized and constant pain in her feet. The Veteran’s pain was increased due to wearing shoes. In August 2010, the Veteran reported to a VA Medical Center (VAMC) with bilateral foot pain and stated she had foot trouble through her military career. The VA doctor confirmed the Veteran was displaying pes planus. Given the Veteran’s statements of having persistent pain, the Board concludes that her bilateral pes planus warrants the minimum compensable evaluation. 38 C.F.R. § 4.59. Thus, the Veteran’s claim for a 10 percent rating for pes planus prior to September 16, 2017 is granted. The question of whether higher evaluations are warranted for this disability is addressed below, on remand. REASONS FOR REMAND The Veteran is now rated at 10 percent for her bilateral pes planus. A remand is required to secure a retrospective medical opinion for the time period prior to September 16, 2017. A retroactive evaluation of a disability resulting from disease or injury subsequently service connected must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c)(4). The duty to assist may include development of evidence through a retrospective medical opinion where there is a lack of medical evidence for the time period being rated. Chotta v. Peake, 22 Vet. App. 80 (2008). The Veteran was last afforded a VA examination in September 2017. The Veteran has continued to contend that she is entitled to a higher rating and that her condition has worsened. Since her last VA examination was over three years ago, and she has contended she is still entitled to an increased rating, a new VA examination is needed to ascertain the current severity of her service-connected pes planus. The matters are REMANDED for the following action: After completing any needed preliminary development, refer the case to a podiatrist or another appropriate examiner who has experience in treating pes planus for a retrospective medical opinion to address the nature and severity of the Veteran's service-connected pes planus for the period from the October 15, 2008 to September 16, 2017. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner is asked to indicate whether, for the period in question, the Veteran's bilateral pes planus more nearly approximated: a.) Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; or b.) Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that was not improved by orthopedic shoes or appliances. The VA examiner must also determine the current severity of the Veteran's service-connected bilateral pes planus, from September 16, 2017 to present. The examiner is asked to indicate whether, for the period in question, the Veteran's bilateral pes planus has more nearly approximated by showing pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.