Citation Nr: 21022642 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-37 766 DATE: April 16, 2021 ORDER Entitlement to a rating in excess of 30 percent for bilateral pes planus is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's bilateral pes planus is not manifested by pronounced bilateral acquired flatfoot with extreme tenderness of plantar surfaces of the feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied entitlement to a compensable rating (in excess of 0 percent) for the pes planus. An interim, July 2015 rating decision granted an increased, 30 percent rating from July 8, 2013. In March 2019, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. In October 2018, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ) who is no longer available to participate in the appeal. In a February 2021 letter, the Board informed the Veteran that he had the right to an additional Board hearing, but that if he did not respond to the letter within 30 days, it would be assumed he did not want another hearing. No reply was received, and the Board therefore finds that it may adjudicate the appeal without providing the Veteran with another Board hearing. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and has been receiving a 100 percent disability since July 2011. Entitlement to a rating in excess of 30 percent for the bilateral pes planus. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that when there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected bilateral pes planus has been evaluated under Diagnostic Code 5276. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; 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 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Based on a comprehensive review of the record, the Board concludes a preponderance of the evidence shows that the Veteran's pes planus is manifested by severe symptoms, including objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The contributing factors of disability include pain on weight-bearing, disturbance of locomotion, interference with standing and walking long distances, and a lack of endurance. However, the pes planus has not been manifested by extreme tenderness of plantar surfaces of the feet or marked inward displacement and severe spasm of the tendo achillis on manipulation. Therefore, the criteria for a rating in excess of 30 percent are not met. The Veteran was provided a VA foot examination in April 2015. He reported having constant pain with weightbearing. There were flare-ups of pain with prolonged weight bearing. Accordingly, he limited his walking to very short distances. The examiner indicated there was accentuated pain on use and manipulation of the feet. There was not an indication of swelling or characteristic callouses. The use of arch supports and orthopedic shoes did not relieve the symptoms. On examination of the feet, there was not extreme tenderness of the plantar surfaces; marked pronation; or a marked inward displacement and severe spasm of the Achilles tendons on manipulation. The examiner concluded the bilateral foot pain contributed to functional loss, causing pain on weight-bearing and a lack of endurance. The examiner described the functional loss the Veteran experienced during flare-ups and repeated use over time by noting that he avoided walking distances longer than a city block when possible. The examiner opined the pes planus would impact the Veteran’s ability to perform occupational tasks, noting he would not be able to perform a job that requires prolonged weight bearing. A May 2015 VA treatment record notes significant pronation of the left foot. VA treatment records show he continued to regularly complain of bilateral foot pain and swelling. At the October 2018 Board hearing, the Veteran reported his foot pain became severe enough at times that it caused him to collapse. He always used a cane and avoided walking when he could. He used a chair lift to move up the stairs at his house. He also reported he walked on the side of his feet at times to reduce the pain. The Veteran’s spouse reported observing similar symptoms and that she had recently noticed his standing stance was irregular, tilted to one side. The Veteran was provided another foot examination in October 2019. The examiner noted the Veteran had a history of falls but that the cause was multifactorial, including non-service-connected peripheral neuropathy of the lower extremities due to diabetes mellitus, and not directly related to the pes planus. The Veteran reported having foot pain with weight-bearing. He could stand for two to three minutes at most. He did not report having flare-ups that impacted the function of the foot. The examiner indicated there was accentuated pain on use and manipulation of the feet. There was no indication of swelling, but there were characteristic callouses on both feet. The use of arch supports and orthopedic shoes did not relieve the symptoms. On examination of the feet, there was not extreme tenderness of the plantar surfaces; marked pronation; or a marked inward displacement and severe spasm of the Achilles tendons on manipulation. The examiner opined the pain shown on examination contributed to functional loss. The contributing factors of disability included pain on weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The examiner described the functional loss the Veteran experienced during flare-ups and repeated use over time by noting the Veteran could only stand for five minutes at a time due to the foot pain. The examiner noted he regularly used a wheelchair and cane because of the service-connected pes planus. Based on consideration of the above, the Board finds the evidence weighs against a finding that the Veteran’s bilateral pes planus meets the criteria for a rating in excess of 30 percent. While significant pronation of the left foot was noted in May 2015, the evidence does not show that the Veteran's bilateral pes planus has been manifested by extreme tenderness of plantar surfaces of the feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Even considering the Veteran’s and his spouse’s lay reports regarding the severity of the symptoms and functional limitation, the severity of the symptoms do not more nearly approximate pronounced bilateral acquired flatfoot. Accordingly, the criteria for a rating in excess of 30 percent are not met, and the appeal must be denied. The Board emphasizes that this finding does not suggest the Veteran is not having problems with his bilateral pes planus. The Board is considering the degree of severity based on the standards above, and nothing more. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Skowronski, William 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.