Citation Nr: 22020122 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 17-66 766 DATE: April 4, 2022 ORDER Entitlement to a disability rating of 30 percent, but no more, for generalized polyneuropathy of the right lower extremity is granted on and after March 5, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating of 30 percent, but no more, for generalized polyneuropathy of the left lower extremity is granted on and after March 5, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. On and after March 5, 2013, the Veteran's generalized polyneuropathy of the right lower extremity manifested as severe incomplete paralysis of the external popliteal (common peroneal) nerve, but not complete paralysis. 2. On and after March 5, 2013, the Veteran's generalized polyneuropathy of the left lower extremity manifested as severe incomplete paralysis of the external popliteal (common peroneal) nerve, but not complete paralysis. 3. Throughout the period on appeal, the Veteran's bilateral pes planus with plantar fasciitis did not manifest as pronounced bilateral pes planus. 4. During the period on appeal, the Veteran's service-connected disabilities did not preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, on and after March 5, 2013, the criteria for a rating of 30 percent, but no higher, for generalized polyneuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8521 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, on and after March 5, 2013, the criteria for a rating of 30 percent, but no higher, for generalized polyneuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8521. 3. The criteria for a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5020-5276 (2021). 4. The criteria for an award of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1985 to January 1988 and from December 1989 to April 2007, including service in Iraq. The Veteran testified before the undersigned Veterans Law Judge during a February 2020 hearing. These matters are on appeal from February 2014 and April 2014 rating decisions. The Board remanded these issues in July 2020 to afford the Veteran an additional VA examination and to request that the Veteran submit a TDIU claim form (VA Form 21-8940). The Agency of Original Jurisdiction (AOJ) has done so. The AOJ supplied the Veteran with a TDIU claim form in February 2021, but he did not respond. The duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, the Veteran was afforded a VA examination for foot conditions in January 2021. That examination is adequate with regard to the bilateral pes planus with plantar fasciitis claim because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his foot symptoms in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). There was therefore substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded claims for service connection for a low back disability, ocular migraines, a right knee disability, and a left knee disability. In a February 2021 rating decision, the AOJ granted service connection for degenerative arthritis of the spine and ocular migraines. In a January 2022 rating decision, the AOJ granted service connection for a left knee condition and a right knee disability. These issues are no longer before the Board. As a result of the additional disabilities for which service connection was granted above, the Veteran's combined schedular rating is now 100 percent throughout the period on appeal. However, consideration of entitlement to a TDIU is not rendered moot automatically by the assignment of a 100 percent schedular rating. A veteran may be awarded special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012) based upon a finding that a single disability supports a TDIU rating and other service-connected disabilities are separately ratable at 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280 (2008). Because SMC might be available if a TDIU is warranted based solely on any one service-connected disability with the remainder being separately ratable at 60 percent or more, in the interest of viewing the record in the light most favorable to the Veteran, the Board will continue to consider entitlement to a TDIU. In a February 2022 statement, the Veteran's representative contended that the AOJ erred in not affording the Veteran an administrative decision by the Director of Compensation with regard to his TDIU claim. The provisions for review by the Director only apply to consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b) (2021). As stated above, the Veteran has a combined rating of 100 percent throughout the period on appeal. His highest-rated disability is unspecified depressive disorder, which has a 50 percent rating on and after June 22, 2015. The criteria for consideration of a schedular TDIU are therefore met. 38 C.F.R. § 4.16 (a) (2021). For this reason, the representative's contention is inapplicable to the Veteran's case. In the same statement, the Veteran's representative challenges the adequacy of a VA medical opinion with regard to his TDIU claim. Because the Board is denying that claim for reasons that are completely independent of that medical opinion, any discussion as to the adequacy of that opinion is moot. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist with regard to the issues being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings 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 (2021). 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. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claims for higher initial evaluations for the Veteran's generalized polyneuropathy of the right and left lower extremity, the Board has considered all evidence of severity from the effective dates for the awards of service connection for those claims. Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the bilateral pes planus with plantar fasciitis claim, when entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2021). 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. 1. Generalized Polyneuropathy of the Right Lower Extremity 2. Generalized Polyneuropathy of the Left Lower Extremity The Veteran's generalized polyneuropathy of the lower extremities is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521, for paralysis of the external popliteal (common peroneal) nerve, with a 20 percent rating for each lower extremity on and after March 5, 2013. The full periods of service connection are on appeal. 38 C.F.R. § 4.124a, Diagnostic Code 8521 pertains to paralysis of the external popliteal (common peroneal) nerve. Under Diagnostic Code 8521, paralysis of that nerve is rated as follows: complete paralysis with a foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, lost extension (dorsal flexion) of the proximal phalanges of the toes, lost abduction of the foot, weakened abduction of the foot, and anesthesia covering the entire dorsum of the foot and toes (40 percent); severe incomplete paralysis (30 percent); moderate incomplete paralysis (20 percent); and mild incomplete paralysis (10 percent). When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In his March 5, 2013 claim for service connection, the Veteran reported that his polyneuropathy was manifested by pain in his feet, toes, and legs. A March 2013 VA treatment record noted that a nerve conduction study showed "electro-diagnostic evidence of minimal slowing of 4/6 nerves tested which could represent very mild to mild generalized sensory-motor peripheral polyneuropathy, primarily distal, characterized by demyelination, but without evidence of axonal loss." During a June 2013 VA treatment appointment, the Veteran reported that his foot flopped several times a day, "like he has no use of it." In a handwritten note on his submission of this record, the Veteran added that he counted 27 instances of a foot flop in a single day at work. The Veteran was afforded a VA examination for peripheral nerves conditions in February 2014. The clinician diagnosed generalized polyneuropathy of both lower extremities. The Veteran reported foot pain and burning on the tops of his feet that had its onset "many years ago" and had increased to become daily and severe. He also reported numbness and tingling. The clinician noted symptoms of severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in both lower extremities. Muscle strength was normal and there was no muscle atrophy. Knee reflexes were normal and ankle reflexes were hypoactive in both lower extremities. Sensory examination was normal in both upper anterior thighs, decreased in both thigh/knee areas, decreased in both lower leg/ankle areas, and absent in both feet and the toes of both feet. There were trophic changes attributable to peripheral neuropathy in the form of thin shiny skin with sparse lower extremity hair. The Veteran's gait was normal. The clinician found no more than moderate incomplete paralysis in any lower extremity nerve. The Veteran did not report using any assistive devices. The clinician found that the Veteran's polyneuropathy of the lower extremities would have an impact on his ability to work, noting the Veteran's reports of severe pain every day and with every step, sitting as much as possible, walking limited to ten minutes, standing with a similar limit, and pain when wearing shoes. The Veteran was afforded an additional VA examination for peripheral nerves conditions in October 2017. The clinician diagnosed peripheral neuropathy of both lower extremities. The Veteran reported constant aching pain in his feet, severe intermittent numbness, and severe intermittent sharp shooting pain. He also reported that his symptoms shifted from location to location. He also reported that when waling, his left foot would flop and strike floors hard due to numbness. He also reported that his symptoms would typically worsen with weight-bearing activities but that his symptoms also would occasionally come out of the blue with no association to activity or weight bearing. The clinician noted symptoms of moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in both lower extremities. Muscle strength was normal and there was no muscle atrophy. Knee and ankle reflexes were normal in both lower extremities, with the exception of hypoactive reflexes in the right knee. Sensory examination was normal in both lower extremities with the exception of decreased sensation in the feet and toes. There were no trophic changes attributable to peripheral neuropathy. The Veteran's gait was normal. Phalen's and Tinel's signs were negative. The clinician found no more than mild incomplete paralysis in any lower extremity nerve. The Veteran did not report using any assistive devices. The clinician found that the Veteran's polyneuropathy of the lower extremities would have an impact on his ability to work because he "has had to cut his employment from full time to part time employment as his job requirements cause worsening in his symptoms." During a November 2017 VA treatment appointment, the Veteran reported severe pain radiating from his back down his right leg to the knee. The treatment provider's assessment was lumbar radiculopathy. However, a January 2018 VA treatment record notes that electromyography and a nerve conduction study found no active or ongoing evidence of lumbar radiculopathy on either side, but minimal slowing of the left tibial motor and right peroneal motor conduction velocities, with minimal widening of durations of the motor unit action potentials. During a VA treatment appointment later in January 2018, the Veteran reported that his low back pain now radiated to both legs. During the February 2020 hearing, the Veteran testified that his left foot would sometimes "just flop," causing him to fall, and that this had happened "40 or 50 times at night." He also testified that his pain would come and go but increased with activity. He then clarified that both feet sometimes flopped. He also testified that he could not feel temperature in his feet. The Veteran was afforded a VA examination for back conditions in January 2021. Muscle strength was normal, there was no muscle atrophy, reflexes were normal, sensory examination was normal, and straight leg raising tests were negative. The clinician found no signs or symptoms of radiculopathy. A February 2021 VA treatment record noted neurological deficits with monofilament wire testing in both feet. Although the Veteran has not been afforded a VA examination specific to peripheral nerves conditions since October 2017, a remand for a more current examination is not warranted because there is no showing of worsening of symptoms since that examination. The severe intermittent pain, neurological deficits, and foot drop reported since the October 2017 VA examination are all symptoms noted in the October 2017 VA examination report. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his generalized polyneuropathy warrants ratings of 30 percent, but no more, for each lower extremity on and after March 5, 2013. The February 2014 and October 2017 VA examination reports note that the majority of the Veteran's lower extremity symptoms are severe. In addition, the Veteran has reported a foot drop throughout the period on appeal and, during the hearing, clarified that this report refers to both feet. The Veteran is competent to report his own observations with regard to the symptoms of his generalized polyneuropathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A foot drop is a symptom the Veteran is competent to report. This is one of the signs of complete paralysis listed in Diagnostic Code 8521. However, the record contains no probative evidence of the other signs of complete paralysis and no examiner or treatment provider has found complete paralysis. The 40 percent criteria require foot drop "with" slight droop of first phalanges of all toes. The Veteran does not have slight droop of the first phalanges of all of his toes. For this reason alone, his foot drop is not severe enough to be described as complete. In addition, other examples of complete paralysis involve inability to dorsiflex the foot, inability to extend the proximal phalanges of the toes, inability to adduct the foot, weakened adduction, and anaesthesia covering entire dorsum of the foot and toes. 38 C.F.R. § 4.124a. It is reasonable to complete that if there was complete paralysis, at least one of these symptoms would be present, and the Veteran does not have any of them. Ratings of 30 percent for severe incomplete paralysis are therefore the highest available ratings to account for the Veteran's right and left foot drop. The Board therefore finds that the Veteran's generalized polyneuropathy of the right and left lower extremities was severe but did not result in complete paralysis during the period on appeal. The Board has considered the Veteran's lay statements. Those statements are the basis for the Board's finding that the Veteran has a bilateral foot drop. However, nothing in the Veteran's lay statements provides a basis for assigning a higher rating because the Veteran does not report any of the other symptoms that constitute complete paralysis as defined above. The Board has considered the other Diagnostic Codes that apply to impairment of nerves of the lower extremities, but none of these provide for a rating greater than 30 percent for severe incomplete paralysis, with the exception of Diagnostic Code 8520 for paralysis of the sciatic nerve, and the record contains nothing to indicate that the Veteran's generalized polyneuropathy affects the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8530. 3. Bilateral Pes Planus with Plantar Fasciitis The Veteran contends that his bilateral pes planus with plantar fasciitis warrants a higher rating than that currently assigned. His bilateral plantar fasciitis was previously rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5020, with a 10 percent rating from May 1, 2007 to March 5, 2013. His bilateral pes planus with plantar fasciitis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5020-5276, with a 30 percent rating on and after March 5, 2013. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2021). VA received the Veteran's claim for an increased rating on March 5, 2013. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Under the prior criteria, Diagnostic Code 5020 pertained to synovitis. (Under the amended criteria, Diagnostic Code 5020 no longer exists.) Synovitis was to be rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a. For degenerative arthritis, Diagnostic Code 5003 provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2021). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered a group of minor joints. 38 C.F.R. § 4.45. As the Diagnostic Codes for musculoskeletal conditions of the foot do not provide for a rating based on limitation of motion and the Veteran is already in receipt of a 30 percent rating throughout the period on appeal, an increased rating under Diagnostic Code 5020 is not applicable. 38 C.F.R. § 4.71a. In addition, the Veteran's bilateral metatarsalgia with degenerative arthritis is already separately service connected and its rating is not currently before the Board. Further discussion of Diagnostic Code 5020 is not warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for a bilateral disability, under the prior or amended criteria, a noncompensable rating is warranted for mild symptoms of pes planus relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate symptoms of pes planus, to include 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. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, or characteristic callosities. A maximum 50 percent rating is assigned for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, or 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 amended criteria also added 38 C.F.R. § 4.71a, Diagnostic Code 5269, which specifically pertains to plantar fasciitis and provides for rating as follows: no relief from "both non-surgical and surgical treatment" bilaterally (30 percent); no relief from "both non-surgical and surgical treatment" unilaterally (20 percent); and otherwise, unilaterally or bilaterally (10 percent). Actual loss of use of the foot warrants a 40 percent rating under this Diagnostic Code. Id. at Note (1). Because, with the exception of actual loss of use of the foot, the 20 and 30 percent criteria of Diagnostic Code 5269 require that the Veteran have been treated surgically, or have been recommended for surgical intervention, the Board finds that, in the absence of actual loss of use of the foot, separate ratings under Diagnostic Codes 5269 and 5276 under the amended criteria are not warranted. Further, the 10 percent rating does not list any symptoms. It states "otherwise, unilateral or bilateral." In this case, all of the Veteran's symptoms are contemplated by the criteria in Diagnostic Code 5276. The record does not show that he has a symptom that is caused by his plantar fasciitis that is not being compensated by his rating under Diagnostic Code 5276. Therefore, to assign a separate 10 percent rating for bilateral plantar fasciitis would constitute pyramiding and is not allowed. 38 C.F.R. § 4.14. When a condition is specifically listed in the rating schedule (pes planus and plantar fasciitis, in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Diagnostic Code 5284 does not apply to the nine foot conditions specifically listed in the rating schedule under Diagnostic Codes 5269-5283. Id. at 337. Diagnostic Code 5284 (other foot injuries), along with other Diagnostic Codes, do not need to be considered because the Veteran's entire service-connected foot disability (pes planus with plantar fasciitis) is specifically listed by the schedule. See Suttmann 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.'"). Therefore, after February 7, 2021, Diagnostic Code 5284 is not for consideration. Prior to February 7, 2021, Diagnostic Code 5824 contemplated other foot injuries. A 10 percent rating was warranted for moderate injury, a 20 percent was warranted for moderately severe injury, and a 30 percent was warranted for severe injury. As discussed below, prior to February 7, 2021, the Veteran's symptoms were best described by the criteria set forth in Diagnostic Code 5276, he did not have symptoms that were not covered by this Code. Therefore, separate ratings under Diagnostic Code 5284 were not warranted prior to February 7, 2021. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. However, because Diagnostic Code 5276 does not pertain to limitation of motion, the DeLuca factors are not for consideration. The Veteran was afforded a VA examination for flatfoot (pes planus) in February 2014. The clinician diagnosed flat feet. The Veteran reported continued pain and burning. On examination, there was pain accentuated on use of both feet, but not pain on manipulation. There was indication of bilateral swelling on use, which was attributed to his flat feet. There were characteristic calluses of both feet. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of either foot. There was no marked pronation of either foot. The weight-bearing lines of both feet fell over or medial to the great toe. There was no inward bowing of the Achilles tendon of either foot. There was no marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. The Veteran did not report using any assistive devices; however, during a VA examination for miscellaneous foot conditions on the same day, the Veteran reported constantly using insoles. The clinician found that the Veteran's flatfoot did not cause functional impairment of an extremity such that no effective function remained other than that which would be equally well served by amputation with a prosthesis. The clinician found that the Veteran's flat feet and plantar fasciitis would impact his ability to work by causing difficulty with any walking or standing. During a March 2016 VA treatment appointment, the Veteran reported that he had had multiple orthotics with no improvement in his foot pain, which was sharp and sporadic. The Veteran was afforded an additional VA examination for foot conditions in October 2017. The clinician diagnosed pes planus, metatarsalgia, plantar fasciitis, and degenerative arthritis. The Veteran reported stabbing pain and numbness/tingling in both feet. He added that his pain worsened with weight bearing and had different locations at different times. He reported functional loss or impairment due to pain. On examination, there was pain accentuated on use and manipulation of both feet. There was no indication of swelling on use. There were no characteristic calluses of either foot. The Veteran reported that he had used orthotics without relief of symptoms. There was no extreme tenderness of the plantar surfaces of either foot. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of either foot. There was no marked pronation of either foot. The weight-bearing lines of both feet fell over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was inward bowing of the Achilles tendon of both feet. There was no marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. There was pain on examination and it contributed to functional loss. There was pain on movement, pain on weight-bearing, pain on non-weight bearing, and interference with standing. The clinician found that pain, weakness, or fatigability could significantly limit the Veteran's functional ability during flare ups but that this could not be quantified without resort to speculation because the examination was not under those circumstances. In its July 2020 decision, the Board found that this was an inadequate rationale with regard to the impact of flare ups; it will therefore play no role in the Board's decision-making with regard to the impact of flare ups. The clinician also found that there was "significant overlap" in the symptoms reported by the Veteran and his service-connected conditions, including peripheral neuropathy, and that it would be speculative to attempt to attribute the degree of subjective symptoms due to each individual condition. The Veteran did not report using any assistive devices. The clinician found that the Veteran's foot conditions did not cause functional impairment of an extremity such that no effective function remained other than that which would be equally well served by amputation with a prosthesis. The clinician found that the Veteran's foot conditions would impact his ability to work, noting the Veteran's report that his foot pain had caused him to decrease his employment from full time to part time "as his occupation required prolonged standing/walking activities." During a VA treatment appointment two days before the February 2020 hearing, the Veteran reported shooting sharp pain in his feet whenever he got home and that this had been happening for twenty years. He also reported that the pain in his left foot was far worse than in his right. During the February 2020 hearing, the Veteran testified that he was "issued special shoes from the rehab prosthetics at the VA" and that he had been receiving new shoes every year for the past four years. He also testified that he could walk for five minutes before needing to take a break due to pain and that he would get spasms, especially in the left foot. He reported that the VA-issued shoes were "comfortable" but provided no more than temporary relief from his symptoms. The Veteran was afforded an additional VA examination for foot conditions in January 2021. The clinician diagnosed pes planus, metatarsalgia, plantar fasciitis, and degenerative arthritis. The Veteran reported ongoing and worsening pain in both feet and that he had had orthotic footwear, insoles, acupuncture, and various other treatments without significant lasting improvement. He reported nearly constant pain in both feet that varied in nature and intensity and worsened with weight bearing and prolonged activity. He reported that the pain was sometimes aching and burning, sometimes sharp, and that sometimes he had to hold onto something "because it's just like zap, zap, zap." However, he did not report that flare ups impacted the function of his feet. He reported functional loss or impairment in the form of not walking more than necessary, sitting whenever possible, and not running. On examination, there was pain accentuated on use and manipulation of both feet. There was no indication of swelling on use. There were no characteristic calluses of either foot. The Veteran reported that he had used built-up shoes and orthotics without relief of symptoms. There was no extreme tenderness of the plantar surfaces of either foot. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of either foot. There was no marked pronation of either foot. The weight-bearing lines of both feet fell over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was no inward bowing of the Achilles tendon of either foot. There was no marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. There was pain on examination and it contributed to functional loss. There was decreased movement, pain on movement, pain on weight-bearing, pain on non-weight bearing, disturbance of locomotion, and interference with standing. The clinician found that pain, weakness, fatigability or incoordination would significantly limit the Veteran's functional ability during flare ups or with repetition over time because the Veteran reported pain with weight bearing and ambulation and required frequent rest periods. The clinician found that there would be no other functional loss during flare ups or with repetition over time. The Veteran did not report using any assistive devices. The clinician found that the Veteran's foot conditions did not cause functional impairment of an extremity such that no effective function remained other than that which would be equally well served by amputation with a prosthesis. The clinician found that the Veteran's foot conditions would impact his ability to work because they each contributed to pain with ambulation and the Veteran "would be limited in ability to walk long distances and would require frequent rest periods." During a February 2021 VA treatment appointment, the Veteran reported continued pain but that his pain had improved since the previous summer. On examination, there was tenderness through the arch areas of both feet. The evidence does not show that the Veteran's bilateral pes planus with plantar fasciitis warrants a rating in excess of 30 percent at any point during the period on appeal. None of the three VA examinations of the Veteran's feet during the period on appeal found any of the symptoms listed in the criteria for a 50 percent rating under Diagnostic Code 5276 and there is no evidence elsewhere in the record that any of these criteria have been met. Even though he reported that his orthotics did not relive his symptoms, he did not experience any of the symptoms listed in the 50 percent criteria. Diagnostic Code 5276 is not conjunctive, and therefore the Veteran does not need to have all of the symptoms listed in the 50 percent criteria to be assigned a 50 percent rating. Dyess v. Derwinski, 1 Vet. App. 448 (1991). However, it is reasonable to conclude that the Veteran would need at least one of these symptoms to meet the 50 percent criteria, and this is not the case. In a February 2022 statement, the Veteran's representative contended that VA examinations underestimated the functional impact of the Veteran's flare ups, which "are generally worse than what is observed within a clinical setting and definitively causes him a loss of use of his feet for a period of time which is not relieved at all with prescribed treatment." The representative did not contend that any of the criteria for a 50 percent rating under Diagnostic Code 5276 were met during flare ups and did not explain the contention that his flare ups caused him intermittent loss of use of both feet. To the extent that this might refer to the Veteran's foot drops, those have already been addressed in the context of the generalized polyneuropathy claims above. The representative's contention might also refer to the Veteran's report during the January 2021 VA examination of an occasional need to hold onto objects for support due to increased pain in his feet. There is nothing to indicate that these episodes reflect the predominant level of functioning of the Veteran's feet. VA regulations provide examples of what constitutes actual loss of use of the foot, including "when no effective function remains other than that which would be equally well served by an amputation stump at the site of election" below the knee "with use of a suitable prosthetic appliance." 38 C.F.R. § 3.350 (a)(2)(i) (2021). Another example is when there is "extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 12 inches or more." 38 C.F.R. § 3.350 (a)(2)(i)(a) (2021). Another example is when there is "[c]omplete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of the nerve." 38 C.F.R. § 3.350 (a)(2)(i)(b) (2021). "Complete" is defined as "total, absolute." https://www.merriam-webster.com/dictionary/complete. Although these examples are not exhaustive, an intermittent inability to walk due to pain is not equivalent or comparable to a need for amputation of the foot, to ankylosis, to shortening of the extremity, or to complete paralysis of the foot and the Board has already found that the Veteran's symptoms do not constitute complete paralysis of the common peroneal nerve in the context of the generalized polyneuropathy claims above. A rating of 40 percent for actual loss of use of a foot under Diagnostic Code 5269 is therefore not warranted. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his pes planus with plantar fasciitis. See Jandreau, 492 F.3d 1372 at 1376-77. However, nothing in those statements is consistent with the criteria for a rating in excess of 30 percent. 4. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As stated above, the criteria for consideration of a schedular TDIU are met. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases, such as employment in a protected environment like a family business or sheltered workshop, when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The Veteran has consistently reported some form of employment during the period on appeal, but the amount of compensation for this employment is unclear. In a June 2016 statement, the Veteran reported that he had lost $11,490 of income in the past year due to decreasing his hours to a part-time status; it is unclear whether this refers to total or net pay. He attached two pay stubs covering a total period of early February to early March 2015, showing a decrease in total pay from $1,120.80 for the first two weeks to $560.40 for the second two weeks, with a decrease in hours from 80 to 40. During the February 2020 hearing, the Veteran testified that he had "lost half of" his pay due to the reduction to part-time and that he had lost approximately $40,000 in total; it is again unclear whether this refers to total or net pay. These are the only statements in the record with regard to income. The TDIU application form (VA Form 21-8940) instructs veterans to provide information regarding their educational background, as well as employment and compensation history but, as stated above, the Veteran did not complete this form when a copy was provided to him. A VA Form 21-8940 is not required for adjudication of a TDIU if the record otherwise provides information regarding occupational history and income sufficient to determine whether the Veteran had marginal or substantially gainful employment. This claim is not being denied because the Veteran did not submit this form. Instead, the claim is being denied because the record as it stands contains insufficient evidence for the Board to determine whether his employment during the period on appeal was marginal. Even if the Board were to assume that the Veteran's pay remained at the level reflected in the March 2015 pay stub for the remainder of 2015, that level of pay, if extrapolated to a full year, would amount to $14,570.40 annually. For the year of 2015, the poverty threshold for one person under the age of 65 was $12,331 and the threshold for one person over the age of 65 was $11,367, both of which are less than the level to which the Veteran's income was reduced immediately after the reduction in hours. https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html?msclkid=1d46ea53a9eb11ecbc7628cad53bdf58 The Board therefore cannot find that the Veteran's service-connected disabilities, by themselves, prevented gainful employment for which his education and occupational experience would otherwise qualify him during the period on appeal. The most persuasive evidence is against the claim for a TDIU and the claim must be denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.