Citation Nr: 21028281 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-45 364 DATE: May 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for scar, residual status post right inguinal hernia repair is denied. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus with chronic associated pain in limb is denied. FINDINGS OF FACT 1. The Veteran has one painful scar resulting from his service-connected right inguinal hernia repair. 2. The Veteran's bilateral pes planus with chronic associated pain in limb has manifested with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasms of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for scar, residual status post right inguinal hernia repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7804 (2019). 2. The criteria for an initial rating in excess of 50 percent for bilateral pes planus with chronic associated pain in limb have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5276 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to July 1987, November 1989 to June 1990, and November 1990 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2015 and January 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2015. At this hearing only the issues of entitlement to increased ratings were addressed. A transcript of the hearing is associated with the electronic claims file. The Board has issued two prior remands on these claims in March 2016 and October 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 10 percent for scar, residual status post right inguinal hernia repair. The Veteran initially filed a claim for service connection for his scar due to hernia surgery in May 2008. In a February 2010 rating decision, the RO granted service connection for scar, residual status post right inguinal hernia repair, evaluated at 0 percent, effective May 9, 2008. The Veteran's scar was initially rated under DC 7805, however, on reconsideration in a March 2010 rating decision, the RO continued to rate the Veteran's scar at 0 percent under DC 7804. Under DC 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides if one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Veteran was given a VA examination for his hernia in November 2013, wherein the examiner noted a "superficial, well-healed, linear, stable scar (14.0 cm x 0.1 cm) noted to the right groin." While the examiner opined that the scar was not painful or unstable, he noted that the Veteran had "sensitivity and tenderness with palpation to the surrounding tissue of the hernia surgery. Veteran also has decreased sensation with light touch (monofilament testing) to the surrounding tissue of the hernia surgery." The Board also notes treatment records from February 2012, wherein it is noted "Massively obese and has some tenderness on deep palpation right lower quadrant of the abdomen inguinal herniorrhaphy scar." In an October 2014 rating decision, the RO increased the Veteran's scar rating to 10 percent effective August 25, 2014, based on medical evidence showing the scar as worsening on that date. The Board notes that the Veteran was given a VA examination on August 25, 2014, wherein the examiner found that the Veteran had one painful scar measuring 16x0.1cm. The examiner did not find the Veteran's scar to be unstable. Thus, pursuant to DC 7804, the Veteran should be rated at 10 percent for one painful scar. The Veteran was given another VA examination for his scar in December 2015 wherein the examiner found one painful scar measuring 14x0.2cm. The examiner did not find the Veteran's scar to be unstable. In a December 2015 rating decision, the RO continued to rate the Veteran's scar at 10 percent, finding one painful scar. In May 2008 correspondence, the Board notes that the Veteran complained of constant pain from his hernia scar due to scar tissue. The evidence considered in the February 2010 rating decision included a "VA examination, VAMC Dublin 2/2010." Moreover, the evidence considered in the March 2010 reconsideration of the scar claim included a "VA examination, 2/10/2009 VAMC Dublin." The Board was unable to locate these examinations in the Veteran's electronic claims file, thus the claim was remanded again in October 2020 to obtain copies of such. In December 2020 the Veteran was given another VA examination for his hernia. Here, the examiner found one scar in the right lower quadrant of the abdomen, measuring 19x0.1cm. The examiner found the scar to be neither painful nor unstable. In January 2021, a copy of the Veteran's February 2009 VA examination was uploaded into the Veteran's electronic claims file. Here, the examiner found a "scar in the left inguinal area that is in the shape of a check, its overall length is 12cm. It is slightly tender to palpation and does feel to be slightly adherent to underlying structure." Based on this examination, the RO issued a January 2021 rating decision granting an earlier effective date of Mary 9, 2008 (the date of the Veteran's initial claim) for the 10 percent rating of the Veteran's scar, residual status post right inguinal hernia repair. As noted above, under DC 7804 a 10 percent rating is warranted for one or two scars that are unstable or painful. The record has consistently shown that the Veteran suffers from one painful scar due to his hernia surgery. There is no evidence that his scar is both painful and unstable. In fact, multiple VA examiners have specifically found the scar to be painful only, not unstable. Moreover, the most recent VA examiner found his scar to be neither painful nor unstable. Neither the Veteran, nor his representative has contended that the Veteran's hernia surgery has resulted in any additional scars. Accordingly, entitlement to an initial rating in excess of 10 percent for scar, residual status post right inguinal hernia repair is denied. 2. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus with chronic associated pain in limb. The Veteran initially filed a claim for service connection for his bilateral pes planus in May 2008. The Veteran was given a VA examination for his feet in February 2010. Here, the examiner assessed "Complicated moderately severe flatfoot deformity with chronic associated pain in limb, worsening over time, moderately severe in severity. Additionally, there is minimal osteoarthritis changes noted to the pedal joints however, but there is a large plantar calcaneal spur noted on both feet." Based on this examination, the RO issued a February 2010 rating decision, granting service connection for bilateral pes planus with chronic associated pain in limb, evaluated at 50 percent, effective May 9, 2008. The Veteran appealed this evaluation up to the Board. The Veteran's bilateral pes planus is evaluated under DC 5276 for flatfoot, acquired. The Board notes that under DC 5276, a 50 percent rating is the maximum schedular award, and is assigned for bilateral pronounced; 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. At his August 2015 Board hearing, the Veteran testified that his foot problem is "literally out of control" and makes it hard for him to walk more than 10-15 minutes. The Veteran further testified that he has done everything his foot doctors ask him to do, but that the condition has gotten worse and worse. The Veteran was given another VA examination for his feet in December 2015. Here, the examiner diagnosed bilateral pes planus and noted that the Veteran has foot pain everyday and can stand for 10-20 minutes and walk about a couple hundred yards before he has to rest. The examiner noted pain on use of feet bilaterally, pain accentuated on use bilaterally, pain on manipulation of feet bilaterally, pain accentuated on manipulation bilaterally, swelling on use bilaterally, and characteristic callouses bilaterally. The examiner further noted that the Veteran had tried arch supports and orthotics, but remains symptomatic, and suffers from bilateral extreme tenderness of plantar surfaces, decreased longitudinal arch height, marked evidence of deformity, marked pronation, and marked inward bowing of the achilles tendon. Finally, the examiner found that the Veteran suffered from marked inward displacement and severe spasm of the achilles tendon on manipulation in the right foot, which was not improved by orthopedic shoes or appliances. In a December 2015 rating decision, the RO continued to rate the Veteran's bilateral pes planus at 50 percent. The Board has considered additional Diagnostic Codes for the feet; however, there is no other rating code that would allow a separate compensable and/or increased rating for the Veteran's symptoms. The Veteran has not been diagnosed with weak foot (DC 5277), claw foot (DC 5278), Morton's disease (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toe (DC 5282) affecting all toes, malunion or nonunion of tarsal or metatarsal bones (DC 5283), or other foot injuries (DC 5284) that have been associated with the service connected bilateral pes planus. Moreover, in Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court held that when a condition is specifically listed in the Schedule, it may not be rated by analogy. See Suttman 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 a listed condition under Diagnostic Code 5276, VA has a duty to apply that diagnostic code to his disability and determine the appropriate disability rating. Indeed, because the Veteran's service-connected bilateral foot disability has been diagnosed as pes planus, which is a listed foot condition and not one that needs to be rated by analogy, it should be evaluated under DC 5276 and not DC 5284. See Yancy v. McDonald, 25 Vet. App. 484, 491 (2016) (holding that the "plain meaning of the word 'injury' limits the application of [Diagnostic Code] 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions). Lastly, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45. However, while the Veteran has reported having pain and fatigability, the current ratings compensate the Veteran for such symptoms. Lay reports of symptoms and history associated with the Veteran's bilateral pes planus have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. However, the clinical evidence offering detailed, specific, objective determinations pertinent to the rating criteria and manifestations associated with the bilateral foot condition is found to be the most probative and credible evidence with regard to evaluating the pertinent symptoms for the bilateral pes planus on appeal. Accordingly, entitlement to an initial rating in excess of 50 percent for bilateral pes planus is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.