Citation Nr: 1808534 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-28 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent for right foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015. 2. Entitlement to an initial evaluation greater than 10 percent for left foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015. 3. Entitlement to an evaluation greater than 30 percent for bilateral plantar fasciitis and pes planus with calcaneal enesthesophytes from June 18, 2015 to August 7, 2016. 4. Entitlement to an evaluation greater than 50 percent for bilateral plantar fasciitis and pes planus with calcaneal enesthesophytes from August 8, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from September 1995 to November 2008. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an October 2009 rating decision which granted service connection for plantar fasciitis of the right foot and assigned an initial 10 percent disability rating under Diagnostic Code (DC) 5099-5020 (right foot disability analogous to synovitis). The Veteran appealed this initial rating assigned. The AOJ also denied a service connection claim for left foot disability, which the Veteran did not appeal, but was subsequently added as part of this appeal by RO action which shall be addressed later. During the pendency of this appeal, in a rating decision dated December 2016, the RO awarded service connection for bilateral pes planus and assigned an initial 50 percent rating under DC 5276 effective August 16, 2016. The coding sheet attached to this rating reflected another 10 percent rating under DC 5276 for right plantar fasciitis effective December 4, 2012. The Board remanded this matter for further development in March 2017. The Board at the time reserved the right to recharacterize the appellate issues after appropriate development had been conducted. In addition to requesting a VA examination to assess the severity of the service-connected foot disorder(s), the Board requested that the examination identify whether other disorders, including right heel spurs, hammer toes and a right ankle disability were manifestations of the service-connected foot disorder(s). The Board also directed the RO to reconcile the duplicative ratings assigned for right foot plantar fasciitis under DC 5276, and bilateral pes planus under DC 5276 and to issue a supplemental statement of the case for any claim that remained denied. Thereafter following further development, the RO issued an October 2017 rating decision which combined the disabilities of bilateral plantar fasciitis and pes planus as the same service-connected disability under Diagnostic Code 5276, and additionally added calcaneal enthesophytes (heel spurs) as part and parcel of this disability. This rating also granted service connection for separate disorders of a right ankle strain and for hammertoes of the fourth toe of the bilateral feet as secondary to service connected plantar fasciitis. Because these disorders have been separately granted service connection and are evaluated under different Diagnostic Codes fully apart from the plantar fasciitis/pes planus/heel spurs and concern different anatomical parts from the service connected plantar fasciitis/pes-planus disability with heel spur, the Board finds that these disabilities are fully separate from the service-connected foot disabilities presently on appeal. Thus this decision shall only address the service-connected foot disability of plantar fasciitis/pes planus/heel spurs. Additionally although the foot disorder was originally appealed to the Board as a right foot disorder, the subsequent actions of the RO, particularly post-remand in its October 2017 rating and supplemental statement of the case, expanded the appeal to include a service-connected bilateral pes planus, plantar fasciitis and heel spurs. Finally, a remanded issue of entitlement to service connection for a headache disorder was granted by the RO in an October 2017 decision, thereby removing this issue from appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran's left foot plantar fasciitis has been manifested by moderate impairment with complaints of pain and tenderness after physical activity, including walking and standing; moderately severe impairment is not shown. 2. Since the initial grant of service connection, the Veteran's right foot plantar fasciitis has been manifested by moderate impairment with complaints of pain and tenderness after physical activity, including walking and standing; moderately severe impairment is not shown. 3. Since the initial grant of service connection and prior to June 18, 2015, the Veteran's bilateral flat foot has been manifested by mild symptoms, with pain at rest and on manipulation, but with no evidence of weight bearing line over medial to great toe, in addition to normal alignment of his Achilles forefoot and midfoot alignment with any malalignment correctable on manipulation. 4. From June 18, 2015 to August 7, 2016, the Veteran's bilateral flat foot disability has been manifested by symptoms of a severe pes planus disability; with objective evidence of extreme tenderness of plantar surfaces on both feet not improved by orthopedic shoes or appliances and evidence of decreased longitudinal arch height of one or both feet on weight-bearing; evidence does not show pronounced pes planus, 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. 5. As of August 8, 2016, the Veteran has been in receipt of the maximum schedular rating for a pronounced pes planus disability of the bilateral feet. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent disabling, has not been met for right foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276, 5284 (2017). 2. The criteria for an initial rating in excess of 10 percent disabling, has not been met for left foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276, 5284 (2017). 3. The criteria for a separate 10 percent rating, but not higher, for right foot plantar fasciitis with calcaneal enesthesophytes are met from June 18, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 4. The criteria for a separate 10 percent rating, but not higher, for left foot plantar fasciitis with calcaneal enesthesophytes are met from June 18, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 5. The criteria for a rating in excess of 30 percent for pes planus, bilateral feet is not met from June 18, 2015 to August 7, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 6. The criteria for a rating in excess of 50 percent for pes planus, bilateral feet is not met from August 8, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Increased Rating Background Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for a "closely related disease or injury." 38 C.F.R. §§ 4.20, 4.27. When, however, a condition is specifically listed in the Schedule, it may not be rated by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993); Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Initially the Veteran's service-connected foot disorder was characterized as a left foot disability of plantar fasciitis claimed as bunion under Diagnostic Code (DC) 5276, 38 C.F.R. § 4.71a 5099-5020. However following the Board's March 2017 remand directives for issue clarification, the Veteran's service-connected left and right foot plantar fasciitis disability with pes planus and heel spurs is now rated by the RO singularly under DC 5276, 38 C.F.R. § 4.71a per the most recent rating action of October 2017. The previously considered Diagnostic Code (DC) 5020 provides rating criteria for synovitis. This is to be rated based on the limitation of motion of the affected body part, in this case the feet, analogous to degenerative arthritis. The diagnostic code for arthritis provides that when there is some objectively confirmed limitation of motion of the specific joint involved that is noncompensable (zero percent) under the appropriate diagnostic codes, a rating of 10 percent is warranted. See 38 C.F.R. § 4.71a, DC 5003. The rating schedule provides normal range of motion measurements for many joints, including the ankle, but not for the foot. Cf. 38 C.F.R. § 4.71a, Plates I, II, V. Similarly, the rating criteria do not provide a diagnostic code based strictly on limitation of motion of the feet. DC 5276 provides a 0 percent evaluation for pes planus (flatfoot) that is mild, with symptoms relieved by built up shoe or arch; a10 percent rating is assigned for either bilateral or unilateral pes planus where symptoms are moderate; 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. Where pes planus is severe; with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities a 20 percent rating is assigned for unilateral and a 30 percent rating is assigned for bilateral pes planus. For pes planus that is pronounced; 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, a 30 percent rating is assigned for unilateral and a 50 percent rating is assigned for bilateral pes planus. 38 C.F.R. § 4.71a. The Board shall also consider whether any other DCs may be applicable to the Veteran's case where he has been diagnosed with bilateral plantar fasciitis with heel spur in addition to bilateral pes planus. In this respect, unlike other foot disorders such as pes planus, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion/nonunion of the tarsal or metatarsal bones which are assigned DCs 5276 through 5283, there are no specific DCs for plantar fasciitis. Therefore this properly falls under consideration of DC 5284 for other foot injuries unlike those listed conditions in § 4.71a, where DC 5284 does not apply as it would constitute an impermissible rating by analogy. Copeland, 27 Vet. App. at 338 (holding that Diagnostic Code 5284 does not apply to the eight foot conditions specifically enumerated under § 4.71a because applying Diagnostic Code 5284 to those listed conditions "would essentially render th[e diagnostic codes of the enumerated conditions] redundant." Indeed distinct, diagnosed foot conditions not explicitly listed in the rating schedule may be rated by analogy under DC 5284. Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Under DC 5284, a 10 percent evaluation is provided for a "moderate" foot injury. A 20 percent evaluation is provided for a "moderately severe" foot injury. A 30 percent evaluation is provided for a "severe" foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2017). Under 38 C.F.R. § 4.63, what constitutes loss of use of a foot includes extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop, equally well served by amputation. VA's General Counsel stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, the VA General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98. In the present case, consideration of functional loss and DeLuca is warranted since the Veteran's right and left foot disability involves complaints of painful motion. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Board now turns to the factual background of the Veteran's claimed bilateral foot disorders. His history of VA examinations throughout the course of the appeal disclosed the following. The report of a May 2009 VA examination of multiple disorders including bilateral plantar fasciitis syndrome (PFS) noted that this was diagnosed in 2005. Currently he complained of left foot pain and calluses in the lateral aspect of the left foot. The disorder had progressively worsened. Review of systems of the left foot included left foot pain and callus to the lateral aspect. He had no right foot symptoms. He had flare-ups but was unaware of precipitating factors. Rest alleviated this. It occurred weekly about 1-2 days a week of moderate severity. His functional ability was not severely affected and it didn't affect range of motion. More detailed symptoms for the left foot were pain stiffness, weakness, fatigability, lack of endurance on standing or walking. He did not have heat, swelling or redness on the left foot. The location of his symptoms was on his heel. His flare-ups were weekly or more often, precipitated by standing and alleviated by rest. He was able to stand one hour but unable to walk more than a few yards. Examination of his right and left feet showed evidence of flat foot but with no other abnormal findings and no toe deformities. He had no evidence of weight bearing line over medial to great toe and no findings regarding arch status and pronation. He had normal alignment of his Achilles forefoot and midfoot alignment but had pain at rest and on manipulation. Any malalignment was corrected on manipulation and was normal. He had no evidence of painful motion, swelling, tenderness, instability or other abnormal weight bearing. Bilaterally, he had no exam for other foot disorders including for flatfoot, pes cavus, malunion or nonunion of tarsal bones, hammertoes, hallux valgus or hallux rigidus or vascular issues. No muscle atrophy was present. His gait was normal and X-rays showed bilateral heel spurs without acute findings. The diagnoses were bilateral heel plantar fasciitis. As for effects, he reported severe effects on chores, shopping, exercise, sports, recreation and travel. There were no effects on feeding, bathing, toileting, grooming and dining. The examiner commented that the impact on daily activities were based on the Veteran's answers but based on physical examination, the effects were felt to be exaggerated. Occupationally he worked as a material handler full time. See 5/09 VAX pg. 7-8, 37-41. The report of a June 18, 2015 VA examination of the feet diagnosed plantar fasciitis bilaterally, with history of diagnosis in 2003. The Veteran was claiming entitlement to an increased rating for bilateral foot plantar fasciitis complaining of waking up with his feet hurting and that they hurt all the time. Inserts were said to be ineffective. He indicated he can't walk for a long time. He reported sharp foot pain with flareups impacting function of his feet. Specifically he reported pain with pain with prolonged standing and walking. On review of symptoms of pes planus he reported pain on use and manipulation of both feet. There was no indication of swelling on use and no characteristic callouses. He tried orthotics but remained symptomatic on both feet. He had extreme tenderness of plantar surfaces on both feet not improved by orthopedic shoes or appliances. He also had decreased longitudinal arch height of one or both feet on weight-bearing. No response was given to whether there was objective evidence of marked deformity of one or both feet. No marked pronation of one or both feet was present, nor did the weight bearing line fall over or medial to the great toe. There was no other lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no evidence of "inward" bowing of the Achilles tendon, nor of marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. No response was provided regarding whether there were other disorders such as Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus or other foot injuries or conditions. He did have moderate bilateral plantar fasciitis. This did not chronically compromise weight bearing but did require inserts, however these were said to be ineffective in relieving his foot pain. Range of motion examination of the left foot inversion was 0-2 degrees, eversion was 0-3 degrees including on active and after 3 repetitions. His right foot inversion was 0-2 degrees, eversion was 0-4 degrees including on active and after 3 repetitions. He had pain at the end of the ranges. His final degree of motion after 3 repetitions was 2 degrees inversion and 5 degrees eversion bilaterally. Examination of his right and left feet revealed pain on physical exam which contribute to functional loss. He also had pain on movement, weight bearing and non-weight bearing bilaterally. He reported less movement due to claimed pain bilaterally. He also had pain, weakness, fatigability or incoordination which significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time bilaterally. The Veteran denied flare-ups, stating that pain is constant; there was limited movement when used over a period of time due to claimed pain. No other pertinent physical findings, complications, signs, symptoms or scars were noted. He did not use any assistive devices as a normal mode of locomotion. The functions of his bilateral foot disabilities was not so diminished that amputation with prosthesis would equally serve the Veteran. Diagnostic testing did not show arthritis or any other abnormal findings. His foot disorder moderately impacted prolonged standing and walking; he also has a moderate degree of pes planus; but the examiner is unable to state which condition affected the feet the most without resorting to mere speculation. The examiner commented that plantar fasciitis can cause enthesopathy that can make it difficult to walk or stand for more than short periods of time. The Veteran underwent another VA examination later on June 22, 2015 as part of a General Examination. Again his diagnosis was plantar fasciitis of both feet, diagnosed in 1995. He described having issues getting up in the morning, being unable to put pressure on his feet unless he rolled them on a frozen bottle of water first. He described past treatment with injections and presently used inserts which were partially effective. However he reported his feet hurt if he stood for a while, requiring him to roll his feet on the frozen bottle of water. His pain was described as throbbing and sharp. However he denied any impact due to flare-ups or functional loss. On review of symptoms of pes planus he the same symptoms of pain on use and manipulation of both feet as the earlier June 2015 VA examination. There was again no indication of swelling on use and no characteristic callouses. He tried orthotics but remained symptomatic on both feet. However during this current examination he did not have extreme tenderness of plantar surfaces on both feet not improved by orthopedic shoes or appliances. However no response was provided for other questions of whether he had decreased longitudinal arch height, marked pronation, or issues with the Achilles tendon such as inward bowing or marked displacement. He also had decreased longitudinal arch height of one or both feet on weight-bearing. No response was given to whether there was objective evidence of marked deformity of one or both feet. No marked pronation of one or both feet was present, nor did the weight bearing line fall over or medial to the great toe. There was no other lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no evidence of "inward" bowing of the Achilles tendon, nor of marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. Likewise, no response was provided regarding whether there were other disorders such as Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus or other foot injuries or conditions. He reported pain and functional loss of both feet on exam. Range of motion examination of the left foot inversion was 0-5 degrees, eversion was 0-1 degrees including on active motion with pain at these ranges. He was unable to perform repetitions due to pain. His right foot inversion and eversion were both 0 degrees; he reported being unable to perform these motions due to pain. He again had pain on movement, weight bearing and non-weight bearing bilaterally. He reported less movement due to claimed pain bilaterally. He also had pain, weakness, fatigability or incoordination which significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time bilaterally. Other functional loss during flare-ups included an inability to perform multiple repetitions due to pain bilaterally. No other pertinent physical findings, complications, signs, symptoms or scars were noted. He did not use any assistive devices as a normal mode of locomotion. The functions of his bilateral foot disabilities was not so diminished that amputation with prosthesis would equally serve the Veteran. No diagnostic tests were reported. The examiner stated that there was no impact on his ability to perform any sort of occupational task such as standing, walking, lifting or sitting due to his service-connected bilateral foot disorder. The rationale was that the physical examination performed by the nurse practitioner and active ranges of motion performed by the physical therapist; during physical exam gait was normal; negative for ankylosis. In the presence of normal gait and absence of ankylosis, the severity of decreased motion does not clinically correspond to physical exam, therefore decrease in ROM was least as likely as not due to lack of effort. A September 2016 VA examination for feet diagnosed the following foot disorders. Flatfoot (pes planus) bilaterally diagnosed in 1995; hammertoe bilaterally diagnosis date unknown; and plantar fasciitis bilaterally diagnosed in 2003. Historically his pes planus disorder had a reported onset in 1995 when he was told he was flat footed when he joined the service. While on active duty, he walked a lot in boots and this is when he noticed the pain in his feet becoming worse. He states the pain has continued and become progressively worse over the past few years. He has chronic pain with any weight bearing. He has had multiple injections, uses inserts, has taken non-steroidal anti-inflammatory medications, and had physical therapy with only some benefit. Right sided hammer toe was an incidental finding on exam. Currently he had very sharp pain with any pressure and it felt like his feet swell, he said while pointing to his foot arch. The functional impact was that he is unable to walk for leisure and unable to exercise and perform other activities due to the pain. He has changed job roles so that he doesn't have to walk and stand for long periods of time. On evaluation of signs and symptoms of flatfoot, he reported pain on use of the feet bilaterally, accentuated by such use. He also had pain on manipulation of both feet; swelling in both feet on use and characteristic calluses only on the right foot. Regarding orthotics he used them bilaterally, but remained symptomatic; the relief of his symptoms was only partial as his symptoms persisted but were less severe. He had extreme tenderness of plantar surfaces on one or both feet improved by the orthopedic shoes. He had decreased longitudinal arch height of one or both on weight-bearing bilaterally. There was no evidence of marked deformity or marked pronation of one or both feet. Additionally the weight-bearing line did not fall over or medial to the great toe. No other lower extremity deformity other than pes planus, causing alteration of the weight-bearing line was present. He did have "inward" bowing of the Achilles' tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of both feet. He did not have marked pronation or marked inward displacement and severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation of one or both feet. He had hammertoes of the bilateral feet, both on the fourth toe. As for other foot injuries or conditions, he had a moderate calcaneal enthesophyte of the right foot only. This chronically compromised weight bearing and required arch supports, custom orthotic inserts or shoe modifications. He had no history of surgical procedures for his foot disorders. On physical examination of the feet, pain was reported bilaterally which contributed to functional loss. This included pain on weight bearing, swelling, lack of endurance, and interference with standing. Additionally he had limited functional ability when the foot was used repeatedly over time bilaterally resulting in impaired ability to stand and walk. Assistive devices included regular use of orthotics, specifically inserts for his foot disorders with only some benefit. The functions of his bilateral foot disabilities was not so diminished that amputation with prosthesis would equally serve the Veteran. No imaging or other diagnostic test results was attached. His functional impact was shown to include impaired ability to stand or walk even for short distances affected his ability to perform certain functions at his job. A November 2016 VA examination for feet was limited to providing an etiology opinion stating that bilateral pes planus and left foot plantar fasciitis were caused or aggravated by service. The examiner also stated that she wanted to add additional diagnoses of pes planus and hammer toe but did not intend for pes planus to replace the original service connected diagnosis of plantar fasciitis. The report of a May 2017 VA examination for claimed foot disorders of right heel spur and hammer toes diagnosed the following foot disorders. Flatfoot (pes planus) bilaterally diagnosed in 1995; hammertoe bilaterally diagnosed in 2016; plantar fasciitis bilaterally diagnosed in 2003 and calcaneal osteophyte, right diagnosed in May 2017. His history was essentially the same as that taken in the September 2016 VA examination. Hammer toe was an incidental finding on recent x-rays. The course since onset was that the pain has become progressively worse in both feet. Currently he had ongoing bilateral foot pain, especially in the mornings when he first gets out of bed. Treatment included injections that had been done last fall, with continued treatment at the VA. His reported pain was described as both sharp and dull at the same time, along with tenderness. The functional impact was that the pain gets worse and sharper, making it hard to walk. Functional loss was that he couldn't walk or stand that long. His signs and symptoms for flatfoot, and findings regarding hammer toes were identical to those reported in the November 2016 examination. As for other foot injuries or conditions, he had a moderate calcaneal enthesophyte of the right foot only. His foot disorder chronically compromised weight bearing and required arch supports, custom orthotic inserts or shoe modifications. He had no history of surgical procedures for his foot disorders. On physical examination of the feet, pain was reported bilaterally which contributed to functional loss. This included pain on weight bearing, swelling disturbance of locomotion and interference with standing. Additionally he had limited functional ability when the foot was used repeatedly over time bilaterally resulting in impaired ambulation. No other pertinent findings such as scars or other issues were noted. He used no assistive devices as a normal mode of locomotion. The functions of his bilateral foot disabilities was not so diminished that amputation with prosthesis would equally serve the Veteran. Attached to the May 2017 VA examination included an X-ray of the right heel showing a small non-inflamed plantar calcaneal enthesophyte. Functional impact of his foot disorders on his employment status was described as impairment of ambulation and standing for long periods due to right foot pain. As for his diagnoses, there was no change in the service connected diagnoses and no additional diagnoses have been rendered. The new diagnosis was a correction of the previous diagnosis. Although a worsening of symptoms was noted, no change to the service connected diagnosis and additional diagnoses were deemed a progression of his service-connected diagnoses. Disorders of hammer toes and plantar calcaneal enthesophyte (heel spur) are common findings associated with pes planus and plantar fasciitis. Hammer toes and plantar calcaneal enthesophyte (heel spur) are common findings associated with pes planus and plantar fasciitis. VA Records repeatedly showed complaints of pain in his foot in problems lists throughout the pendency of this appeal. The records also show repeated treatment from 2010 through 2017 for bilateral foot issues with treatment including injections and the use of orthotics bilaterally. These include a January 2010 treatment record noting bilateral foot and heel pain for several months, with the only noteworthy finding of feet tender around the heels on the plantar surface and an assessment of bilateral plantar fasciitis (PF). Treatment plans were discussed including stretching exercises and consulting podiatry for inserts. A podiatry consult in February 2010 ordered PF splints bilaterally, with a history of bilateral heel pain for 3 years. The pain increased when getting out of bed in the morning or after resting. Examination at the time disclosed pain on palpation of the plantar medial aspect of the bilateral heel, with an assessment of PF and heel spurs bilaterally. In addition to arch supports, treatment plan included NSAIDs, exercise and cortisone injections. See 321 pg. CAPRI entered 12/12/16 at pg. 235-239. Similar complaints of foot and heel pain were noted in 2011 including a May 2011 record which noted right heel pain in a May 2011 primary care note, and in podiatry records from November 2011 which disclosed bilateral heel pain again worse in the morning and on weight bearing after prolonged rest but examination negative for calluses, ulcers or other signs of trauma. Vascularly he had palpable pedal pulses without edema. Orthopedically he did have a mild decrease in the height of the medial longitudinal arch on weight bearing and limited ankle dorsiflexion with knees extended. He was assessed with PF/heel spur syndrome and pes planus, in addition to tight gastrocnemius muscle group. He received injections for his right heel in November 2011, January 2012 and October 2012 for this diagnosed disorder, which were said to be beneficial. As for orthotics, he had not yet received them in November 2011 but had them by October 2012 and indicated that while comfortable, he was advised not to wear them daily. By December 2012, he was noted to have issues with his orthotics not being rigid enough to control pronation and he persisted with bilateral heel pain. Custom orthotics were requested and the possibility of a plantar release surgery was discussed. On podiatry follow-up in April 2013 he continued with symptoms of bilateral heel pain, with a history of failure to obtain rigid orthotics for pronation control. The assessment was improper orthotics with a prosthetics request to obtain custom orthotics. See 524 pg. CAPRI entered 12/12/16 at pg. 233, 290, 302, 304, 307, 436, 451-453. Podiatry records from January 2015 disclosed that the Veteran no longer had the custom orthotics he had been issued more than a year ago and he requested new ones. In March 2015 he still had not gotten new orthotics and he reported his heels hurt. Id. at pg. 109, 113. Records from 2016 showed continued treatment with injections of his bilateral heels. Of note a September 2016 podiatry consult for bilateral arch and heel pain for several years with increased pain getting out of bed and after resting. The pain could reach up to 9/10 intensity during ambulation. He was noted to be currently wearing VA issued orthotics. On examination his dorsalis pedis and posterior tibial pulses were palpable bilaterally and sensation was grossly intact. He did have a callus on the medial aspect of the left great toe and pain on palpation of the plantar medial aspect of the bilateral heels extending to the lateral medial aspect of the ankles. He also had severely flattened arches of the bilateral feet. The assessment continued to be PF, heel spurs and pes planus bilateral feet. The treatment plan included Cortisone injections, NSAIDs and exercise, Meloxicam prescription and continued use of custom molded orthotics. He received the Cortisone injection the following month, with continued findings of pain on palpation of the bilateral feet. Records from 2017 primarily focus on other medical issues but continued to note the pain in his feet as well as an ongoing flatfoot condition. See 321 pg. CAPRI received 12/12/16 at pg. 2, 9-10; see also 43 pg. CAPRI received 4/20/17 at pgs. 8, 12, 16, 19, 21. Analysis Entitlement to initial separate evaluations greater than 10 percent per foot for plantar fasciitis and pes planus with calcaneal enesthesophytes of the left and right foot prior to June 18, 2015. As previously noted in the procedural history, the RO has given separate 10 percent evaluations for the bilateral foot disorder under DC 5276. Again this 10 percent rating is warranted for either bilateral or unilateral pes planus, but this DC does not suggest that separate assignments of 10 percent each per foot is warranted. Rather it indicates that the 10 percent is to be assigned for a moderate pes planus whether it affects one or both feet. Unlike the DC 5276 for pes planus which provides for certain evaluations of bilateral versus unilateral feet, DC 5284 specifically provides for separate ratings per foot. Given this, it appears that the separate 10 percent ratings assigned for the bilateral feet prior to June 18, 2015 are more appropriate under DC 5284 based on plantar fasciitis rather than under the pes planus criteria. The Veteran is not prejudiced by this change of DC as it does not result in reducing his rating or severing service connection for his bilateral foot disability. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). As will be discussed in detail below, the record also reflects the Veteran has other foot conditions listed in § 4.71a and he is being awarded separate ratings for these listed foot conditions where appropriate. Specifically here the service connected bilateral foot disabilities include pes planus and plantar fasciitis with heel spurs, the Board finds it appropriate to consider whether separate ratings for the pes planus under DC 5276 and plantar fasciitis with heel spurs under DC 5284 is warranted for the bilateral foot disorder without violating the rules against pyramiding under 38 C.F.R. § 3.14 per Esteban, 6 Vet. App. 259, 262 (1994). Flat foot (pes planus) is defined as a condition in which one or more of the arches of the foot have been lowered and flattened out. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 416 (32nd ed. 2012). In contrast, plantar fasciitis is defined as inflammation of the plantar fascia, owing to repetitive stretching or tearing of muscle fibers near their attachment to the calcaneal tuberosity; it is one of the most common causes of heel pain. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 684 (32nd ed. 2012). Pain typically occurs at the medial insertion of the plantar fascia into the calcaneus. Based on the above, the Board finds that pes planus and plantar fasciitis represent two distinct disabilities. See Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) ("It is commonplace to consult dictionaries to ascertain a term's ordinary meaning."); see also Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (using a law dictionary to define "decision"). Thus consideration of the foot disabilities under both DC 5276 and 5284 is appropriate. Again as pointed out above the separate 10 percent ratings per foot under DC 5284 contemplate "moderate" foot injury while a 20 percent evaluation is provided for a "moderately severe" foot injury. The findings from the evidence do not reflect evidence of a moderately severe foot injury. The findings from the May 2009 VA examination disclosed symptoms that included left foot pain on his heel and calluses in the lateral aspect of the left foot and no right foot symptoms reported at the time. The May 2009 VA examination disclosed flare-ups about 1-2 days a week of moderate severity without severe effect on functional ability or range of motion. Although he later indicated severe functional impacts including on chores, shopping, exercise, sports, recreation and travel, the examiner dismissed these complaints as exaggerated based on the other findings of this examination. Such findings do not suggest more than moderate plantar fasciitis disability and are not consistent with a moderately severe disability, hence separate ratings in excess of 10 percent disabling are not warranted under DC 5284 based on the findings from this May 2009 VA examination. As for flat foot the criteria for a separate 10 percent rating under DC 5276 is not shown by the findings of the May 2009 VA examination, as there was evidence of flat foot with pain at rest and on manipulation, but with no evidence of weight bearing line over medial to great toe and no findings regarding arch status and pronation; in addition to normal alignment of his Achilles forefoot and midfoot alignment with any malalignment correctable on manipulation. These findings are consistent with the criteria for 0 percent rating for mild pes planus, with symptoms relieved by built up shoe or arch; the criteria for moderate pes planus under DC 5276 is not shown in this examination report. As for the other medical evidence prior to June 18, 2015; the records from 2010 to March 2015, generally show repeated treatment for bilateral foot and heel pain, and physical findings of tenderness of the feet and heels, with treatment that included injections, exercise and medications. The findings from these records do not disclose more than moderate foot disability resulting from the plantar fasciitis disability and do not warrant separate ratings in excess of 10 percent each per foot. As for pes planus, these medical records from 2010 to March 2015 also show ongoing treatment with orthotics, with some issues from the orthotics generally due to them not being of proper rigidity as noted in December 2012 and April 2013. Additionally when seen in November 2011 at a time when he had not yet received orthotics, he was noted to have a mild decrease in the height of the medial longitudinal arch on weight bearing and limited ankle dorsiflexion with knees extended. Such findings remain consistent with the criteria for 0 percent rating for mild pes planus, with symptoms relieved by built up shoe or arch; the criteria for moderate pes planus under DC 5276 are shown to be not more closely met by these records. In sum, the Board finds that initial separate evaluations greater than 10 percent per foot for plantar fasciitis and pes planus with calcaneal enesthesophytes of the left and right foot are not warranted prior to June 18, 2015. In making this determination however the Board has found that the separate 10 percent ratings are most appropriately assigned under DC 5284 for the plantar fasciitis with calcaneal enesthesophytes, while a separate rating in excess of 0 percent under DC 5279 for pes planus is not warranted. Entitlement to an evaluation greater than 30 percent for bilateral plantar fasciitis and pes planus with calcaneal enesthesophytes from June 18, 2015 to August 7, 2016. Having determined that the Veteran's bilateral plantar fasciitis and pes planus disabilities are appropriately warranted separate 10 percent evaluations under DC 5284 for the plantar fasciitis with calcaneal enesthesophytes, with a separate evaluation for the pes planus that was noncompensable prior to June 18, 2015, the Board now turns to whether a rating in excess of 30 percent is warranted for the bilateral foot disorder from June 18, 2015 to August 7, 2016. This 30 percent rating for bilateral pes planus was assigned based on findings from the June 18, 2015 VA examination showing evidence consistent with a severe pes planus disability; with objective evidence specifically showing extreme tenderness of plantar surfaces on both feet not improved by orthopedic shoes or appliances and evidence of decreased longitudinal arch height of one or both feet on weight-bearing. Such findings were likewise shown on the VA examination again later on June 22, 2015. However these findings from the two June 2015 VA examinations fail to show evidence of pronounced pes planus, 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; accordingly a 50 percent rating is not warranted for bilateral pes planus. The two June 2015 VA examinations did not show marked pronation of one or both feet was present, nor did the weight bearing line fall over or medial to the great toe. There was no other lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no evidence of "inward" bowing of the Achilles tendon, nor of marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. The findings from these two June 2015 VA examinations as well as the medical records from June 2015 to September 2016 fail to show symptoms warranting more than a 30 percent rating for bilateral pes planus. However the Board does note that the evidence does also reflect that continued separate 10 percent ratings per foot remain warranted for the plantar fasciitis of each foot based on DC 5284. Of note the findings from the June 18, 2015 VA examination included findings of a moderate bilateral plantar fasciitis. This did not chronically compromise weight bearing but did require inserts which were said to be ineffective in relieving his foot pain. Functionally he reported constant foot pain and he was noted to have pain on motion and his foot disorder moderately impacted prolonged standing and walking. However the examiner was unable to state whether the plantar fasciitis or the pes planus impacted the feet most without resorting to speculation. It was noted by this examiner that plantar fasciitis can cause enthesopathy that can make it difficult to walk or stand for more than short periods of time. Such findings are consistent with moderate foot disability attributable to the plantar fasciitis. Likewise the medical records from March 2015 showed ongoing complaints of heel pain. Findings of a moderately severe foot disability due to plantar fasciitis with heel spurs however are not shown by the evidence including from the June 2015 VA examinations. The examiner noted that while there was some diminished function, there was no impact on his ability to perform any sort of occupational task such as standing, walking, lifting or sitting due to his service-connected bilateral foot disorder. The rationale was based on generally normal active ranges of motion, normal gait and absence of ankyolosis, with any decreased motions deemed to be likely due to lack of effort. Such findings are not suggestive of moderately severe foot disability. In sum the Board finds that a rating in excess of 30 percent for bilateral pes planus is not warranted from June 18, 2016 under DC 5276. However separate ratings of 10 percent per foot are warranted based on plantar fasciitis with heel spurs under DC 5284 during this time period based on moderate foot disability. Entitlement to an evaluation greater than 50 percent for bilateral plantar fasciitis and pes planus with calcaneal enesthesophytes from August 8, 2016. As of August 8, 2016, the date the Veteran reported increased symptoms of his feet in an application for compensation and pension, the RO granted a 50 percent rating for the service connected bilateral foot disorder under the criteria for bilateral pes planus, DC 5276. This is the maximum allowable rating under this Diagnostic Code. Accordingly the Board shall turn to consider other applicable rating criteria, to include DC 5284 for which separate 10 percent ratings have been assigned for plantar fasciitis of each foot since initial entitlement. In addition to findings of bilateral flatfoot which is now is receiving the maximum allowable rating, the September 2016 VA examination continued to diagnose a bilateral plantar fasciitis and also included a finding of a moderate calcaneal enthesophyte of the right foot only. The examination noted chronic pain with any weight bearing and a history of multiple injections, inserts, NSAIDs and physical therapy with only some benefit. Most of the examination focused on pes planus findings but continued to note evidence of pain contributing to functional loss, including on weight bearing, swelling, lack of endurance, and interference with standing. Additionally he had limited functional ability on repetitive use bilaterally resulting in impaired ability to stand and walk for short distances. The examiner did not quantify which limitations were due to pes planus versus bilateral plantar fasciitis with moderate calcaneal enthesophyte of the right foot; however such findings suggest that a moderate foot disability continued to be attributable to the bilateral plantar fasciitis. Likewise treatment records including a September 2016 podiatry consult continued to document bilateral arch and heel pain for several years with increased pain getting out of bed and after resting, which could reach up to 9/10 intensity during ambulation. Findings from the September 2016 podiatry record included a callus on the medial aspect of the left great toe and pain on palpation of the plantar medial aspect of the bilateral heels. The assessment continued to be plantar fasciitis and heel spurs in addition to pes planus bilateral feet. The treatment plan included Cortisone injections, NSAIDs, exercise and prescription medication in addition to continued use of custom molded orthotics. Finally the report of a May 2017 VA examination continued to confirm the diagnosis of plantar fasciitis bilaterally with the same history as given in September 2016 and ongoing bilateral foot pain, especially in the mornings when he first gets out of bed. Treatment included ongoing injections and findings generally the same as shown in the September 2016 examination regarding symptoms and functional loss Such findings and diagnoses shown in these examinations and records remain consistent with that shown in earlier records and remain consistent with a moderate bilateral foot disability from plantar fasciitis. The evidence does not show that a moderately severe bilateral foot disability consistent with a 20 percent rating per foot is met under DC 5284. Thus in sum the Board finds that a rating in excess of 50 percent for bilateral pes planus is not warranted; however separate 10 percent ratings but no higher per foot, continue to be warranted for bilateral plantar fasciitis under the criteria for other foot disorders under DC 5284. Other Diagnostic Codes for Consideration The Board has also considered whether any other DCs may be applicable to the Veteran's case. Although findings of hammertoes of the bilateral feet, both on the fourth toe were noted on the September 2016 VA examination, such is not for the Board's consideration as an October 2017 rating separately granted service connection for these hammertoes with initial noncompensable ratings assigned effective September 9, 2016 under DC 5282; the Veteran has not appealed the effective date this grant or the initial rating assigned. Here there is no evidence of weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus or malunion/nonunion of the tarsal or metatarsal bones which are assigned DCs 5277 through 5283 (excluding 5282). As for the rating for synovitis under DC 5020 based on the limitation of motion of the affected body part, in this case the feet, analogous to degenerative arthritis specifically loss of motion of feet, there is no DC that governs loss of motion of the feet. However, the Board has already considered Deluca factors such as functional loss in assigning the separate 10 percent ratings per foot for plantar fasciitis under the DC 5284 for other foot disorders. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 10 percent for right foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015 is denied. An initial rating in excess of 10 percent for right foot plantar fasciitis and pes planus with calcaneal enesthesophytes prior to June 18, 2015 is denied. A separate rating of 10 percent for right foot plantar fasciitis with calcaneal enesthesophytes is granted as of June 18, 2015. A separate rating of 10 percent for left foot plantar fasciitis with calcaneal enesthesophytes is granted as of June 18, 2015. A separate rating in excess of 30 percent for pes planus, bilateral feet is denied from June 18, 2015 to August 7, 2016. A separate rating in excess of 50 percent for pes planus, bilateral feet is denied from August 8, 2016. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs