Citation Nr: 20052923 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 13-33 995 DATE: August 10, 2020 ORDER Entitlement to a 30 percent disability rating for right foot disability is granted. Entitlement to a 30 percent disability rating for left foot disability is granted. FINDINGS OF FACT 1. The Veteran has severe disability of each foot due to pes planus, plantar fasciitis, and heel spurs. 2. The Veteran does not have loss of use of either foot. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for right foot disability have been satisfied since March 30, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5284. 2. The criteria for a rating of 30 percent, but no higher, for left foot disability have been satisfied since March 30, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2004 to February 2008, to include service in Southwest Asia. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board, in November 2017, initially remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. Post-development, in a March 2018 decision, the Board denied the increased disability rating claim for bilateral pes planus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2020 Joint Motion for Partial Remand (JMR) filed by the parties, the Court vacated and remanded the Board’s denial of the increased disability rating claim for bilateral pes planus finding that the Board should address the Veteran’s claimed symptoms and explain how the assigned diagnostic code and rating are most appropriate. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). By way of history, the Veteran was granted service connection for bilateral plantar fasciitis and heel spurs in a March 2009 rating decision with an evaluation of 10 percent. The effective date was February 11, 2008. In March 2012, the Veteran filed a claim that was construed as a claim for increased disability rating for bilateral plantar fasciitis and heel spurs. A December 2012 rating decision assigned a 30 percent rating for that disability effective March 30, 2012, the date of the increased disability rating claim. The Veteran appealed the decision seeking a higher disability rating. The Veteran’s bilateral pes planus has been rated by analogy to acquired flatfoot under Diagnostic Code 5099-5276. 38 C.F.R. § 4.71a. A disability listed under the diagnostic codes must be rated under the diagnostic code that specifically pertains to it. Copeland v. MacDonald, 27 Vet. App. 333, 337 (2015). With an unlisted disability, it may be rated by analogy to a closely related disease or injury with a closely related disease or injury demonstrating similar affected function, anatomical location, and symptomatology. Pes planus, or flatfoot, is evaluated using Diagnostic Code 5276. 38 C.F.R. § 4.71a. Under that diagnostic code a noncompensable rating is assigned with mild flatfoot where symptoms are relieved by built-up shoe or arch support. A 10 percent rating is assigned with moderate flatfoot with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. The noncompensable and 10 percent ratings apply whether the flatfoot affects one or both feet. Severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities is assigned a 20 percent rating if unilateral and a 30 percent rating if bilateral. 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, not improved by orthopedic shoes or appliances is assigned a 30 percent rating if unilateral and a 50 percent rating if bilateral. Notably, Diagnostic Code 5284 is used for rating other foot injuries. Under that diagnostic code, moderate, moderately severe, and severe foot injuries are assigned 10, 20, and 30 percent ratings respectively. 38 C.F.R. § 4.71a. With actual loss of use of the foot the rating is 40 percent. Id. Turning to the evidence, the Veteran presented for a June 2012 VA examination. The Veteran reported that her feet continued to hurt and have worsened in severity. She has difficulty sleeping due to pain, and difficulty walking more than 100 yards. She indicated being unable to work because of inability to stand on feet for long periods of time. She has to elevate her feet due to pain from sitting down or putting weight on feet. She indicated seeing a podiatrist for corticosteroid injection without much relief. Upon evaluation, the examiner diagnosed the Veteran with bilateral plantar fasciitis and heel spurs. Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion or tarsal or metatarsal bones, bilateral weak foot, and other foot injuries were not shown. The Veteran reported using orthotics. The Veteran was afforded a second VA examination in September 2012. The Veteran reported that her feet continues to cause her pain and that she has difficulty sleeping. She indicated being unable to work because she could not stand on her feet for a long period of time. She has been seen by a podiatrist for corticosteroid injections without much relief. Upon examination, the examiner diagnosed the Veteran with bilateral pes planus and bilateral plantar fasciitis/heel spurs. The examiner noted that pain was accentuated on use and manipulation. There were characteristic calluses, but no indication of swelling on use. Symptoms was not relieved by arch support. Extreme tenderness of plantar surface was not shown. There was decreased longitudinal arch height on weight-bearing and objective evidence of marked deformity of the foot. There was no marked pronation of the foot, and no indication of weight-bearing line falling over or medial to the great toe. Lower extremity deformity other than pes planus was not shown. The Veteran had inward bowing of the Achilles tendon, but there was no marked inward displacement and severe spasm of the Achilles tendon. The Veteran reported constantly using bilateral orthotics although does not feel that they make much of a difference. The examiner remarked that the Veteran had moderate pes planus. A third VA examination was held in August 2013. The Veteran reported bilateral foot pain located on the plantar aspect of the foot in the hindfoot and midfoot region. Pain comes and goes depending on activity, aggravated by walking and standing for prolonged periods, as well as lifting. The Veteran indicated that she is able to walk a couple of blocks before pain gets severe and she has to rest. Pain is worse in the morning with the first steps walking out of bed. Thereafter, pain is improved with stretching exercises, rolling tennis ball on undersurfaces of foot, rest, and elevation. The Veteran described the pain as sharp, rated as 8 out of 10 on an average day. The Veteran reported not taking pain medications, uses over the counter shoe inserts, and has gone to physical therapy in the past which helped her learn stretching exercises. The Veteran denied any numbness or tingling in her feet. Upon evaluation, the Veteran was diagnosed with bilateral pes planus and bilateral fasciitis with heel spurs. The examiner noted that pain was accentuated on use and manipulation. There was no indication of swelling on use and characteristic calluses. Her symptoms were not relieved by arch support and the Veteran had extreme tenderness of plantar surface, which was improved by orthopedic shoes or appliances. The examiner noted decreased longitudinal arch height on weight-bearing and objective evidence of marked deformity of the foot. Bilateral marked pronation of the foot was noted. The examiner noted that the weight-bearing line does not fall over or medial to the great toe and there was no indication of a lower extremity deformity other than pes planus, causing alteration of the weight bearing line. The Veteran had inward bowing of the Achilles’ tendon, though there was no marked inward displacement and severe spasm of the Achilles tendon. There were no assistive devices noted being used by the Veteran. A fourth VA examination was held in June 2015. The Veteran was diagnosed with bilateral flat foot (pes planus), hallux valgus, plantar fasciitis, and calcaneal spurs. The Veteran reported pain, and separately, reported flare-ups described as occurring after prolonged weight-bearing activity and upon initial weightbearing after periods of non-weightbearing (sleep or rest) prolonged or exertional weightbearing activity. The Veteran did not report any functional loss. On examination, the examiner noted that pain was accentuated on use and manipulation, and there was characteristic callouses. There was no indication of swelling on use. Orthotics was used on both feet without any relief. Extreme tenderness of plantar surfaces was not shown. The examiner noted decreased longitudinal arch height of one or both feet on weight-bearing. There was no objective evidence of marked deformity or marked pronation of one or both feet. The weight-bearing line does not fall over or medial to the great toe. Lower extremity deformity other than pes planus, inward bowing of the Achilles tendon, and marked inward displacement and severe spasm of the Achilles tendon on manipulation was not shown. Morton’s neuroma and metatarsalgia was not shown. With hallux valgus, the Veteran had mild or moderate bilateral symptoms. With other foot injuries, the examiner noted calcaneal spurs with moderate severity which did not chronically compromise weight bearing. The Veteran’s calcaneal spurs required arch supports. The examiner noted that the Veteran had pain that contributed to functional loss such as excess fatigability and pain on weight-bearing. Additional functional loss during flare-ups was not shown. The Veteran did not indicate using assistive devices. The fifth and latest VA examination was held in January 2018. During the examination, the Veteran reported continuing foot pain, similar to her ankle pain as they are connected. She reported constant pain and flare-ups caused by repeated use and also during random moments. The Veteran reported flare-ups being so bad that she is unable to walk at times, falls, and/or has to crawl around. As such, the Veteran noted that her husband has to constantly help her. There are times when she would be unable to brush her teeth because standing would hurt badly. Upon evaluation, the Veteran was diagnosed with bilateral pes planus with bilateral plantar fasciitis/heel spurs. The examiner noted that pain was accentuated on use and manipulation, and there was indication of swelling on use. There was no characteristic callouses. The Veteran tried using arch supports, built-up shoes, and orthotics, but remains symptomatic. Extreme tenderness of plantar surfaces was not shown, but the Veteran does have decreased longitudinal arch height. There was no objective evidence of marked deformity, marked pronation, and there was no weight-bearing line fall over or medial to the great toe. There was no indication of lower extremity deformity other than pes planus, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Pain contributing to functional loss was noted, manifesting in excess fatigability, pain on movement, pain on weight-bearing, pain on non-weight-bearing, disturbance on locomotion, interference with standing, and lack of endurance. The Veteran reported regularly using over the counter insoles. Although the Veteran indicated continuation of symptoms after usage of orthotics and shoe inserts, over the counter insoles does provide some relief. VA treatment records are not in significant conflict with the examination reports. For instance, in a January 2013 treatment note, the Veteran complained of returning plantar fasciitis with pain greater in the right foot. In a February 2013 VA treatment note, the Veteran reported foot pain as 10 out of 10 at worst, usually after a lot of walking or towards the end of the day. During this time, the Veteran indicated being unable to walk, and has to roll around his ankle until pain is relieved. Upon examination, the VA physician noted that the signs and symptoms are consistent with chronic plantar fasciitis with bone spurring, hypermobility of joints of the foot, and that pes planus was likely significantly affecting heel pain as pain is significantly reduced with medial arch support and the use of proper orthotics in the past. The physician noted that the Veteran also had excessive mobility within the foot along with decreased stability and balance. In a June 2014 treatment, the Veteran complained of continued plantar fasciitis with heel pain worse than before. Findings noted that the Veteran had plantar fasciitis with right foot pain greater than left foot, and also had flexible flatfoot deformity. In a July 2014 treatment note, the Veteran complained of pain on bottom of her foot that radiates to her lower left, discomfort with pressure on right foot, and numbness that has worsened over time. The Veteran was assessed again with plantar fasciitis and flexible flatfoot deformity. A July 2014 foot x-ray noted small plantar spur with soft tissue swelling in the right foot. In a February 2015 VA treatment, the Veteran reported increasing pain in her feet described as slightly red and tender when painful. During a March 2015 VA treatment, the Veteran reported that her feet pain was rated 8 out of 10 in severity. She could not locate the focal point of worst pain, noting that pain was everywhere in her feet. She also complained of ankle pain. After evaluating the Veteran with specific regards to the foot, the physician noted that the Veteran had bilateral plantar fasciitis, generalized foot pain bilaterally, and flexible pes planus. In a June 2015 VA treatment, the Veteran reported that her foot symptoms have progressed and now involve both feet diffusely. She tried using splinting, physical therapy, shoe inserts, and corticosteroid injection but does not feel her symptoms had improved. She indicated having foot pain on a daily basis that sometimes is severe enough resulting in difficulty for the Veteran to walk. Upon assessing the Veteran, the physician noted with regards to her foot that she has plantar fascia pain. During an August 2015 treatment, the Veteran was seen for her chronic bilateral foot and ankle pain. Her pain level was rated 8 out of 10 for the right foot, and 7 out of 10 for her left. She indicated using various interventions such as inserts and injections, among others. Ankle brace helps with stability but does not alleviate pain and that pain would increase in the heel area. She was assessed with bilateral generalized foot pain, plantar fasciitis, and flexible pes planus. In a November 2015 VA treatment, the Veteran reported pain as constant stabbing pain like contractions in her feet. The pain has worsened over the past 6 months that by the end of the day, the Veteran would be unable to walk due to pain and has to crawl on the floor of her home in order to get around. The Veteran denied sensation of weakness or paralysis, and states the pain is the limitation to activity. She could not use a wheelchair in her home due to space limitations. The pain has not radiated up to her knees, and nothing seems to improve the pain. In reviewing foot pain workup, the physician noted that the Veteran does not have rheumatoid disease or arthritis, and electromyography (EMG) were normal with no weakness found. The physician noted that the Veteran has been diagnosed with bilateral plantar fasciitis, right peroneal tendonitis, and flexible pes planus. Physical examination of the feet showed no joint abnormality, diffusely tender to palpation, no pain with strength testing and movement except with palpation, and sensation and gait was normal. The physician noted that the Veteran’s symptoms appear similar to chronic pain syndrome and fibromyalgia despite lack of other classic signs of fibromyalgia. During a March 2017 treatment, the Veteran again reported pain in her feet described as sharp pain with intensity at times. Pain is worse when she walks and sometimes has to crawl around the house due to the pain, rated as 10 out of 10 at worst with flare-ups and 8 out of 10 at other times. The physician assessed the Veteran with fibromyalgia pain in feet bilaterally. In an August 2017 treatment, the Veteran reported constant foot pain in her feet and the need for new shoe inserts. She indicated doing conservative treatment measures every day for heel pain with no relief. The physician assessed the Veteran with chronic foot pain, plantar fasciitis, medial calcaneal neuritis, fibromyalgia, and pes planus. In a February 2018 treatment, the Veteran reported that her foot pain went from a 10 out of 10 to 5 out of 10 in terms of severity. In a subsequent February 2018 treatment, the Veteran noted ambulating with a walker due to fibromyalgia associated with foot and leg pain. The Veteran testified that she has trouble walking because of her foot disabilities. She reported daily flare-ups where it is hard to bend the ankle and she has throbbing pain such that she crawls around the house at times. This reportedly starts around 6 in the evening and continues all night. It is noted that the Veteran is rated separately for bilateral ankle disability which is not the subject of this decision. The Board finds that in order to maximize benefits to the Veteran the diagnostic code under which these disabilities are rated should be switched to Diagnostic Code 5284 (other foot injuries). 38 C.F.R. § 4.71a. The evidence as described above shows severe foot injury to each foot. Thus, a 30 percent rating is assigned for each foot, effective the date of the current claim. The Board has considered whether the Veteran has loss of use of either foot, such that a higher rating could be awarded. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. Loss of use of the foot exists when no effective function remains 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. 38 C.F.R. § 4.63. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Id. The evidence is against a finding of loss of use of either foot. When asked, all five examiners indicated that there was not functional impairment due to the Veteran’s foot condition such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Board recognizes the Veteran reports pain so severe that at times she has to crawl. However, this impairment is not constant. Instead, the Veteran indicates this happens near the end of the day or during flare-ups. See February 2013 VA treatment note, June 2015 VA treatment note, November 2015 VA treatment note, March 2017 VA treatment note, May 2017 hearing testimony, January 2018 VA foot examination. Importantly, the January 2018 examiner specifically took into account the Veteran’s report that she is unable to walk at times, falls, and/or has to crawl around when determining her feet disabilities did not result in no effective function remaining other than that which would be equally well served by an amputation with prosthesis. The Veteran’s husband also testified about the Veteran driving, which suggests that her right ankle is not limited such that it would be equally served by amputation and prosthesis. Overall, the evidence shows severe limitations in each foot; however, the Veteran still has use of each foot. Loss of use of either foot is not shown. While these disabilities were previously rated under Diagnostic Code 5276 as flatfoot, consideration of that diagnostic code is no longer necessary. The highest disability rating available under that code is 50 percent for bilateral, pronounced flatfoot. 38 C.F.R. § 4.71a. The Veteran’s two 30 percent ratings combine to a 50 percent or higher rating; thus, Diagnostic Code 5276 could not be used to assign a higher rating than that which is assigned as a result of this decision. 38 C.F.R. § 4.25, 4.26. Further, a separate rating under Diagnostic Code 5276 would constitute impermissible pyramiding as symptoms contemplated when assigning ratings under Diagnostic Codes 5276 and 5284 would overlap. 38 C.F.R. §§ 4.14, 4.71a. The same could be said for other diagnostic codes related to the foot such as hallux valgus. Id. To the extent the Veteran is asserting that an extraschedular rating should be assigned for either foot, the Board disagrees. See 38 C.F.R. § 3.321(b)(1). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe her disability picture. The Veteran’s foot disabilities are now rated under Diagnostic Code 5284. That diagnostic code is based on the disability being, moderate, moderately severe, or severe. 38 C.F.R. § 4.71a. It is not symptom specific and contemplates all symptoms. The rating is ultimately assigned based on the level of impairment from any associated symptom. Here, the Veteran’s foot disability manifestations are reasonably contemplated by Diagnostic Code 5284. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. (Continued on the next page.) In summary, separate 30 percent ratings, but no higher, are warranted for each foot effective March 30, 2012. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.