Citation Nr: 21024371 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-35 576A DATE: April 22, 2021 ORDER Entitlement to an initial evaluation greater than 30 percent for bilateral pes planus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for a right ankle/leg disability, to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for a left ankle/leg disability, to include as secondary to the service-connected disabilities, is remanded. FINDING OF FACT The Veteran’s bilateral pes planus is not manifested by marked inward displacement and severe spasm of the Tendo Achillis on manipulation. CONCLUSION OF LAW The criteria for an initial evaluation greater than 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on a period of active duty for training (ACDUTRA) from February 1975 to June 1975 in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from September 2013 and November 2014 rating decisions. In October 2018, the Board remanded the appeal for additional evidentiary development. 1. Entitlement to an initial evaluation greater than 30 percent for bilateral pes planus. The Veteran contends that he is entitled to an evaluation greater than 30 percent for bilateral pes planus. The Veteran’s bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, 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. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). In August 2013, the Veteran was afforded a VA examination. The VA examiner diagnosed bilateral pes planus. The Veteran endorsed bilateral foot pain that was accentuated on use. There was marked pronation of the bilateral feet. However, there was no extreme tenderness of the plantar surface, marked inward displacement or severe spasm of the Achilles tendon on manipulation. The Veteran’s bilateral pes planus did not impact his ability to work. In July 2019, the Veteran underwent his most recent VA foot examination. The VA examiner diagnosed bilateral pes planus and left hallux valgus. The Veteran reported constant aching pain of the bilateral feet. Flare-ups made it difficult to walk. There was extreme tenderness of the plantar surfaces of bilateral feet that was not improved by orthopedic shoes or appliances. The Veteran had marked pronation of the bilateral feet. However, there was no marked inward displacement and severe spasm of the Achilles’ tendon. The Veteran also had mild to moderate symptoms for hallux valgus of the left foot. He required the constant use of a cane due to his bilateral foot disabilities and had difficulty with prolonged standing and walking. His ability to work was impacted by the limitations he experienced with prolonged walking and standing. The VA examiner indicated that the Veteran’s hallux valgus was due to the increased workload caused by the chronic pronation by his bilateral pes planus. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he has difficulty with prolonged standing and walking, there is no evidence that the Veteran’s bilateral pes planus is productive of marked inward displacement and severe spasm of the Tendo Achillis on manipulation. The Board has also considered the other Diagnostic Codes pertaining to the foot. 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). In Scott v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d at 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. 38 C.F.R. § 4.71a The Board notes the Veteran’s additional diagnosis of left foot hallux valgus. However, the Veteran’s left foot hallux valgus is mild to moderate, which does not warrant a compensable evaluation under Diagnostic Code 5280. 38 C.F.R. § 4.71a In conclusion, the Board finds that the preponderance of the evidence is a rating in excess of 30 percent for bilateral pes planus. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected disabilities, is remanded. March 2018 VA treatment records include a statement from the Veteran that his depression is mostly caused by his health problems. At an August 2014 VA mental health visit, the Veteran reported increased stress due to physical pain. As discussed above, the Veteran’s service-connected foot disabilities are productive of pain. In October 2018, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder to obtain secondary service connection nexus opinions. In July 2019, the VA examiner opined that the Veteran’s depression was not caused by his service-connected pes planus. The sole rationale was that pes planus is not mentioned specifically in the medical records as being the cause of the Veteran’s depression and his depression was associated with financial stress. The opinion is inadequate because it does not address the relationship between the pain and functional loss caused by the Veteran’s service-connected disabilities and his depression. This opinion is inadequate because it fails to address aggravation. Therefore, a remand is required to obtain an adequate medical opinion. 2. Entitlement to service connection for a left ankle/leg disability, to include as secondary to the service-connected disabilities, is remanded. 3. Entitlement to service connection for a right ankle/leg disability, to include as secondary to the service-connected disabilities, is remanded. In October 2018, the Board remanded the issues of entitlement to service connection for left and right ankle/leg disabilities to obtain addendum opinions to address secondary service connection. January 2019 VA treatment records indicate that the Veteran is obese due to a lack of physical activity and that his activity is limited, in part, due to his bilateral foot pain. In August 2019, the VA examiner found that the Veteran’s degenerative joint disease of the bilateral ankle was not caused or aggravated by his service-connected bilateral foot disabilities. The sole rationale was that there was insufficient medical evidence to identify pes planus as the major contributing factor to the pathology the Veteran is experiencing and that there was no objective evidence of aggravation. The VA examiner copied excerpts from medical literature into the opinion. The literature indicates that altered biomechanics and obesity contribute to degenerative arthritis. A VA General Counsel opinion issued in January 2017 establishes that secondary service connection can be granted with obesity acting as an “intermediate step.” VAOPGCPREC 1-2017. Specifically, a grant is warranted (1) if the service-connected disability caused the veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Id. The Board finds that the August 2019 is inadequate because it does not address whether the altered body mechanics caused the Veteran’s disabilities of the bilateral feet. As noted above, the Veteran requires the use of a cane for these disabilities. An additional opinion to address the relationship between the Veteran’s service-connected foot disabilities, obesity, and the degenerative joint disease of the bilateral ankles is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a clinician other than the July 2019 VA examiner regarding whether the Veteran’s depression is at least as likely as not proximately due to or aggravated by the service-connected disabilities. In rendering the opinion, the VA examiner is asked to address the relationship between the pain and functional loss caused by the Veteran’s service-connected disabilities and his depression. A rationale must be provided for all opinions. 2. Obtain an addendum opinion from an appropriate clinician. The VA examiner is asked to address the following: a. Is it at least as likely as not that the Veteran’s degenerative joint disease of the bilateral ankles is proximately due to or aggravated by his service-connected foot disabilities? In rendering the opinion, the VA examiner is asked to address the relationship between the altered biomechanics caused by the service-connected foot disabilities and the degenerative joint disease of the bilateral ankles. b. Is it at least as likely as not that the Veteran’s obesity is caused by his service-connected foot disabilities? In rendering this opinion, the VA examiner must address the January 2019 VA treatment record indicating that the Veteran’s obesity was caused by decreased activity and that this decreased activity was related to the service-connected foot disabilities. c. Is it at least as likely as not that the Veteran’s obesity is a substantial factor causing his degenerative joint disease of the bilateral ankles? d. If so, is it at least as likely as not that the Veteran’s degenerative joint disease of the bilateral ankles would not have developed but for his obesity? A rationale must be provided for all opinions. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.