FLATFOOT BILATERAL ACQUIRED

T.D. JONES · 2022 · Case ID: 22036450

MIXED

Summary

The veteran, who served from August 1990 to July 1994, appeals the denial of increased ratings for bilateral pes planus, lumbar spine degenerative disc disease, and left knee patellofemoral syndrome. The Board denied the appeal for bilateral pes planus, finding that the evidence supported a 30 percent rating prior to July 22, 2019, and the maximum 50 percent rating thereafter, with no basis for a higher rating. The Board noted that the veteran's symptoms of pain and swelling on use, and lack of relief from orthotics, supported the 30 percent rating, and that the evidence did not establish pronounced symptoms for the higher 50 percent rating. The Board also found that the pes planus disability was specifically listed under the rating schedule and could not be rated by analogy. The claims for lumbar spine degenerative disc disease and left knee patellofemoral syndrome were remanded for additional development. The Board found that previous VA examinations failed to provide retrospective opinions on range of motion measurements or explain why such estimates could not be made, necessitating further examination to comply with remand instructions. The Board regrets the delay and the need for further remands, emphasizing the need for full compliance with the duty to assist.

Rationale

Evidence supports 30% rating prior to July 22, 2019; Evidence does not support rating in excess of 50% thereafter; Condition specifically rated under DC 5276, not eligible for analogy

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5276

Docket No.

16-27 369

Full Decision Text

Citation Nr: 22036450
Decision Date: 06/23/22 Archive Date: 06/23/22

DOCKET NO. 16-27 369
DATE: June 23, 2022

ORDER

Entitlement to an initial rating in excess of 30 percent, prior to July 22, 2019, and in excess of 50 percent thereafter for bilateral pes planus is denied.

REMANDED

Entitlement to a rating in excess of 10 percent, prior to July 22, 2019, and in excess of 20 percent, since July 22, 2019, for degenerative disc disease of the lumbar spine is remanded.

Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee disorder is remanded.

FINDING OF FACT

1. Prior to July 22, 2019, the Veteran's bilateral pes planus manifested in symptoms that are most accurately described as "severe" rather than as "pronounced".

2. From July 22, 2019, the Veteran's bilateral pes planus is rated as 50 percent disabling, which is the maximum schedular rating permitted for bilateral pes planus.

CONCLUSION OF LAW

1. The criteria for entitlement to a disability rating in excess of 30 percent prior to July 22, 2019 for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276.

2. As of July 22, 2019, the Veteran is in receipt of the maximum disability rating, 50 percent, for bilateral pes planus. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5276.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1990 to July 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2021, the Board remanded the Veteran's claim for additional development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist.

Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes (DC). 38 C.F.R. § 4.27. These DCs designate percentage ratings based on the average functional impairment of the veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10.

When there is a question as to which evaluation should be applied to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Under DC 5276, a Veteran can be assigned disability ratings of zero percent, 10 percent, 30 percent, and 50 percent for bilateral pes planus. A 50 percent disability rating is the maximum rating available pursuant to DC 5276. The specific rating criteria provides:

A noncompensable disability rating will be assigned for mild acquired flatfoot, with symptoms relieved by built-up shoe or arch support.

A 10 percent disability rating will be assigned when the evidence shows that a veteran's pes planus is moderate in nature, with the weight-bearing line over or medial (middle or center) to the great toe and inward bowing of the tendo achillis, with pain on manipulation and use of the feet, bilateral or unilateral.

A 30 percent disability evaluation is assigned for severe bilateral pes planus; objective evidence of marked
30 percent, and 50 percent for bilateral pes planus. A 50 percent disability rating is the maximum rating available pursuant to DC 5276. The specific rating criteria provides:

A noncompensable disability rating will be assigned for mild acquired flatfoot, with symptoms relieved by built-up shoe or arch support.

A 30 percent disability evaluation is assigned for severe bilateral pes planus; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.

A 50 percent rating, the maximum, is assigned for bilateral pes planus when there is evidence of pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Board notes that 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. See 85 Fed. Reg. 230. 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. However, DC 5276 (acquired flatfoot) was not one of the diagnostic codes revised as part of the amendments. Therefore, the amendments are inapplicable to the Veteran's claim.

1. Entitlement to an initial rating in excess of 30 percent, prior to July 22, 2019, and higher than 50 percent, since July 22, 2019, for bilateral pes planus.

The Veteran asserts that he is entitled to a higher rating for his service-connected bilateral pes planus.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for bilateral pes planus prior to July 22, 2019.

The evidence of record reflects that the Veteran's bilateral pes planus is manifested by pain and swelling on use of the feet. See April 2013 Foot conditions DBQ; see also March 2016 Foot conditions DBQ. Additionally, the Veteran's bilateral pes planus symptoms were not relieved by arch support. Id. He has stated that he "cannot walk very far or stand very long." See March 2016 Foot conditions DBQ.

The Veteran has consistently reported using shoe inserts to treat his foot pain. The evidence also shows that he received custom orthotics in May 2015. See May 2015 podiatry consult. The evidence reflects that there was no improvement in his symptoms with the use of his orthotics and inserts.

In applying these facts to the rating criteria, the Board finds that the evidence of record persuasively supports the grant of a 30 percent rating for bilateral plantar pes planus under DC 5276 prior to July 22, 2019. The Board notes that indication of swelling on use, which is characterized as a severe symptom completed by the higher, 30 percent rating under DC 5276, was noted during the April 2013 and March 2016 VA examinations.

In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for bilateral pes planus prior to July 22, 2019. As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

A higher, 50 percent rating is not warranted, however, because the evidence does
2013 and March 2016 VA examinations.

A higher, 50 percent rating is not warranted, however, because the evidence does not persuasively establish that the Veteran's disability has been manifested by pronounced symptoms prior to July 22, 2019.

From July 22, 2019, as the Veteran is in receipt of the highest schedular rating for bilateral pes planus, there is no basis to award a higher rating. Under DC 5276, a maximum 50 percent rating is warranted for bilateral acquired flatfoot. 38C.F.R. §4.71a, DC 5276. The appeal is therefore denied.

The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id.

Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent, prior to July 22, 2019, and in excess of 20 percent, since July 22, 2019, for degenerative disc disease of the lumbar spine, is remanded.

In June 2021, the Board remanded this issue, finding that a VA examination was necessary to determine the current severity of the lumbar spine disability. The Board also noted that the July 2019 VA examiner did not provide a retrospective opinion, or explain why one could not be provided, as to whether the Veteran's lumbar spine range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated for the other VA examinations conducted during the appeal period.

Upon remand, the Veteran was afforded a VA examination in December 2021. At that time, the examiner was able to test the Veteran's range of motion. This examiner also elicited statements from the Veteran describing his flare-ups and functional loss or impairment. While this examiner proffered an estimate of the Veteran's range of motion during a flare-up and after repeated use over time, the examiner did not provide a retrospective medical opinion as to whether the Veteran's lumbar spine range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

Subsequently, a January 2022 VA medical opinion was obtained. The exam directives indicate that the appeal period began in June 2021. However, this is incorrect. The appeal period began in March 2011. See March 2011 VA Form 21-526.

An addendum medical opinion was obtained in February 2022 in which the examiner repeated
of motion during a flare-up and after repeated use over time, the examiner did not provide a retrospective medical opinion as to whether the Veteran's lumbar spine range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

An addendum medical opinion was obtained in February 2022 in which the examiner repeated ROM measurements from the December 2021 VA examination. The examiner did not provide a retrospective medical opinion as to whether the Veteran's lumbar spine range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

The Veteran underwent another VA examination in March 2022. A March 2022 VA medical opinion was obtained. The examiner indicated that the "Veteran's functional ability may vary from day to day[,]" and, thus, the examiner stated that she was unable to determine without speculation whether the Veteran's lumbar spine range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

In view of the above, the Board finds a remand is necessary to obtain an addendum VA medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

2. Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee disorder is remanded.

In June 2021, the Board remanded this issue, finding that a VA examination was necessary to determine the current severity of the left knee disability. The Board noted that the July 2019 VA examinations failed to discuss the findings for the left knee with regards to passive range of motion or the results of range of motion testing for the feet with active motion, passive motion, and with nonweight-bearing or explain why such testing could not be performed. The Board also noted that the July 2019 VA examiner did not provide a retrospective opinion, or explain why one could not be provided, as to whether the Veteran's left knee range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated for the other VA examinations conducted during the appeal period.

Upon remand, the Veteran was afforded a VA examination in December 2021. At that time, the examiner was able to test the Veteran's range of motion. This examiner also elicited statements from the Veteran describing his flare-ups and functional loss or impairment. While this examiner proffered an estimate of the Veteran's range of motion during a flare-up and after repeated use over time, the examiner did not provide a retrospective medical opinion as to whether the Veteran's left knee range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

An addendum medical opinion was obtained in February 2022 in which the examiner repeated ROM measurements from the December 2021 VA examination. The examiner did not provide a retrospective medical opinion as to whether the Veteran's left knee range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

The Veteran underwent another VA examination in March 2022. In March 2022, a VA medical opinion was obtained. The examiner indicated that the "Veteran's functional ability may vary from day to day[,]" and, thus, the examiner stated that she was unable to determine without speculation whether the Veteran's left knee range of motion (with active motion, passive motion, weight-bearing, and nonweight-bearing) could be estimated after consideration of the January 2012, March 2016, and July 2019 VA examinations.

Because the Board's remand instructions have not been fully complied with, this issue must be remanded again. See Stegall v. West
2016, and July 2019 VA examinations.

Because the Board's remand instructions have not been fully complied with, this issue must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion from an appropriate medical professional addressing whether the Veteran's lumbar spine range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated from March 24, 2011, to the present.

In rendering an opinion, the examiner should consider:

(a.) The Veteran's relevant lay statements of record, including but not limited to, his descriptions of flare-ups and functional loss/impairment; and

(b.) The relevant medical evidence of record, including but not limited to, the January 2012, March 2016, July 2019, December 2021, and March 2022 VA examinations and medical opinions.

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

2. Obtain an addendum medical opinion from an appropriate medical professional addressing whether the Veteran's left knee range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated from March 24, 2011, to the present.

In rendering an opinion, the examiner should consider:

(a.) The Veteran's relevant lay statements of record, including but not limited to, his descriptions of flare-ups and functional loss/impairment; and

(b.) The relevant medical evidence of record, including but not limited to, the January 2012, March 2016, July 2019, December 2021, and March 2022 VA examinations and medical opinions.

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. Once each of the above requests have been completed, to the extent possible, readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

T.D. JONES

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Oquendo Alemar, Luis F.

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

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