Citation Nr: 21042543 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-44 726 DATE: July 13, 2021 ORDER An initial rating in excess of 30 percent for bilateral pes planus is denied. FINDING OF FACT For the entire appeal period, the Veteran's bilateral pes planus is manifested by pain, which is accentuated on manipulation and use, and not improved by orthopedic shoes or appliances, without objective evidence of marked deformity, swelling on use, characteristic callosities, or manifestations that more nearly approximate pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasm of the tendo achillis on manipulation. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2019, the case was remanded for additional development and now returns for further appellate review. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For the entire appeal period stemming from May 12, 2015, the date of service connection, the Veteran's bilateral pes planus has been rated as 30 percent disabling pursuant to Diagnostic Code 5276, which pertains to acquired flatfoot. In this regard, such provides that a 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliance. 38 C.F.R. § 4.71a. Turning to the evidence of record, at a July 2015 VA examination, the Veteran reported pain in the arch of both feet that increased with weight-bearing, and he could only walk 30 to 60 minutes. He also indicated that he had pain in the arches with weight-bearing, but denied any flare-ups impacting the function of the foot. Upon examination, the Veteran had pain on use of the feet, which was accentuated on manipulation, without swelling of the feet, characteristic calluses, or extreme tenderness of plantar surface of either foot. Further, while he tried arch supports, his feet remained symptomatic. Additionally, while the Veteran had decreased longitudinal arch height on weight-bearing of both feet, he did not have objective evidence of marked deformity, to include pronation, of either foot. Further, the weight-bearing line of both feet did not fall over or medial to the great toe, nor did he have inward bowing of the Achilles' tendon on both feet, or marked inward displacement and severe spasms of the Achilles' tendon on manipulation. The examiner further noted that there was pain on movement and weight-bearing, and disturbance of locomotion, and the Veteran could not walk more than 30 minutes, or 5 hours in a day with breaks, due to functional loss due to pain, flare-ups, and/or repeated use over time. Private treatment records dated October 2015 reflect the Veteran reported balance issues and a right great toe lump. While records note a diagnosis of bilateral adult acquired flatfoot deformity, and bilateral foot drop, the clinician stated that the Veteran's balance problems appear to be neurologic in origin, possibly stemming from his spinal cord or lumbar spine. See Springfield Clinic records. Private treatment records dated June 2019 include a radiographic report of the bilateral feet taken in weight bearing. In this regard, such X-rays revealed severe collapse of the longitudinal arch to both feet, and a diagnosis of bilateral congenital pes planus. See Dr. G.T. records. At the July 2019 Board hearing, the Veteran testified that he experienced bilateral foot pain, to include in his Achilles tendons, swelling, spasms, and pronation that causes his feet to turn inward, and stated his feet were deformed. He further reported he has difficulty walking, such that he was issued a handicap car tag for people who cannot walk more than 20 yards. Thus, in light of his report of additional symptomatology not previously noted at the July 2015 VA examination, the Board remanded the case in December 2019 order to afford him a contemporaneous VA examination. Thereafter, at a January 2020 VA examination, the Veteran reported deep aches, spasms of the feet, and severe flare-ups that last all day, which result in pain and tenderness upon walking and standing. Upon examination, the Veteran had pain on use of the feet, which was accentuated on manipulation, without swelling of the feet, characteristic calluses, or extreme tenderness of plantar surface of either foot. He did not use any arch supports, built up shoes, or orthotics. Additionally, while the Veteran had decreased longitudinal arch height on weight-bearing of both feet, he did not have objective evidence of marked deformity, to include pronation, of either foot. Additionally, while the weight-bearing line fell over or medial to the great toe, there was no inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. The examiner further noted that there was pain on movement with active and passive range of motion, weight-bearing, and nonweight-bearing, and he experienced pain and tenderness upon walking and standing following repeated use over time. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran's bilateral pes planus is manifested by pain, which is accentuated on manipulation and use, and not improved by orthopedic shoes or appliances, without objective evidence of marked deformity, swelling on use, characteristic callosities, or manifestations that more nearly approximate pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasm of the tendo achillis on manipulation. In this regard, while the Veteran has reported subjective symptoms of pain, swelling, spasms, and pronation that causes his feet to turn inward, and had decreased longitudinal arch height on weight-bearing of both feet, which was noted to be severe on X-ray in June 2019, objective examinations conducted in July 2015 and January 2020 fail to reveal symptomatology, to include marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, or severe spasm of the tendo achillis on manipulation, indicative of pronounced flat foot. In fact, he does not meet all the criteria necessary for the assignment of the current 30 percent rating based on severe bilateral pes planus as such is not shown to result in objective evidence of marked deformity, swelling, or characteristic callosities. Nonetheless, in light of his reported symptoms, which are not improved by orthopedic shoes or appliances, and resulting functional impairment, to include limitations in walking and standing, to include with repeated use over time or during flare-ups, the Board finds that his bilateral pes planus more nearly approximates, at most, severe bilateral flat foot. Consequently, an initial rating in excess of 30 percent under Diagnostic Code 5276 for such disability is not warranted. In this regard, the Board has considered the Veteran's representative's argument in his July 2021 Written Brief Presentation that consideration should be given to the Veteran's resulting functional loss on repeated use over time and/or during flare-ups as articulated in Mitchell, supra. As noted in the preceding paragraph, the Board has indeed considered such factors, which support his currently assigned 30 percent rating, but finds that such, in combination with the remaining evidence, does not demonstrate manifestations that more nearly approximate pronounced bilateral flat foot. The Board further finds that the Veteran's bilateral pes planus does not result in additional foot symptoms or conditions such that a higher or separate rating under a different Diagnostic Code is warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy). In reaching the foregoing determinations, the Board acknowledges the Veteran's belief that his bilateral pes planus is more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral pes planus; however, the Board finds that his symptomatology has been stable the appeal period. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a higher initial rating for bilateral pes planus. Thus, the benefit of the doubt doctrine is not applicable in such regard and his initial rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.