Citation Nr: 21011820 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-24 665 DATE: March 2, 2021 ORDER An initial rating for bilateral pes planus of 30 percent, but not higher, prior to March 30, 2013 is granted. An initial rating for bilateral pes planus in excess of 30 percent as of March 30, 2013 is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDING OF FACT Prior to March 30, 2013, the probative evidence of record is at least in relative equipoise that the Veteran's pes planus was manifested by pain on manipulation, use accentuated, indication of swelling on use and characteristic callosities. For the entire period on appeal, the Veteran’s pes planus was not manifested by bilateral pronounced; 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. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating of 30 percent, but no higher, for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. The criteria for a disability rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board), on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this matter in September 2018 and July 2020 when it remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. It has now returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran’s disability is currently rated under Diagnostic Code 5276. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. 1. Entitlement to increased initial ratings for bilateral pes planus in excess of 0 percent (noncompensable) as of February 22, 2008, in excess of 10 percent as of August 20, 2009 The Veteran contends that his service-connected bilateral foot disability is more disabling than the assigned percent ratings reflect. The Veteran is service connected for bilateral pes planus at noncompensable as of February 22, 2008, at 10 percent as of August 20, 2009 and at 30 percent as of March 30, 2013 under 38 C.F.R. § 4.71 Diagnostic Code (DC) 5276. Under DC 5276 a noncompensable rating is assigned for mild pes planus that is relieved by built-up shoe or arch supports; a 10 percent rating is warranted for moderate pes planus, 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 bilateral severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is warranted for bilateral pronounced pes planus, 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. The Board notes that words such as 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). The Board finds that a rating of 30 percent, but no higher, is warranted for the Veteran's service-connected bilateral pes planus for the entire period on appeal. During the course of the appeal, the Veteran has been afforded four VA examinations for his foot condition in August 2009, March 2013, September 2014 and October 2020. In August 2009, the Veteran underwent a VA examination to determine the etiology and severity of any bilateral foot disabilities. The VA examiner noted that “this is a limited orthopedic examination.” The Veteran reported symptoms of bilateral foot pain when standing. On physical examination, the VA examiner noted that the Veteran “has obvious bilateral pes planus deformities of the feet, and mild calcaneal valgus deformity bilaterally measuring approximately 4 degrees. There is a 1 cm plantar callus on the plantar surface of the left mid foot, but no other callus is obvious, and the right foot has no calluses on the plantar surface either. He walks briskly with no obvious antalgic gait. There are very mild hammertoe deformities on toes 2 to 5 bilaterally with no significant bunion deformity or calluses on the tips of either toe. His weightbearing is abnormal with the arch collapse. His shoes show minimal midline posterior wear. His Achilles' tendon is non-tender and there is no tenderness over the metatarsal heads, heel or great toe on either foot. There is no pain on either foot with passive manipulation of the mid foot.” An August 2009 triage note shows that the Veteran reported pain level 5, increasing pain despite OTC orthotic pads. The x-rays showed metatarsophalangeal and degenerative joint pain. A February 2012 podiatry note shows that the Veteran has mild tenderness on palpation of right achilles tendon. Arches mildly collapsed. Heel rise test normal, bilaterally. Heel was noted in very mild valgus position. In March 2013, the Veteran underwent a second VA foot examination. The Veteran reported that ever since military service, his bilateral pes planus has remained symptomatic. He takes ibuprofen almost daily for his bilateral foot pain. The VA examiner noted pain on use of the feet, bilaterally, with pain accentuated on use; pain on manipulation, bilaterally, with pain accentuated on manipulation; characteristic calluses on both feet; symptoms not relieved by arch supports; no swelling, no extreme tenderness of plantar surface; there is decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity of the foot, marked pronation that is improved by orthopedic shoes or appliances, weight-bearing line fall over or medial to the great toe; have “inward” bowing of the Achilles’ tendon; does not have marked inward displacement or severe spasm of the Achilles tendon. Regular use of bilateral shoe inserts for his bilateral pes planus. The VA examiner also noted that Veteran’s flatfoot condition does not impact his ability to work. In August 2013 podiatry note shows the Veteran complaint of painful arches and calluses. He reported that he is unable to stand for 30 minutes without intense foot pain and attributes it to his flat feet. In a May 2014 statement, the Veteran stated that he has been experiencing progressively worse pain and issues with his feet. In his June 2014 Substantive Appeal, the Veteran stated that he was unable to perform usual daily activities and that the stress and pain of walking, standing, bending and the supports in his orthopedic shoes has no added relieve as its seems to worsen his foot condition. In September 2014, the Veteran underwent a third examination. The Veteran reported pain as feeling like he only has 9 toes instead of 10, constant stiffness. Flat feet and hammer toe pain. He reported flare-ups and described the impact as aggravated with prolonged time on feet or normal activity. Functional loss was described as avoid activities that include the feet. On physical examination of the feet, the examiner noted pain on use, with pain accentuated on use; pain on manipulation of the feet, with pain accentuated on manipulation; no swelling on use; no characteristic calluses. Arch supports tried but remains symptomatic. The Veteran do not have extreme tenderness of plantar surfaces; have decreased longitudinal arch height of both feet on weight-bearing; no objective evidence of marked deformity; no marked pronation; the weight-bearing line do not fall over or medial to the great toe. The Veteran do not have “inward” bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation. The examiner noted mild or moderate symptoms of hallux valgus affecting the right side. The examiner noted pain on physical exam that contribute to functional loss. Contributing factors of disability are pain on weight-bearing, bilaterally. There is a functional loss due to pain, during flare-ups and/or when the joint is used repeatedly over a period of time. In December 2019, the Veteran underwent a VA examination to determine the severity of the bilateral pes planus. The Veteran reported a long history of flat feet that have gradually worsened since leaving the military. He also reported pain, no flare-ups and no functional loss. The VA examiner noted that the Veteran “now has daily pain, worse with walking or standing more than 10 minutes. He wears inserts for his shoes which seem to help. He had surgery on the left 3rd toe in 2012 for a hammer toe deformity.” On physical examination, the VA examiner noted pain on use, with pain accentuated on use; pain on manipulation of the feet, with pain accentuated on manipulation; swelling on use; characteristic calluses. Arch supports relieve symptoms, bilaterally. The Veteran have extreme tenderness of plantar surfaces on both feet, improved by orthopedic shoes; have decreased longitudinal arch height of both feet on weight-bearing; marked deformity; marked pronation, improved by orthopedic shoes; the weight-bearing line do not fall over or medial to the great toe. The Veteran have "inward" bowing of the Achilles tendon and marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation, improved by orthopedic shoes. The examiner noted pain on physical exam that contribute to functional loss. Contributing factors of disability are excess fatigability, pain on movement, pain on weight-bearing, swelling, disturbance of locomotion, interference with standing and lack of endurance. There is a functional loss due to pain, during flare-ups and/or when the joint is used repeatedly over a period of time, described as “the Veteran has daily foot pain with walking or standing more than 10 minutes. In October 2020, the Veteran underwent a VA examination to determine the severity of the bilateral pes planus. The Veteran reported his foot condition has progressed\worsened since onset and pain and stiffness in feet, bilaterally. He reported flare-ups, described as “cannot run due to pain in the feet.” He did not report having any functional loss. On physical examination, the VA examiner noted pain on use, with pain accentuated on use; no pain on manipulation of the feet; no swelling on use; no characteristic calluses. Arch supports tried but remains symptomatic. The Veteran do not have extreme tenderness of plantar surfaces; have decreased longitudinal arch height of both feet on weight-bearing; no marked deformity; no marked pronation; the weight-bearing line do not fall over or medial to the great toe. The Veteran do not have "inward" bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation. No functional loss attributable to claimed condition. Hard to walk due to flare-ups. Functional impact was described as pain with frequent walking. Pain was noted during weight-bearing as “Veteran states he has pain after transporting claimants (2 trips) in the hospital”; no pain noted during non weight-bearing. No pain with active motion or passive motion, just weight bearing. After consideration of the lay and medical evidence of record, the Board resolves reasonable doubt in favor of the Veteran and finds that a rating of 30 percent is appropriate for the entire period on appeal. The evidence demonstrates that during this time period, the Veteran's bilateral pes planus was manifested by pain on manipulation, use accentuated, indication of swelling on use and characteristic callosities. The Board finds that a higher rating is not warranted for this period, as there was no indication of marked pronation, marked inward displacement, or severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. In reaching this decision, the Board has considered the Veteran's lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Without medical training, the Veteran has not demonstrated the competency to opine on matters requiring medical expertise, such as the severity of a foot condition. See id. As such, the Board assigns little probative weight to the Veteran's general lay assertions that a higher rating is warranted from March 30, 2013. The Board has also considered whether higher ratings are warranted for the appeal period based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. The Veteran's symptoms are encompassed in the rating criteria under DC 5276 and have been considered as symptoms when evaluating the severity of the bilateral pes planus disability during each period on appeal. Based on the foregoing, the Board concludes that a rating of 30 percent, but not higher, prior to March 30, 2013 for the Veteran's bilateral pes planus foot disability is warranted. A rating in excess of 30 percent, thereafter, is not warranted. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran has a 30 percent rating for bilateral pes planus. The Veteran’s combined evaluation is 30 percent from February 22, 2008. As such, the Veteran does not meet the schedular rating necessary for schedular TDIU entitlement at any time during the appeal period. When a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating may never nevertheless be warranted where the veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA treatment records show an August 2013 letter from his VA physician. Dr. J.S. stated that the Veteran can no longer perform his prior work due to his service-connected pes planus disability as he cannot stand on his feet for prolonged periods without significant pain. He is trained as a respiratory therapist and a mechanic, both occupations which require standing for prolonged periods. In a July 2013 statement, the Veteran stated that his foot disability has affected his career as respiratory therapist in which he worked for 18 years, on 12 hours shifts, that requires walking, running and standing. The VA examiner who conducted the December 2019 VA examination for the foot condition noted a functional loss due to pain, during flare-ups and/or when the joint is used repeatedly over a period of time, described as “the Veteran has daily foot pain with walking or standing more than 10 minutes. The evidence raises a question as to whether the Veteran is capable of substantially gainful employment, in spite of not meeting the schedular requirements for a TDIU. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages, 27 Vet. App. at 235-39. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. The matters are REMANDED for the following action: Complete any additional development necessary and then refer the Veteran's claim for entitlement to TDIU to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU award for the appeal period. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.