Citation Nr: 21009650 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-17 202 DATE: February 23, 2021 ORDER The May 5, 2020 Board decision as to the issue of entitlement to an initial rating in excess of 30 percent for right foot pes planus prior to July 1, 2020, is vacated. The May 5, 2020 Board decision as to the issue of entitlement to a rating in excess of 10 percent for right foot pes planus beginning July 1, 2020, is vacated. Entitlement to an initial rating of 50 percent, but no higher, for bilateral foot pes planus prior to July 1, 2020, is granted. Entitlement to a rating of 50 percent, but no higher, for bilateral foot pes planus from July 1, 2020 to January 18, 2021, is granted. Entitlement to a rating in excess of 50 percent for bilateral foot pes planus beginning January 18, 2021, is denied. FINDINGS OF FACT 1. On May 5, 2020, the Board denied the claims of entitlement to an initial rating in excess of 30 percent for bilateral foot pes planus prior to July 1, 2020 and entitlement to a rating in excess of 10 percent for bilateral foot pes planus beginning July 1, 2020. 2. The Veteran submitted a Freedom of Information Act (FOIA) request prior to the May 5, 2020 Board decision. 3. The FOIA request was fulfilled prior to the issuance of the May 5, 2020 Board decision but has since been fulfilled. 4. For the entire appeal period, the impairment associated with the Veteran’s bilateral pes planus has been productive of bilateral marked pronation, extreme tenderness of plantar surfaces of the feet, and not improved by orthopedic shoes or appliances; and without loss of use of either foot. CONCLUSIONS OF LAW 1. The May 5, 2020 Board decision as to the issue of entitlement to an initial rating in excess of 30 percent for right foot pes planus prior to July 1, 2020, is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The May 5, 2020 Board decision as to the issue of entitlement to a rating in excess of 10 percent for right foot pes planus beginning July 1, 2020, is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 3. The criteria for an initial rating of 50 percent, but no higher, for the Veteran’s bilateral pes planus prior to July 1, 2020, have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Code 5276. 4. The criteria for a rating of 50 percent, but no higher, for the Veteran’s bilateral pes planus from July 1, 2020 to January 18, 2021, have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Code 5276. 5. The criteria for a rating in excess of 50 percent for the Veteran’s bilateral pes planus beginning January 18, 2021, have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1994 to July 1999. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran filed a claim for a right foot condition in his August 2018 VA Form 21-526EZ (Application for VA disability benefits). However, in his October 2018 application for VA disability benefits, the Veteran indicated that he was seeking compensation for bilateral pes planus. In a December 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted a claim for “pes planus,” and in its explanation for the assigned rating, it listed only symptoms associated with the right foot. Thereafter, the claim was subsequently addressed as both left foot pes planus and right foot pes planus by the AOJ. The claim was also recharacterized as bilateral pes planus in a February 2021 rating decision. In light of the foregoing, the Board will consider the claim to encompass higher ratings for bilateral pes planus throughout the period on appeal. In an April 2020 rating decision, VA reduced the Veteran’s rating for pes planus from 30 percent to 10 percent, effective July 1, 2020. In a February 2021 rating decision, the Veteran was granted entitlement to a rating of 50 percent for bilateral foot pes planus, effective January 18, 2021. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Orders to Vacate The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In the May 5, 2020 decision, the Board denied entitlement to an initial rating in excess of 30 percent for bilateral foot pes planus prior to July 1, 2020, and entitlement to a rating in excess of 10 percent beginning July 1, 2020. Subsequently, in August 2020, the Veteran’s attorney filed a Motion to Vacate the May 5, 2020 Board decision as to the claim for an increased rating for pes planus only due to a pending FOIA request that had not been fulfilled. In consideration thereof, the Board finds that issuing the May 5, 2020 decision before satisfying the attorney’s FOIA request was potentially a denial of due process. Accordingly, the Board vacates its May 5, 2020 decision with regard to the issues of entitlement to an initial rating in excess of 30 percent for bilateral foot pes planus prior to July 1, 2020, and entitlement to a rating in excess of 10 percent for bilateral foot pes planus beginning July 1, 2020. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Increased Rating Claims Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”).] Pes Planus The Veteran generally asserts that he should have higher ratings for his bilateral foot pes planus because his disability is worse than contemplated by the currently assigned ratings. This appeal stems from a claim dated in August 2018. During the period on appeal, the Veteran’s bilateral foot pes planus is rated 30 percent prior to July 1, 2020; 10 percent from July 1, 2020 to January 18, 2021; and 50 percent thereafter, under Diagnostic Code 5276. The Board notes that an April 2020 rating decision reduced the Veteran’s bilateral foot pes planus from 30 percent disabling to 10 percent, effective July 1, 2020. Although the Veteran’s attorney submitted argument in relation to the rating reduction in the May 2020 Motion to Vacate to the Board, the Veteran has not appealed the rating reduction to the Board. The Veteran filed a Decision Review Request: Higher Level Review (VA Form 20-0996) in July 2020 seeking review of the rating reduction and December 2020 rating decision addressed the propriety of the reduction. Therefore, the rating reduction issue is not within the Board’s jurisdiction. Disabilities of the feet are contemplated by Diagnostic Codes 5276 through 5284, which in some instances, provide for disability ratings for unilateral or bilateral disabilities. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned for weight-bearing line over or medial to great toe, inward bowing of the tendo-Achilles, pain on manipulation and use of the feet. A 30 percent rating is assigned for bilateral severe; objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is assigned for bilateral pronounced acquired disabilities of the feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. This is the maximum schedular rating for under this diagnostic code. Under Diagnostic Code 5284, for other foot injuries, a 10 percent rating is assigned for moderate injury, a 20 percent rating is assigned for moderately severe injury, and a 30 percent rating is assigned for severe injury. With actual loss of use of the foot, a 40 percent rating is assigned. At a January 2018 VA examination, the examiner diagnosed right foot pes planus. The Veteran reported that he experienced right foot pain, weakness and sensitivity. The Veteran indicated that he used prescription pain medication to alleviate symptoms. The Veteran reported that he experienced difficulty sitting and standing for prolonged periods of time during flare-ups, but indicated that he did not experience functional loss or impairment of his right foot. On examination, there was evidence of pain on manipulation, tenderness of plantar surfaces, marked deformity, and marked pronation not improved by orthotics. There was no evidence of swelling, characteristic calluses, decreased longitudinal arch height on weight-bearing, alteration of the weight-bearing line, inward bowing of the Achilles tendon, marked inward displacement and severe spasm of the Achilles tendon on manipulation, or of the weight-bearing line falling over or medial to the great toe. The examiner noted that the Veteran did not experience a hallux valgus condition, Morton’s neuroma, pes calvus, or metatarsalgia. The examiner reported that pain significantly limited functional ability during flare-ups. The examiner noted that the Veteran did not use any devices for assistance with ambulation and reported that the Veteran’s pes planus did not impact his ability to work. At an April 2019 VA examination, the examiner diagnosed bilateral foot pes planus and noted that the Veteran was originally diagnosed with bilateral foot pes planus in 1988. At the examination, the Veteran reported that he experienced foot pain that interfered with his ability to stand longer than 10 minutes, walk more than 25 yards, or ambulate without a cane. On examination, there was evidence of pain on movement and pain on weight-bearing. There was no evidence of pain on manipulation, swelling, characteristic callouses, tenderness, marked deformity, marked pronation, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon. There was no evidence that the weight-bearing line fell over or medial to the great toe, or other alteration of the weight-bearing line. The examiner noted that the Veteran had decreased longitudinal arch height on weight-bearing. The examiner commented that pain significantly limited functional ability during flare-ups in that the Veteran was unable to stand longer than 10 minutes, walk more than 25 years, or ambulate without a cane, which also impacted his ability to work. The Veteran reported constant use of a cane to assist with ambulation. At a January 2021 VA examination, the examiner diagnosed bilateral pes planus and plantar fasciitis. At that time, the Veteran reported that he experienced bilateral foot swelling, sharp stabbing pains, spasms, change in skin color, and tenderness. The Veteran indicated that his pes planus impacted his ability to walk, stand and climb stairs. He reported that he treated his pes planus with over-the-counter medication, and that he used shoe inserts, bio-freeze, an ankle brace and walking cane for assistance with ambulation. On examination, there was evidence of pain on active and passive movement, weight-bearing, non-weight-bearing. The examiner noted that the Veteran used arch supports but that both feet remained symptomatic. There was evidence of pain on manipulation, swelling, characteristic callouses, tenderness, marked deformity, and marked pronation. There was no evidence of inward bowing of the Achilles tendon, marked inward displacement and severe spasm of the Achilles tendon, or alteration of the weight-bearing line. There was evidence that the weight-bearing line fell over or medial to the great toe. or other alteration of the weight-bearing line. The examiner noted that the Veteran had decreased longitudinal arch height on weight-bearing. The examiner reported that the Veteran’s pes planus was productive of instability of station, disturbance of locomotion, interference with standing, pain, weakness, and lack of endurance. The examiner reported that the Veteran’s pes planus impacted his ability to work in that he experienced difficulty standing, running, climbing and lifting. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that his bilateral foot pes planus symptoms are manifestly different than those reported at above-mentioned VA examinations. Based on the foregoing evidence, the Board finds that a rating of 50 percent is warranted throughout the entire period on appeal. In reaching this determination, the Board has afforded the Veteran the benefit of the doubt with regard to his symptomatology. To that end, the Board acknowledges that the symptomatology noted at the April 2019 VA examination does not reflect symptomatology associated with a 50 percent rating. However, the symptoms reported at the January 2018 and January 2021 VA examinations include those contemplated by a 50 percent rating, to include tenderness of plantar surfaces, marked deformity, and marked pronation not improved by orthotics. Thus, although such symptomatology was not noted by the April 2019 examiner and because there is no evidence that the Veteran had surgical treatment to alleviate such symptoms or that an exacerbating incident occurred, the Board logically presumes that these symptoms were likely present during the period of time between January 2018 and January 2021. As such, a 50 percent rating is warranted throughout the entire period on appeal. As the maximum rating under Diagnostic Code 5276 for bilateral pes planus has been assigned and there is no allegation or evidence that the Veteran has lost the use of his feet, a rating in excess of 50 percent for bilateral foot pes planus under this Diagnostic Code is not available. The Board has considered whether Diagnostic Code 5284 (for “other” foot injuries) is applicable to this case. However, the Board finds that the Veteran’s pes planus is adequately contemplated by his assigned rating under Diagnostic Code 5276, as it pertains directly to flatfoot. As such, Diagnostic Code 5276 is the proper diagnostic code to apply to his service-connected pes planus. The Board acknowledges the Veteran’s statement that his bilateral foot pes planus is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for a rating in excess of 50 percent throughout the period on appeal. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for bilateral foot pes planus. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether further staged ratings under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings are not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has alleged that he is unable to secure and maintain substantially gainful employment due to his bilateral pes planus in a January 2021 VA treatment note. Moreover, the Veteran’s reported that he worked for fire and rescue. As such, a Rice claim is not raised. (Continued on the next page)   Accordingly, the Board awards a 50 percent rating, but no higher, throughout the entire period on appeal for the Veteran’s bilateral pes planus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, Vet. App. 49 (1990). The appeal is granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.