Citation Nr: 18160934 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 08-32 469 DATE: December 28, 2018 ORDER Entitlement to a disability rating in excess of 30 percent from April 18, 2005 to August 23, 2010, and in excess of 50 percent thereafter for bilateral pes planus with hallux valgus, is denied. Entitlement to a separate compensable rating for hallux valgus and/or hallux rigidus is denied. Entitlement to a separate compensable rating for metatarsalgia (Morton’s disease) is denied. Entitlement to a separate compensable rating for plantar fasciitis is denied. Entitlement to separate ratings for weak foot, claw foot, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones is denied. REMANDED Entitlement to an extraschedular rating for bilateral pes planus with hallux valgus is remanded. FINDINGS OF FACT 1. Prior to August 23, 2010, the Veteran’s bilateral pes planus was manifested by severe symptoms, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; however, the preponderance of the evidence was against a finding that his pes planus was manifested by pronounced symptoms 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. 2. The preponderance of the evidence is against a finding that the Veteran’s service-connected bilateral foot symptomatology included a diagnosis of metatarsalgia (Morton’s disease). 3. The Veteran’s hallux valgus and/or hallux rigidus has not been shown to be equivalent to amputation of either great toe; nor has the Veteran undergone an operation with resection of the metatarsal head on either foot. 4. Symptomatology associated with the Veteran’s bilateral plantar fasciitis, to include pain on manipulation, overlaps with symptomatology associated with service-connected bilateral pes planus. 5. The Veteran has not demonstrated evidence of weak foot, claw foot, hammertoes, or malunion or nonunion of the tarsal or metatarsal bones. CONCLUSIONS OF LAW 1. Prior to August 23, 2010, the criteria for a rating in excess of 30 percent for bilateral pes planus with hallux valgus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code (DC) 5276 (2017). 2. From August 23, 2010, the Veteran is in receipt of the maximum schedular rating for bilateral pes planus with hallux valgus; there is no legal basis for an increased schedular rating. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5276 (2017). 3. The criteria for a separate compensable rating for metatarsalgia (Morton’s disease) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5279 (2017). 4. The criteria for a separate compensable rating for hallux valgus and/or hallux rigidus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DCs 5280 and 5281 (2017). 5. The criteria for separate compensable ratings for weak foot, claw foot, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DCs 5277, 5278, 5282, and 5283 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a February 2016 decision, the Board denied a rating in excess of 10 percent prior to August 23, 2010 and granted an increased rating of 50 percent thereafter, for service-connected bilateral pes planus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2017 Joint Motion for Partial Remand (JMPR), the Court vacated the February 2016 Board decision to the extent that it denied increased ratings for pes planus, and remanded the matter to the Board. In January 2018, the Board issued a decision granting an increased 30 percent rating prior to August 23, 2010 and denying a rating in excess of 50 percent thereafter. The Veteran once again appealed the decision to the Court. Pursuant to an August 2018 JMPR, the Court vacated the January 2018 Board decision to the extent that it denied increased ratings for pes planus, and remanded the matter to the Board for adjudication consistent with the Court’s order. Merits of the Claim I. Factual Background The Veteran contends that his service-connected bilateral foot symptomatology is more severe than what is reflected by his current disability rating. The matter on appeal dates back to a claim for increase filed in April 2005. The relevant evidence is as follows. On VA examination in October 2005, the Veteran presented with moderate decreased dorsiflexion and crepitus at the right first metatarsophalangeal joint (MPJ). A palpable mass consistent with hypertrophic bone formation was also noted in the same area. There was tenderness at the right first MPJ and both heels that was mild in severity. The examiner noted that the Veteran’s gait was abnormal due to the decreased flexion of his right first MPJ with abduction of the right foot; there was evidence abnormal weight bearing based on shoe-wear pattern on the right shoe. X-rays were performed and the examiner diagnosed plantar fasciitis and hallux limitus, noting that hallux limitus caused moderate effects on the Veteran’s ability to exercise and play sports. The examiner indicated that the Veteran’s symptoms were moderate in severity. The Veteran reported that he had flare-ups of foot pain but did not have limitations on standing; he was able to walk one to three miles, and elevating his feet partially relieved his symptoms. The Veteran also reported swelling and tenderness in both feet. Private podiatry treatment records from February 2007 reflect complaints of pain in the big toe, ball of foot, and medial arch with activity, worse in the right foot than the left. A strong anti-inflammatory medication was prescribed, and custom-made shoe inserts were recommended. At a follow-up appointment one week later, the Veteran reported minimal, slight improvement. The podiatrist indicated that, in his opinion, custom-made orthotics would provide a significant amount of relief. During a general VA medical examination in March 2007, the Veteran reported that he could only walk a half mile but could stand for two hours at a time. The examiner observed that the Veteran had an antalgic gait and did not use assistive devices. An April 2007 letter from the Veteran’s private podiatrist noted that the Veteran had mild pes planus bilaterally, and normal muscle strength, with some weakness and inability to dorsiflex and plantar flex his right great toe completely. The podiatrist noted that there was X-ray evidence of right foot hallux limitus rigidus, including a likely fracture fragment that was completely disarticulated and was likely due to the advanced stage of the hallux limitus rigidus. X-rays showed limited range of motion of that joint, thus increased the demands of the adjacent MPJs. The podiatrist noted that the Veteran had an antalgic gait on the right side, demonstrating signs of a very abducted gait secondary to his bilateral hallux limitus rigidus. The podiatrist also noted that the Veteran had had recent trouble with bilateral plantar fasciitis through the medial and middle bands and occasional shooting pains. The Veteran reported that anti-inflammatory treatments and foot supports provided minimal to no relief, and he stated that he had extreme difficulty performing any activity that required weight bearing for an extended period of time. An April 2008 VA podiatry clinic note reflects the Veteran’s reports that he had tried two different pairs of custom orthotics, neither of which helped relieve his symptoms. He was assessed with pes planus and right foot hallux valgus, stage two, as well as distal plantar fasciitis on the right. The Veteran was encouraged to get better shoes with more support, and surgery was discussed to decrease pain in the first MPJ. In November 2008, a letter from the Veteran’s family practice physician noted that the Veteran experienced pain in the great toe and dorsum of the foot, and that he had tried orthotics but stated that they seemed to increase his pain. The doctor noted that the Veteran had mild degenerative changes of the MP joint of his right great toe and mild pes planus of both feet. No other deformity or swelling was noted. X-rays showed osteoarthritic spurring of the MP joint of the right great toe. In March 2009, the Veteran submitted letter from a private podiatrist. The physician noted that the Veteran’s muscle strength was normal for dorsiflexion, plantar flexion, inversion, and eversion. It was noted that the Veteran had approximately 55 degrees range of motion at the left first MPJ and significant decreased motion on the right first MJP of approximately 10 degrees. The physician noted that the Veteran had a firm, palpable mass along the dorsomedial aspect of the first MPJ consistent with degenerative arthritis. The physician noted that the Veteran reported using orthotics, but stated that they did not resolve his symptoms; the physician observed that there was abnormal wear on the Veteran’s shoe, likely as a result of mechanical changes surrounding his first MPJ and the right rear foot. After X-ray review, the assessment was hallux limitus with degenerative changes of the right first MPJ, infracalcaneal heel spur with mild bilateral plantar fasciitis, and minor limb length discrepancy with left rear foot varus. After reviewing the VA disability criteria provided by the Veteran, the physician noted that there did not appear to be any extreme tenderness or pain on range of motion on palpation; significant muscle spasm or neurological disorder with stance or gait; marked deformity, swelling, or tendonitis; or hyperkeratotic skin lesions as a result of abnormal mechanical wear. The physician did note signs of pronation on stance and on ambulation, which again the Veteran reported was not alleviated by arch supports or shoe inserts. In an April 2009 statement, the Veteran reported that his pain in “both feet and legs [was] much worse,” and stated that once or twice a year he had to use a cane for a few days at a time. He stated that normal walking brought on pain, particularly in his right foot, right leg, and right hip, and that the bottoms of his feet were sensitive. On VA examination in October 2009, the Veteran reported that his treatment included taking pain medication and doing pool exercises; he stated that these treatments were partially effective. He complained of pain in the plantar arch while standing and walking; swelling in the ankle while standing, walking, and at rest; and stiffness in the plantar arch while standing, walking, and at rest. The examiner indicated that there were no flare-ups of foot and joint disease, but that the Veteran was unable to stand for more than a few minutes and could walk only a quarter of a mile. In addition, he was forced to use a cane. Physical examination revealed painful motion and tenderness at the left first MPJ, and weakness in plantar flexion, dorsiflexion, and eversion on the left foot only. The examiner noted that the Veteran’s gait had poor propulsion. After reviewing X-rays, diagnoses of right foot hallux rigidus and bilateral pes planus with hallux valgus were noted. These disorders caused mild problems with chores, shopping, recreation, and traveling, and prevented the Veteran from exercising and playing sports. In a September 2010 statement, the Veteran reiterated that his arch supports were not helping him. At that time, he submitted a letter from a private doctor (dated in August 2010) stating that the Veteran’s pes planus had over the years resulted in a severe alteration of his gait. The examiner noted that on physical examination the Veteran ambulated with a markedly abnormal gait and presented with pes planus with pronation of both feet, external rotation. Clinical notes from this period reflect that the Veteran was also treated for hallux rigidus. An October 2010 private office consultation report reflects diagnoses of bilateral pes planus, plantar fasciitis, and metatarsalgia. The reported noted that the Veteran was in a great deal of discomfort, and could stand and ambulate for a half-hour to an hour before pain occurred. The report noted that a podiatrist had recommended first metatarsal surgery, but that the Veteran was reluctant to pursue surgery. On physical examination, extreme pes planus and ankle swelling was noted, as well as diffuse plantar metatarsalgia with palpation and diffuse minimal plantar fascial tenderness. No pain of either heel was observed. The examiner recommended decreased weight bearing, anti-inflammatory medications, and orthotics. A February 2011 VA podiatry consult, the Veteran presented with painful feet and hallux rigidus on the right side. The physician discussed surgical options but the Veteran declined. In March 2011, during a follow-up podiatry consult, the Veteran indicated that he did want surgery to alleviate his right foot hallux rigidus. On VA examination in August 2012, the Veteran reported that he continued to have severe symptoms in both feet due to pes planus. In addition, diagnoses of hallux rigidus on the right and Tarsal Tunnel were noted. With respect to hallux rigidus, the Veteran reported that his right toe was stiff and had little movement but was not very painful; the examiner indicated that these symptoms were mild or moderate in degree. No other foot-related diagnoses were indicated. (A right ankle strain was also noted; physical examination revealed limited range of motion of that ankle.) An April 2013 letter from a private podiatrist reflects that the Veteran had a limb length inequality with the right leg being longer than the left. He also had arthritis in the first metatarsal phalangeal joint of the right foot which limited the range of motion of the toe, known as hallux limitus. The podiatrist recommended surgery for the first right toe and improved orthotics. A VA examination in April 2015 noted diagnoses of bilateral pes planus and bilateral hallux valgus. The Veteran reported pain in both feet as well as painful bunions (hallux valgus), worse on the right. He stated that his right great toe never stopped aching, and both great toes were painful with standing and walking. He reported using a cane on days with increased pain. He had tried multiple types of arch supports, but could not wear them because they increased his pain. He denied flare-ups. The Veteran could only stand for five to ten minutes at a time and could walk less than one-eighth of a mile. No history of surgery was noted. No other diagnoses were indicated. With respect to hallux valgus, the examiner indicated that the Veteran had mild or moderate symptoms; he had pain on palpation to the first MTPJ and limitation of motion. An accompanying opinion noted that the Veteran’s first MTPJ demonstrated an abducto valgus rotation to bilateral first MTPJ while weight bearing, with less abducto valgus rotation on non-weight bearing. The right first MTPJ had an enlarged first MTPJ exostosis to dorsal first MTPJ common in hallux rigidus diagnosis; however, in the opinion of the examiner the enlarged exostosis was at least as likely as not a result of osteoarthritis, as noted on X-rays. II. Analysis The Veteran’s bilateral pes planus with hallux valgus is rated as a single disability. His symptoms are evaluated as 30 percent disabling prior to August 23, 2010, and 50 percent disabling thereafter, under DC 5276. 38 C.F.R. § 4.71(a). In this case, the parties and the Court have agreed that the Board failed to adequately address whether the Veteran is “entitled to any separate disability ratings in addition to the disability rating assigned for bilateral pes planus.” Accordingly, the Board will assess the Veteran’s history of diagnoses and symptomatology in light of each of the DCs applicable to foot disorders, and will determine whether separate ratings for diagnoses other than pes planus are warranted. The Board will then address whether higher schedular ratings under DC 5276 are warranted for the Veteran’s current disability rating, as well as whether referral for an extraschedular evaluation is appropriate. A. Consideration of separate ratings for foot disabilities other than pes planus Disabilities of the foot other than pes planus are rated under the criteria provided in DCs 5277 through 5284. See 38 C.F.R. § 4.71(a). As an initial matter, DCs 5277, DC 5278, DC 5282, and DC 5283 provide ratings for symptoms resulting from weak foot, claw foot, hammer toes, and malunion or nonunion of the tarsal or metatarsal bones, respectively. Because there is no evidence in the record that the Veteran has ever been diagnosed with any of these disorders, none of these DCs are applicable. DC 5279 provides that a 10 percent rating is warranted for unilateral or bilateral anterior metatarsalgia (Morton’s disease). In this case, the Board is aware that the Veteran was diagnosed with bilateral metatarsalgia by a private podiatrist, as noted in an October 2010 clinical note. However, subsequent VA and private treatment records and the VA examination reports of record are negative for such a diagnosis. Although the Board concedes that symptoms of metatarsalgia could be separate and distinct from those associated with pes planus (and therefore could warrant a separate rating), the Board finds, under the circumstances of this case, that the weight of the evidence is against entitlement to a separate 10 percent rating under DC 5279. The Board acknowledges that there is some evidence of a current diagnosis of metatarsalgia; however, the expert (and uniform) findings of multiple VA examiners which noted no such diagnosis constitute the most probative evidence. DC 5280 provides that a 10 percent evaluation is warranted for unilateral hallux valgus, operated with resection of metatarsal head; a 10 percent rating is also warranted for severe hallux valgus, if equivalent to amputation of the great toe. (The Veteran has also been diagnosed with hallux rigidus. DC 5281 provides that hallux rigidus should be rated as severe hallux valgus.) As noted above, the RO has acknowledged that the Veteran’s hallux valgus is secondary to his service-connected pes planus. However, on careful review, the Board can find no probative evidence indicating that the Veteran’s hallux valgus and/or hallux rigidus have been equivalent to amputation or have resulted in surgery. As illustrated above, the evidence of record reflects that corrective surgery has been recommended throughout the appeal period, but that the Veteran repeatedly declined surgery. Moreover, the pertinent VA examination reports reflect that the Veteran’s hallux valgus and/or hallux rigidus have been mild to moderate in severity. There is no evidence of severe symptoms due to hallux valgus and/or hallux rigidus, nor of prior surgery to correct these disorders. Consequently, the Board finds that the criteria for a compensable rating for hallux valgus and/or hallux rigidus have not been met. With respect to the Veteran’s diagnosed plantar fasciitis, the Board notes that the VA examination reports of record show that this disorder is a progression of the Veteran’s service-connected pes planus. The Board is aware that DC 5284 applies to “other” foot injuries, with the term “other” referring to injuries other than those set out in DCs 5276-5283. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Notwithstanding, although plantar fasciitis is not specifically listed in the DCs applicable to foot disorders, because the symptoms resulting from plantar fasciitis are contemplated by the Veteran’s current evaluation under DC 5276, the Board finds that a separate rating under DC 5284 for plantar fasciitis would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. B. Bilateral pes planus The Board now turns to whether a higher schedular rating is warranted prior to August 23, 2010 for the Veteran’s bilateral pes planus under DC 5276. (As the Veteran has been awarded the maximum schedular rating effective August 23, 2010, the Board need only address the period prior to that date.) DC 5276 provides that a 30 percent rating is warranted for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. A 50 percent rating—the maximum available schedular rating—is warranted for pronounced bilateral flatfoot manifested by 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. See 38 C.F.R. § 4.71(a), DC 5276. After careful review, the Board finds that, prior to August 23, 2010, the criteria for an increased schedular rating for the Veteran’s pes planus have not been met. As illustrated above, the medical evidence prior to that date, including VA examinations conducted in October 2005 and October 2009, indicates that the Veteran’s pes planus was severe, with evidence of marked deformity, pain, and swelling. There is also evidence to indicate that the Veteran was unable to find orthotics that significantly alleviated his symptoms. However, there is no indication that the severity of the disability was described as pronounced, or that the Veteran exhibited marked pronation, extreme tenderness of the plantar surfaces, or marked inward displacement and severe spasm of the achillis tendon on manipulation. (The Board is particularly persuaded by the March 2009 private podiatrist’s letter, discussed above, which noted that the podiatrist had reviewed the applicable VA disability criteria and opined that there did not appear to be evidence of extreme tenderness or pain on range of motion on palpation; significant muscle spasm or neurological disorder with stance or gait; marked deformity, swelling, or tendonitis; or hyperkeratotic skin lesions as a result of abnormal mechanical wear.) With respect to lay evidence of record, although the Veteran described experiencing pain and swelling of the feet, there is likewise no probative evidence of pronounced disability with marked pronation, extreme tenderness, or marked inward displacement and severe spasm of the achillis tendon on manipulation. In sum, the Board finds that the weight of the evidence, both lay and medical, establishes that the Veteran’s pes planus was severe, but not pronounced, in severity. The additional criteria for a 50 percent rating have likewise not been established. Consequently, a rating in excess of 30 percent prior to August 23, 2010 is not warranted. REASONS FOR REMAND Extraschedular Consideration The Veteran contends that his bilateral pes planus with hallux valgus results in an exceptional or unusual disability picture, to include marked interference with employment, so as to render impractical the application of the regular rating standards. He specifically contends—and the Court has essentially endorsed this contention—that his symptoms of pain at rest and sleep impairment associated with his foot symptomatology are not contemplated under his evaluation pursuant to DC 5276, which only contemplates (at the level of 30 percent) pain on manipulation and use accentuated. 38 C.F.R. § 4.71(a), DC 5276. In accordance with the JMPRs of record, the Board finds that the rating schedular is inadequate with respect to the Veteran’s service-connected foot symptomatology. Furthermore, the record indicates that there may be marked interference with employment as a result of these symptoms. The Veteran has indicated that he was previously employed in the automobile business, a job that required “a whole lot of walking and standing,” and that his pes planus and associated symptomatology drastically interfered with his employment. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). For the reasons discussed above, the Board finds that the issue of entitlement to an extraschedular rating for bilateral pes planus with hallux valgus under 38 C.F.R. § 3.321(b) must be referred to the Director of Compensation Service for consideration. See 38 C.F.R. § 3.321(b)(1). The matter is REMANDED for the following action: 1. Refer this matter to the Director of Compensation Service for consideration of whether an extraschedular rating for the service-connected pes planus with hallux valgus is warranted pursuant to 38 C.F.R. § 3.321(b)(1). (Continued on the next page)   2. Then, readjudicate the claim of entitlement to an extraschedular rating for this disability. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the appropriate time for response. Then return the claim to the Board. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel