Citation Nr: 21042592 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-03 478 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral pes planus is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran's service-connected bilateral pes planus is manifested by no more than moderate severity with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. 2. The Veteran's service-connected disabilities are shown to have rendered him unable to secure and follow a substantially gainful occupation since December 1, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in December 2018. Although the Veteran did not appeal the July 2014 rating decision denial of entitlement to a TDIU, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is a rating theory and not a separate claim for benefits. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Statements provided during the course of his increased rating appeal, including in a July 2020 VA examination report, indicate his pes planus had an impact on his ability to perform any type of occupational task. Therefore, the Board finds that the TDIU matter must be addressed as part of the increased rating issue on appeal. 1. Entitlement to a rating in excess of 10 percent for bilateral pes planus. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). However, the rating criteria for acquired flatfoot disabilities under Diagnostic Code 5276 was unchanged. VA regulations for acquired flatfoot disabilities provides a 0 percent rating for mild flatfoot with symptoms relieved by built-up shoe or arch support and a 10 percent rating for acquired flatfoot, both bilateral and unilateral, that is moderate in severity with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. For severe flatfoot with objective evidence of marked deformity such as pronation or abduction, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 20 percent rating is warranted if unilateral and a 30 percent rating if bilateral. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and not improved by orthopedic shoes or appliances, a 30 percent rating is warranted if unilateral and a 50 percent rating if bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5276. 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. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. VA regulations also provide that for static foot deformities it is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition. The congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormality which is not compensable or pensionable. In the acquired condition, it is to be remembered that depression of the longitudinal arch, or the degree of depression, is not the essential feature. The attention should be given to anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. That is an unfavorable mechanical relationship of the parts. A plumb line dropped from the middle of the patella falls inside of the normal point. The forepart of the foot is abducted, and the foot everted. The plantar surface of the foot is painful and shows demonstrable tenderness, and manipulation of the foot produces spasm of the Achilles tendon, peroneal spasm due to adhesion about the peroneal sheaths, and other evidence of pain and limited motion. The symptoms should be apparent without regard to exercise. In severe cases there is gaping of bones on the inner border of the foot, and rigid valgus position with loss of the power of inversion and adduction. Exercise with undeveloped or unbalanced musculature, producing chronic irritation, can be an aggravating factor. 38 C.F.R. § 4.57. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when considering whether limitation of motion of a joint has resulted in the functional equivalence of joint ankylosis. Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. If a claimant challenges the competence of a medical examiner, VA must "satisfy its burden of persuasion as to the examiner's qualifications." Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). However, the applicable VA system "leaves latitude for the examining doctor to exercise his discretion in conducting a proper examination of each individual case." Allin v. Brown, 6 Vet. App. 207, 214 (1994). Furth, an examiner's medical judgmentssuch as which tests to perform and which physical findings are importantare entitled to a presumption of competence absent a properly based challenge. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that an increased rating is warranted for his service-connected pes planus (flatfeet). In statements in support of his claim he reported having excruciating daily foot pain that had limited his employment opportunities. His increased rating claim arose from a TDIU application received by VA on December 16, 2013. VA examination in May 2014 included a diagnosis of bilateral pes planus. It was noted that the Veteran complained of foot pain that had increased in frequency and intensity as he aged, gained weight, and became more physically deconditioned. The examiner noted there was no evidence of pain accentuated on manipulation, indications of swelling on use, characteristic calluses, or extreme tenderness of a plantar surface. His symptoms were relieved by arch supports, built up shoes, or orthotics. There was a decreased longitudinal arch height on weight-bearing, but no evidence of marked deformity of the feet, marked pronation, a weight-bearing line falling over or medial to the great toe, inward bowing of the Achilles' tendon, or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. The Veteran used a cane regularly as a normal mode of locomotion. The examiner found the flatfoot condition did not impact his ability to work and at that time was asymptomatic. His gait was antalgic due to left knee pain. An August 2014 private medical statement noted the Veteran had pes planus that was quite disabling and limited time on his feet. He was very limited with assuming an erect/standing posture and required frequent sitting. His range of motion was limited to at least 40 to 60 percent of normal. There was mild puffiness over the bilateral pedal areas and feet with prolonged gait or standing. VA treatment records include a November 2015 report noting a diabetic foot screen revealed corns/calluses and toe deformities to the feet. An August 2017 high risk foot check revealed the Veteran's feet were normal upon visual inspection. VA examination in July 2020 included a diagnosis of bilateral pes planus. The Veteran complained of daily excruciating foot pain that kept him awake and had affected his employment. He reported daily flare-ups that were severe in the left foot and moderate in the right foot. He stated he was unable to work, walk, run, or do things on his feet. The examiner noted there was pain accentuated on use but not on manipulation. There was no evidence of indications of swelling on use, characteristic calluses, or extreme tenderness of a plantar surface. His symptoms were relieved by arch supports. There was a decreased longitudinal arch height on weight-bearing, but no evidence of marked deformity of the feet, marked pronation, a weight-bearing line falling over or medial to the great toe, inward bowing of the Achilles' tendon, or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. Factors of disability contributing to functional loss included pain on weight-bearing, disturbance of locomotion, and interference with standing. There was pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups and with repeated use over time. The Veteran used a cane constantly as a normal mode of locomotion. The examiner found the flatfoot condition impacted his ability to perform any type of occupational task due to limitation with standing and ambulation. There was pain on active range motion to the feet and on weight-bearing testing, but no evidence of pain on passive range of motion testing or nonweight-bearing testing. Based upon the evidence of record, the Board finds the Veteran's service-connected bilateral pes planus is manifested by no more than moderate severity with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. The May 2014 and July 2020 VA examination findings are persuasive that the service-connected flatfoot disability are not manifested by objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. Reference is made to correspondence dated in August 2020 wherein the Veteran asserted that the July 2020 VA examination was inadequate. He claims that the examiner was not a specialist, that the examiner did not have the necessary equipment for a complete examination, and that the examination inadequate because his socks were not removed for examination. The Board finds no merit to his claim as there is no competent medical evidence indicating that such matters were required for an adequate examination. Nor has the Veteran identified which specific finding from the examination was believed to be inadequate. The July 2020 VA examiner is shown to be a physician with an identified specialization in general medicine. The Board finds the overall evidence of record does not demonstrate that the Veteran's pes planus disability is a complex medical disorder that might warrant an examination by a medical specialist. The Board notes that an adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38 C.F.R. § 3.344(a) and 38 C.F.R. § 4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Although VA treatment records dated in November 2015 revealed calluses and toe deformities to the feet, a subsequent August 2017 report indicates the Veteran's feet were normal upon visual inspection. The July 2020 examiner found that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and with repeated use over time. However, there is no indication that these functional limitations represent manifestations equivalent to the applicable criteria of a higher schedular rating. The degrees of disability specified by VA examinations in this case are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Any credible reports indicative of exacerbation or flare-ups are found to be not quantifiable nor of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 38 C.F.R. § 4.1 and 38 C.F.R. § 3.344(a) regarding stabilization of ratings. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, lay persons are not competent to identify a specific level of disability. It is also noted that competent evidence concerning the nature and extent of the Veteran's service-connected disabilities have been provided by VA medical professionals who have examined him. These medical findings directly address the criteria under which the disability is evaluated, including whether a specific symptom caused a level of impairment required for a higher disability rating. The Board accords these medical findings greater weight than any subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Therefore, the Board finds that the preponderance of the evidence in this case is against the claim for a higher rating. The Board has considered whether separate ratings may be awarded for each foot pursuant to Diagnostic Code 5284, in lieu of the single rating currently assigned under Diagnostic Code 5276, to render a higher overall rating for the Veteran's bilateral foot disability. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). To this end, Diagnostic Code 5284 does not apply to the Veteran's bilateral pes planus, as the symptomatology associated with this disability is already compensated under Diagnostic Code 5276. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). A rating by analogy under Diagnostic Code 5284 is not appropriate. 2. Entitlement to a TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends that he is unemployable due to his service-connected disabilities. In a December 2013 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a subsequent May 2014 VA Form 21-4192 he indicated that he had last worked as a self-employed barber on December 1, 2013. It was noted he had completed four years of high school education. VA treatment reports dated in October 2016 show the Veteran stated he was working part-time as a barber earning $1000 per month. Subsequent reports noted he was retired. An August 2014 VA medical statement noted diagnoses of degenerative arthritis of the left shoulder, degenerative arthritis of the left knee, and bilateral pes planus. The physician stated that the Veteran was significantly limited in functionality on a daily basis by these conditions and had become unable to work at his usual occupation. An August 2014 private medical statement noted the Veteran had left shoulder problems that limited his overall functional ability and had precluded him from his desired occupational duties. It was noted he had pes planus that was quite disabling and limited time on his feet and that his left knee occasionally increased in stiffness. His condition was found to preclude him from the ability to assume his usual occupational duties. Service connection has been established for total left knee arthroplasty (previously left knee instability and residuals of left lateral meniscectomy), left shoulder ligamentous crepitus, depressive disorder, bilateral pes planus, and a left knee surgery scar. A combined schedular disability of 60 percent was effective from February 17, 2010. The schedular criteria for a TDIU are met as the combined 60 percent rating was based upon disabilities affecting a single body system (orthopedic). See 38 C.F.R. § 4.16(a). Based upon the evidence of record, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation since December 1, 2013. The August 2014 medical statements are found to be persuasive that the Veteran's service-connected disabilities limit his functional ability to maintain employment as a barber. These finding are consistent with the overall evidence obtained. As such, the Board finds a TDIU effective from December 1, 2013, is warranted in this case. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.