12-31 413
12-31 413
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served in the Marine Corps (1975–1979) and was service‑connected for bilateral pes planus with chronic plantar fasciitis and right plantar spur (initially 10%, later assigned 30%).
- Temporary 100% evaluations were assigned following foot surgeries in 2004 and 2010 for convalescence periods.
- Veteran reports ongoing foot pain with marked pronation and extreme plantar tenderness, aggravated by prolonged standing/walking; uses gel inserts/orthopedic shoes and reports symptom improvement after 2010 surgery.
- December 2016 VA exam documented marked pronation, decreased longitudinal arch, extreme tenderness, and pain on manipulation/use, but did not find marked inward displacement or severe Achilles spasm on manipulation.
- Board compared symptoms against DC 5276 (30% vs. 50% criteria) and found the evidence did not meet the 50% criteria; low back increased‑rating claim remanded because the December 2016 back exam lacked passive and weight‑bearing motion testing per Correia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether foot rating should be increased above 30% under DC 5276 | Veteran contends pain, marked pronation, and extreme tenderness warrant >30% | VA/Board argues absence of marked inward displacement and severe Achilles spasm and improvement with appliances precludes 50% | Denied — 30% retained (criteria for 50% not met) |
| Whether low back rating should be increased above 10% under DC 5237 | Veteran seeks higher rating based on symptom severity | VA relies on December 2016 exam, but Board finds it inadequate under Correia | Remanded — for adequate back exam including active/passive and weight/non‑weight bearing testing |
Key Cases Cited
- Francisco v. Brown, 7 Vet. App. 55 (present level of disability is primary consideration)
- Correia v. McDonald, 28 Vet. App. 158 (VA exams must test pain on active/passive motion in weight/non‑weight bearing)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule for veterans claims)
- Hart v. Mansfield, 21 Vet. App. 505 (staged ratings appropriate when distinct time periods show different levels of disability)
- Kutscherousky v. West, 12 Vet. App. 369 (right to submit additional evidence after remand)
- Gonzales v. West, 218 F.3d 1378 (no need to discuss every piece of evidence; Board may summarize record)