Citation Nr: 21009095 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-35 950 DATE: February 18, 2021 ORDER Service connection for left foot arthritis is denied. Service connection for obstructive sleep apnea (OSA) is denied. An initial rating in excess of 10 percent for a right ankle disability is denied. A rating in excess of 30 percent for bilateral pes planus, to include a rating in excess of 10 percent prior to November 8, 2019, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran is currently diagnosed with arthritis in his left foot. 2. The weight of the evidence is against finding that the Veteran is currently diagnosed with OSA. 3. The Veteran’s right ankle disability has not been shown to have been productive of “marked” limitation of motion; has not been shown to have malunion of the os calcis or astragalus; and has not been shown to have ankylosis of the ankle. 4. From September 23, 2011 to November 8, 2019, the Veteran’s bilateral pes planus has not shown to have caused severe flatfoot with objective evidence of marked deformity, accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities. 5. For no distinct period has the Veteran’s bilateral pes planus been shown to result in 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. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for an initial rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-74. 4. The criteria for a rating in excess of 30 percent for bilateral pes planus, to include a rating in excess of 10 percent prior to November 8, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1994 to April 2001. The Veteran indicated that he wanted a Board hearing before a Veterans Law Judge. See Form 9 received August 21, 2014. The Veteran was scheduled for a Board hearing on January 27, 2019. However, the Veteran failed to appear at the hearing, and has neither requested a new hearing, nor submitted good cause for his absence. Accordingly, his hearing request is considered to have been withdrawn. VA received the Veteran’s service connection claims for bilateral pes planus, bilateral ankle disabilities, left foot arthritis, and OSA on September 23, 2011. He was subsequently granted service connection for bilateral pes planus and bilateral ankle sprains, effective the date of claim. As such, the period on appeal begins on September 23, 2011. This appeal was previously before the Board in March 2020. The Board remand noted that additional relevant evidence, to include a lay statement, VA treatment records and VA examinations most recently dated in November 2019, were associated with the record subsequent to the most recent, statement of the case (SOC), regarding the Veteran’s claims. The Veteran explicitly declined to waive agency of original jurisdiction (AOJ) review of this additional evidence. Thus, the Board remanded the issues for AOJ consideration of the aforementioned evidence. The Board finds that there has been substantial compliance with the March 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  1. Service connection for left foot arthritis is denied. The Veteran asserts that he has left foot arthritis and is a result of his active duty service. After a careful review of the Veteran’s service treatment records (STRs) they are silent for any complaints of foot problems. The Board notes that there is documentation for ankle injuries; however, the Veteran is service-connected for both of his ankles. The Veteran’s separation examination is not of record, but a February 1999 report of medical history shows that he did not report any problems with his left foot. A review of the Veteran’s post-service treatment records shows that he underwent a radiographic imaging study of his left ankle and foot in July 2011. See VA Treatment Record dated July 18, 2011. The radiologist reported that there were no substantial changes of erosive or degenerative arthritis of the foot. In September 2011, a VA podiatrist also reviewed the Veteran’s radiographic imaging study, but also did not find degenerative changes in the left foot. A further review of the Veteran’s treatment records, from 2011 to the present, does not reveal any indication that the Veteran has been diagnosed with arthritis in the left foot. The Veteran was afforded a VA examination for his feet in November 2019. After an in-person examination and a review of the Veteran’s claims file, the examiner found that the only foot diagnosis was for bilateral pes planus, for which he is already service-connected. There was no indication that the Veteran had arthritis in the left foot, or any other foot disability beyond pes planus. Here, the Veteran asserts that he has arthritis of the left foot; however, the diagnosis of arthritis requires medical expertise, and cannot simply be diagnosed by lay observation alone. In this case, the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose arthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given his complaints of left foot trouble, the Veteran underwent radiographic imaging studies in 2011 and was afforded a VA foot examination in November 2019. Fortunately, the 2011 radiographic imaging results indicated that he did not have arthritis in his left foot and after an in-person examination, the November 2019 VA examiner confirmed that finding. As such, although the Veteran’s statements and assertions of foot symptoms are credible, they are not competent in this regard. Id. That is, the Veteran could report that his foot is symptomatic, but would not be qualified to determine whether the symptoms were attributable to his pes planus or to some other anatomical cause. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board acknowledges that while pain alone does not constitute a disorder warranting service connection, pain causing an impairment of earning capacity is considered a current disability. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted, the Veteran is already service connected for a disability of the foot, and absent some finding of foot symptoms unrelated to his pes planus, Saunders does not provide a basis for service connection. After a careful review of the Veteran’s claims file, there is no assertion or suggestion that the Veteran’s non-service-connected left foot condition affects his ability to work or otherwise affects his earning capacity. The Board notes that the November 2019 VA examination for the feet, also contemplated his increased rating claim for bilateral pes planus. Even considering his service-connected pes planus, the examiner reported that his feet would not impact his ability to work. Further, the Veteran’s claims file is absent for any communication or any other indication that his non-service-connected left foot condition has caused functional impairment that affects his earning capacity. As such, the Board finds that the evidence of record has shown no suggestion that the non-service-connected left foot condition has risen to the level of functional impairment of earning capacity and as a result, finds that any pain associated with the non-service-connected left foot condition is not a current disability. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board is sympathetic to the Veteran’s claim and the assertion that he should be granted service connection for left foot arthritis. However, the Veteran has not shown by medical evidence the presence of current diagnosis for arthritis of the left foot, or any other foot condition, besides the service-connected pes planus. Moreover, even if arthritis of the left foot were to be diagnosed, there has been no suggestion by any medically competent source that such a condition was caused by his active duty service, or is secondary to any of his service-connected disabilities. Here, the November 2019 VA examiner specifically found that he did not have left foot arthritis after an in-person examination and a review of the Veteran’s claims file. The Board notes that the Veteran has not offered any competent medical evidence suggesting that he has been diagnosed with arthritis of the left foot, or that would otherwise undermine the conclusions of the November 2019 VA examiner. Accordingly, the Board finds that the weight of the evidence is against the claim and service connection for left foot arthritis is denied. 2. Service connection for OSA is denied. The Veteran is seeking service connection for OSA, but has not specifically provided evidence that he has been diagnosed with OSA. After a careful review of the Veteran’s STRs they are silent for any complaints, symptoms or diagnosis of OSA, or any other sleep conditions. The Veteran’s separation examination is not of record, but a February 1999 report of medical history shows that he denied frequent trouble sleeping. The Board notes that the Veteran has not been afforded a VA examination; however, he underwent a sleep study in March 2016. See VA Treatment Record dated March 18, 2016. After an overnight sleep study was conducted, a VA physician found that the results were not suggestive of OSA. A further review of the Veteran’s post-service treatment records does not reveal any other sleep studies, or any indication that a diagnosis for OSA has been made since March 2016. Here, the Veteran asserts that he has OSA; however, the diagnosis of sleep disorders requires medical expertise, and cannot simply be diagnosed by lay observation alone. In this case, the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose a sleep condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given his complaints of sleep difficulties, he underwent a sleep study in March 2016. Fortunately, the results indicated that he did not have OSA. As such, although the Veteran’s statements and assertions are credible, they are not competent in this regard. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is sympathetic to the Veteran’s claim and the assertion that he should be granted service connection for OSA. However, the Veteran has not shown by medical evidence the presence of a current diagnosis for OSA, or any other sleep disorder. Moreover, even if a sleep disorder were to be diagnosed, there has been no suggestion by any medically competent source that such a condition was caused by his active duty service, or is secondary to any of his service-connected disabilities. Here, the March 2016 VA physician specifically found that he did not have OSA after a sleep study was conducted. The Board notes that the Veteran has not offered any competent medical evidence suggesting that he has OSA, or that would otherwise undermine the findings of the March 2016 sleep study. Accordingly, the Board finds that the weight of the evidence is against the claim and service connection for OSA is denied. Increased Rating 1. An initial rating in excess of 10 percent for a right ankle disability is denied. The Veteran asserts that he is entitled to a higher rating for his right ankle disability. His right ankle disability is rated under Diagnostic Code 5003-5271. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). Here, the first hyphenated code indicates the disability is rated under Diagnostic Code 5003, for degenerative arthritis. Diagnostic Code 5271 evaluates range of motion in the ankle. VA received the Veteran’s claim for service connection for a right ankle disability in September 2011. A June 2012 rating decision granted service connection and assigned a 10 percent rating, effective the date of claim, September 23, 2011. The 10 percent rating is based on painful motion. See 38 C.F.R. § 4.59. The Veteran disagreed with the assigned rating and this appeal ensued. As such, the period on appeal begins on September 23, 2011. With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions. Diagnostic Code 5270 evaluates ankylosis of the ankle. No VA examiner has diagnosed ankylosis of the right ankle, the Veteran has not reported symptoms of ankylosis, and VA treatment records do not suggest the presence of ankylosis. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. Diagnostic Code 5272 concerns ankylosis of the subastragalar or tarsal joint of the left ankle. No VA examiner has diagnosed ankylosis of the subastragalar or tarsal joint, and VA treatment records do not suggest the presence of ankylosis of the subastragalar or tarsal joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5273 addresses malunion of the os calcis or astragalus. The medical record does not document malunion of the os calcis or astragalus of the right ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone of the right ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited impact in that they have only been in effect for a week and they do not substantively change how the ankle is rated. Rather, the revisions define marked and moderate limitation of motion as it applies to the ankles. Under the revised regulations, marked limitation of motion of the ankle means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and is rated at 20 percent. Moderate limitation of motion means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and is rated at 10 percent. As earlier iterations of the regulations did not define marked or moderate, the Board will adopt these definitions. The Veteran was afforded a VA examination for the ankles in November 2011. He reported stiffness, redness, giving way, tenderness, drainage, and pain. He reported constant pain when walking and standing. He reported using bandage wraps and soles to support his ankle. He reported having flare-ups, which he described as having to walk with a slight limp. On examination, the examiner reported that the Veteran’s gait was within normal limits. He showed plantar flexion to 45 degrees and dorsiflexion to 20 degrees, with no evidence of painful motion. He was able to perform repetitive use testing with no additional loss in terms of range of motion. Muscle strength testing showed normal strength in all planes of motion. X-ray testing showed no evidence of ankylosis, no indication of malunion to the os calcis, or malunion of the astragalus. The Veteran’s post-service VA treatment records do show he was followed by a podiatrist. However, since 2011, most of the complaints of ankle problems have been related to the left ankle. He was found to have slight edema of the right ankle on a few occasions. See VA Treatment Records dated July 18, 2018 and December 18, 2018. A podiatry follow-up also noted that he continued to use arch cushions and an ankle brace. See VA Treatment Record dated September 23, 2019. The Veteran did not describe any limitation of motion in his right ankle to his podiatrist and there was no indication from the VA treatment records to suggest that the Veteran had a marked limitation of motion of the right ankle. The Board notes that the Veteran did report pain at the podiatry visits, but they appear to be related to his service-connected bilateral pes planus. Here, the Veteran is in receipt of the minimum compensable rating, under 38 C.F.R. § 4.59, for painful motion. The next higher rating at 20 percent, requires a finding of “marked” limitation. At the only VA examination of record for the right ankle, he showed full range of motion for both dorsiflexion and plantar flexion. Further, after repetitive use testing, he retained full range of motion in his right ankle. The Board acknowledges that the Veteran reported experiencing flare-ups at the 2011 VA examination; however, there is no indication that during a flare-up, which he described as having a slight limp, he would experience marked limitation of motion. The Board also acknowledges the Veteran’s use of an ankle brace. However, there is no indication that his right ankle disability is so severe, that the use of such an assistive device would warrant an increased rating. In reaching this decision, the Board has considered whether a higher rating can be assigned based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint.  38 C.F.R. §§ 4.40, 4.45. Joints, to include ankles, that are actually painful, unstable, or malaligned may be awarded at least a 10 percent rating. See 38 C.F.R. § 4.59. However, the Veteran is already in receipt of the minimum compensable rating under this provision, and as such, a higher rating is not warranted under 38 C.F.R. § 4.59. Here, repetitive use over time and the Veteran’s flare-ups have been considered, yet there is no indication that his range of motion is so functionally limited as to support a rating in excess of 10 percent at any point. The Board acknowledges the Veteran’s complaints of ankle pain and trouble walking and standing but finds that such symptoms are contemplated by the 10 percent rating already in effect. The Board also acknowledges the Veteran’s statements that he served his country and that he fears that he will be no longer able to work in a few years, which is why he is seeking a higher combined rating. See NOD dated January 28, 2013 and Form 9 dated August 21, 2014. The Board would like to express that it is deeply appreciative of his service and does not take his assertions or beliefs lightly. However, the Board is bound by the regulations of the Department, instruction of the Secretary, and the precedent opinions of the General Counsel, see 38 U.S.C. § 7104 (c), as well as the laws of the United States and the precedent decisions of courts of superior jurisdiction. In order to obtain a rating in excess of 10 percent rating for his right ankle disability, the Veteran is required to show evidence of a marked limitation of motion; malunion of the os calcis or astragalus; or ankylosis of the ankle. Here, the evidence of record is not consistent with a finding of “marked” limitation of motion, nor are there any other findings consistent with an increased rating. As such, the Board is unable to provide a legal remedy, in which the Veteran desires. Accordingly, an initial rating in excess of 10 percent for a right ankle disability is denied. 2. An initial rating in excess of 10 percent for bilateral pes planus, from September 23, 2011 to November 8, 2019, is denied. The Veteran asserts that he is entitled to a higher rating for his bilateral pes planus. Specifically, he asserts that his pes planus is painful and causes him difficulty with walking. The Veteran’s bilateral pes planus is rated under Diagnostic Code 5276. VA received the Veteran’s service connection claim for bilateral pes planus on September 23, 2011. A June 2012 rating decision granted service connection and assigned a noncompensable rating, effective the date of claim. The Veteran disagreed and this appeal ensued. A subsequent December 2020 rating decision found that a retroactive increased rating was warranted and assigned an initial 10 percent rating, based on painful motion, under 38 C.F.R. § 4.59. As such, the Board will adjudicate whether the Veteran is entitled to a rating in excess of 10 percent from September 23, 2011. Under Diagnostic Code 5276, a 10 percent rating is warranted for flatfoot, acquired, moderate; weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, pain on manipulation and use of the feet, bilateral or unilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 30 percent evaluation is assigned respectively for severe bilateral acquired flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities (a 20 percent rating is warranted when these symptoms are unilateral). Id. A 50 percent evaluation is assigned for pronounced 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 (a 30 percent rating is warranted when these symptoms are unilateral). Id. This Diagnostic Code was unchanged in the revisions to the rating schedule. The Veteran was afforded a VA examination in December 2011. He reported sharp pain in his feet, which occurred about three times a day, and was exacerbated by physical activity. He reported that the symptoms were relieved by arch supports and that he did not have extreme tenderness of the plantar surfaces. The examiner reported that there was no objective evidence of marked deformity, or marked pronation. The examiner also reported that the weight-bearing line fell over or medial to the great toe on both sides; did not have inward bowing of the Achilles tendon; and did not have marked inward displacement and severe spasms of the Achilles tendon. The Veteran’s VA treatment records show that he was being followed for his bilateral pes planus. He complained of bilateral foot pain throughout the years and he was advised to use insoles, stretching, and to use ice. However, there was no findings that showed severe or pronounced symptoms of pes planus. Here, the December 2020 rating decision found that a retroactive initial 10 percent rating was warranted for bilateral pes planus, based on painful motion. The Board agrees and finds that the 10 percent rating, under 38 C.F.R. § 4.59, during this period on appeal is appropriate. The Board finds that the Veteran’s complaints of pain at the 2011 VA examination are credible and have been corroborated by the contemporaneous evidence of record. The Board does note that on examination, although the examiner reported that the weight-bearing line fell over or medial to the great toe on both sides; he was not shown to have inward bowing of the tendo Achilles, and did not have pain on manipulation. As such, the Veteran did not meet the criteria for a 10 percent rating, under Diagnostic Code 5276, during this period on appeal. Further, the Veteran’s pes planus was not shown to have been productive of severe or marked symptoms. For example, he was not shown to have objective evidence of marked deformity (pronation); pain on manipulation and use accentuated; an indication of swelling on use; or characteristic callouses; extreme tenderness of the plantar surfaces; marked inward displacement and severe spasms of the tendo Achillis on manipulation. Moreover, insoles were shown to provide the Veteran relief of his symptoms, which further negates an assignment of the maximum schedular rating of 50 percent for bilateral pes planus. Here, the Veteran has not shown the symptoms of pes planus, either unilaterally or bilaterally, to warrant a rating in excess of 10 percent, during this period on appeal. Accordingly, a rating in excess of 10 percent for bilateral pes planus, from September 23, 2011 to November 8, 2019, is denied. 3. A rating in excess of 30 percent for bilateral pes planus, from November 8, 2019, forward, is denied. The Veteran’s disability rating for bilateral pes planus was increased to 30 percent, effective November 8, 2019, in an April 2020 rating decision. The rating was increased based on the findings of a November 8, 2019 VA examination, which found that there was an indication of swelling on use, accentuated pain on manipulation, and accentuated pain on use. As such, the Board will adjudicate whether the Veteran is entitled to a rating in excess of 30 percent, from November 8, 2019, forward. The Veteran was afforded a VA examination in November 2019. The Veteran did not report a change in pain since the last VA examination of record. He reported throbbing pain/pressure of the bilateral arches, through the midfoot and into the ankles. He did not report having flare-ups in his feet. On examination, he showed accentuated pain on use in both feet; accentuated pain on manipulation in both feet; and there was an indication of swelling in both feet. He did not have characteristic callouses. The examiner indicated that the Veteran used orthotics, but remained symptomatic. The examiner reported that the Veteran did not have extreme tenderness of the plantar surfaces in either foot; there was no evidence of marked deformity in either foot; the weight bearing line did not fall over the medial to the great toe in either foot; and there was no marked inward displacement and severe spasm of the Achilles tendon. Here, the April 2020 rating decision found that a 30 percent rating was warranted for bilateral pes planus, from November 8, 2019, forward. The Board agrees and finds that the 30 percent rating, under Diagnostic Code 5276, during this period on appeal is appropriate. However, the objective evidence of record does not establish that the Veteran’s bilateral pes planus results in pronounced symptoms, which would warrant a 50 percent rating. For example, there is no evidence of marked inward displacement and severe spasm of the Achilles tendon and no extreme tenderness of plantar surfaces. To warrant a 50 percent rating, the Veteran must show such symptoms. The Veteran’s post-service treatment records have been reviewed and do not reveal such findings. The Board acknowledges the Veteran’s complaints of foot pain and the impairment it causes him. The Board also acknowledges the Veteran’s statements that he served his country and that he fears that he will be no longer able to work in a few years, which is why he is seeking a higher combined rating. See NOD dated January 28, 2013 and Form 9 dated August 21, 2014. However, as previously explained, the Board is bound by regulations and laws and cannot deviate from them. Here, the Veteran has not shown the symptoms of pes planus, either unilaterally or bilaterally, to warrant a rating in excess of 30 percent, during this period on appeal. As such, the Board is unable to provide a legal remedy, in which the Veteran desires. Accordingly, a rating in excess of 30 percent for bilateral pes planus is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.