Citation Nr: 21012671 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-46 289A DATE: March 4, 2021 ORDER Prior to November 11, 2020, and throughout the appeal period, a rating of 30 percent for bilateral pes cavus is granted. FINDING OF FACT For the entire appeal period, the Veteran’s bilateral pes cavus condition manifested in marked tenderness and all toes tending to dorsiflexion; marked contraction of plantar contraction with dropped foot, hammer toes, and marked varus deformity are not shown. CONCLUSION OF LAW Prior to November 11, 2020, and for the entire appeal period, the criteria of a 30 percent rating for pes cavus are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5278. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 1962 to April 1988. 1. Entitlement to a rating in excess of 10 percent for pes cavus prior to November 11, 2020 and in excess of 30 percent thereafter A July 2013 rating decision continued the Veteran’s 10 percent rating for pes cavus, the Veteran appealed the determination. A December 2020 rating decision increased the evaluation to 30 percent effective November 11, 2020. The Veteran did not express satisfaction with this outcome; thus, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993) (finding a veteran is generally presumed to seek maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded). Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. The Veteran’s foot condition is rated pursuant to DC 5278. Under Diagnostic Code 5278, a noncompensable rating is warranted for slight acquired claw foot. A 10 percent rating is warranted for unilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads. A 10 percent rating is also warranted for bilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads. A 20 percent rating is warranted for unilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. A 30 percent rating is warranted for bilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. A 30 percent rating is also warranted for unilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. A maximum 50 percent rating is warranted for bilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5278. The Board finds that for the entire appeal period, the Veteran’s foot condition warrants a 30 percent rating. Notably, the Veteran filed his increased rating claim in May 2011. Because the Veteran was living outside of the United States, there were challenges obtaining a VA examination. See September 2012 Correspondence. The Veteran was not afforded a VA examination until November 2020. However, the Veteran’s statements and private treatment records describe his foot symptoms during the appeal period. A June 2011 private treatment note indicates the Veteran had a stable foot posture bilaterally. There was high calcaneal inclination as well as an increased talar declination and talo calcaneal angle. The Veteran had full muscle strength in all primary movers of the lower extremities including the foot. An April 2012 private treatment note indicates the Veteran experienced pain on palpation of the lateral 5th metacarpophalangeal joint right more toward the plantar side but laterally on the left foot. The Veteran had full range of motion in the 5th toe. Upon resting there appear to be a significant tailors bunion deformity bilaterally but upon weight bearing it seemed to disappear. Radiograph testing also showed increased intermetatarsal 4-5 angle, enlargement of the 5th metatarsal head, and medical angulation of the 5th toe but no evidence of tumor, fracture, or cystic changes. The medical service provider recommended a corticosteroid injection to relieve pain symptoms. An August 2013 private treatment note indicates the Veteran reported pain in both feet for over 30 years even when wearing orthotics. He reported a lot of pain when standing or walking without orthotics. He reported wearing the same orthotics for 30 years. His treatment plan included removing the old orthotics and applying the new customized orthotics. Another August 2013 private treatment note indicates the Veteran’s feet arches are severely high and calcaneal bones were in over flexion on both sides. It was notes that the palpation revealed plantar fasciitis, which is typical from pes cavus. The Veteran was treated with custom foot orthotics. In a May 2017 letter, the Veteran reported that he cannot stand on his feet without constantly shifting his weight. He reported he must wear foot support daily. A 2018 private treatment notes indicate the Veteran was treated for bilateral pes metatarsalgia and physiotherapy was recommended. In an April 2018 letter, the Veteran reported he can stand with bare feet on a hard surface. He reported his foot pain is unbearable while standing even with his arch supports. He reported he recently underwent therapy for his feet that made his symptoms worse. The Veteran was afforded a VA examination in November 2020. The Veteran reported pain across plantar surface and tightness in the arches. The Veteran denied experiencing flareups. Regarding functional loss the Veteran reported he is unable to walk for more than 10 minutes at a time. A physical examination showed all toes tended to dorsiflexion bilaterally, marked tenderness under the metatarsal heads bilaterally, and shortened plantar fascia bilaterally. There was no dorsiflexion varus deformity due to pes cavus. Functional loss included pain on weight-bearing and non weight-bearing, disturbance of locomotion, and interference with standing. The Board finds that for the entire appeal period, the Veteran’s pes cavus more nearly approximates the criteria for a 30 percent rating. The August 2013 private treatment record indicated the Veteran’s arch was “severely high,” and the Veteran consistently reported tenderness in the foot. The November 2020 VA examination indicates that the Veteran’s pes cavus manifested in all toes tended to dorsiflexion bilaterally, marked tenderness under the metatarsal heads bilaterally, and shortened plantar fascia bilaterally. Because this was the first VA examination the Veteran could attend and the Veteran’s complaints of worsening throughout the appeal period are consistent with the objective findings during the examination, the Board finds the evidence sufficient to show that the Veteran’s pes cavus met the criteria for a 30 percent rating throughout the appeal period. A rating in excess of 30 percent is not warranted because there is no evidence of marked contraction of the plantar fascia with dropped foot, all toes hammer toes, very painful callosities, or marked varus deformity. In sum, for the entire appeal period, a 30 percent rating for pes cavus – but no higher – is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, 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.