Citation Nr: 21008209 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 05-18 915 DATE: February 12, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from August 11, 2009 to April 4, 2016 is denied. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from April 5, 2016 to November 19, 2017 is denied. FINDINGS OF FACT 1. For the period from August 11, 2009 to April 4, 2016, the evidence of record does not show that the Veteran’s symptomology approximated a severe level of flatfoot disability such as having objective evidence of marked deformity (e.g., pronation, abduction, etc.) of the foot, pain on manipulation of the feet, an indication of swelling on use, or characteristic callosities. 2. For the period from April 5, 2016 to November 19, 2017, the evidence of record does not show that the Veteran’s flatfoot disability resulted in marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria an evaluation in excess of 10 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from August 11, 2009 to April 4, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2019). 2. The criteria an evaluation in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from April 5, 2016 to November 19, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to January 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In December 2020, the Board remanded the matter for issuance of Supplemental Statement of the case. Now the matter is returned to the Board. Initially, the Board notes that the Veteran’s service connection for bilateral pes planus has been recharacterized during the period on appeal to include bilateral plantar fasciitis and hallux valgus. See November 2018 and June 2020 Rating Decisions. Also, as the maximum evaluation of 50 percent under Diagnostic Code 5276 was assigned for the Veteran’s bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period beginning November 20, 2017, the remaining issues on appeal are the increased rating claims for the periods from August 11, 2009 to April 4, 2016 and from April 5, 2016 to November 19, 2017. See July 2019 Rating Decision; see also December 2020 Board Remand Order. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. Flatfoot disability is evaluated under Diagnostic Code 5276. In pertinent part, a 20 percent evaluation is warranted for severe unilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent evaluation is warranted for severe bilateral 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, pronounced unilateral 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2019). A maximum evaluation of 50 percent evaluation is warranted for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. 1. Period from August 11, 2009 to April 4, 2016 The Veteran is currently rated at 10 percent disabling for the period from August 11, 2009 to April 4, 2016. On November 2009 examination, the examiner reported that the Veteran’s feet revealed flattening of the longitudinal and transverse arches and that he has current diagnosis of symptomatic bilateral pes planus. The examiner noted that the Veteran’s February 2007 X-ray of his feet did not show significant hallux valgus deformity, but there was apparently a prominent eminence noted in both first metatarsophalangeal joints bilaterally. Tenderness to palpation of the plantar fascia was also noted. On October 2013 VA examination, the examiner noted the Veteran’s diagnosis of bilateral pes planus. The Veteran reported that he gradually became symptomatic in response to prolonged weight-bearing, and he notices tightening and discomfort in the arches with standing for 45 minutes, walking 4 blocks, or climbing ladders. He also reported that he cannot stand on tiptoe for more than 45 seconds due to pain, and uses prescription inflatable arch supports. He provided that his arches are mildly tender in addition to the pain, but pain generally subsides within 15 to 20 minutes of rest. The examiner noted that the Veteran has pain on use of the both feet and the pain is accentuated on use. The Veteran did not have pain on manipulation of the feet, an indication of swelling on use, characteristic callosities, or extreme tenderness of plantar surface of one or both feet. The examiner noted that the Veteran’s symptoms are not relieved by arch supports. The Veteran had decreased longitudinal arch height on weight-bearing for both feet, but there was no objective evidence of marked deformity (e.g., pronation, abduction, etc.) of the foot. The Veteran’s weight-bearing line did not fall over or medial to the great toe, and there was no lower extremity deformity, other than pes planus, causing alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner provided that the Veteran’s flatfoot condition impacts his ability to work as he has limitations in performing weight-bearing activities. In a February 2014 examination report, the Veteran’s private physician P.G. noted that the Veteran wears braces to relieve plantar fasciitis, hallux valgus, and flat feet, and he is unable to climb a ladder due to his feet condition. As stated above, in order to warrant a next higher rating of 20 percent, the evidence of record must show that the Veteran’s flatfoot disability results in severe unilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. The October 2013 VA examiner noted that the Veteran’s feet pain was accentuated with use, but the evidence does not show the other symptomology to show severe level of flatfoot disability such as having objective evidence of marked deformity (e.g., pronation, abduction, etc.) of the foot, pain on manipulation of the feet, an indication of swelling on use, or characteristic callosities. Therefore, the Board finds that the symptomatology of the Veteran’s feet disability for the period from August 11, 2009 to April 4, 2016 did not approximate a 20 percent evaluation under Diagnostic Code 5276. Consequently, the Board finds that the Veteran’s entitlement to an evaluation in excess of 10 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from August 11, 2009 to April 4, 2016 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2019). 2. Period from April 5, 2016 to November 19, 2017 Further, the Veteran is currently rated at 30 percent disabling for the period from April 5, 2016 to November 19, 2017. On June 2016 VA examination, the examiner noted the Veteran’s diagnosis of bilateral flat foot (pes planus). The Veteran reported that his flat feet condition continues to bother him with pain in arches with long walks and that he wears orthopedic shoes. The Veteran described that his pain is in bilateral instep and in ball of feet at great toe. The Veteran did not report that flare-ups impact the function of his feet. The examiner noted that the Veteran has pain on use of both feet and the pain was accentuated on use. The Veteran had pain on manipulation of both feet and the pain was accentuated on use. There was indication of swelling on use of both feet, but the Veteran did not have characteristic callosities. The examiner noted that the Veteran used orthotics for both feet, but the right side remains symptomatic. The Veteran did not have extreme tenderness of plantar surfaces on one or both feet or marked deformity of one or both feet. The Veteran had decreased longitudinal arch height of both feet on weight-bearing, but the weight-bearing line did not fall over or medial to the great toe. The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. The examiner noted pain on movement and lack of endurance of both feet as contributing factors of the Veteran’s flatfoot disability. The examiner provided that the Veteran’s flatfoot disability impacts his ability to perform occupational tasks because his foot pain precludes him from performing work that involves prolonged walking or standing. During the January 2017 hearing, the Veteran testified that he cannot walk more than one or two blocks without having to stop and sit down to rest, because of his feet cramping, stiffening, or hurting. He provided that air calf inserts provide a light relief, but he cannot do the day-to-day activities, such as running or climbing a step ladder, while using the inserts. He also stated that he cannot do tippy toes to reach objects on a higher shelf due to his feet condition. The Veteran contended that the severity of his feet condition has been the same since the initial rating was assigned. He also provided that he experiences pain with wearing different types of shoes due to his hallux valgus condition on both of his feet. On October 2017 VA examination, the examiner noted the Veteran’s diagnoses of pes planus, hallux valgus, and plantar fasciitis. The Veteran reported pain in the bilateral arch bunion, but did not report that flare-ups impact the function of the foot. The examiner noted pain on use of the Veteran’s both feet, but the pain was not accentuated on use. The Veteran did not have pain on manipulation of the feet or characteristic callosities. There was no indication of swelling on use. The examiner noted that the Veteran’s symptoms of both feet are not relieved by using orthotics. The Veteran had decreased longitudinal arch height of both feet on weight-bearing, but the weight-bearing line did not fall over or medial to the great toe. There was no marked pronation of one or both feet. The examiner noted the Veteran’s mild or moderate symptoms due to a hallux valgus condition and his regular use of braces. The examiner provided that the Veteran’s feet conditions do not impact his ability to perform occupational tasks. Based on above, the Board finds that the evidence of record does not show that the Veteran’s flatfoot disability resulted in marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Thus, the Board finds that the Veteran’s entitlement to an evaluation in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and hallux valgus for the period from April 5, 2016 to November 19, 2017 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2019). The Board contemplated whether the Veteran’s hallux valgus disability warrants a separate evaluation. Under Diagnostic Code 5280 for hallux valgus, a compensable (10 percent) evaluation is warranted for unilateral hallux valgus which was operated with resection of metatarsal head, or severe unilateral hallux valgus which is equivalent to amputation of great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2019). However, as the evidence does not show that the current severity of the Veteran’s hallux valgus disability amounts to a separate compensable evaluation under Diagnostic Code 5280, the Board concludes that the separate evaluation for hallux valgus is not necessary at this time. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.