Citation Nr: 21024025 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-19 376 DATE: April 21, 2021 ORDER Entitlement to an initial 40 percent disability rating for the service-connected traumatic brain injury (TBI) cognitive residuals is granted from January 27, 2010, to May 31, 2019, and from September 24, 2020. Entitlement to an initial rating in excess of 40 percent for the TBI residuals during the entire period on appeal (January 27, 2010 to the present) is denied. Entitlement to an initial rating in excess of 20 percent for the service-connected back disability is denied. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s TBI residuals have been manifested by moderately impaired judgment from January 27, 2010, to May 31, 2019, and from September 24, 2020. 2. The preponderance of the evidence shows that the facets of the Veteran’s TBI residuals (other than those that are compensated for through separately service-connected disabilities) have not been manifested by worse than a level two (2) of impairment since January 27, 2010. 3. The preponderance of the evidence shows that from January 27, 2010, the Veteran's service-connected back disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis, or required bed rest prescribed by a physician. 4. The preponderance of the evidence shows that from January 27, 2010, the Veteran's bilateral pes planus has not been 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. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 40 percent for the TBI residuals from January 27, 2010, to May 31, 2019, and from September 24, 2020, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8045. 2. The criteria for a rating in excess of 40 percent for the TBI from January 27, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8045. 3. The criteria for an initial disability rating higher than 20 percent for the service-connected back disability from January 27, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 4. The criteria for a rating in excess of 30 percent for the bilateral pes planus from January 27, 2010, 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1988 to January 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The February 2010 rating decision, in pertinent part, granted service connection for TBI residuals and assigned a 10 percent rating from January 27, 2010; granted service connection for a low back disability and assigned a 0 percent rating from January 27, 2010; and granted service connection for a left foot disability and assigned a 0 percent rating from January 27, 2010. The Veteran and his spouse testified at a hearing before the undersigned in April 2018. In a June 2018 decision, the Board granted an increased, 20 percent (but no higher) rating for the back disability and remanded entitlement to service connection for a right foot disability, entitlement to a compensable rating for a left foot injury, and entitlement to a rating in excess of 10 percent for the TBI residuals. A January 2019 rating decision implemented the grant of the 20 percent rating for the back disability from January 27, 2010. The Veteran appealed the June 2018 Board denial of entitlement to a rating in excess of 20 percent for the low back disability to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 order, which incorporated the parties' Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the June 2018 Board’s grant of an increased rating for the low back disability. In July 2019, the Board remanded the issues of entitlement to an initial rating in excess of 20 for the low back disability and entitlement to SMC based on the need for regular aid and attendance or at the housebound rate for additional development to address concerns of the JMPR. A November 2020 rating decision granted an increased, 40 percent rating for the TBI residuals from May 31, 2019, to September 24, 2020, and a 10 percent rating from that date. The decision also granted service connection bilateral pes planus with heel spurs and a left foot injury and assigned a 30 percent rating from January 27, 2010. The separate rating for an individual left foot disability was discontinued in favor of this higher rating. Accordingly, the issue of service connection for a right foot disability is no longer on appeal, and the Board has recharacterized the issue on appeal as entitlement to an initial rating in excess of 30 percent for bilateral pes planus. 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 June 2017. Increased Ratings 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 where 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. 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). Entitlement to an increased initial rating for the TBI cognitive residuals. The Veteran is seeking increased initial ratings for the service-connected cognitive residuals of the TBI. The Veteran’s TBI is rated 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8045 for cognitive impairment from January 27, 2010, to May 31, 2019, and from September 24, 2020. A 40 percent rating is assigned from May 31, 2019, to September 24, 2020. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In each individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." These facets are memory, attention, concentration and executive function, judgment, social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. Not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. In this regard, it is important for the Veteran to understand that the evaluation of a TBI is highly multifaceted. The current version of Diagnostic Code 8045 contains the following relevant notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a. As to entitlement to a rating in excess of 10 percent for the Veteran’s TBI residuals from January 27, 2010, to May 31, 2019, and from September 24, 2020, the Board finds that the evidence is in relative equipoise as to whether the disability was manifested by moderately impaired judgment from January 27, 2010, to May 31, 2019, and from September 24, 2020. Accordingly, the Board finds the TBI disability meets the criteria for a 40 percent rating for the entire appeal period. In this regard, competent and credible statements from the Veteran and his spouse show he was usually unable to make reasonable decisions when faced with complex or unfamiliar decisions. For instance, in a January 2018 statement, the Veteran reported he made spontaneous, non-logical decisions. At the April 2018 Board hearing, the Veteran’s wife testified that he had a difficult time making decisions. He was very impulsive and would say inappropriate things. A June 2018 VA treatment record notes the Veteran’s spouse also attended the psychiatry appointment and reported he made spontaneous, inexplicable decisions, such as taking out credit cards and buying trucks without consideration of the consequences. The VA psychiatrist opined his judgment was impaired. A May 2019 TBI examiner opined the Veteran’s judgment was moderately impaired, noting he made spontaneous and non-logical decisions and comments. He was unable to make logical choices about finances and child rearing. In a November 2020 letter, the Veteran’s wife reported the Veteran’s judgment had been impaired since his separation from active duty. She said he makes impulsive purchases, such as buying a new car without prior planning when he took another vehicle in for maintenance. He also cannot manage money properly and also restarted smoking cigarettes after years of abstinence just because he saw them in a store. He also regularly made inappropriate comments with no regard to who he was speaking with, including coworkers. The Board acknowledges other VA examiners and VA treatment records regularly indicated the Veteran’s judgment was normal or slightly impaired, but finds these opinions are of limited probative value because they did not address the Veteran’s and his spouse’s reports of his impaired judgment. Accordingly, the evidence is at least in equipoise as to whether the TBI has been manifested by moderately impaired judgment from January 27, 2010, to May 31, 2019, and from September 24, 2020, and an initial 40 percent rating is warranted for the service-connected cognitive TBI residuals during the entire period on appeal. Moreover, the Board find this facet score most accurately compensates him for the adverse symptomatology caused by his TBI at all times from January 27, 2010, because he is separately compensated for social, memory, attention, and concentration difficulties as part of his 50 percent rating for PTSD, and for his headaches, tinnitus, and sleep difficulties. The ratings for those disabilities are not on appeal, but the Board notes assigning separate ratings for symptoms already attributed to those disabilities would amount to prohibited pyramiding. 38 C.F.R. § 4.14. Accordingly, any such symptoms cannot form the basis of a higher rating for the cognitive residuals of the TBI under Diagnostic Code 8045. As to an initial rating in excess of 40 percent for the TBI residuals, including from May 31, 2019, to September 24, 2020, the Board finds that the most probative evidence of record shows the facets of the Veteran’s TBI residuals (other than the symptoms compensated through other service-connected disabilities) have not been manifested by worse than a level 2 of impairment since January 27, 2010. The Board finds that the most probative evidence of records are the VA examinations which indicate the Veteran's TBI residuals did not include emotional or behavioral dysfunction distinct from his already service-connected PTSD or physical dysfunctions distinct from his already service-connected sleep apnea, bilateral pes planus, chronic headaches, low back disability, neck disability, radiculopathy of the lower extremities, tinnitus, pericarditis, hypertension, left and right knee disabilities, left and right ankle disabilities, a left hip disability, an eye disability, irritable bowel syndrome, and scars. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 40 percent for the Veteran’s cognitive TBI residuals are not met, and that portion of the appeal must be denied. Entitlement to an increased initial rating for the low back disability. The Veteran contends that his service-connected back disability meets the criteria for an initial rating in excess of 20 percent. The back disability has been evaluated under Diagnostic Code 5242 (degenerative arthritis of the spine), which assigns ratings based upon the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Intervertebral Disc Syndrome (IVDS) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. Under the Formula for Rating IVDS Based on Incapacitating Episodes, Diagnostic Code 5243 provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months; a 20 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Based on a review of the record, the Board finds that the most probative evidence of record shows that the back disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis, or required bed rest prescribed by a physician. Accordingly, the Board finds the criteria for a rating in excess of 20 percent rating are not met at any time during the pendency of the appeal. In this regard, the Veteran was provided a VA spine examination in November 2009. The Veteran reported symptoms of stiffness, fatigue, decreased motion, paresthesias and weakness. He described constant moderate lower back pain that radiated down to the thighs and feet. It was elicited by physical activity and relieved by rest and medication (Motrin and Tylenol). He was able to function effectively with medication. The Veteran denied incapacitating episodes requiring bedrest. No neurological associated problems, including bladder, bowel or sexual dysfunction, were noted. The Veteran described his functional impairment as limited work around the house. On range-of-motion testing, flexion was to 90 degrees, extension was to 30 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 30 degrees, right rotation was to 30 degrees, and left rotation was to 30 degrees. There was no degree of pain after any range of motion. There was no additional limitation of motion with repetitive motion. Pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion. Curvature of the spine was within normal limits. There was symmetry in appearance and spinal motion. In his November 2010 notice of disagreement, the Veteran reported his back pain, in part, made it difficult to get out of bed, walk any distance, or sit one position for an extended period of time. In a January 2011 statement, the Veteran’s wife reported she witnessed him experience back pain daily, which contributed to him being left sedentary. A January 2011 VA treatment record shows the Veteran sought treatment at the emergency room for a flare-up of back pain after slipping and falling. On VA spine examination in March 2018, the Veteran complained of constant sharp back pain with a lot of flare ups that interfered with his ability to work. He rated the pain as 8/10, which increased to 10/10 when exacerbated by physical activity and at the end of the day. Flare-ups occurred two to three times a week and lasted one to two days. He described missing approximately four to five days of work a month due to back pain. He reported he was unable to bend over, climb stairs, perform yard work, or sit for prolonged periods of time. On range-of-motion testing, forward flexion was to 60 degrees, extension was to 20 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 15 degrees. Flexion was additionally limited to 40 degrees with repetitive movement. There was no evidence of pain with weight bearing. There was mild tenderness along lower lumbar spine, without evidence of guarding or muscle spasm. The Veteran was unable to perform heavy physical labor to include lifting, pushing, pulling or lifting. He was also unable to participate in tasks that require prolonged standing or walking. At the April 2018 Board hearing, the Veteran and his spouse reported his back pain limited his ability to perform the activities of daily living, including walking up and down stairs, dressing, showering, and putting shoes on. The Veteran was provided another VA back examination in January 2020. He complained of low back pain and a decreased range of motion. He could not sit, stand, or walk for extended periods and needed help showering and dressing. He used a cane while walking. On range-of-motion testing, forward flexion was to 50 degrees with pain. The examiner indicated the Veteran did not report having flare-ups, but opined flexion would be further limited to 45 degrees after repeated use over time due to pain, fatigue, and a lack of endurance. The examiner opined the back disability would impact the Veteran’s ability to work, noting he was unable to sit, stand, walk, or bend for prolonged periods of time. In a January 2020 addendum opinion, another VA examiner opined that the flare-ups reported by the Veteran at other times during the period on appeal caused additional functional impairment commensurate with spinal flexion being limited to 45 degrees. The examiner based the opinion on the evidence of record, including the Veteran’s descriptions of the flare-ups. A January 2020 VA treatment record notes the Veteran complained of low back pain flare-ups, but that he also walked about two miles three to four times a week. The Board acknowledges the Veteran reported experiencing flare-ups that limited functional ability throughout most of the appeal period, but the record does not indicate the flare-ups were severe enough to warrant a finding that the limitation of motion caused by flare-ups and repetitive use amounted to a functional impairment commensurate with spinal flexion being limited to 30 degrees or less. Accordingly, the preponderance of the evidence weighs against finding the Veteran’s spinal flexion was limited to 30 degrees or less during the period on appeal (January 27, 2010, to the present). The VA examiners also consistently noted there is not ankylosis of the thoracolumbar spine during any part of the appeal period. The VA examiners indicated the Veteran did not have IVDS, and the evidence does not show prescribed bed rest due to the back disability. Accordingly, the Board finds that the Veteran is not entitled to a higher disability rating based upon incapacitating episodes at any time throughout the period on appeal. The remaining question for the Board becomes whether the Veteran has any neurologic abnormalities associated with his service-connected back disability other than the service-connected radiculopathy of the lower extremities. A review of the VA examination reports and treatment records from the period on appeal reveals that neurological abnormalities other than the separately service-connected radiculopathy have not been associated with the back disability. Therefore, separate ratings for any such disabilities are not warranted at this time. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 20 percent for the Veteran’s back disability are not met, and the appeal must be denied. 38 C.F.R. § 4.71a. Entitlement to an increased initial rating for bilateral pes planus. As noted in the introduction, the Veteran’s initial service-connected left foot disability has been encompassed in the grant of service connection for bilateral pes planus, which is rated 30 percent disabling 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. 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 use accentuated, and marked pronation. The contributing factors of disability include excess fatigability, incoordination, pain on movement, pain on weight-bearing, pain on non weight-bearing, instability of station, disturbance of locomotion, interference with standing, 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. In this regard, the Veteran was provided a VA foot examination in November 2009. He reported the foot disability caused an aching and burning pain, which he rated as 6/10. On examination, the feet and toes revealed no signs of painful motion, edema, disturbed circulation, weakness, atrophy of musculature or tenderness. Arches were low, obscured by obesity. Palpation of the plantar surface revealed no tenderness. Range of motion was normal. Achilles tendons showed good alignment. There was no evidence of claw feet or hammertoes. Flexion and dorsiflexion of the toes did not induce pain and there was no evidence of Morton’s metatarsalgia. X-rays revealed no abnormalities. The examiner determined that no current pathology was identified on physical examination to render a diagnosis. In his November 2010 notice of disagreement, the Veteran report his feet were in constant pain. In a January 2011 statement, the Veteran’s wife reported she witnessed him experience foot pain daily, which contributed to him being left sedentary. A March 2012 VA treatment record notes the Veteran complained of pain on the bottom of his feet from when he woke up in the morning. On evaluation, he was tender at the insertion of the Achilles tendon and left foot. There was no obvious swelling or deformity. The treatment provider recommended orthotic inserts to help control pronation. A December 2014 military hospital treatment record notes the Veteran complained of bilateral foot pain. Evaluation of the foot was normal. At the April 2018 Board hearing, the Veteran reported he had constant foot pain that limited his ability to use stairs and perform yard work. The Veteran was provided a VA foot examination in May 2019. The examiner only diagnosed bilateral pes planus. The Veteran complained of pain, numbness, and tingling sensation. He reported having flare-ups of those same symptoms. He was unable to stand, walk, or run without pain. The examiner indicated there was accentuated pain on use, but not manipulation, of the feet. There was not an indication of swelling or characteristic callouses. The use of orthotics effected relief of his symptoms. On examination of the feet, there was marked pronation, but the examiner indicated the condition was improved with the use of orthopedic shoes. There was not extreme tenderness of the plantar surfaces 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 excess fatigability, incoordination, pain on movement, pain on weight-bearing, pain on non weight-bearing, instability of station, disturbance of locomotion, interference with standing, and a lack of endurance. The examiner noted these contributing factors made it difficult for the Veteran to work, drive, and get a good night’s sleep. The examiner described the functional loss the Veteran experienced during flare-ups and repeated use over time by noting the severity of the symptoms limited his walking, running, driving, and lifting. The examiner opined the pes planus would impact the Veteran’s ability to perform occupational tasks, noting he was trained as a police officer but that the pes planus impacted his ability to walk, run, and jump. 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 marked pronation was noted, 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. REASONS FOR REMAND Entitlement to SMC based on the need for regular aid and attendance or at the housebound rate is remanded. As to the claim for SMC, the March 2019 JMR found that the underlying rating claim raised a claim for SMC that is considered part and parcel of the Veteran's underlying claim for an increased initial disability rating for service-connected back disability because the appellant stated at his April 2018 hearing that his wife had to help him dress, shower, and put on shoes due to the back disability. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The Board finds the foundation of this JMR uncertain in Veteran’s law. In any event, the order of the Court must be obeyed. The Veteran was provided an aid and attendance examination in January 2020. The examiner found the Veteran needed assistance with preparing meals, bathing, dressing, and managing his medications. However, the examiner indicated the service-connected cervical spine condition was the disability that caused him to need help with dressing. And it’s not clear whether he could not prepare his own meals, bath, and manage his medication because of the back disability, other service-connected disabilities, or non-service-connected disabilities. Under these circumstances, the Board finds the AOJ erred in not affording the Veteran a VA examination to ascertain the current severity of all of the Veteran’s service-connected disabilities and their effect on his ability to perform the activities of daily living. Accordingly, the Board must remand the matter of entitlement to SMC based on the need for regular aid and attendance for such examination to be provided. The matter is REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for an appropriate examination to determine the effect of his service-connected disabilities alone (TBI, PTSD, sleep apnea, bilateral pes planus, chronic headaches, low back disability, neck disability, radiculopathy of the lower extremities, tinnitus, pericarditis, hypertension, left and right knee disabilities, left and right ankle disabilities, a left hip disability, an eye disability, irritable bowel syndrome, and scars) on his ability to perform the activities of daily living. The examiner should offer an opinion on whether these service-connected disabilities require regular aid and attendance. A complete rationale should accompany any opinion rendered. 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.