Citation Nr: 21031892 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-67 465 DATE: May 24, 2021 ORDER An effective date prior to October 12, 2016, for the assignment of a 10 percent rating for pes planus is granted. REMANDED Entitlement to a rating higher than 40 percent for the service-connected lumbar spine disability is remanded. FINDING OF FACT The evidence shows that the Veteran's service-connected pes planus manifested in painful motion with functional loss, but no higher level of disability, prior to October 12, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to October 12, 2016, for the assignment of a 10 percent disability rating for the service-connected pes planus have been met. 38 U.S.C. §§ 1155, 5103A, 5110, 7105; 38 C.F.R. §§ 3.159, 3.400(o)(2), 4.59, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1996 to July 2014. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a November 2016 rating decision. A November 2019 Board decision granted an earlier effective date of August 1, 2014, for the assignment of a 40 percent disability rating for the service-connected lumbar spine disability and denied an effective date prior to October 12, 2016 for the assignment of a 30 percent disability rating for the service-connected pes planus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Court (the Court). In a November 2020 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated those parts of the November 25, 2019, decision of the Board that denied entitlement to a rating higher than 40 percent for spondylolysis of L4, anterolisthesis of L4 on L5 and facet syndrome of the lumbar spine, and entitlement to an effective date prior to October 12, 2016, for a 30 percent rating for pes planus, and remanded those matters for readjudication consistent with the terms of the JMPR. Entitlement to an effective date prior to October 12, 2016 for a higher rating for pes planus. The Board's prior decision in November 2019 denied an earlier effective date for the 30 percent rating for pes planus. In the JMPR, the parties agreed that remand was needed because the Board did not discuss whether the Veteran was entitled to at least a compensable rating under 38 C.F.R. § 4.59 prior to October 12, 2016. The parties noted that the Veteran reported pain at a May 2014 VA examination, and 38 C.F.R. § 4.59 "is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions," including the feet. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule provides that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application). An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased ratingas well as for an initial rating or for staged ratingsis predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. In this case, the Veteran filed an original claim for service connection for pes planus on April 7, 2014. A January 2015 rating decision granted service connection for pes planus with a noncompensable disability rating from August 1, 2014, the day after the Veteran was discharged from active service. The Veteran was notified of the decision and his appellate rights in January 2015. In February 2015, he submitted a timely NOD. As the Veteran submitted a timely NOD to the January 2015 rating decision, the assignment of the initial noncompensable disability rating did not become final. In other words, the Veteran's February 2015 NOD may be construed as an appeal of the initial increased rating issue, with an effective date commensurate with the date of receipt of the service connection claim from which the increased rating claim stems. Accordingly, an initial disability rating effective as of the date of the award of service connection could be assigned, provided that a 30 percent disability level is factually ascertainable. The remaining question is whether the Veteran's service-connected pes planus warranted a compensable disability rating prior to October 12, 2016. The Veteran's pes planus was rated under 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. Under DC 5276, a 0 percent rating is warranted for mild pes planus, with symptoms relieved by build-up shoe or arch support. A 10 percent rating is warranted for moderate pes planus, with weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feel, bilateral or unilateral. A 30 percent rating is warranted for bilateral severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callouses. A 50 percent rating is warranted for bilateral pronounced pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. In a November 2020 statement, the Veteran argued that the earlier Board decision erred by not defining the terms, especially "mild," "moderate," and "severe," in DC 5276. The Board finds that no further definitions are needed as the rating schedule itself defines these terms by stated the criteria meant by those terms. 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, 28 Vet. App. 346. Here, a May 2014 VA examination report confirmed the diagnosis of bilateral flat feet. The Veteran reported that while he was in service, his feet would hurt with long 8-to-13-mile hikes. The Veteran also reported that his feet did not bother him much now and were fine most of the time. The Veteran reported that sometimes he will step the wrong way and will have shooting pain. He indicated that his baseline pain was 0 to 1 out of 10 and that pain rarely reached 4 out of 10. The Veteran did not report any functional loss or impairment due to his disability. On physical examination, the VA examiner noted that the Veteran did not have pain on use or manipulation of the feet. There was no indication of swelling on use, no characteristic callouses, and no extreme tenderness of plantar surfaces. It was noted that the Veteran had decreased longitudinal arch height of both feet on weight-bearing. There was no evidence of marked deformity, no marked pronation, and the weight bearing line was not noted to fall over or medial to the great toe. There were no other lower extremity deformities and no inward bowing of the achilles tendon. There was no marked inward displacement or severe spasm of the achilles tendon. It was noted that the Veteran did not have Morton's neuroma, metatarsalgia, hammertoes, hallux valgus, hallux rigidus, pes clavus, or any other foot injuries or conditions. There was no history of surgery. There was no pain noted on physical examination. The VA examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups or with use over time. The VA examiner also concluded that there was no functional loss during flare ups or with use over time. Flare ups were described as the Veteran stepping on his feet wrong and having pain, which was noted to be rare. The Veteran was not noted to use assistive devices. Imaging studies were noted and there was no evidence of degenerative or traumatic arthritis. The VA examiner concluded that the Veteran's pes planus did not impact his ability to perform occupational tasks. An effective date prior to October 12, 2016, for the assignment of a 30 percent rating for the service-connected pes planus is not warranted. In this regard, the May 2014 VA examination report affirmatively establishes that the Veteran's disability did not manifest in bilateral severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of the swelling on use, and characteristic callouses. Based upon the evidence in this case, the exact onset of the Veteran's 30 percent level of disability cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for a 30 percent rating is October 12, 2016, the date he was examined by VA. Hence, an earlier effective date for the 30 percent rating is not assignable. See Swain, 27 Vet. App. at 224. The Veteran's primary contention at the Court was that the Board did not consider whether a 10 percent disability rating was factually ascertainable prior to October 12, 2016. The May 2014 VA examination report showed reports of "sometimes I will step the wrong way and I will have a shooting pain" although "most of the time they're fine." He stated that "my feet don't bother me much now," and "I don't let my foot pain limit my daily activities." A compensable rating is warranted on the basis of these complaints. The Veteran reported that his pain occurred rarely, and he did not let the foot pain limit his daily activities. The examiner marked "no" where asked if the Veteran reported any functional loss or functional impairment. Pain alone does not constitute a functional loss under § 4.59. Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). However, section 4.59, which governs "painful motion," provides an avenue for obtaining a minimal compensable evaluation irrespective of whether pain in a joint or periarticular region causes functional loss. Southall-Norman v. McDonald, 28 Vet. App. 346 n.5 (2016) (emphasis added). Here, there were rare episodes of pain. Hence, a compensable rating under § 4.59 is assignable prior to October 12, 2016. In sum, the preponderance of the evidence does not show that the Veteran's disability manifested in symptoms warranting a 30 rating prior to October 12, 2016. Accordingly, an effective date prior to October 12, 2016 for the assignment of a 30 percent rating for pes planus is not warranted. However, a 10 percent is assignable pursuant to § 4.59. REASONS FOR REMAND Entitlement to a disability rating in excess of 40 percent for the service-connected lumbar spine disability. In the November 2020 JMPR, the parties agreed that the Board failed to ensure that VA satisfied the duty to assist by providing an adequate examination to rate the severity of the Veteran's lumbar spine disability. Specifically, the parties agreed that the October 2016 VA examination (upon which the Board based its November 2019 decision) was internally inconsistent as the VA examiner both affirmed and denied presence of ankylosis of the lumbar spine. Accordingly, a remand is necessary to assess the severity of the Veteran's lumbar spine disability and determine whether the Veteran has ankylosis. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of his lumbar spine disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) The examiner must determine whether the Veteran currently has or has ever had ankylosis. (d.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (e.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (Continued on the next page) If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.