Citation Nr: 21022837 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-03 969 DATE: April 19, 2021 ORDER Entitlement to service connection for lumbosacral strain, claimed as low back disability, is granted. Entitlement to service connection for residuals of right ankle sprain is granted. Entitlement to a disability rating in excess of 10 percent for service-connected sinusitis, from May 26, 2011 to December 9, 2019, is denied. Entitlement to a disability rating in excess of 30 percent for service-connected sinusitis from December 9, 2019 is denied. Entitlement to an initial disability rating of 10 percent, but not higher, for service-connected bilateral pes planus is granted. Entitlement to a disability rating in excess of 30 percent for service-connected bilateral pes planus from October 9, 2019 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates that it is at least as likely as not that the Veteran’s lumbosacral strain is etiologically related to the Veteran’s service, to include an in-service injury. 2. Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates that it is at least as likely as not that the Veteran’s right ankle injury residuals are etiologically related to the Veteran’s service, to include an in-service injury. 3. The evidence of record demonstrates that, from May 26, 2011 to December 9, 2019, the Veteran’s service-connected sinusitis manifested in three to six non-incapacitating episodes per year, characterized by headaches, pain, and purulent discharge or crusting. 4. The evidence of record demonstrates that, from December 9, 2019, the Veteran’s service-connected sinusitis manifested in more than six non-incapacitating episodes per year, characterized by headaches, pain, and purulent discharge or crusting. 5. The evidence of record demonstrates that, prior to October 9, 2019, the Veteran’s service-connected bilateral pes planus manifested in symptomatology more closely approximating the criteria for moderate severity. 6. The evidence of record demonstrates that, from October 9, 2019, the Veteran’s service-connected bilateral pes planus has manifested in symptomatology more closely approximating the criteria for bilateral pes planus of a severe nature. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for residuals of right ankle sprain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected sinusitis, from May 26, 2011 to December 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513. 4. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected sinusitis, from December 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6513. 5. The criteria for entitlement to a disability rating of 10 percent for service-connected bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 6. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected bilateral pes planus, from October 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1987 to December 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claims were previously before the Board in November 2018, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development. Notably, the issues of entitlement to service connection for a right knee disorder, a left knee disorder, and an acquired psychiatric disorder were also remanded at that time. The Veteran was subsequently awarded service connection for all three disabilities in an August 2020 rating decision. As the grants of service connection constitute a full award of the benefits sought on appeal, these matters are no longer on appeal; and no further consideration herein is necessary. See Grantham v. Brown, F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” issues such as a disability evaluation or the effective date assigned). The remaining claims have been returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with its November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176, stating that substantial compliance, rather than strict compliance, is required). The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the Veteran’s claims. Service Connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for lumbosacral strain The Veteran contends that she incurred her low back disability while on active duty service and that she has experienced a continuity of symptomatology since her separation from service. Alternatively, the Veteran asserts that her service-connected bilateral pes planus caused or aggravated her low back disability. After reviewing the Veteran’s claims file, the Board finds that entitlement to service connection for a low back disability, specifically, lumbosacral strain, is warranted by the evidence of record. As an initial matter, the Veteran has been diagnosed with a current disability of the lower back. To that end, multiple clinicians have furnished a diagnosis of lumbosacral strain. See back conditions disability benefits questionnaire (DBQ) dated October 9, 2019; see also VA examination dated December 18, 2019. Second, the record contains evidence of an in-service event or injury. Specifically, the Veteran’s service treatment records (STRs) reflect that the Veteran was treated in April 1987 for lower back pain. She was instructed to undergo physical therapy and was later provided a provisional diagnosis of low back strain. See STRs dated April 6, 1987 and April 22, 1987, respectively. Additionally, the Veteran has furnished lay statements describing the continuity of symptomatology she has experienced since the in-service injury. The Board acknowledges that lay persons are competent to report symptoms capable of ordinary observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbosacral strain is related to her military service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” doctrine, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). To the extent that there is evidence against the claim, the record reflects a negative nexus opinion for both direct and secondary service connection. After a December 2019 examination, a VA clinician opined that the Veteran’s low back disability was less likely than not incurred in service or caused by the in-service event or injury chronicled in the Veteran’s STRs. See VA medical opinion dated December 18, 2019. The clinician based her opinion largely on the absence of medical treatment records, which purportedly created “a gap of greater than 20 years until a diagnosis […].” However, the opinion is of limited probative value, as it relies primarily on an absence of medical evidence to support a negative nexus opinion and as medical treatment records and the Veteran’s lay statements contradict its assertion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the examiner relied on the absence of medical records to provide a negative opinion); see also VA examination dated April 18, 1995 (wherein the Veteran reported a history of low back pain). Regarding whether the Veteran’s service-connected bilateral pes planus caused or aggravated her low back disability, the clinician provided a negative nexus opinion, reasoning that medical literature and the evidence of record fail to establish a relationship between the two disabilities. In addition to the nexus opinions referenced above, the record contains a medical opinion conveying that the Veteran’s low back disability was at least as likely as not caused by the in-service event or injury reflected in the Veteran’s STRs. See DBQ medical opinion dated October 9, 2019. In rendering the opinion, the provider explained how physical trauma to one’s back can result in the later development of chronic back conditions and further applied the facts of the Veteran’s medical history to this principle. The Board finds the positive opinion for direct service connection more probative than the negative opinion addressing direct service connection. Accordingly, the Board finds that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for lumbosacral strain is warranted. 2. Entitlement to service connection for residuals of right ankle sprain The Veteran asserts that she sustained a right ankle injury while on active duty service and that she has experienced chronic residuals of the physical trauma, which have gradually worsened over time, since the in-service injury. She further contends that her service-connected bilateral pes planus has aggravated the disability. After a review of the Veteran’s claims file, the Board finds that the evidence of record supports a grant of service connection for residuals of right ankle sprain. First, there is evidence of a current disability. The Veteran has been diagnosed with chronic/recurrent lateral collateral ligament sprain. See medical examination report dated October 28, 2019; see also VA examination dated December 18, 2019. Second, there is evidence of an in-service event or injury. The Veteran’s STRs confirm that she twisted her ankle while playing basketball in January 1990 and sought medical treatment in-service for the injury and its residuals on multiple occasions following the injury. See, e.g., STRs dated January 25, 1990, January 30, 1990, and February 20, 1990. Furthermore, the Veteran’s lay statements convey that she has experienced a continuity of symptomatology since service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right ankle injury residuals are related to her service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” doctrine, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). To the extent that there is evidence against the claim, the evidentiary record contains a negative nexus opinion for direct service connection and for secondary service connection. The Veteran was afforded a VA examination for her right ankle disability in December 2019, at which time a nurse practitioner opined that the diagnosed right ankle disability was less likely than not related to service. See VA medical opinion dated December 18, 2019. In so finding, she reasoned that an absence of medical evidence documenting treatment for the disorder in the years closely following the Veteran’s discharge from service disproves the Veteran’s claimed continuity of symptomatology. She further reasoned that inadequate treatment of only grade 2 or 3 sprains can ultimately lead to chronic residuals, whereas the Veteran’s in-service right ankle sprain was noted to be a grade 1 sprain. Addressing whether the Veteran’s service-connected bilateral pes planus caused or aggravated the right ankle disability, the examiner remarked that the evidence of record, including medical literature, did not establish the existence of a relationship between pes planus and an ankle sprain. Notably, however, the record also contains a positive nexus opinion. The Veteran was physically examined in October 2019, at which time a clinician opined that the Veteran’s chronic lateral collateral ligament sprain was at least as likely as not caused by the 1990 in-service injury. See DBQ medical opinion dated October 9, 2019. In making this determination, the clinician relayed that joint injuries can, over time, lead to more chronic conditions due to the repetitive movement and weight-bearing inherent in walking. As there is an approximate balance of positive and negative evidence concerning a nexus between the Veteran’s current disability and her in-service right ankle injury, the Veteran shall receive the benefit of the doubt. 38 U.S.C. § 5107. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board concludes that entitlement to service connection for chronic lateral collateral ligament sprain is warranted. Increased Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be discerned, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). In cases wherein reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Therefore, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 3. Entitlement to a disability rating in excess of 10 percent for service-connected sinusitis, from May 26, 2011 to December 9, 2019 The Veteran was awarded service connection for her sinusitis in a May 1995 rating decision, which assigned the disability an evaluation of 0 percent disabling. See rating decision dated May 19, 1995. In correspondence received by VA on May 26, 2011, the Veteran requested a higher disability rating for the disorder, on the basis that the disorder had worsened over time. See VA Form 21-4138, Statement in Support of Claim, dated May 23, 2011. The Veteran’s sinusitis is rated under the General Rating Formula for Sinusitis. See 38 C.F.R. § 4.97, Diagnostic Code (DC) 6513. Under DC 6513, a 0 percent (or noncompensable) rating is warranted where the disorder is detected by X-ray but does not manifest in physical symptoms. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or for more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or where there is near-constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note to DC 6513 instructs that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The record reflects that the Veteran was first afforded a VA examination for her sinusitis in April 2013. Following a review of the Veteran’s claims file and a physical examination of the Veteran, a clinician reported that the Veteran’s chronic maxillary sinusitis caused periodic episodes of sinusitis, as well as pain and tenderness of the maxillary region. See VA examination dated April 2, 2013. Specifically, the clinician noted that the disorder caused approximately four non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting, in the prior year. No incapacitating episodes were documented. Imaging studies of the sinus cavity performed on the date of examination indicated decreased aeration of the right maxillary sinus. Finally, the disability was not reported to impact the Veteran’s ability to work. Based on the findings of the April 2013 examination, the Veteran was awarded a disability rating of 10 percent for her service-connected sinusitis. See rating decision dated April 29, 2013. She expressed her disagreement with the assigned rating, asserting that the disorder warranted a disability rating in excess of 10 percent based on its severity. Entitlement to a higher disability rating was denied in a November 2014 Statement of the Case. The Veteran then perfected an appeal of the issue to the Board. An emergency room notation from March 2017, which indicates that the Veteran was seen for severe sinusitis. See medical treatment records dated March 26, 2017. She conveyed to medical personnel that she was experiencing a migraine headache in the frontal region of her skull, in addition to symptoms of sinusitis, such as congestion and a recurrent non-productive cough. The Veteran was prescribed several medications, including Toradol and Rocephin, and was instructed to follow-up with her primary care provider. In November 2018, the Board remanded the matter to the AOJ in order to afford the Veteran a new VA examination to assess the current severity of her sinusitis. Medical treatment records demonstrate that the Veteran saw a private physician for her sinusitis in October 2019. The physician documented that, in the past year, the Veteran’s chronic sinusitis had caused approximately two non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting, but did not result in any incapacitating episodes. See sinusitis DBQ dated October 7, 2019. The clinician reported that the Veteran’s disorder interfered with her daily activities and caused her to miss work during episodes of sinusitis. In light of the forgoing, the Board finds that the medical evidence does not support the assignment of a disability rating in excess of 10 percent for the applicable time period. Specifically, the record does not demonstrate that the Veteran’s sinusitis satisfied the criteria for a 30 percent evaluation, as the disorder did not result in three or more incapacitating episodes or in more than six non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting, in the preceding twelve months. Thus, entitlement to a disability rating in excess of 10 percent for sinusitis, from May 26, 2011 to December 9, 2019, is not warranted. 4. Entitlement to a disability rating in excess of 30 percent for service-connected sinusitis from December 9, 2019 As noted above, pursuant to the Board’s November 2018 remand, the Veteran was scheduled for a new VA examination to determine the severity of her service-connected sinusitis. In December 2019, the Veteran underwent a VA examination. At that time, an examiner reported that the Veteran’s chronic maxillary sinusitis manifested in headaches, pain and tenderness of the maxillary region, and purulent discharge. See VA examination dated December 9, 2019. Although the examiner remarked that the disability did not cause any incapacitating episodes in the last twelve months, she observed that the disability caused “7 or more” non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. Regarding the functional impact of the Veteran’s sinusitis, the examiner noted that the Veteran experiences severe sinus headaches with purulent discharge, which make it difficult for her to complete occupational tasks and require that she miss work when symptomatic. An August 2020 rating decision increased the Veteran’s disability rating for sinusitis to 30 percent, effective December 9, 2019, the date of the Veteran’s most recent VA examination. The Board finds that a disability rating in excess of 30 percent for chronic sinusitis is not warranted. Specifically, a disability evaluation of 50 percent is not warranted, as the evidence does not demonstrate that the Veteran was required to undergo radical surgery with chronic osteomyelitis or that she experiences near-constant sinusitis following repeated surgeries. Accordingly, entitlement to a disability rating in excess of 30 percent for sinusitis, from December 9, 2019 is not warranted. 5. Entitlement to an initial compensable disability rating for service-connected bilateral pes planus In May 2011, the Veteran filed an informal claim for service connection for right foot and ankle pain. See VA Form 21-4138, Statement in Support of Claim, dated May 23, 2011. To assist the Veteran with the development of her claim, VA afforded her a foot conditions (other than pes planus) examination for the claimed disability. In April 2013, a clinician reviewed the Veteran’s claims file, assessed the condition of the Veteran’s feet, and diagnosed the Veteran with pes planus, placing the onset of the disorder during the Veteran’s active duty military service. See VA examination dated April 2, 2013. However, despite the instructions on the questionnaire for the examiner to complete a separate form to document the nature and severity of the Veteran’s pes planus when that disability is diagnosed, the examiner did not do so. Thus, not all of the information necessary to evaluate the disability under the appropriate diagnostic code is documented in the April 2013 medical report. The Veteran was subsequently granted service connection for her bilateral pes planus in an April 2013 rating decision, which assigned the disability a noncompensable rating. See rating decision dated April 29, 2013. In correspondence dated May 15, 2013, the Veteran expressed her disagreement with the assigned disability rating, asserting that the severity of her pes planus warrants a higher disability evaluation. In addition to the general criteria for evaluating the severity of service-connected disabilities, further consideration is to be given to disabilities of the musculoskeletal system. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partially rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is deemed unnecessary. Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran’s bilateral pes planus is rated pursuant to 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. Under DC 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 manifested by such symptoms as weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and/or pain on manipulation and use of the feet. This rating applies regardless of whether the symptoms are bilateral or unilateral. A 30 percent rating is warranted for severe bilateral acquired flat foot manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and/or 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, DC 5276. Although the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, such changes, if favorable to the Veteran’s claim, can be applied only for periods following the effective date of the regulatory change. Because the evidence related to the severity of the Veteran’s pes planus predates the regulatory change, the new criteria for rating musculoskeletal disabilities are not applicable. The Veteran was next afforded a VA examination for her pes planus in October 2014. At that time, the Veteran relayed to a clinician that her bilateral pes planus manifested in pain in the top of her feet, as well as both arches, and that such pain is aggravated by walking and standing. See VA examination dated October 9, 2014. She described the pain as being “like something is inside my foot and I am stepping, putting pressure on it.” However, the pain was said to be relieved by resting or sitting. The Veteran additionally conveyed to the clinician that she has tried wearing shoe insoles but that the pain was exacerbated upon use of the insoles. She also reported experiencing flare-ups of the condition, as well as functional loss of her feet in that she is limited in the distances she can walk and is subject to pain when placing weight on her feet. A physical examination of the Veteran’s feet revealed, in pertinent part, that her pes planus caused pain upon manipulation of the left foot, which was accentuated upon manipulation. The Veteran’s feet did not exhibit swelling on use, characteristic callouses, extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity or pronation, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles tendon on manipulation. Regarding flare-ups of the disability, the examiner noted that pain caused by flare-ups resulted in functional loss of the feet during flare-ups or when the feet are used over a period of time but was unable to answer further questions about the severity of the flare-ups without resorting to speculation. Finally, the examiner reported that the Veteran’s bilateral pes planus did not impact her ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). Based on the medical evidence for this time period, the Board finds that a disability rating of 10 percent is warranted. Although the severity of the Veteran’s pes planus was not shown to be moderate (or worse), characterized by complications such as the weight-bearing line of either foot extending over or medial to the great toe or inward bowing on the tendo achillis, the Veteran’s left foot experienced pain upon manipulation. Furthermore, considering the Veteran’s credible lay statements regarding flare-ups of the condition and the difficulty she reportedly experienced due to pain of her feet, the Board finds that the reportedly symptomatology more closely approximates the criteria of a 10 percent rating than a noncompensable rating. Therefore, a disability rating of 10 percent, but no higher, is warranted. A disability rating in excess of 10 percent is not warranted, as the evidence of record does not demonstrate that the Veteran’s bilateral pes planus manifested in complications of a severe nature, such as objective use of marked deformity, pain on manipulation and use accentuated, or indications of swelling on use or characteristic callosities. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. 6. Entitlement to a disability rating in excess of 30 percent for service-connected bilateral pes planus, from October 9, 2019 In November 2018, the Board remanded the issue of entitlement to a higher disability rating for bilateral pes planus, noting that the Veteran had reported a worsening of the condition since the October 2014 VA examination. See Board decision dated November 2, 2018; see also Appellate Brief dated September 24, 2018. A medical report from a private October 2019 examination indicates that, at the time of examination, the Veteran reported that her pes planus manifested in pain, especially on the bottom of her feet after walking for long periods of time, and that such pain precluded her from walking or standing for long periods of time. See pes planus DBQ dated October 9, 2019. The examiner noted that the Veteran’s feet experienced pain upon use, but that the pain was not accentuated by manipulation. The examiner also noted that the Veteran’s feet featured characteristic calluses and decreased longitudinal arch height. Although neither foot demonstrated extreme tenderness of plantar surfaces, the right foot showed objective evidence of marked deformity and marked pronation; and the examiner additionally observed that the weight-bearing line of the right foot fell over or medial to the great toe. The feet did not exhibit inward bowing of the Achilles tendon, marked inward displacement, or severe spasm of the Achilles tendon upon manipulation. Concerning functional loss and limitation of motion, the examiner documented that the Veteran’s bilateral pes planus manifested in each foot experiencing incoordination, pain on movement, disturbance of locomotion, and interference with standing. Pain, weakness, fatigability, and/or incoordination were observed to significantly limit the functional ability of the Veteran’s feet during flare-ups or when used repeatedly over a period of time, causing her difficulty with prolonged standing and walking due to the pain. Pursuant to the Board’s November 2018 remand directives, the Veteran was afforded another VA examination for her bilateral pes planus in December 2019. At the time of examination, a clinician observed that the Veteran’s pes planus resulted in pain on use of the feet, which is further accentuated upon use, as well as on manipulation of the feet, which is also noted to be further accentuated upon manipulation. A physical assessment of the Veteran’s feet revealed extreme tenderness of plantar surfaces of both feet but did not show evidence of decreased longitudinal arch height on weight-bearing, marked deformity, or marked pronation. Neither foot was noted to have its weight-bearing line fall over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles tendon upon manipulation. The clinician reported that the pain of each foot contributed to functional loss characterized by weakened movement, incoordination, pain on weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. Furthermore, pain, weakness, fatigability, and/or incoordination were noted to significantly limit the functional ability of both feet during flare-ups or when the feet are used repeatedly over a period of time, resulting in the Veteran experiencing difficulty weight-bearing. The overall functional impact of the disorder was noted to cause the Veteran difficulty performing occupational tasks that require standing, walking for extended periods of time, using stairs, kneeling, and/or squatting. Based on the findings of the December 2019 VA examination, the AOJ awarded the Veteran a disability evaluation of 30 percent for her bilateral pes planus. See rating decision dated August 5, 2020. The rating decision assigned an effective date of December 9, 2019, the date on which the VA examination was conducted. However, in light of the findings of the October 2019 examination conducted by a private physician, the Board finds that the appropriate effective date for the assignment of the higher disability rating is October 9, 2019, the date on which the private examination took place. Specifically, those findings indicate that the Veteran’s bilateral pes planus resulted in objective evidence of marked deformity in the form of pronation and characteristic callosities. As such, the Board finds that the severity of the Veteran’s pes planus more closely approximates the rating criteria for a disability evaluation of 30 percent from the date of the private examination. Because October 9, 2019 is the earliest date on which it is factually ascertainable that an increase in severity is warranted, that is the proper effective date for the assignment of the 30 percent disability rating. A disability evaluation of 50 percent is not warranted, based on the evidence from the October 2019 and December 2019 examinations, because the Veteran’s pes planus did not manifest in severity of a pronounced nature, characterized by findings such as marked pronation, extreme tenderness of plantar surfaces, or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise with respect to this claim. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits [...].”); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.