Citation Nr: 24006182 Decision Date: 02/05/24 Archive Date: 02/05/24 DOCKET NO. 17-39 630 DATE: February 5, 2024 ORDER A rating in excess of 30 percent for bilateral pes planus with degenerative changes status/post left fifth metatarsal fracture with bone spurs is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1977 to July 1999. 2. A foot disability has been manifested by bilateral foot pain, pronation of both feet, painful left midfoot, compromised weightbearing, difficulty walking, and no improvement with orthotics but no marked inward displacement or severe spasm of the tendo achilles on manipulation. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral pes planus with degenerative changes status/post left fifth metatarsal fracture with bone spurs have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. In January 2023, the Board denied a higher rating. The Veteran appealed to the Veterans Claims Court. In September 2023, the Court Clerk granted a Joint Motion for Partial Remand (JMPR), which vacated the Board decision and remanded the matter back to the Board for action in compliance with the JMPR. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Bilateral pes planus has been rated under DC 5276 (acquired pes planus). The Board will consider all relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: Pronounced acquired flatfoot characterized by: " Marked pronation; " Extreme tenderness of the plantar surfaces of the feet; and " Marked inward displacement and severe spasms of the tendo achilles on manipulation that are not improved by orthopedic shoes or appliances. (50 percent under DC 5276). Notably, the medical evidence has neither diagnosed pes cavus nor demonstrated actual loss of the foot throughout the entire period on appeal. Accordingly, DCs 5278, 5283, and 5284 are not for application. Additionally, the use of the conjunction "and" in DC 5276 requires that all of the components listed above be present in order to warrant a higher rating. See generally Melson v. Derwinski, 1 Vet. App. 334 (1991). Additionally, portions of the rating schedule addressing the musculoskeletal system were amended effective February 7, 2021; however, the diagnostic code for foot injuries, including DC 5276, were not changed. Turning to the medical evidence, an August 2015 private treatment record reflected that the Veteran's left foot was painful. It was noted that there was marked degenerative joint disease (DJD) which was likely due to an old neglected Lisfranc injury. Surgery was not advised as he was doing well with conservative treatment. On examination, alignment of the feet was normal. There was no swelling bilaterally. There was left foot crepitus but no right foot crepitus. There was tenderness bilaterally. In an August 2016 statement, the Veteran reported that his foot disabilities had worsened, explaining that his instep had become more flat-footed bilaterally. He further described how arthritis had grown more severe, resulting in the development of calluses on the tops of his toes, causing increased discomfort and pain, as well as limited physical activity. At an August 2016 examination, the Veteran reported that foot pain was still worsening and was characterized by burning and aching. He reported calluses and an enlarging bony deformity in his left midfoot and noted that he wore special shoes. He reflected that the foot disorders made it hard to stand longer than 10 minutes, walk, or take long hikes. Bilateral pes planus was diagnosed. The examiner opined that the Veteran had marked pronation of the left foot and that the disability was not improved by orthopedic shoes or appliances; however, the examiner determined neither marked inward displacement or severe spasm of the Achilles tendon on manipulation of feet nor extreme tenderness of the plantar surfaces of the feet was shown. In subsequent October 2016 and July 2017 statements, the Veteran reported having pain and difficulty walking. He said that a degenerative bump on the instep of his left foot had grown larger and represented the appearance of arthritis. He reported that both of his feet lost the arches in their insteps, and that he was issued orthotic inserts and prosthetic shoes. The Veteran additionally described persistent and worsening foot pain in multiple medical treatment notes between December 2019 and February 2021. He said that pes planus was constant, achy, and aggravated by direct pressure, standing, walking, weightbearing, or other strenuous activity. Clinicians noted degenerative changes bilaterally; however, they found that the symptoms improved with the application of topical analgesics and the use of orthotics. A February 2021 private treatment record indicated flat foot pain was described as achy. Strenuous activity made the pain worse. When asked about the severity of symptoms, the Veteran reported a level 5 or 6 out of 10, which was noted to be moderate. He indicated that the pain interfered with daily activities and was worse since the onset. The pain was noted to be constant. He got shoe inserts which helped the pain. Voltaren gel also helped the pain. His chief complaint was weakness. He denied paresthesias. Multiple family members, friends, and co-workers supported the Veteran's description of his bilateral foot disorder in November 2021 statements, reporting that he had pain while standing and walking for extended periods of time and that he ambulated with a limp. The statements noted that he wore custom-made shoes, constantly applied topical pain medicine to his feet, and needed to take breaks at work after performing certain job functions such as lifting, standing, and moving. They all offered that the foot disorders limited his ability to perform physical activities both at work and at home. In a November 2021 evaluation, a private clinician observed that the Veteran's foot pain had worsened and that the arches of his feet had collapsed. The clinician found that the Veteran could not walk as far as he used to or run at all; however, the clinician did not diagnose pes planus or otherwise indicated that the Veteran experienced the disorder. Therefore, the November 2021 assessment is assigned lesser probative value. Later that month, the Veteran testified before the Board that he had more pain and swelling in his feet and required special prosthetic shoes and inserts that occasionally helped with walking. He said that he had periodic flare-ups that required him to stay seated or, if standing, sit down. He said that his foot condition resulted in trouble walking and pain when standing. He observed that his feet went inward and outward and that he was unable to walk with a normal gait. At a June 2022 VA examination, the Veteran further described sharp, achy, continuous pain in his bilateral feet. He said that he was unable to stand for longer than 5 minutes and had difficulty sleeping as a result of his foot pain. He told the VA examiner that he developed a knot that caused his right foot to turn outward after walking 50 feet and required him to stop, sit down, and rest. He noted that he used custom orthotics and custom shoes to treat his foot disorder. Upon examination, the examiner diagnosed multiple foot conditions, including bilateral pes planus and severe old Lisfranc injury, progression pes planus. The examiner found marked pronation of the bilateral feet and noted that the condition was not improved by orthopedic shoes or appliances. The examiner also noted that the severe old Lisfranc injury involving the left foot resulted in painful to touch midfoot. However, the June 2022 examination specifically showed that there was not extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasms of the Achilles tendon on manipulation of the feet. In addition, none of the remaining medical evidence reflects such symptoms. The August 2016 and June 2022 VA examination, when considered together, are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran regarding the symptoms related to his feet disability, and provided a thorough supporting rationale for the conclusions reached. As such, the August 2016 and June 2022 VA examinations are assigned high probative value. More recently, the Veteran asserted in an August 2022 statement that bilateral pes planus and degenerative changes left him unable to stand on his feet for extended period of time, limited physical activity, and resulted in constant pain. He said that he used orthotic inserts and custom shoes to help relieve his pes planus, but that the pain was constant, "undermined [his] health," and caused "other health issues." Based on the above, a rating in excess of 30 percent is not warranted. In this regard, the Veteran described swelling and constant sharp, achy, worsening pain in his feet that resulted in difficulty with standing, walking, weightbearing, and sleeping. Moreover, the VA examinations found that pes planus, including the severe/old/neglected Lisfranc injury, was characterized by pain and marked pronation of the feet not improved by orthopedic shoes or appliances. However, the medical evidence does not establish that bilateral pes planus with severe/old/neglected Lisfranc injury resulted in either extreme tenderness of the plantar surfaces or marked inward displacement and severe spasms of the Achilles tendon upon manipulation. Moreover, the Veteran has never described any marked inward displacement or severe spasms of the Achilles tendon, which are the criteria for a higher rating. Therefore, the evidence weighs persuasively against a rating in excess of 30 percent for the entire period on appeal. The Board has considered the lay statements and testimony submitted by the Veteran, his family, co-workers, and friends regarding the severity of the bilateral pes planus disability. Lay witnesses are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's bilateral pes planus has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by his disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective complaints of increased symptomatology submitted by the Veteran, his family, co-workers, and friends. In sum, after a careful review of the record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman 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.