Citation Nr: 21020802 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-17 643 DATE: April 8, 2021 ORDER Entitlement to an extraschedular rating for service-connected bilateral pes planus with bunionectomy is denied. FINDING OF FACT The Veteran’s bilateral foot disability does not present such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for the assignment of an extraschedular rating for service-connected bilateral pes planus with bunionectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1991 to October 1996. This matter comes before the Board of Veterans Appeals (Board) by way of an October 2013 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a November 2019 hearing, a transcript of which has been attached to the record. The Board previously remanded this issue to the AOJ for further development in March 2018 and November 2019. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). Entitlement to an extraschedular rating for service-connected bilateral pes planus with bunionectomy The Veteran asserts entitlement to an extraschedular rating for his bilateral foot disability. The provisions of 38 C.F.R. § 3.321(b) provide that ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court of Appeals for Veterans Claims (Court) specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the AOJ or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran’s disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. In the November 2019 remand, the Board instructed the AOJ to refer the Veteran’s claim of an increased rating for his bilateral foot disabilities to VA’s Director of Compensation Service (Director) for extraschedular consideration. The AOJ complied with this instruction and the Director issued a decision in December 2020 denying the Veteran’s claim. The Director acknowledged the Veteran’s complaints of foot pain and reports of difficulty standing, walking or driving a forklift for extended periods of time. However, the Director found that the while the record showed continuing treatment for foot pain, it did not demonstrate marked interference with employment, to include frequent hospitalizations. The decision concluded that the evidence of record did not indicate that the current schedular evaluation of the Veteran’s bilateral foot disability was inadequate due to exceptional or unusual circumstances. The Board is not bound by the findings of the Director. While the Director’s extraschedular decisions may serve to inform the Board’s review, the decisions are not evidence and are reviewable by the Board on a de novo basis. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015). However, reviewing the evidence of record, the Board finds that entitlement to an extraschedular rating for a bilateral foot disability rating is not warranted. As stated, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are “exceptional or unusual” factors which render application of the schedule impractical.”). For the entire period on appeal, the Veteran’s bilateral foot disability has been rated at the maximum 50 percent disabling rating under DC 5276: flatfoot, acquired. The 50 percent rating for pronounced bilateral flatfoot includes marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. 4.71a; DC 5276. This rating also encompasses the lower 30 percent rating, which lists symptoms such as objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. In this case, the schedular rating criteria used to rate the Veteran’s service-connected bilateral foot disability reasonably describe and assess his disability level and symptomatology. The schedular criteria rate his bilateral pes planus with bunionectomy on the basis of severity of symptoms including pain, weakness, and loss of function. October 2019 and August 2020 VA examinations indicate the Veteran reported severe pain in both feet, increased by movement, walking and standing, with flareups resulting in extreme pain. At the October 2017 Board hearing, he reported occasional difficulty operating a forklift at work. Thus, the demonstrated manifestations: severe or extreme pain, altered gait, tenderness, disturbance of locomotion, weakened movement, decreased capacity for prolonged standing or walking, lack of endurance, incoordination and impaired ability to execute skilled movements smoothly and continuously are contemplated by the provisions of the rating schedule and the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, 4.150. Specifically, the schedular criteria governing the evaluation of musculoskeletal disabilities contemplate a broad array of symptomatology, including limitation of motion, as well as a number of other factors, such as less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity or atrophy of disuse. See 38 C.F.R. §§ 4.45, 4.71a, DC 5276. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are also taken into account. See also 38 C.F.R. § 4.59 (“The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.”); DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Veteran’s disability picture is contemplated by the rating schedule, and the assigned schedular ratings are, therefore, adequate. See Thun, 22 Vet. App. at 115. Importantly, the Board has reconsidered the prior remand in light of the case of Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019), which further explained that “exceptionality”—as interpreted via Thun’s first step—must be viewed in the context of all available rating tools and cannot be reduced to a mere comparison of a veteran’s symptomatology with the language of a particular diagnostic code. In remanding for extraschedular consideration, the Board specifically stated that “the Veteran’s multiple hospitalizations for surgeries, including the removal of the sesamoid bone and resultant pain, is not contemplated in the Diagnostic Code for pes planus.” In light of Morgan, the Board finds that its prior determination that the multiple hospitalizations and removal of sesamoid bone meets the Thun’s “exceptionality” prong was incorrect. The Veteran’s multiple operations have been appropriately addressed with the assignment of 100 percent convalescent ratings pursuant to 38 C.F.R. § 4.30. The schedular criteria contemplate impairment related to toe amputations, but the removal of a sesamoid bone without metatarsal involvement does not warrant a compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5166-73. Nonetheless, a schedular tool is available to address this aspect of disability. With regard to employment, the record indicates the Veteran is employed by the United States Postal Service (USPS) as a mail sorter, primarily driving a forklift. According to USPS human resources shared service center records, the Veteran has generally worked full time during the period on appeal. From May 2014 to May 2017, he worked full time, and from May 2017 to August 2018 he averaged 57 hours per pay period, discounting the period from September 6, to November 1, 2017 that he was rated as 100 percent disabled following surgery. The Veteran averaged 69 hours per pay period from August 2018 until 2019, in which he worked part time prior to undergoing surgery in April, after which he was rated as 100 percent disabled until July 1, 2019. May 2019 VA treatment records indicate the Veteran was told he could return to work but wanted to delay his return date. When he requested a doctor’s note stating that he could not return to work due to his pes planus, the VA medical center’s orthopedic chief resident noted “he was told that this is not possible as he has no restrictions at this time” due to his pes planus. The Veteran’s treating orthopedic clinic authored a letter stating the Veteran was cleared of restrictions and could return to work as of June 6, 2019, and his treating orthopedist indicated he was approaching his new baseline functional mobility. After this clearance he again worked full time, averaging 72 hours per pay period until September 2019, the date of his most recent employment records. At the October 2017 Board hearing, the Veteran reported taking two days off whenever his foot pain became too great. According to an October 2019 VA examination, the Veteran reported occasional trouble driving his forklift due to chronic pain in his right foot, causing him to miss one or two days approximately twice per month due to exacerbated pain. The Board observes that the percentage ratings represent the average impairment in earning capacity resulting from particular disorders and that, generally, the degrees of disability specified in the schedular criteria specifically contemplate “considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. The Veteran’s schedular ratings contemplate his loss of working time due to exacerbations and surgeries, his convalescent ratings have contemplated his extended periods of loss of working time, and a total disability rating based upon individual unemployability (TDIU) was decided in the November 2019 Board decision. (continued on the next page) Finally, the Board observes that the schedular criteria for the foot not only encompasses the Veteran’s symptoms and functional limitations, but actually exceeds them. 38 C.F.R. § 4.71a. The VA examinations during the appeal period consistently note that the Veteran’s foot functioning is not so diminished that amputation with prothesis would equally serve him, and DC 5284 includes a rating for actual loss of use of the foot. In short, in light of the Morgan decision, the Board finds that the Veteran’s bilateral foot disability with complications does not meet the criteria for an extraschedular rating. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.