Citation Nr: A25022158 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 240117-409002 DATE: March 11, 2025 ORDER Entitlement to an initial rating in excess of 30 percent for bilateral pes planus with calcaneal bone spurs is denied. FINDING OF FACT Throughout the pendency of the appeal stemming from the Veteran's June 2023, claim, his bilateral pes planus with calcaneal bone spurs was manifested by pain accentuated on use and on manipulation and decreased longitudinal arch height of both feet on weight-bearing, not improved by orthopedic shoes or appliances, without manifestations that more nearly approximate pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces, and marked inward displacement and severe spasm of the tendo Achilles 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. §§ 4.1-4.14, 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 December 2000 to February 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran requested direct review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the August 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus with calcaneal bone spurs. The Veteran contends that he should be awarded an initial rating higher than 30 percent for his bilateral pes planus with calcaneal bone spurs. 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. See Fenderson v. West, 12 Vet. App. 119 (1999); see also 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 U.S. Court of Appeals for Veterans Claims 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. Under Diagnostic Code 5276, a noncompensable (0 percent) rating is assigned where the flatfoot is mild with symptoms relieved by built-up shoe or arch support. A 10 percent disability rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, 20 and 30 percent disability ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent disability ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. 4.71a. Pertinent to the appeal period, the Veteran was afforded a VA examination in July 2023. The VA examiner noted that when the Veteran's condition began, he reported experiencing burning and pain in the bottom of his feet and heel as well as cramping of both feet. At the time, the Veteran stated he was treated with inserts with only temporary relief, so he stopped using them. Currently, the examiner noted the Veteran's symptoms included daily pain and burning in the bottom of both feet, great toes, and heels. His current treatment was wearing tennis shoes and stretching his feet. Also, the examiner noted the Veteran reports difficulty walking for prolonged periods, standing for long periods, using stairs, and running. During the July 2023 VA examination, the examiner noted that due to his pes planus disability, the Veteran experienced pain on use and accentuated on manipulation of both feet, for which he used arch support devices without relief. No flare-ups of the right or left feet were reported by the Veteran. Also, there was no indication of any swelling on use or characteristic calluses. The Veteran also did not have extreme tenderness of plantar surfaces, objective evidence of marked deformity, or marked pronation per the VA examiner. The Veteran did experience decreased longitudinal arch height on weight-bearing for both feet. However, the weight-bearing line was not over or medial to the great toe, and there was no lower extremity deformity, inward bowing of the Achilles' tendon, or marked inward displacement with severe spasm of the Achilles' tendon on manipulation. Further, the examiner noted that the Veteran had other foot conditions of bilateral calcaneal bone spurs and degenerative joint disease first metatarsal joint, which involved symptoms of daily pain and burning in the bottom of both feet, great toes, and heels. The examiner noted the Veteran reported these symptoms occurred daily and chronically compromised weight-bearing; however, arch supports, custom orthotic inserts or shoe modifications are not required. The Veteran reported experiencing bilateral pain that caused disturbances of locomotion and interference with standing and pain. However, the Veteran presented no evidence that suggested pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and/or after repeated use over time. The Veteran did report experiencing bilateral weight bearing pain that caused wincing upon movement and manipulation. However, there was no evidence of pain with passive or active motion, and assistive devices for locomotion were not required. Further, there was no functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. VA treatment records available for review do not reflect any additional symptoms or an increase in the severity thereof during the pendency of the appeal. Upon review, the Board finds the medical evidence of record supports the criteria for no higher than a 30 percent rating throughout the pendency of the appeal. For a 50 percent rating to be warranted under Diagnostic Code 5276, the evidence would need to show marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achilles on manipulation not improved by orthopedic shoes or appliances. As noted above, the evidence of record does not show findings of marked pronation, inward displacement, extreme tenderness, or severe spasm of the tendo-achilles. Thus, the Board finds the severity of the Veteran's bilateral pes planus does not more nearly approximate pronounced bilateral pes planus to warrant a rating in excess of 30 percent at any time during the appeal period. In reaching its conclusion in the instant case, the Board acknowledges the Veteran's belief that his bilateral pes planus with calcaneal bone spurs 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. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which a professional with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability 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, and Hart, supra, are appropriate for the Veteran's service-connected bilateral pes planus; however, the Board finds that his symptomatology has been stable throughout the pendency of the appeal. 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 increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds an initial rating in excess of 30 percent for bilateral pes planus with calcaneal bone spurs is not warranted at any time during the pendency of the appeal. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the competent, probative evidence persuasively weighs against the Veteran's claim. Thus, the benefit of the doubt doctrine is not applicable, and his initial increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Simmons, Shanita K. 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.