Citation Nr: 18142805 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-11 163A DATE: October 16, 2018 ORDER Entitlement to an initial 20 percent rating, but not higher, for a right foot disability is granted. REMANDED The claim of entitlement to service connection for a lumbar spine disability, including as secondary to service-connected knee disabilities, is remanded. The claim of entitlement to service connection for a left foot disability, to include plantar fasciitis, is remanded. FINDING OF FACT The Veteran’s right foot disability is productive of pes planus, arthritis, plantar fasciitis, a heel spur and a mild hallux valgus deformity, has worsened over the course of this appeal, and is moderate to severe, causing heel, foot, toe and ankle pain, accentuated on manipulation and use, increased during flare-ups, extreme tenderness on the plantar surface, swelling on use, decreased longitudinal arch height, inward bowing of the Achilles tendon, and characteristic calluses, and requiring assistive devices. CONCLUSION OF LAW The criteria for entitlement to an initial 20 percent rating, but not higher, for a right foot disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an initial compensable rating for right foot plantar fasciitis The Veteran seeks an initial compensable rating for a service-connected right foot disability. In 2013, she asserted that a 10 percent rating was appropriate. In 2016, she claimed that her right foot disability had continuously worsened during her appeal, including since her most recent VA examination, conducted earlier that year. She contends that she now experiences more intense pain more frequently and additional functional loss, including a limited ability to walk, drive, and sit, during flare-ups of pain. She has requested a VA examination based on the worsening. The Board does not believe another VA examination is necessary, the medical evidence of record being sufficient to support the assignment of a higher initial rating for the Veteran’s right foot disability. An in October 2013 rating decision established service connection for right foot plantar fasciitis and assigned that disability a 0 percent rating, pursuant to Diagnostic Code 5276. The disability remains rated under that Diagnostic Code. Since then, treatment providers and VA examiners have diagnosed the Veteran with other right foot disabilities, including arthritis, plantar fasciitis, a heel spur, a mild hallux valgus deformity and, most recently, pes planus (flat feet). Foot disabilities are governed by the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. None of those Diagnostic Codes specifically lists plantar fasciitis. Therefore, the 2013 decision applied Diagnostic Code 5276 for flat feet, as the most analogous diagnostic criteria. 38 C.F.R. §§ 4.20, 4.27 (when an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). In this case, given the Veteran’s newer foot diagnoses, other Diagnostic Codes are also applicable, but Diagnostic Code 5276 provides the Veteran the most favorable rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5280 (allowing for the assignment of a 10 percent rating, at maximum). Diagnostic Code 5276 provides that a 0 percent rating is assigned when symptoms are mild and relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate unilateral or bilateral impairment with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, unilateral or bilateral. A 20 percent rating is assigned for severe unilateral impairment manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 30 percent rating is assigned for pronounced unilateral impairment with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. As this appeal progressed, including during treatment visits or VA examinations conducted in October 2013 and February 2016, medical professionals noted that the Veteran had heel, foot, toe and ankle pain, accentuated on manipulation and use, increased during flare-ups, extreme tenderness on the plantar surface, swelling on use, decreased longitudinal arch height, inward bowing of the Achilles tendon, and characteristic calluses. As the above criteria show, some of these symptoms are associated with 10 percent disabling flatfeet, others are associated with 20 percent disabling flatfeet, and one is associated with 30 percent disabling flatfeet. When there is a question as to which rating should be applied, the higher rating 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. In this case, the Board finds that the Veteran’s right foot disability picture more nearly approximates the criteria for an initial 20 percent rating. Although she uses inserts to improve her right foot symptoms, during the appeal, she was shown to have accentuated pain on manipulation and use of the right foot, worse during flare-ups, swelling, characteristic calluses, and a deformity, albeit mild. In February 2016, a VA examiner noted that the Veteran’s right foot disability had worsened since 2013 and characterized the severity of that disability as moderate, a characterization that, according to the above criteria, would indicate it is 10 percent disabling. However, later in 2016, the Veteran reported that the disability had worsened since the 2016 examination. The Veteran is competent to report that fact and there is no evidence of record to suggest that the Board should question her credibility in that assertion. Certainly, the symptoms noted above substantiate her assertion, showing that the disability is moderate to severe. Also, the October 2013 and February 2016 VA examination reports substantiate her assertion, showing that, sometime during the appeal, she began having flare-ups of right foot pain, which further limit her ability to function, and regularly using ambulatory aids, including a cane and night splint. Those findings satisfy the criteria for entitlement to an initial 20 percent rating for a right foot disability, but not higher. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5276. An initial rating in excess of 20 percent is not assignable because, although the Veteran has been shown to have extreme tenderness of the plantar surface of her right foot, one of the criteria for a 30 percent rating, and her right foot disability is not pronounced. Rather, as previously noted, it is moderate to moderately severe. In addition, the right foot symptoms are helped using an insert or other appliance and do not include pronation, marked or otherwise, or inward displacement and severe spasm of the tendo achillis. The Board finds that a higher rating cannot be assigned under Diagnostic Code 5284 for other foot injuries. A moderately severe disability warrants a 20 percent rating. A severe foot disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board finds that although there are multiple diagnoses that could support the use of Diagnostic Code 5284, nonetheless the symptoms more nearly approximate the criteria used to rate flat feet. Furthermore, the Board finds that the preponderance of the evidence is against a finding that a severe right foot disability is shown. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent initial rating for a right disability, but that the preponderance of the evidence is against the assignment of any higher rating. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability, including as secondary to service-connected knee disabilities Entitlement to service connection for a left foot disability, to include plantar fasciitis The Veteran seeks service connection for a lumbar spine disability on either a direct basis, as related to, or initially manifesting in, service, or secondary basis, as related to, or aggravated by, his service-connected knee disabilities. She seeks service connection for a left foot disability on a direct basis, as initially manifesting in service. There are VA examiners’ opinions of record addressing the etiology of the claimed disabilities, but each is inadequate to decide these claims. First, the VA examiner who discussed the back disability focused solely on its alleged relationship to the Veteran’s knee disabilities. Despite service medical records showing in-service back complaints, the examiner did not comment on whether those complaints represent the initial manifestations of the current back disability, or whether that disability is otherwise related to the Veteran’s service. Second, the VA examiner who discussed the left foot disability acknowledged one in-service left foot complaint, but found that no such disability existed on examination. The examiner did not discuss the significance of treatment records showing left foot diagnoses. Additional opinions are therefore needed. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination of the back and left foot. The examiner should review the Veteran’s file, including: (a) service medical records (active duty and Reserve), which include multiple references to back and left foot complaints during service, within a year of discharge and thereafter, often in conjunction with ankle, leg and knee complaints; and (b) post-service treatment records and VA examination reports, which include multiple back and left foot diagnoses. The examiner should record in detail the Veteran’s history of back and left foot symptoms. After conducting a physical evaluation, including any necessary testing, the examiner should diagnose all back and left foot disabilities shown to exist or which were diagnosed during the appeal. Accepting as competent any report of lay-observable back and left foot symptoms, the examiner should opine whether the Veteran’s back disability at least as likely as not (50 percent probability or greater) initially manifested in service as the documented back complaints, or, if productive of arthritis, within a year of separation from service, or whether it is at least as likely as not otherwise related to service. If not, the examiner should opine whether the Veteran’s low back disability is due to or aggravated by service-connected knee and right foot disabilities beyond the natural progression. The examiner should also opine whether a left foot disability at least as likely as not (50 percent or greater probability) initially manifested in service as the documented left foot complaints, or if productive of arthritis, within a year of separation from service, or whether it is at least as likely as not otherwise related to service. If not, the examiner should opine whether the Veteran’s left foot disability is due to, the result of, or aggravated by service-connected knee and right foot disabilities beyond the natural progression. The examiner should provide the rationale for each opinion. Harvey Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. N., Counsel