Citation Nr: 21007591 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 190603-10012 DATE: February 10, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1986 to February 1992. This case came to the Board of Veterans’ Appeals (Board) on appeal from an April 2019 Department of Veterans Affairs (VA) rating decision, which implemented an earlier Board decision (in November 2018) granting service connection for bilateral pes planus. The April 2019 rating decision assigned a 10 percent rating for the disability, effective January 9, 2017, and the Veteran appealed this decision to the Board, requesting the Direct Review option (and as such, the Board’s review is limited to the evidence on record at the time of the April 2019 rating decision). A January 2020 Board decision, in pertinent part, granted a 30 percent rating for the bilateral pes planus, throughout the period of appeal. A January 2020 rating decision implemented the Board’s decision, awarding a 30 percent rating for the disability, but also assigned an earlier effective date of October 5, 2015 for the award of service connection (based on clear and unmistakable error) and assignment of a 30 percent rating for the disability. The Veteran appealed the Board decision in part, as to the rating of the pes planus disability, to the United States Court of Appeals for Veterans Claims (CAVC). A September 2020 CAVC Order granted an August 2020 Joint Motion for Partial Remand (JMPR) of the parties, thus vacating that portion of the Board decision denying an initial rating in excess of 30 percent for bilateral pes planus and remanding the matter to the Board for action consistent with the terms of the JMPR. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus The Board’s January 2020 decision granted a 30 percent rating for bilateral pes planus on the basis of clinical findings in private medical records dated in January 2017 and August 2017. The parties to the JMPR agreed that the Board did not provide an adequate statement of reasons or bases for determining that an initial rating in excess of 30 percent for bilateral pes planus was not warranted. Specifically, it was found that the Board did not discuss whether the private records were sufficiently complete in order to adequately decide the claim for a higher rating under 38 U.S.C. § 5125 and 38 C.F.R. § 4.1. Upon further review of the private treatment records (and noting that the further private medical record were not, as VA records are, constructively of record), and that the record was closed in this AMA appeal, given the agreement by the parties that that there is an apparent to the parties duty to assist omission, the Board will remand the matter to the Agency of Original Jurisdiction (AOJ) to correct a duty to assist error that occurred prior to the April 2019 rating decision on appeal. The AOJ should have arranged for a VA examination of the Veteran to determine the full extent of the severity of his bilateral pes planus, because the private treatment records dated in January and August 2017 on file did not describe the full extent with sufficient clarity, in particular whether the disability met the criteria for a 50 percent rating (regarding degree of tenderness of plantar surfaces and spasm of the tendo achillis) under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The matter is REMANDED for the following action: Arrange for the Veteran to be examined by an appropriate clinician (a podiatrist) to determine the nature and severity of his bilateral pes planus. The claims file must be reviewed by the examiner. All clinical findings must be reported in detail. Based on the examination of the Veteran and review of his record, the examiner should indicate whether, at any time since October 2015, the bilateral flatfoot disability may be described as pronounced with manifestations of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and unimproved by orthopedic shoes or appliances (or, alternatively, other symptomatology equivalent to such manifestations). The examiner should describe in detail all symptoms of, and functional impairment flowing from, the disability. The examiner must include rationale with all opinions. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.