Citation Nr: 21015552 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-13 286 DATE: March 17, 2021 ORDER A higher 30 percent rating, though no greater, is granted for bilateral pes planus with hallux valgus deformity retroactively effective from December 5, 2005. FINDING OF FACT The most probative evidence of record indicates that, since December 5, 2005, the Veteran’s bilateral pes planus with hallux valgus deformity has been severe owing to symptoms causing marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, and swelling on use of his feet. CONCLUSION OF LAW The criteria are met for entitlement to a higher 30 percent rating, though no greater, for the bilateral pes planus with hallux valgus deformity effectively since December 5, 2005. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to October 2003. This appeal to the Board of Veterans’ Appeals (Board) originated from a February 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) than granted service connection for bilateral pes planus (i.e., flat feet) with hallux valgus deformity and assigned an initial 10 percent rating for this disability retroactively effective from October 24, 2003, so back to the day following the Veteran’s discharge from the military since he had filed this claim on November 6, 2003, within a year of his discharge from service. In response to that February 2004 rating decision, the Veteran submitted a timely Notice of Disagreement (NOD) in September 2004 requesting a higher initial rating for this bilateral foot disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that, when a Veteran appeals an initial rating, VA adjudicators must consider whether to “stage” the rating – meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). For whatever reason, so inexplicably, the RO did not then immediately provide the Veteran a Statement of the Case (SOC) concerning his request for a higher initial rating for his bilateral foot disability. Indeed, it was not until some 4 years later, in May 2008, when he was reexamined to reassess the severity of this disability. According to another rating decision several years after that, in July 2013, denying the request for a rating higher than 10 percent for this bilateral foot disability, the Veteran only had requested an increased evaluation for this disability the prior year, on January 25, 2012. But, in actuality, his appeal had been pending since timely contesting the 10 percent rating when it initially was assigned several years earlier for this disability.   In August 2019, the Board remanded this claim back to the RO, i.e., Agency of Original Jurisdiction (AOJ) to further assist the Veteran in developing this claim – including especially by obtaining all outstanding records pertinent to this claim and then again having him reexamined to again reassess the severity of this bilateral foot disability. The Board also assumed jurisdiction over a derivative claim for a total disability rating based on individual unemployability (TDIU) since “part and parcel” of the claim for a higher rating for the bilateral foot disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). But rather than immediately adjudicating this derivative TDIU claim, the Board also remanded this other claim back to the RO (AOJ) since it, too, needed to be further developed. On remand, the RO issued a rating decision in July 2020 granting the TDIU claim retroactively effective as of October 17, 2019, which was the day following when the Veteran last worked. Thus, that TDIU claim is no longer at issue in this appeal. However, after completing the remand directives concerning this remaining claim for a rating higher than 10 percent for the bilateral foot disability, the RO (AOJ) continued to deny this claim in a July 2020 Supplemental SOC (SSOC), so this remaining claim is again before the Board. Entitlement to a rating higher than 10 percent for bilateral pes planus with hallux valgus deformity Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.       When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already alluded to, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson, 12 Vet. App. at 125-26; Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.   The Veteran's bilateral – meaning left and right foot – pes planus (flat feet) is rated under 38 C.F.R. § 4.71a, DC 5276. According to DC 5276, a 10 percent rating is warranted for moderate symptoms including weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet. A higher 30 percent rating is warranted for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A maximum 50 percent schedular rating is warranted for pronounced bilateral pes planus manifested by 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. During his initial VA examination in September 2003, the Veteran reported experiencing bilateral foot pain with walking and standing, relieved by orthopedic inserts. The examiner found loss of arch and tenderness along the instep area consistent with pes planus. An X-ray also revealed a minimal hallux valgus deformity. This bilateral foot disability accordingly was assigned an initial 10 percent rating for pain on manipulation and use of the feet. See 38 C.F.R. § 4.71a, DC 5276. Treatment notes reflect symptoms through 2004 with foot swelling reported in December 2005. The Veteran’s podiatry notes from February and July 2006 report bilateral hammertoes, swelling, and a discussion of surgical options to try and lessen or alleviate his symptoms. During his May 2008 VA examination, he reported experiencing swelling of his feet after walking, also increased pain in his feet, using a walker to ambulate, and weekly flare ups that he treated with pain medication, orthopedic inserts, rest, and Epsom salt soaks. The examiner found evidence of bilateral pain on palpation, mild pronation, and a weight bearing line over the great toe on the left foot only. Concurrent X-rays were unremarkable. Treatment continued through 2012. During his April 2012 VA examination, the Veteran reported experiencing daily pain and swelling of his feet that was not relieved by orthotics and anti-inflammatories. The examiner observed bilateral pain on use, pain on manipulation, and indication of swelling on use of the feet. There was no indication of pronation, marked deformity, or a weight bearing line over the great toe. An X-ray showed indication of arthritis in the left foot. During his most recent VA examination in December 2019, the Veteran reported that his symptoms had continued as previously noted, including sharp, daily pain. The examiner did not find pain on manipulation, however, indication of swelling, or tenderness on palpation of the feet. No X-rays were taken or reviewed during the evaluation.   Based on the Veteran’s subjective complaints in relation to the objective clinical findings during the last several years, the Board finds sufficient probative evidence to conclude he has had pain on manipulation and use accentuated and swelling on use since December 5, 2005, though no earlier. Even as a layman, he can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain, symptom manifestation, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Contemporaneous medical records supporting his lay statements concerning this tend to add credibility to his competent lay assertions since generally consistent with what he has alleged in terms of his symptoms and consequent functional impairment. Because it was not first shown that he met the requirements for this higher 30 percent rating until after his “downstream” claim (NOD in September 2004) for a higher initial rating for this bilateral foot disability, the effective date of this greater rating is the date entitlement arose, which was not until December 5, 2005. See Harper v. Brown, 10 Vet. App. 125, 126 (1997), citing 38 C.F.R. § 3.400(o)(1). At no time prior to or since it is shown that he is entitled to an even higher 50 percent rating because the condition is not shown to be pronounced. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.