Citation Nr: 21023029 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-25 471 DATE: April 19, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus prior to September 28, 2020 and in excess of 50 percent, thereafter, is denied. FINDING OF FACT Prior to September 28, 2020, the Veteran’s bilateral pes planus most nearly approximated a “severe” disability; from September 28, 2020, the Veteran’s bilateral pes planus is pronounced. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for bilateral pes planus prior to September 28, 2020, and in excess of 50 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes (DCs) 5299-5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty form July 1993 to January 1994, with additional service in the Marine Corps Reserves. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. In January 2020, the Board remanded the claim for additional evidentiary development. In an October 2020 rating decision, the RO increased the bilateral pes planus rating from 10 percent to 30 percent from April 9, 2013, the beginning of the appeal period, and to 50 percent from September 28, 2020. Although higher ratings were granted, the issue remains in appellate status as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In adjudicating below whether the Veteran meets the criteria for a higher evaluation, the Board has not overlooked the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). During this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). For purposes of this case, the new regulations did not revise the criteria for acquired flatfeet, DC 5276. Also, although a new rating provision, plantar fasciitis, DC 5269, was added, the maximum rating allowable under that provision is 30 percent and as discussed below, the Veteran’s symptoms are fully contemplated under DC 5276. Thus, the Veteran’s bilateral pes planus will be rated under DC 5276. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus prior to September 28, 2020 and in excess of 50 percent thereafter. The Veteran asserts that his service-connected bilateral pes planus is more severe than is reflected by his assigned evaluations. As noted above, the Veteran’s pes planus is rated at 30 percent disabling prior to September 28, 2020 and 50 percent disabling thereafter. The Veteran’s pes planus is rated under DC 5276. Under DC 5276, a rating of 30 percent is assigned for bilateral pes planus that is severe. “Severe” is defined as: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 50 percent is assigned for bilateral pes planus that is pronounced. “Pronounced” is defined as: marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, DC 5276. In January 2014, the Veteran underwent a VA examination and was diagnosed with bilateral pes planus. The Veteran reported that upon discharge from service, he subsequently developed bilateral pain in the arches of his feet and tried orthotics with no relief of symptoms. Additionally, the Veteran reports that he tried chiropractic therapy with some relief of symptoms, but none since 2010. The Veteran reports that he continues to have moderate, sharp pain in the arches of both feet two to four times per week, lasting hours and is aggravated by prolonged standing longer than 45 minutes or walking more than two hours. Upon examination, the January 2014 VA examiner noted that the Veteran has accentuated pain on use of both feet, as well as pain accentuated on manipulation of both feet. The Veteran was noted to have decreased longitudinal arch height on weight-bearing on both sides, but no objective evidence of marked deformity of the foot or marked pronation of the foot. The Veteran was afforded an updated VA examination in October 2020, pursuant to the January 2020 Board remand. The Veteran reported that his pes planus has worsened since onset and manifests in bilateral foot pain, typically dull in nature, but can be sharp, especially at the heels with prolonged weight-bearing. Upon examination, the October 2020 VA examiner diagnosed the Veteran with bilateral pes planus and bilateral plantar fasciitis. The examiner noted that the Veteran has accentuated pain on use of both feet, as well as extreme tenderness of plantar surfaces bilaterally. Furthermore, the examiner noted that the Veteran has tried orthotics, but remains symptomatic. Additionally, the examiner noted that the Veteran has pain on weight-bearing bilaterally, disturbance of locomotion, interference with standing, and that prolonged weight-bearing increased bilateral foot and heel pain that can eventually impair gait. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran’s bilateral pes planus more closely approximates the rating criteria for a 30 percent disability rating prior to September 28, 2020 and does not demonstrate pronounced bilateral pes planus, as required for a 50 percent disability rating, prior to that date. The January 2014 VA examiner specifically found no indication of swelling on use, characteristic calluses or extreme tenderness of plantar surface of one or both feet. Additionally, while decreased longitudinal arch height on weight-bearing is noted, the examiner found no evidence of marked deformity of the foot, marked pronation of the foot, or any other symptoms contemplated by the 50 percent rating criteria. Additionally, the Veteran’s post-service treatment records do not document symptoms that would warrant a higher disability rating. As such, the Board finds that there is insufficient evidence to warrant an increased rating to 50 percent prior to September 28, 2020, under DC 5276. At no time prior to September 28, 2020 does the Veteran exhibit extreme tenderness of plantar surfaces. Furthermore, although there was some functional impairment with regards to the Veteran’s pain on movement and interference with prolonged standing and walking, the record does not show the degree of functional impairment commensurate with the pronounced severity necessary for the assignment of a 50 percent rating under DeLuca, nor is there any indication that any flare-ups of symptomatology of the bilateral pes planus with plantar fasciitis equated to the criteria necessary for the greater 50 percent rating prior to September 28, 2020. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). From September 28, 2020, the Veteran is in receipt of a 50 percent disability rating for bilateral pes planus with plantar fasciitis. A 50 percent rating is the maximum disability rating assignable for pes planus and includes consideration of pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, DC 5276. As the Veteran is in receipt of the highest schedular rating for bilateral pes planus, there is no basis to award a higher rating. As set forth above, the record reflects that the Veteran does not have loss of use of either foot and he does not contend otherwise. Thus, for the period from September 28, 2020, the Veteran is in receipt of the maximum rating assignable for his bilateral pes planus, and higher ratings may not be assigned by analogy pursuant to other diagnostic criteria. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) citing Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating... may be assigned only where the service-connected condition is ‘unlisted.’”). As the Veteran’s pes planus is specifically listed in the rating schedule, it may not be rated by analogy. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Board has also considered whether assigning a separate rating for symptoms of pain due to plantar fasciitis would be appropriate. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). While the Veteran’s service-connected pes planus includes bilateral plantar fasciitis, the Board finds that the symptoms associated with that disability are contemplated by the rating assigned under Diagnostic Code 5276. The record on appeal contains no indication, nor has the Veteran contended, that his bilateral plantar fasciitis has distinct manifestations from those that are already being compensated and thus, a separate rating would amount to prohibited pyramiding. See 38 C.F.R. § 4.14. Finally, the Board acknowledges that the October 2020 VA examiner noted impaired tolerance for prolonged walking and weight-bearing (over 30 to 45 minutes) that impacts the Veteran’s ability to perform certain occupational tasks. However, the Board finds that consideration of whether an extraschedular rating is warranted for the Veteran’s symptoms and disability is not warranted. 38 C.F.R. § 3.321(b)(1). As detailed above, the Veteran’s bilateral pes planus symptoms and disability are adequately contemplated by the schedular rating criteria. Evidence of exceptional or unusual circumstances in this regard has not been presented. Additionally, the Board does not find that this case raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Here, the evidence does not show, nor does the Veteran claim, that he is unemployable due to bilateral pes planus. To the contrary, the record indicates that the Veteran is employed full time as a game warden and has been throughout the appeal period. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted.   As such, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.