Citation Nr: 1751785 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 08-16 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to May 16, 2017, and 20 percent thereafter, for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first metatarsophalangeal (MTP) joint. 2. Entitlement to an initial rating in excess of 10 percent prior to May 16, 2017, and 20 percent thereafter, for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran had active military service from August 1978 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for bilateral plantar fasciitis, evaluated as noncompensable, effective September 1, 2005. In March 2011, the Veteran testified at a Board hearing regarding the plantar fasciitis issues. The Veterans Law Judge who conducted the hearing has since retired from the Board. The Veteran declined to have another hearing. In November 2011, the Board, in relevant part, remanded the claims. In September 2012, the Agency of Original Jurisdiction (AOJ) issued a rating decision recognizing several separate aspects of the Veteran's foot disability, to include residual scar, status post removal of neuroma, right foot; right foot hallux valgus; left foot hammertoes; right foot hammertoes; and neuropathy of right superficial peroneal nerve status post neuroma resection. A 10 percent rating was assigned for the scar and the remaining disabilities were rated as noncompensable. The Veteran has not indicated any disagreement with these separate ratings. In April 2015, the Board granted a 10 percent rating, for bilateral plantar fasciitis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The parties reached an agreement in a Joint Motion for Remand (Joint Motion). In April 2016, the Court granted the joint motion and remanded the plantar fasciitis issue. The grant of the 10 percent rating was not disturbed. In August 2016, the Board granted separate 10 percent ratings for each foot and remanded the claims for further development with respect to entitlement to ratings in excess of 10 percent for each foot. In April 2017, the Board remanded the appeal once again for further development. While on remand, the AOJ increased the disability ratings to 20 percent for each foot, for moderately severe disability, effective May 16, 2017. In January 2017, the Veteran filed a notice of disagreement with a decision concerning dependency. The AOJ is continuing to develop the appeal concerning the dependency issue; Board will defer further consideration of that issue. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. For the period prior to June 1, 2010, the Veteran's bilateral foot disability was manifested by no more than moderate disability in each foot. 2. For the period from June 1, 2010, the Veteran's bilateral foot disability has been manifested by moderately severe disability in each foot without loss of use of toes and feet. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, prior to June 1, 2010, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284 (2017). 2. The criteria for an initial rating in excess of 10 percent for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, prior to June 1, 2010, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284. 3. Resolving doubt in favor of the Veteran, the criteria for a rating of 20 percent for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, are met from June 1, 2010 to May 15, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284. 4. Resolving doubt in favor of the Veteran, the criteria for a rating of 20 percent for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, are met from June 1, 2010 to May 15, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284. 5. The criteria for a rating in excess of 20 percent for the period from June 1, 2010, for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284. 6. The criteria for a rating in excess of 20 percent for the period from June 1, 2010, for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73; Diagnostic Codes 5299-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board remanded the appeal in April 2017, in part, because the December 2016 VA examiner did not fully comply with the August 2016 Remand directives. The May 2017 VA examination report corrected the prior inadequacy by providing needed information regarding ranges of motion and hammer toes. The Veteran has contended that his bilateral foot issues were not adequately assessed by VA examination or VA examiner as his foot condition presented with ongoing pain while ambulating, standing or sitting in addition to having to walk on the sides of his feet at times to provide a modicum of comfort while ambulating or standing or sitting, and that these symptoms were not acknowledged by VA examination or VA examiner. See November 2017 Informal Hearing Presentation. The Board has reviewed the VA examination reports; including the May 2017 VA examination report in which the VA examiner concluded the Veteran's disability was "moderately severe". The May 2017 VA examiner noted the Veteran's reports of ongoing pain while ambulating, standing and sitting and such pain was considered in the examiner's finding of "moderately severe" disability. In fact, the Board has also resolved doubt and awarded the Veteran an increased rating for "moderately severe" disability in each foot since June 1, 2010 as that is the first day of objective evidence of an increase in the Veteran's disability. As to the Veteran's contention that he also has to walk on the sides of his feet at times, this specific symptom was not mentioned by the Veteran at the May 2017 VA examination, it is contemplated by the moderately severe disability and consistent with the Board's decision to grant a 20 percent disability rating in each foot. As such, the VA examination is adequate. The Board finds that the May 2017 VA examiner substantially complied with the Board's prior remand instructions and the Board may proceed to adjudicate the claim at this time. II. Initial Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's bilateral plantar fasciitis was initially rated, by analogy, under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276 (2017). Diagnostic code 5276 provides for a noncompensable rating for mild; symptoms relieved by built-up shoe or arch support. A 10 percent rating is also warranted for moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet, bilateral or unilateral. Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, warrants a 20 percent unilaterally and a 30 percent bilateral. Pronounced; 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 warrants a 30 percent unilaterally and a 50 percent bilaterally. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). In August 2016, the Board changed the diagnostic code to DC 5284, for other foot injuries as that code was also for consideration in determining the appropriate disability rating. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015); see also Yancy v. McDonald, 27 Vet.App. 484 (2016). Under 38 C.F.R. § 4.71(a), Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe disability. A 30 percent rating is warranted for severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2017). The words "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. The Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). All evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6 (2017). Moderate is generally defined as "tending toward the mean or average amount or dimension". See Merriam-Webster's Collegiate Dictionary, 798 (11th ed. 2007). Severe is generally defined as "of a great degree: serious." Id. at 1140. Additionally, as the Veteran has current degenerative joint disease, diagnostic code 5003 and 5010 is for application. Under diagnostic code 5003, a 10 percent rating is warranted for degenerative arthritis with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups. A 20 percent rating is warranted for degenerative arthritis with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, and incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). On the other hand, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). 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. By way of background, the AOJ granted service connection for the Veteran's bilateral foot disabilities in a September 2006 rating decision and assigned a noncompensable rating, effective September 1, 2005. The Veteran disagreed with the initial rating assigned. As discussed in the Introduction above, the Board granted 10 percent initial disability ratings for each foot and remanded the question of entitlement to ratings in excess of 10 percent for each foot. While on remand, the AOJ increased the Veteran's disability ratings to 20 percent for each foot, effective May 16, 2017. For the reasons explained below, the Board resolves doubt in the Veteran's favor and finds that the Veteran's disability warrants a 20 percent rating, but no higher, for "moderately severe" symptoms in each foot as of June 1, 2010. However, the Board finds that higher ratings are not warranted prior to June 1, 2010. a. Factual Background During the December 2005 VA examination, the Veteran reported the severity of his foot pain was a 2 to 4 out of 10, bilaterally. He denied missing work due to the disability. There were no identified factors of flare-ups. He also reported that there was no recent interference with military duties or current daily activities. On physical examination in December 2005, there was no evidence of infection, inflammation, ulceration, abnormal pigmentation, redness, tenderness, swelling or drainage, or excess callus formation about the feet. The examiner diagnosed plantar fasciitis and small calcaneal spurs, bilaterally. X-rays revealed no foot fracture/dislocation, the MTP joints were well preserved but there were small calcaneal spurs. In a December 2005 statement the Veteran reported that he was continuing to have "plantar fasciitis (bone spur)" issues and related severe pain whenever he used his feet in a normal conditioning program. A June 2009 Tricare treatment record notes the Veteran's report that he had some chronic foot pain on the outside of his foot and that he had recently developed a callus that was a little tender. The record also indicated that the physician paired down the callus during the office visit. On examination, the physician noted objective findings that the Veteran's foot motion, gait and stance were all normal. A July 2009 Tricare record notes the Veteran's chief complaint that he needed a new prescription for custom orthotics because he had very high arches with pain along the bilateral balls of his feet and callus formation without the custom orthotics. His pain scale rating that day was zero. He reported that he had some chronic foot pain on the outside of his foot and that he had recently developed a callus that was a little tender. The physician noted that the source of the information was the Veteran and that the information was reliable. The physician also noted the Veteran's report that he had no generalized pain, was not feeling poorly, and was not limping. On physical examination, the physician noted that the Veteran had pes cavus of both feet and hammer toes bilaterally at the fifth toe. The physician noted that the Veteran did not have any of the following foot or toe symptoms: swelling, erythema, induration or abnormal warmth, or tenderness on palpation. The physician noted that the Veteran had normal foot and toe motion and did not have any pain elicited by motion of the feet or toes. The physician also confirmed that the Veteran had a small callus on the bottom of the right foot that was tender to palpation. The Veteran was afforded another VA examination in June 2010; he reported that at rest; while standing; and walking, he experienced pain and swelling. He reported that he managed pain with over the counter medication. He also reported that shoe inserts that were not effective. The examiner noted a history of right foot tendon release and left foot neurolysis surgery both in 2004. The Veteran was able to stand and walk for 15 to 30 minutes. The examiner noted that the diagnosis was bilateral plantar fasciitis and small calcaneal spurs. The examiner noted that the diagnosis had progressed to status post right foot tendon release with residual scar and status post left foot neurolysis surgery with residual. At the March 2011 Board hearing, the Veteran testified that he had swelling when he worked out or was walking. He reported that his feet stayed swollen until lying down at night. He reported that elevating his feet to sleep helped and he took ibuprofen. He reported that callouses built up over time and had to be removed. He reported that his shoes and orthotics would regularly break down due to his improper gait. He also reported that he would routinely cut holes in his shoes and orthotics in order make room for his recurring callous until he could have it surgically removed. He reported that anticipated having it removed soon after the hearing, for the fourth time in less than two years. In a June 2011 statement, the Veteran contended that his disability should be rated under Diagnostic Code 5284 instead of 5276. He reported that his foot was not stable as he formed a callous in the center of the ball of the right foot behind the right toe. This callus became more and more painful as it grew. The Veteran reported that he had had callouses removed four times. He again reported wear and breakdown based on his gait. In a November 2011 statement, the Veteran wrote that his shoes showed extreme and unusual wear as well as breakdown. He reported that he had to have two in-office repairs of the ball of his right foot during the last two years. He overcompensated and had to have a doctor remove a callus from the ball of his right foot. The Veteran was afforded another VA examination in March 2012. The examiner diagnosed bilateral calcaneal spurs and plantar fasciitis. The Veteran reported the previously noted history of callous formation and treatment. He reported that he regularly used a pumice stone to prevent regrowth. He also reported that even when the callous was small, it was painful and that when it grew it became more painful and felt like he was walking on a marble. The Veteran reported that because of this painful callous he had not been using orthotics during the past year. He reported that over time he experienced persistent symptoms of bilateral plantar fasciitis such that the both feet seemed equally affected. He did not report foot pain at rest or when not weight-bearing but reported that his pain was intermittent at the bilateral heels and along the longitudinal arch of the feet. He reported that the pain was the most severe first thing in the morning after arising from bed and within 10 minutes the feet loosen up. Walking was limited to two to three miles due to plantar fascia pain. He also reported increased bilateral plantar fascia pain when he stood up and walked after prolonged periods of sitting. On physical examination in March 2012, the examiner noted that the Veteran did not have Morton's neuroma, metatarsalgia or hallux rigidus; however, the examiner noted that the Veteran did have pes cavus. The examiner also noted that by report the Veteran underwent plantar fascia release but there was no residual scar due to this surgical procedure. The examiner noted that the Veteran's shoes had increased wear at the lateral heel but only slightly increased wear along the lateral edge of the remainder of the shoes consistent with a mild (but not moderate or severe) cavus foot deformity. The examiner noted that the Veteran was quite tender to palpation of the heels and along the medial longitudinal arch of both feet, consistent with bilateral plantar fasciitis. X-rays revealed bilateral arthritis. The examiner concluded, in relevant part that the Veteran had bilateral degenerative joint disease at the first MTP joint demonstrated on current X-rays and had a recurrent symptomatic callus of the right foot. The examiner noted that there was tenderness to palpation of the right plantar third metatarsal head over an area of callus that was presently only slightly raised. The March 2012 VA examiner noted that X-ray examinations of the feet showed 5mm enthesophyte inferior os calcis insertion of plantar fascia, bilaterally. The examiner explained that this was consistent with the Veteran's history of calcaneal spur. The examiner also noted that despite the radiologist reports of pes planus there was no evidence of pes planus (flatfoot) on physical examination and there was no evidence of pes planus in review of the claims file. The March 2012 VA examiner explained that the Veteran had reported that over the years he thought that his arches bilaterally had fallen some and the examiner indicated this when he ordered the X-rays. The examiner concluded that it was likely that the radiologist reading the films took this self-reported history into consideration when reading the films. The examiner again explained that there was no objective evidence of right pes planus. The examiner noted that in fact the Veteran's arches were on the higher side and had the appearance of mild pes cavus. The examiner concluded that a diagnosis of right pes planus was not warranted. The March 2012 VA examiner also concluded, in relevant part, that the Veteran had a recurring callus at the right plantar third metatarsal head and it was most likely caused by his service-connected bilateral plantar fasciitis which has required frequent medical followup over time. The examiner explained that his long-standing bilateral plantar fasciitis had caused alteration of the normal dispersion/transfer of force across the foot during weight-bearing activities due to pain and chronic inflammation of the plantar fascia. The March 2012 VA examiner explained that in the normal foot the plantar fascia functions in conjunction with the bones and intrinsic muscles of the foot to absorb shock/forces while the weight is being shifted to propel the foot forward. The examiner explained that in plantar fasciitis the pain prohibits the planter fascia from working properly and weight forces are shifted to other parts of the foot. The examiner explained that this alters the biomechanics of the foot and most likely caused the Veteran's recurrent right foot callus. The examiner noted that there were no left foot calluses. The March 2012 VA examiner also noted that the Veteran had bilateral pes cavus and that such was generally a congenital condition. The examiner concluded the Veteran's pes cavus was most likely congenital and not likely part of his service-connected bilateral foot disability and not likely caused or aggravated by his bilateral plantar fasciitis. The March 2012 VA examiner concluded that considering all of the Veteran's service connected bilateral foot conditions, the Veteran's overall bilateral foot disability was moderate in severity. The examiner based the opinion on the Veteran's report that he did not require use of assistive devices, had foot pain first thing in the morning when arising and with prolonged weight-bearing but not at rest, that the Veteran was able to walk a few miles, and that the Veteran's feet did not impair work or performance of activities of daily living. In December 2016, the Veteran was once again provided with a VA examination. At that time, the examiner noted diagnoses of bilateral pes cavus, bilateral plantar fasciitis, and degenerative arthritis bilaterally. Regarding functional impairments, the Veteran reported that it hurts when he walks, and that he could not walk and do as much as he used to do. The examiner noted that the Veteran had pain on use of both feet that was accentuated on use, but he did not have pain on manipulation of either foot and did not have any swelling on use of either foot. The examiner noted that the Veteran had characteristic calluses on both feet but did not have extreme tenderness of plantar surfaces on either foot. The Veteran did not have any decreased arch height on weight bearing, or marked deformity of either foot, he had no pronation of either foot, the weight-bearing line did not fall over or was medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, the Veteran had no inward bowing of the Achilles' tendon. The Veteran had no marked inward displacement or severe spasm of the Achilles' tendon on manipulation of one or both feet. The December 2016 VA examiner opined that the Veteran had acquired pes cavus and that the disability caused very painful callosities on both feet as well as a shortened plantar fascia. However, the examiner found that the Veteran's pes cavus had no effect on toes or dorsiflexion or varus deformity. The December 2016 VA examiner also determined that the Veteran's degenerative joint disease in the feet was mild. The examiner noted that the disability chronically compromised weight bearing. The examiner also found that the residuals of the Veteran's right tendon procedure in 2004 were increased pain. The examiner found that the Veteran's pain contributed to functional loss including interference with standing, walking, recreational activities and work. The examiner did not find any contributing pain, weakness, fatigability, or incoordination that significantly limited the Veteran's functional ability during flare-ups or when the foot was used repeatedly over a period of time. The December 2016 VA examiner also note the Veteran's right foot surgical scar which measured 2.5cm in length by .25cm in width. The examiner noted that the scar was not painful or unstable and did not have a total area equal to or greater than 39 square cm. The Veteran denied using any assistive devices. Overall, the examiner found that the functional impact of the Veteran's disability was that he was limited to occasional walking and standing. The December 2016 VA examiner opined that the Veteran had pes cavus and that the pes cavus was likely an undiagnosed condition causing his plantar fasciitis. The examiner opined that the chronic condition of the feet led to DJD. The examiner also explained that chronic plantar fasciitis are continuous tears to the plantar fascia causes internal bleeding which calcifies over time and causes arthritis. The examiner was not able to distinguish symptoms applicable to each of the foot diagnoses and explained that there was too much overlap. Following the Board's April 2017 remand, the Veteran was provided with another VA examination in May 2017. The May 2017 VA examiner evaluated the severity of bilateral foot disabilities, including bilateral calcaneal spurs and plantar fasciitis, bilateral hammer toes, bilateral pes cavus, right hallux valgus, bilateral, first MTP DJD, right foot neuroma, right foot callus, right foot surgical scar, and sensory neuropathy of right superficial peroneal nerve status post neuroma resection. At that time, with respect to plantar fasciitis symptoms, the Veteran reported that he usually had no pain in either foot although he occasionally had pain and swelling in both feet at rest, after standing or walking for more than one hour. He also reported pain in both feet early in the morning when he first stands. He reported that such pain occurred 3-4 days per week, usually the mornings following a heavier day of activity. He reported he had pain in both feet after about one hour of standing or walking. He reported that he was able to self-treat to resolve the pain by resting for about one hour and then he was usually able to get back on his feet for another hour. Regarding hammer toe symptoms, the Veteran reported that he had the calluses from the metatarsal head region shaved regularly. He reported that the calluses were asymptomatic once shaved. He also reported that prolonged standing without foot pads resulted in pain at the base of the metatarsal heads, and was attributed to effects of pes cavus and plantar fasciitis. With respect to orthotics, the Veteran reported that he had not worn prescription orthotics since 2005 but he reported that thick padded shoe inserts helped in the foot beds of his shoes. He reported that he began using the shoe inserts about three years prior to the examination and replaced them each time he purchased new shoes. He reported improvement (but not resolution) of bilateral foot pain with use of the shoe inserts. The Veteran reported bilateral plantar foot pain with standing or walking more than one hour. He specifically reported that his pain was in the heels and balls of his feet. He denied having flare-ups that impact the function of the foot; however, he did report functional impairment in that he was unable to stand comfortably or walk or do other ambulatory exercises for more than one hour, due to bilateral plantar foot pain. On physical examination, the May 2017 VA examiner noted that the Veteran had extreme tenderness of the plantar surfaces on both feet and that the tenderness was improved by orthotics. The examiner noted that the Veteran did not have any of the following: decreased longitudinal arch height of one or both feet on weight-bearing, marked deformity of either foot, or marked pronation of either foot. The examiner also noted that the weight-bearing line did not fall over or medial to the great toe in either foot. The examiner also noted that the Veteran did not have inward bowing of the Achilles' tendon or marked inward displacement or severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation of either foot. Following the May 2017 VA examination, the AOJ increased the disability rating to 20 percent, for each foot, based on the May 2017 VA examiner's finding that the Veteran's disability was "moderately severe" in each foot. Diagnostic Code 5284 provides for a 20 percent disability rating for moderately severe symptoms. b. Analysis Resolving doubt in the Veteran's favor, the Board finds that the Veteran's disability warrants a 20 percent rating for "moderately severe" symptoms in each foot as of June 1, 2010. The symptoms described in the May 2017 VA examination report are consistent with those reported during the VA examinations beginning in June 2010. Prior to June 1, 2010, the Board finds that higher initial ratings are not warranted as the Veteran's pain was not as severe and did not interfere with his work and daily activities. See e.g. December 2005 VA examination report. The Veteran did report in a December 2005 statement that he had severe pain whenever he used his feet in a normal conditioning program. However, the Veteran's statement is inconsistent with his report to the VA examiner that same month, that his pain was at a 2 to 4 out of 10, bilaterally. Moreover, the December 2005 VA examiner's objective findings of a lack of swelling, inflammation, tenderness, or excess callus formation are persuasive. The Board acknowledges that the Veteran had one of his calluses paired down for the first time, in June 2009, in the physician's office. However, the Tricare treatment record did not indicate any substantial pain or interference with daily activities due to the callus. Additional treatment records similarly acknowledge the Veteran's chronic pain and use of orthotics but reflect a normal gait and no complaints of pain so significant as to interfere with the Veteran's activities of daily living. For all of these reasons, the Board finds that the evidence shows a shift in the severity of the disability in June 2010, but not earlier. The 20 percent disability ratings are warranted for each foot from June 1, 2010 based on moderately severe disability. In argument to the Board in November 2017 the Veteran's representative argued that he had ongoing pain when ambulating, standing, or sitting, and that he sometimes had to walk on the sides of his feet for relief. However, this is contrary to the Veteran's own reports at the most recent examination, when he said that he usually had no pain at rest and only after standing or walking for more than an hour. The Board finds that his symptoms are not "severe" as he is able to manage his symptoms with over the counter medication and does not require use of an assistive device in order to ambulate. The 20 percent rating under Diagnostic Code 5284 contemplates the Veteran's pain upon walking, standing, sitting, and having to walk on the sides of his feet occasionally, as noted generally in the medical and lay evidence described above. In finding that the Veteran's disability warrants a 10 percent rating in each foot prior to June 1, 2010 and a rating of 20 percent, but no higher, in each foot thereafter, the Board considered DeLuca factors, as noted in the VA examination reports, as well as the Veteran's testimony and written statements. See also Mitchell, supra. The evidence does not show that the Veteran's bilateral foot disability approximates actual loss of use of the either foot or toes. The evidence shows that he is able to stand and walk albeit for limited periods of time. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. The Board has also considered entitlement to a separate or higher evaluation under Diagnostic Codes 5266 (flatfoot), 5277 (weak foot), 5278 (claw foot), 5279 (metatarsalgia (Morton's disease)), 5281 (hallux rigidus), and 5282 (hammer toe). 38 C.F.R. § 4.71a (2017). However, there is no objective medical evidence showing symptomatology that warrants a compensable rating under any of the aforementioned diagnostic codes. Higher ratings are not warranted under DC 5276 for flatfoot because the Veteran does not have flat feet. Higher ratings are not warranted under DC 5266 as there is no evidence of marked pronation or other deformity in either foot. Higher ratings are not warranted under DC 5278 as there is no evidence of dorsiflexion of the great toe or all toes. See e.g. May 2017 VA examination report. Higher or separate compensable ratings are not available 5282 for hammer toes as there is no evidence of all of the Veteran's toes being affected. See May 2017 VA examination report noting two toes on each foot being hammer toes. Moreover, higher or separate ratings are not available under DCs 5277, 5279, 5281 as there is no evidence of Morton's neuroma or metatarsalgia, hallux valgus, or hallux rigidus. See May 2017 VA examination report. The Board has considered whether a separate rating is warranted for arthritis of the feet. VA's General Counsel held that if a disability rating was established under Diagnostic Code 5284, the availability of a separate rating under Diagnostic Code 5003/5010 and the applicability of sections 4.40, 4.45, and 4.59 depends upon the manifestations compensated under Diagnostic Code 5284. VAOPGCPREC 9-98. Diagnostic Code 5284 does not specifically contemplate limitation of motion. However, VA's General Counsel has held that depending on the nature of the foot injury, Diagnostic Code 5284 (foot injuries) may involve limitation of motion and would require consideration of 38 C.F.R. §§ 4.40, 4.45. Id. Here, the Veteran's pain on use of the feet is already compensated under Diagnostic Code 5284. See 38 C.F.R. § 4.14. Thus, the Board finds that separate ratings under Diagnostic Codes 5010/5003, would violate the rule against pyramiding. The Board has considered the representative's March 2017 contention that the Veteran's disability should be rated under Diagnostic Code 5276, as that code provides for a 30 percent disability rating for bilateral foot disability. However, the evidence does not demonstrate marked deformity of either foot at any time pertinent to the appeal. Further, with respect to the period from June 1, 2010, a single 30 percent disability rating for a bilateral foot disability is not more advantageous to the Veteran than two 20 percent disability ratings. In this regard, the combined rating table provides that two 20 percent disability ratings are combined to equate to 36 percent, which is then rounded up to a 40 percent disability rating. See 38 C.F.R. § 4.25, Table I. In sum, a 20 percent rating in each foot, but no higher, is warranted from June 1, 2010. Even after consideration of the lay and medical evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to June 1, 2010, or 20 percent thereafter, for either foot, to include any additional staged ratings. ORDER A rating in excess of 10 percent prior to June 1, 2010, for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint is denied. A rating in excess of 10 percent prior to June 1, 2010, for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint is denied. A rating of 20 percent, from June 1, 2010, for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, is granted subject to the laws and regulations governing payment of monetary benefits. A rating of 20 percent, from June 1, 2010, for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint, is granted subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 20 percent from June 1, 2010 for right foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint is denied. A rating in excess of 20 percent from June 1, 2010 for left foot plantar fasciitis and small calcaneal spurs with degenerative joint disease at the first MTP joint is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs