Citation Nr: 21015781 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-18 143 DATE: March 18, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral pes planus prior to June 3, 2019, is denied. Entitlement to an initial disability rating in excess of 30 percent for bilateral pes planus since June 3, 2019, is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that prior to June 3, 2019, the bilateral pes planus was manifested by moderate symptomatology. 2. The weight of evidence is against a finding that since June 3, 2019, the bilateral pes planus has been manifested by pronounced symptomatology. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral pes planus prior to June 3, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2020). 2. The criteria for an initial disability rating in excess of 30 percent for bilateral pes planus since June 3, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2010 to October 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the increased rating claims for further development. In a May 2020 rating decision, a RO assigned a 30 percent disability rating for bilateral pes planus effective June 3, 2019. As the 30 percent disability rating is not the maximum rating, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist as to these claims except for arguing in the May 2018 appellant’s brief that the September 2014 VA examination was too old. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Regarding the September 2014 VA examination, the Board in October 2018 remanded the claim for a new examination, which was performed in June 2019. Increased Rating 1. Entitlement to an initial compensable disability rating for bilateral pes planus prior to June 3, 2019 2. Entitlement to an initial disability rating in excess of 30 percent for bilateral pes planus since June 3, 2019 Governing law and regulations Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran’s claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). For bilateral flat feet, a zero percent rating requires mild bilateral pes planus that is manifested by symptoms relieved by built-up shoe or arch support. A 10 percent rating requires moderate flat feet with the weight-bearing line being over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent rating requires severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. A 50 percent rating requires 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, and not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Analysis In the November 2014 rating decision, a RO granted service connection for bilateral pes planus and assigned a zero percent disability rating effective October 18, 2014. In the May 2020 rating decision, a RO assigned a 30 percent disability rating for bilateral pes planus effective June 3, 2019. There is no medical evidence dated from October 18, 2014, to June 2, 2019. The September 2014 VA examination report is, however, relevant to that time period. The September 2014 VA examination report reveals that the Veteran did not have pain on use of the feet, pain on manipulation of the feet, or indication of swelling on use. His feet did not have characteristic calluses, and he reported that he did not wear orthotics. The Veteran did not have extreme tenderness of the plantar surfaces on one or both feet. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet, and there was no marked pronation of one or both feet. For both feet, the weight-bearing line did not fall over or medial to the great toe. The Veteran did not have “inward” bowing of the Achilles tendon in either foot, and he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. The Board places great weight on the findings that the Veteran did not have pain on use or on manipulation of the feet, that the weight-bearing line did not fall over or medial to the great toe, and that he did not have “inward” bowing of the Achilles tendon in either foot. The Board also places considerable weight on the finding that the Veteran did not wear orthotics. As to the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Board again notes that there was no pain on use or manipulation of the feet. These findings are insufficient to warrant a compensable rating for bilateral pes planus prior to June 3, 2019, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. The weight of evidence is against a finding that prior to June 3, 2019, the bilateral pes planus was manifested by moderate symptomatology. As for the period since June 3, 2019, the VA examination was performed on that date. That VA examination report reveals that the Veteran did not have pain on use of the feet, pain on manipulation of the feet, or indication of swelling on use. His feet did have characteristic calluses, but he reported that he did not wear orthotics or arch supports. The Veteran did not have extreme tenderness of the plantar surfaces on one or both feet. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet, and there was no marked pronation of one or both feet. For both feet, the weight-bearing line did not fall over or medial to the great toe. The Veteran did not have “inward” bowing of the Achilles tendon in either foot, and he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. The Board places great weight on the findings that there was no marked pronation of one or both feet, that the Veteran did not have extreme tenderness of the plantar surfaces on one or both feet, and that he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. As to the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Board again notes that there was no pain on use or manipulation of the feet. These findings are insufficient to warrant a rating in excess of 30 percent for bilateral pes planus since June 3, 2019, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. The weight of evidence is against a finding that since June 3, 2019, the bilateral pes planus has been manifested by pronounced symptomatology. The preponderance of evidence is against the claims. Accordingly, increased ratings for bilateral pes planus are not warranted, and the claims are denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.