Citation Nr: 18143210 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-34 243 DATE: October 18, 2018 ORDER Entitlement to an initial compensable evaluation for hallux valgus, left foot is denied. Entitlement to an initial compensable evaluation for hallux valgus, right foot is denied. Entitlement to an initial evaluation in excess of 20 percent for plantar fasciitis, left foot with metatarsalgia is denied. Entitlement to an initial evaluation in excess of 20 percent for plantar fasciitis, right foot with metatarsalgia is denied. Entitlement to an evaluation in excess of 50 percent for bilateral plantar fasciitis with metatarsalgia from March 27, 2018, is denied. Entitlement to an effective date prior to October 18, 2005, for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus is dismissed. FINDINGS OF FACT 1. For the entire period, hallux valgus of the left foot is manifested by mild or moderate symptoms. 2. For the entire period, hallux valgus of the right foot is manifested by mild or moderate symptoms. 3. Prior to March 27, 2018, plantar fasciitis of the left foot with metatarsalgia manifested in painful motion, tenderness and abnormal weight bearing, and was classified as no more than a moderately severe impairment of the left foot. 4. Prior to March 27, 2018, plantar fasciitis of the right foot with metatarsalgia manifested in painful motion, tenderness and abnormal weight bearing, and was classified as no more than a moderately severe impairment of the right foot. 5. From March 27, 2018, bilateral plantar fasciitis with metatarsalgia manifested in marked pronation, and extreme tenderness of plantar surfaces of the feet. 6. The Board’s June 2015 decision denying entitlement to an effective date prior to October 18, 2005, for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus is final. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for hallux valgus of the left foot have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (2017). 2. The criteria for an initial compensable evaluation for hallux valgus of the right foot have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (2017). 3. The criteria for an initial evaluation in excess of 20 percent for plantar fasciitis of the left foot with metatarsalgia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 4. The criteria for an initial evaluation in excess of 20 percent for plantar fasciitis of the right foot with metatarsalgia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 5. The criteria for an evaluation in excess of 50 percent from March 27, 2018, for bilateral plantar fasciitis with metatarsalgia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). 6. The Board’s June 2015 decision denying entitlement to an effective date prior to October 18, 2005 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus is final. 38 C.F.R. § 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to December 1960 and from January 1961 to April 1978. In June 2015, the Board remanded the matter of entitlement to an initial evaluation in excess of 20 percent for bilateral plantar fasciitis with metatarsalgia and hallux valgus for the issuance of a Statement of the Case. Subsequent to that Remand, an April 2018 rating decision granted separate initial evaluations for plantar fasciitis, and a combined evaluation for bilateral plantar fasciitis from March 27, 2018. In addition, it granted separated evaluations for hallux valgus of each foot. An April 2018 Statement of the Case was issued. In the Veteran’s Form 9 Substantive Appeal, he made clear that he sought to challenge each evaluation, including the noncompensable evaluations for hallux valgus. Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, “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). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined the current uniform noncompensable evaluations for hallux valgus of the feet is appropriate. It has also determined that the current staged ratings for plantar fasciitis with metatarsalgia are appropriate. 1. Entitlement to an initial compensable evaluation for hallux valgus, left foot 2. Entitlement to an initial compensable evaluation for hallux valgus, right foot The Veteran is in receipt of separate noncompensable initial evaluations for hallux valgus under Diagnostic Code 5280, effective October 18, 2005. Diagnostic Code 5280 warrants a 10 percent evaluation for unilateral hallux valgus resulting in operation with resection of metatarsal head or severe symptoms, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. A review of the medical evidence does not indicate that the Veteran has undergone surgery for hallux valgus at any time. This is confirmed by findings at the most recent VA examination in March 2018. In addition, the medical evidence, including the most recent VA examination, indicates that the Veteran’s hallux valgus has manifested in mild or moderate symptoms. As there is no evidence of severe symptoms equivalent to amputation of the great toe or surgery specific to hallux valgus for either foot, a compensable evaluation for hallux valgus is not warranted for either foot. The Board notes the Veteran’s contentions. He is competent to testify to lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. Here, the criteria for a compensable evaluation for hallux valgus are not met, and a noncompensable evaluation must be assigned. 38 C.F.R. § 4.31. 3. Entitlement to an initial evaluation in excess of 20 percent for plantar fasciitis, left foot with metatarsalgia 4. Entitlement to an initial evaluation in excess of 20 percent for plantar fasciitis, right foot with metatarsalgia Pursuant to the aforementioned April 2018 rating decision, the Veteran is in receipt of separate initial evaluations of 20 percent for plantar fasciitis with metatarsalgia of each foot under Diagnostic Code 5284, effective October 18, 2005. Effective March 27, 2018, the RO assigned a 50 percent evaluation for bilateral plantar fasciitis with metatarsalgia under Diagnostic Code 5276. Under Diagnostic Code 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities warrants a 30 percent rating when bilateral and a 20 percent rating when unilateral. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, warrants a 50 percent rating when bilateral and a 30 percent rating when unilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and, severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. The words “moderate,” “moderately severe,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Furthermore, the use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at an appropriate rating that would compensate the veteran for losses such as impairment in earning capacity and functional impairment. 38 C.F.R. §§ 4.2, 4.6. At a February 2005 VA examination, the examiner noted pronation of both feet. There was not weakness of dorsiflexion of the big toe. There was no evidence of varus, valgus or Morton’s neuroma. There was pain. At a May 2011 VA examination, the Veteran reported pain in the ball of the foot and plantar heel. The use of orthotics partially reduced foot pain. In the left foot, there was not swelling, instability or weakness. There was painful motion, tenderness and abnormal weight bearing. There was no muscle atrophy. In the right foot, there was not painful motion, swelling, instability, weakness or abnormal weight bearing. There was tenderness. There was no muscle atrophy. While outside of this time period, the Board has considered the March 2018 VA examination of record. At the March 2018 VA examination, there was bilateral pain, extreme tenderness of the plantar surfaces not improved by orthotics and marked pronation. There was not marked inward displacement and severe spasm of the Achilles tendon on manipulation. After a review of the medical and lay evidence, the Board has determined that the current separate initial evaluations of 20 percent for each foot under Diagnostic Code 5284 are appropriate. The objective medical evidence does not indicate that there was marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the achilles tendon on manipulation of either foot. To the degree that marked pronation and extreme tenderness likely predated the March 2018 VA examination, the criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991). There is no indication that the Veteran’s plantar fasciitis of either foot resulted in marked inward displacement and severe spasm prior to March 2018. To the extent that the Veteran’s plantar fasciitis with metatarsalgia manifested in “severe” symptoms under the criteria of Diagnostic Code 5276, such an evaluation during this time period would not be advantageous to the Veteran as it would result in at most a 30 percent bilateral evaluation, no greater than the current evaluation. Specific to Diagnostic Code 5284, a review of the evidence does not indicate that either foot manifested in symptoms consistent with the severe criteria during this time period. While there was evidence of a variety of symptoms, including pain, the Veteran was noted to be able to ambulate a quarter of a mile and stand for 15 to 30 minutes at the May 2011 VA examination. VA examination and treatment records during this period simply do not reflect symptoms consistent with a 30 percent evaluation for either foot under Diagnostic Code 5284. The Board has again considered the Veteran’s contentions. Jandreau, supra. However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Specific to the Veteran’s assertion that a separate evaluation for metatarsalgia should be granted, the Board notes that symptoms associated with metatarsalgia have been considered with the current 20 percent evaluations under Diagnostic Code 5284. As a result, separate evaluations would amount to pyramiding. 38 C.F.R. § 4.14. The preponderance of the evidence is against an initial evaluation in excess of 20 percent for either left foot plantar fasciitis with metatarsalgia or right foot plantar fasciitis with metatarsalgia. 38 C.F.R. § 4.3. 5. Entitlement to an evaluation in excess of 50 percent for bilateral plantar fasciitis with metatarsalgia from March 27, 2018 Effective March 27, 2018, the Veteran is in receipt of the schedular maximum under Diagnostic Code 5276. After a review of the medical and lay evidence during this period, to include the aforementioned March 2018 VA examination, the Board has determined that the Veteran’s bilateral plantar fasciitis with metatarsalgia does not more closely approximate severe foot injuries under Diagnostic Code 5284. At the March 2018 VA examination, there was bilateral foot pain with weight bearing and range of motion activities. However, examination does not indicate that the Veteran is severely restricted in ambulation, standing or other relevant activities. In addition, there is no evidence of malunion or nonunion of the tarsal or metatarsal bones, as considered by Diagnostic Code 5283, or clawfoot as considered by Diagnostic Code 5278. These are the only alternative Diagnostic Codes potentially allowing for a higher total evaluation. Again, all potentially applicable Diagnostic Codes have been considered. Schafrath, supra. Specific to the Veteran’s assertion that a separate evaluation for metatarsalgia should be granted, the Board again notes that symptoms associated with metatarsalgia have been considered with the current 50 percent evaluation. As a result, separate evaluations would amount to pyramiding. 38 C.F.R. § 4.14. The preponderance of the evidence is against an evaluation in excess of 50 percent for bilateral plantar fasciitis with metatarsalgia from March 27, 2018. 38 C.F.R. § 4.3. 6. Entitlement to an effective date prior to October 18, 2005 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus In a June 2015 decision, the Board denied the Veteran’s claim with respect to entitlement to an effective date prior to October 18, 2005 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus. In the same June 2015 decision, the Board remanded the matter of entitlement to an increased evaluation for bilateral plantar fasciitis for the issuance of a Statement of the Case (SOC). Subsequent to the June 2015 Board decision, an April 2018 SOC was issued by the RO. It appears that the issue of entitlement to an effective date prior to October 18, 2005 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia and hallux valgus was mistakenly addressed in this SOC, as the matter was previously denied by the Board. However, the Veteran filed a timely Substantive Appeal and the matter was certified to the Board. As a result, the Board deems it necessary to address. The June 2015 Board decision denying entitlement to an earlier effective date for the grant of service connection is final. That decision became final as of the date stamped on the decision, June 29, 2015. 38 C.F.R. § 20.100 (a). The record does not indicate that any relevant exception applies. 38 C.F.R. § 20.100 (b). As the Board does not have jurisdiction over this matter, it must be dismissed. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel