ACQUIRED FLATFOOT

BETHANY L. BUCK · 2026 · Case ID: A26040141

DENIED

Summary

The veteran, who served in the U.S. Navy from June 1990 to September 2005 across multiple periods, appeals the denial of an increased rating for bilateral flatfeet with degenerative arthritis prior to July 31, 2020. The veteran sought a rating higher than the 30 percent previously assigned, aiming for a 50 percent rating based on symptoms that had allegedly worsened since a prior examination. The Board reviewed evidence from VA examinations in October 2017 and July 2020, along with VA treatment records and the veteran's testimony from a January 2020 hearing. The October 2017 examination found symptoms consistent with a 30 percent rating, noting marked deformity but improvement with orthotics and no severe Achilles tendon issues. The July 2020 examination indicated worsening symptoms, including pain and marked deformity, but still lacked evidence of severe Achilles tendon issues required for the 50 percent rating. The Board found the veteran's lay testimony regarding worsening symptoms credible but not sufficient to meet the higher rating criteria, as it did not specifically align with the marked pronation, extreme tenderness, or severe Achilles tendon issues required for a 50 percent rating. The Board also addressed procedural arguments regarding effective dates, concluding that the July 31, 2020, examination was the earliest date symptoms met the 50 percent criteria. Ultimately, the Board denied the increased rating prior to July 31, 2020, finding the evidence persuasively weighed against a rating higher than 30 percent.

Rationale

October 2017 VA exam found marked deformity but improvement with orthotics.; July 2020 VA exam showed worsening symptoms but lacked evidence of severe Achilles tendon issues.; Veteran's lay testimony regarding worsening symptoms was credible but not specific enough to meet 50% criteria.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5276

Docket No.

200824-96865

Full Decision Text

Citation Nr: A26040141
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 200824-96865
DATE: April 29, 2026

ORDER

Entitlement to a rating in excess of 30 percent prior to July 31, 2020, for bilateral flatfeet with degenerative arthritis is denied.

FINDING OF FACT

Prior to July 31, 2020, the Veteran's bilateral flatfeet disability was manifested by severe symptoms including pain with manipulation and use; accentuated pain with manipulation and use; characteristic calluses; bilateral extreme tenderness that is improved by orthopedic shoes or appliances; but without probative evidence of marked pronation or marked inward displacement or severe spasm of the Achilles' tendon.

CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for flatfeet with degenerative arthritis prior to July 31, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Navy from June 1990 to August 1991, from September 1995 to August 2000, from October 2001 to August 2002, from October 2002 to July 2003, from October 2003 to April 2004, from October 2004 to April 2005, and from May 2005 to September 2005.

This matter comes to the Board of Veterans' Appeals (Board) from an August 2020 supplemental statement of the case issued by the Department of Veterans Affairs (VA) Regional Office (RO).

By way of history, the Veteran raised a claim for increase in September 2017. A rating decision was issued under the legacy system in November 2017, which continued the 30 percent rating. The Veteran submitted a timely notice of disagreement. In April 2018, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran perfected his appeal by timely filing a VA Form 9 in May 2018. Then, in March 2020, the Board remanded the Veteran's claim for additional development. On August 3, 2020, the AOJ issued a supplemental statement of the case (SSOC), increasing the rating to 50 percent, effective July 31, 2020 (the date of a VA examination). The Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an August 24, 2020, VA Form 10182, Decision Review Request: Board Appeal, identifying the August 3, 2020, SSOC. Therefore, the August 2020 SSOC is the decision on appeal.

In the August 24, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 15, 2025.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 SSOC, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the August 2020 SSOC and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted and 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.

Increased Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by
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.

Increased Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The effective date of the award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall not be earlier than the date of receipt of the application thereof. 38 U.S.C. § 5110(a).

The effective date of an award of increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application for increased compensation. 38 U.S.C. § (b)(2)(A). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

Stated conversely, the effective date of an increased rating is the date of ascertainable increase or date of receipt of the formal or informal claim, whichever is later under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 USCS § 5110(b)(3). If, however, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). See 38 C.F.R. § 3.157(a); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The purpose of this provision is to provide a one-year grace period for filing a claim following any increase in severity of a service-connected disability. Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010).

Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has determined that the severity of the Veteran's bilateral flatfeet disability has remained approximately the same throughout the period under review; thus, staged ratings are not warranted.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or if there is an approximate balance of positive and negative evidence, with the appellant prevailing in either event, or whether the evidence persuasively weighs against a claim, in which case, the claim is denied. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more
7). The Board has determined that the severity of the Veteran's bilateral flatfeet disability has remained approximately the same throughout the period under review; thus, staged ratings are not warranted.

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

1. Entitlement to a rating in excess of 30 percent prior to July 31, 2020, for bilateral flatfeet with degenerative arthritis is denied.

Based on the theories of entitlement reasonably raised by the record and the Veteran's express contentions, the Board will consider the whether the Veteran is entitled to a rating in excess of 30 percent for his bilateral flatfeet disability with degenerative arthritis prior to July 31, 2020. Given the procedural history outlined above, the claim has been pending since September 2017.

The Veteran's bilateral flatfeet disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the Achillis' tendon, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achillis' tendon on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achillis' tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276.

Diagnostic Code 5276 uses the terms "moderate," "marked," "severe," and "pronounced." While these terms are not expressly defined in the rating criteria, Diagnostic Code 5276 provides the symptoms associated with each level. Thus, the collection of symptoms for each level serves as a definition by example for each word. "Pronounced" is defined as a degree greater than "severe" under Diagnostic Code 5276. Prokarym v. McDonald, 27 Vet. App. 307, 311 (2015). Additionally, in discussing the meaning of the above terms, the Board is permitted to consult with a dictionary. See Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) (it is commonplace to consult dictionaries to ascertain a term's ordinary meaning). "Moderate" means "tending toward the mean or average amount or dimension." See http:// www.merriam-webster.com/dictionary/moderate. "Severe" is "of a great degree." See Merriam-Webster, https://www.merriam-webster.com/dictionary/severe. "Marked" is defined as "having a distinctive or emphasized character." See Merriam-Webster, https://www.merriam-webster.com/dictionary/marked.

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.
http:// www.merriam-webster.com/dictionary/moderate. "Severe" is "of a great degree." See Merriam-Webster, https://www.merriam-webster.com/dictionary/severe. "Marked" is defined as "having a distinctive or emphasized character." See Merriam-Webster, https://www.merriam-webster.com/dictionary/marked.

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).

By way of history, VA received the Veteran's new claim for an increased rating for his flat foot disability on September 26, 2017. Thereafter, in the November 2017 rating decision from which this appeal stems, the AOJ denied the Veteran's claim for a rating in excess of 30 percent for his bilateral flatfeet disability; as noted in the procedural history above, the Veteran appealed for Board review of the November 2017 rating decision; and, pursuant to the March 2020 Board remand decision and subsequent August 2020 SSOC and corresponding rating decision, the AOJ awarded a 50 percent rating effective from July 31, 2020. The Veteran then filed a timely notice of disagreement (NOD) of the August 2020 SSOC, thus instituting this appeal seeking entitlement to a 50 percent rating from September 26, 2017, to July 31, 2020, including one-year look-back period.

In regard to the present matter, the Board notes that as of July 31, 2020, the Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5276 and there is no legal basis upon which to award a higher schedular rating for flatfeet, or separate schedular ratings for each foot from July 31, 2020.

The question for the Board is whether the Veteran is entitled to a 50 percent rating for his bilateral flatfeet with degenerative arthritis disability from September 26, 2016, to July 31, 2020, including from a factually ascertainable date within one year prior to the September 2017 date of increased rating claim.

The Board concludes that a 50 percent rating for the Veteran's bilateral flatfeet with degenerative arthritis disability is not warranted prior to July 31, 2020.

Evidence & Analysis

The Veteran was afforded a VA examination in October 2017. This report is highly probative evidence as to the severity of the Veteran's bilateral flatfeet disability at the beginning of the period under review. The corresponding report reveals symptoms including constant, dull, throbbing bilateral feet pain; use of "in-soles" without relief; and flare-ups described as increased "sharp" pain with walking/standing for extended amounts of time. The examination report included the Veteran's reports that arch supports and orthotics both provided some relief, but that the bilateral flatfeet remained symptomatic. As to the applicable rating criteria, the examination report revealed bilateral extreme tenderness that was improved by orthopedic shoes or appliances; bilateral accentuated pain with manipulation and use; and characteristic calluses. However, the examination findings and conclusions were negative for probative evidence of marked pronation, marked inward displacement, or severe spasm of the Achilles' tendon. The functional impact was noted as "limited in activities with ambulation, standing for long periods. The Veteran can perform general activities without significant restrictions." See VBMS document titled, "C&P Exam," receipt date 11/02/2017.

The Veteran was afforded a second VA examination in July 31, 2020, pursuant to the March 2020 Board remand decision which was based on the evidence of record at that time and the January 2020 hearing testimony. At the January 2020 Board hearing, the Veteran testified that his bilateral feet disability has worsened and he believed a 50 percent rating was warranted. The Veteran reported constant feet pain, rating his pain as a 3 or 4 on a pain scale of 1 to 10; that he received reasonable accommodations from his employer, the U.S. Census Bureau; and that his bilateral flatfeet disability had increased in severity since the prior VA examination in October 2017. The Veteran did not testify to or otherwise identify any specific date by which his bilateral feet disability worsened or when he began receiving
2020 Board remand decision which was based on the evidence of record at that time and the January 2020 hearing testimony. At the January 2020 Board hearing, the Veteran testified that his bilateral feet disability has worsened and he believed a 50 percent rating was warranted. The Veteran reported constant feet pain, rating his pain as a 3 or 4 on a pain scale of 1 to 10; that he received reasonable accommodations from his employer, the U.S. Census Bureau; and that his bilateral flatfeet disability had increased in severity since the prior VA examination in October 2017. The Veteran did not testify to or otherwise identify any specific date by which his bilateral feet disability worsened or when he began receiving accommodations at work. See VBMS document titled, "Hearing Transcript," receipt date 01/29/2020.

In contrast to the October 2017 VA examination, the July 2020 VA examination found that the Veteran's bilateral flat foot disability had "progressed/worsened," but no date of worsening was identified; current symptoms include bilateral foot pain aggravated with prolonged standing and walking; and treatment includes foot massages, soaking, and orthotics. The Veteran continued to report flare-ups, described as "when my foot pain flares up I try to stay off my feet." The examination report shows that the Veteran continued to use orthotics at the time of the July 2020 examination; however, unlike the prior October 2017 examination where the Veteran reported some relief, during the July 2020 examination, the Veteran reported no effective relief of symptoms from arch supports, built up shoes or orthotics, and that although he tried orthotics, his feet remained symptomatic. The report noted contributing factors of functional loss and limitation of motion include excess fatigability, pain on movement, disturbance of locomotion, interference with standing, and lack of endurance. See VBMS document titled, "C&P Exam," receipt date 07/31/2020.

As to the applicable rating criteria, the July 2020 VA examination revealed observations of bilateral accentuated pain with manipulation and use; bilateral swelling on use; characteristic calluses; bilateral extreme tenderness that was not improved by orthopedic shoes or appliances; objective evidence of bilateral marked deformity; bilateral marked pronation not improved by orthopedic shoes or appliances; but without marked inward displacement and severe spasm of the Achillis tendon on manipulation. Id.

The July 2020 examination report further reveals that the Veteran's bilateral first metatarsophalangeal (MTP) degenerative joint disease caused increasing foot pain with standing and walking which was indicated as "mild," which did not chronically compromise weight bearing. The report also noted that due to repeated use over time and during flare-ups, the Veteran experienced foot pain such that after a period of prolonged standing or walking he has to get off of his feet and rest. The examination report describes the functional impact as "the Veteran has a decrease capacity for prolonged standing and walking secondary to his foot condition." Finally, the examiner made findings as to the diagnosis and progression of the Veteran's bilateral flatfeet with arthritis disability finding that "there is a worsening of the Veteran's symptoms however no change to the service connected diagnosis and no additional diagnoses have been rendered." Id.

In addition to the VA examinations and Board hearing testimony, probative evidence of record includes the Veteran's VA treatment records. A February 24, 2017, primary care note reveals that the Veteran requested a handicap parking placard due to his bilateral feet pain stated as, "the pain in his feet is not a daily occurrence and that he doesn't always need to park near the entrance of buildings," and that he wore "athletic shoes that provide a lot of support" but that his feet still hurt sometimes. The primary care provider agreed to a temporary parking placard but referred him to a podiatry consultation for continued care of his bilateral feet pain. The Veteran met with the VA podiatrist in March 2017. The March 2017 podiatry consultation note reveals the Veteran's report of "nagging pain every day," that the Veteran denied past treatment, no pain with ankle/foot range of motion testing, bilateral low arches and calluses, severe degenerative osteoarthritis of the right MTP big toe joint, moderate degenerative osteoarthritis of the left MTP big toe joint, and ordered custom molded orthotics and night splints for the Veteran's bilateral flatfeet. Then, in an August 2018 primary care follow-up note, the Veteran reported that his feet were "not so painful" and that he was doing well with orthotics and splints, noting that he was "very pleased about that." Then, during at March 2018 primary care follow-up visit, the Veteran reported that his feet were not bothering him as much since
denied past treatment, no pain with ankle/foot range of motion testing, bilateral low arches and calluses, severe degenerative osteoarthritis of the right MTP big toe joint, moderate degenerative osteoarthritis of the left MTP big toe joint, and ordered custom molded orthotics and night splints for the Veteran's bilateral flatfeet. Then, in an August 2018 primary care follow-up note, the Veteran reported that his feet were "not so painful" and that he was doing well with orthotics and splints, noting that he was "very pleased about that." Then, during at March 2018 primary care follow-up visit, the Veteran reported that his feet were not bothering him as much since he began using the customized orthotics but also noted that "the discomfort makes it difficult for him to walk and exercise." In September 2018, the Veteran reported pain in his big toes and rated it a 2 on a scale of 1 to 10. Then, in May 2019, the Veteran reported "achy feet" and indicated that his pain was a 2 on a scale of 1 to 10. There is no probative evidence of treatment visits for his bilateral feet disability after May 2019 and before the January 2020 Board hearing or the July 2020 VA examination. See VBMS document titled, "CAPRI," receipt date 04/02/2020, pages 15, 20, 22, 27, 36, 40, 41, 42, 44, 45.

At the April 2024 Board hearing, the Board notes that the Veteran's representative testified as to procedural arguments related to assigning the effective date for the Veteran's bilateral flatfeet with arthritis disability; but the Veteran himself did not testify. The representative asserted that the evidentiary record was complete and there was no need to add additional testimony as to the Veteran's bilateral flatfeet disability. See VBMS document titled, "Hearing Transcript," receipt date 04/30/2024.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for the Veteran's bilateral flatfeet disability prior to July 31, 2020. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to constant foot pain that increased with use and manipulation, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that his feet continued to hurt despite wearing supportive athletic shoes and increased pain when walking or standing for prolonged periods of time would not result in symptoms more nearly approximating pronounced bilateral acquired flatfeet.

To this point, the Board finds that the Veteran's VA treatment records through May 2019 are consistent with the October 2017 VA examination report. The VA treatment records reveal the Veteran's reports that he tried supportive athletic shoes but that he still had pain, but also that his feet pain was relieved by the custom orthotics and splints, but again, he still had some discomfort, which are consistent with the October 2017 VA examination report findings that the Veteran experienced relief and continued symptoms with orthotics, as well as extreme tenderness that was improved with orthotic appliances.

The Board assigns great probative weight to the October 2017 VA examination report and VA treatment records. The October 2017 VA examination report is highly probative because it incorporates the Veteran's relevant medical history, incorporates the Veteran's statements and reports as to onset, current symptoms, progression, and history since separation from service, uses facts and details specific to the Veteran to explain the findings and conclusions reached, and is consistent with the contemporaneous VA treatment records. As to the VA treatment records, they are highly probative because they were created when the events and details were fresh the Veteran's mind, were created for treatment purposes thus the Veteran had incentive to give an accurate account of his symptoms and difficulties in order to obtain appropriate medical care, and describe his medical providers' findings and conclusions as to the severity of the Veteran's bilateral flatfeet disability that are contemporaneous to and consistent with the findings in the October 2017 VA examination report. Moreover, there is no contemporaneous medical or lay evidence that is contrary to the findings and conclusions of the October 2017 VA examination and VA treatment records.

In addition, the Board finds that the July 2020 VA examination report is highly probative evidence that the Veteran's bilateral flatfeet disability worsened since the October 2017 VA examination as shown by the VA examiner's competent finding that the Veteran's disability had worsened/progressed in severity and observation and identification of more severe symptoms during the July 2020 examination
and describe his medical providers' findings and conclusions as to the severity of the Veteran's bilateral flatfeet disability that are contemporaneous to and consistent with the findings in the October 2017 VA examination report. Moreover, there is no contemporaneous medical or lay evidence that is contrary to the findings and conclusions of the October 2017 VA examination and VA treatment records.

The Board finds that there is no probative evidence of a factually ascertainable date prior to the July 31, 2020, VA examination as to when the Veteran's bilateral flatfeet with arthritis disability began to manifest symptoms of marked pronation and extreme tenderness of plantar surfaces of the feet not improved by orthopedic shoes or appliances.

After reviewing the record, the Board finds that the evidence persuasively weighs against granting a rating in excess of 30 percent for the Veteran's bilateral flatfeet with arthritis prior to July 31, 2020. The Board acknowledges that prior to the July 31, 2020, VA examination, the evidence persuasively shows that the Veteran's bilateral flatfeet manifested by pain accentuated on use and manipulation, characteristic callosities, and even extreme tenderness of plantar surfaces of the feet which was improved with orthotic appliances. That level of symptomatology is consistent with a 30 percent rating for severe manifestations of bilateral flatfeet. To warrant the next highest rating, 50 percent, under Diagnostic Code 5276, the evidence must show that the disability is "pronounced" such that it is manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achillis' tendon on manipulation, not improved by orthopedic shoes or appliances. The phrase "not improved by orthopedic shoes or appliances" in the 50 percent criteria applies to each of the preceding listed symptoms. In that regard, the October 2017 VA examination report is the only probative evidence prior to the July 2020 VA examination report that specifically addresses the applicable rating criteria and found that extreme tenderness of the plantar surfaces of the feet were present, but were improved by built-up shoes and orthotics, and that there was no showing of marked pronation, inward bowing, marked inward displacement, or severe spasm of the Achilles tendon.

The Board also assigns some probative weight to the Veteran's January 2020 Board hearing testimony but such probative weight is limited to the Veteran's testimony regarding symptoms that are capable of lay observation such as his observations that his bilateral flatfeet symptoms had worsened since the October 2017 VA examination. The Veteran is competent to report observable symptoms including onset and duration of pain, inability to walk or stand for prolonged periods due to pain, and that his pain has increased in severity as time passed. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Moreover, there is no contradictory medical records or other evidence between the Veteran's May 2019 VA treatment record noting bilateral feet pain and his January 2020 hearing testimony in which he described worsening symptoms. Therefore, the Board finds that the January 2020 hearing testimony regarding the Veteran's symptoms that are capable of lay observation is competent and credible because it is consistent with and not contradicted by the other evidence record.

The Board notes that during the January 2020 Board hearing, the Veteran reported that his flatfeet had increased in severity warranting a 50 percent rating. Although the Veteran testified that he was receiving accommodations at work and that he believes that his bilateral flatfeet disability had worsened since October 2017, the Veteran did not explain how or why he believes and is competent to opine that such observations are analogous to the 50 percent rating criteria. While the Veteran is competent to describe symptoms related to his bilateral flatfeet and is credible to the extent that he believes he is entitled to a higher rating, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. While lay persons are competent to provide opinions on some medical issues, determining the severity of complex conditions, such as bilateral flatfeet, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, in this case,
7, the Veteran did not explain how or why he believes and is competent to opine that such observations are analogous to the 50 percent rating criteria. While the Veteran is competent to describe symptoms related to his bilateral flatfeet and is credible to the extent that he believes he is entitled to a higher rating, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. While lay persons are competent to provide opinions on some medical issues, determining the severity of complex conditions, such as bilateral flatfeet, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, in this case, competent medical evidence concerning the nature and extent of the Veteran's flatfeet disability was provided by medical professionals who personally interviewed and evaluated the Veteran during VA examinations and treatment visits. Thus, the competent lay evidence is outweighed by the competent medical evidence as to the onset of and severity of symptoms of the Veteran's bilateral flatfeet with arthritis disability.

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. The Board notes that the Veteran's bilateral flatfeet includes bilateral arthritis. However, the evidence of record is against a finding that the disabilities have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. To this point, the VA examination reports, VA treatment records, and the Veteran's lay reports describe bilateral feet pain with occasional reference to big toe pain. This bilateral arthritis pain is already contemplated in rating for the Veteran's bilateral flatfeet with arthritis as indicated in the VA examination reports, VA treatment records, and applicable rating criteria.

During the April 2024 Board hearing and in a July 2024 brief, the Veteran's representative argued that based on "new and material evidence" from a July 2020 VA examination following the March 2020 Board remand decision, the issue of whether the Veteran is entitled to a 50 percent rating from the date of the September 2017 claim is controlled by 38 C.F.R. § 3.400(q) and cited Porcher v. McDonough (2023) (a single-judge memorandum decision), Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015), and Young v. Shinseki, 22 Vet. App. 461, 469 (2009). The Board notes that as a single-judge decision, such as Porcher, carries no precedent and is not binding on any other cases but may be cited and relied upon for any persuasiveness or reasoning it contains. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992).

The Board has thoroughly reviewed the arguments of and referenced regulations, codes, and case law cited by the arguments during the April 2024 Board hearing and in the July 2024 brief.

In the April 2024 testimony and July 2024 brief, the representative expressly argued that once the Veteran submitted his timely appeal, the "provisions under 38 C
, 469 (2009). The Board notes that as a single-judge decision, such as Porcher, carries no precedent and is not binding on any other cases but may be cited and relied upon for any persuasiveness or reasoning it contains. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992).

The Board has thoroughly reviewed the arguments of and referenced regulations, codes, and case law cited by the arguments during the April 2024 Board hearing and in the July 2024 brief.

In the April 2024 testimony and July 2024 brief, the representative expressly argued that once the Veteran submitted his timely appeal, the "provisions under 38 C.F.R. § 3.400(o), no longer applied and were suspended until VA took final disposition;" and that the provisions of 38 C.F.R. § 3.400(q) direct VA to assign an effective date for the 50 percent rating corresponding to the September 26, 2017, claim for an increased rating. The Board cannot find any no explanation in the argument or cited materials as to why the provisions of 3.400(o) would be suspended or inapplicable to the present matter.

While 3.400(q) establishes the procedural mechanism by which finality of a rating decision is suspended or tolled based on receipt of new and material evidence within one year after a rating decision or prior to an appellate decision, the Board finds that there is no dispute as to finality of the November 2017 rating decision on appeal. To this point, the evidence persuasively establishes that no new and material evidence was received within one year of the prior June 2016 rating decision or that any rating decision prior November 2017 remained pending or otherwise did not become final, and that the review period on appeal begins with the September 26, 2017, new claim for an increased rating.

Moreover, 3.400(q) does not supersede or suspend 3.400(o) with regard to the effective date for the Veteran's 50 percent evaluation. Based on the procedural history, the complete period on appeal is from September 26, 2017, through August 3, 2020, the date of the SSOC decision on appeal. 38 C.F.R. § 3.400(q) would only be relevant to suspend or toll the finality of the November 2017 rating decision and allowing the Board to review any evidence submitted prior to promulgating this decision. As the Veteran timely appealed the November 2017 rating decision, it has not become final and such finality, or suspension/tolling thereof, is not at issue. In addition, the Veteran successfully opted into the AMA hearing docket when he submitted the August 2020 VA Form 10182 notice of disagreement. Therefore, the evidence review provisions of the Legacy system no longer apply and the applicable evidence review period includes all evidence up to the August 3, 2020, SSOC and all evidence submitted by the Veteran within 90 days following the April 2024 Board hearing. See 38 C.F.R. § 20.302. The Board also notes that during the April 2024 Board hearing, the Veteran's representative testified that the evidentiary record was complete as of the SSOC and there was no additional evidence to add to the Veteran's file.

The representative's assertion that September 26, 2017, the date of claim, is the proper effective date for the award of a 50 percent evaluation is based on his argument that the July 2020 VA examination was new and material evidence received prior to this appellate decision. While the July 2020 VA examination was in fact received prior to this appellate decision and within an applicable AMA evidence window, this argument is not persuasive as to why the Board should assign an effective date corresponding to the date of the July 2020 VA examination. This argument is counter to the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o) which, as noted above, establish an effective date for the award of an increased rating no earlier than the date as of which it is factually ascertainable that an increase in disability has occurred; or the later date of either the receipt of claim or the date of increase in severity of the disability as established by the facts of the case. To this point, as explained above, the evidence persuasively shows that the July 31, 2020, VA examination is the earliest factually ascertainable date from which the Veteran's bilateral flat feet with arthritis disability manifested by symptoms contemplated by the 50 percent rating criteria.

In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for the Veteran
as noted above, establish an effective date for the award of an increased rating no earlier than the date as of which it is factually ascertainable that an increase in disability has occurred; or the later date of either the receipt of claim or the date of increase in severity of the disability as established by the facts of the case. To this point, as explained above, the evidence persuasively shows that the July 31, 2020, VA examination is the earliest factually ascertainable date from which the Veteran's bilateral flat feet with arthritis disability manifested by symptoms contemplated by the 50 percent rating criteria.

In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for the Veteran's bilateral flatfeet prior to July 31, 2020. As the evidence of record persuasively weighs against a rating in excess of 30 percent prior to July 31, 2020, 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).

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Webb, Katherine S.

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.

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