Citation Nr: 21001891 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-25 009 DATE: January 12, 2021 ORDER Entitlement to increased rating for bilateral plantar fasciitis with pes planus and bilateral hallux valgus, rated as 10 percent disabling prior to November 14, 2017, 30 percent disabling from November 14, 2017 to July 27, 2020 and 50 percent thereafter, is denied. FINDINGS OF FACT 1. For the appeal period prior to November 14, 2017, the Veteran’s bilateral plantar fasciitis with pes planus manifested as foot pain, stiffness, fatigability and lack of endurance with walking and standing as well as tenderness on the plantar surfaces and excessive pronation without pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation that was not improved by orthopedic shoes or appliances. 2. For the appeal period from November 14, 2017 to July 27, 2020, the Veteran’s bilateral plantar fasciitis with pes planus manifested as sharp pain with walking and standing, toe numbness, pain accentuated on use, swelling on use, characteristic callosities and decreased longitudinal arch height without marked deformity of the feet, marked pronation of the feet, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation that was not improved by orthopedic shoes or appliances. 3. For the appeal period beginning on July 27, 2020, the Veteran’s bilateral plantar fasciitis with pes planus manifested as tenderness in the plantar surfaces of the feet that was not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for increased rating for bilateral plantar fasciitis with pes planus and bilateral hallux valgus, rated as 10 percent disabling prior to November 14, 2017, 30 percent disabling from November 14, 2017 to July 27, 2020 and 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.101, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276, 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1982 to July 1992 and from December 2003 to October 2004. This matter is on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was granted service connection for his bilateral plantar fasciitis effective July 6, 2010. As such, the Board will consider all evidence from that date onwards. The Board previously remanded the matter, as well as claims for service connection for sleep apnea, a left knee disorder and a back disorder, for additional development in July 2017. Specifically, the Agency of Original Jurisdiction (AOJ) was instructed to obtain an updated VA examination to determine the nature and severity of the Veteran’s bilateral plantar fasciitis. Such an examination was conducted in August 2020. Therefore, the Board determines that there has been substantial compliance with the Board’s previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). An August 2020 rating decision granted the Veteran's claims for service connection for sleep apnea, lumbar spine degenerative disc disease and left knee arthritis and assigned an initial rating for each disability. As this decision represents a full grant of the benefits sought with respect to these claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). A December 2018 rating decision granted a rating of 30 percent beginning on November 14, 2017 for the Veteran’s bilateral plantar fasciitis. In addition, the August 2020 rating decision recharacterized the issue of bilateral plantar fasciitis to bilateral plantar fasciitis with pes planus and bilateral hallux valgus and assigned a 50 percent rating as of July 27, 2020. VA laws mandate that when a Veteran seeks an increased evaluation, it will generally be presumed that the Veteran is seeking the maximum benefit allowed by law. As the maximum benefit has not been granted, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to increased rating for bilateral plantar fasciitis is denied. The Veteran has asserted that he is entitled to an increased rating for his bilateral plantar fasciitis, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. Specific argument in support of this appeal has not been submitted. Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R.§ 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R.§ 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. The Veteran’s bilateral plantar fasciitis with pes planus and bilateral hallux valgus is rated by analogy under Diagnostic Codes 5280 and 5276 for an hallux valgus and flat feet. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that "when a condition is specifically listed in [VA's schedule for rating disabilities], it may not be rated by analogy."). Hallux valgus has been rated under Diagnostic Code 5280, which provides a 10 percent disabling rating for unilateral hallux valgus, if severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. The highest rating available under Diagnostic Code 5280 is 10 percent. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a 10 percent rating is warranted for bilateral pes planus when symptoms are moderate, with weight bearing line over or medial to the great toe, inward bowing of the achilles tendon, and pain on manipulation and use of the feet. When the bilateral pes planus is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 30 percent rating is warranted. When the bilateral pes planus is pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the achilles tendon on manipulation, not improved by orthopedic shoes or appliances, a 50 percent rating is warranted for bilateral involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. 38 C.F.R. § 4.6. Although an element of evidence to be considered by the Board, the use of terminology such as "severe" by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has been afforded several VA examinations during the appeal period. The Board will summarize the results of the Veteran’s various VA examinations and other medical and lay evidence, beginning from the date of service connection - July 6, 2010 onwards. The Veteran was provided a VA examination for his flat feet condition in November 2010. The examination found that the Veteran suffered from mid bilateral plantar foot pain that was aggravated by prolonged walking. The examination listed the condition having its onset in the 1980s. The examination also noted that the Veteran suffered from pain flareups upon running. The Veteran also had stiffness while standing, walking, and at rest. Fatigability was also noted while standing and walking, along with a lack of endurance. The condition manifested intermittently, punctuated by periods of remission. The Veteran was able to get partial relief by treating with Bengay. Functional limitation was such that the Veteran was unable to stand more than a few minutes at a time. The Veteran was able to walk, but no more than one mile maximum. However, the Veteran’s gait was normal and X-rays showed no abnormalities of the feet. There were no fractures, subluxation, or significant degenerative changes found. The examiner ultimately diagnosed the Veteran with bilateral plantar fasciitis and opined that it was at least as likely as not (at equipoise) causally related to the Veteran’s military service. However, as the effects of the condition upon the Veteran were found to be mild, the RO rated the condition at a noncompensable level. As explained later in this decision, the rating was later found to be incorrect, due to the Veteran experiencing pain on use of his feet, when walking. This error has since been corrected and the Veteran awarded a 10 percent rating based on pain upon use of his feet. The Veteran was provided another VA examination in November 2017, in which the examiner noted the Veteran’s reports of sharp pain triggered by walking and prolonged standing and the Veteran’s complaint of flare-ups with ankle swelling. The examiner opined that the Veteran’s subjective complaints of bilateral foot pain did not result in functional loss. The examination also noted that the Veteran had tried shoe inserts to remedy his condition, but found no relief with that method. The exam also found pain on use accentuated, indication of swelling on use, and characteristic callosities, all symptoms associated with a 30 percent rating. The Veteran does not warrant a higher rating for Accordingly, the RO awarded the Veteran a 30 percent rating for the period of November 14, 2017 to July 27, 2020. 38 C.F.R. § 4.71a Subsequently in another VA examination of July 27, 2020, the Veteran was found to have extreme tenderness in the plantar surfaces of the feet. Also, his condition did not see improvement despite the usage of orthopedic inserts. The Veteran’s additional symptoms were: characteristic callosities; indication of swelling upon use/exertion; pain upon usage and manipulation of the feet; and pain upon usage and manipulation of the feet, accentuated. A review of the record reveals that the Veteran has sought treatment from VA. To the extent that the Veteran’s treatment records contain information relevant to the severity of his bilateral plantar fasciitis, the Board will summarize this evidence. A September 2013 VA treatment note reflects an assessment of pes planus with excessive pronation and noted that physical examination revealed range of motion to be normal and pain free and that there was a mild decrease in the medial arch height upon weight-bearing. For the appeal period from July 6, 2010 to November 13, 2017, the Veteran’s bilateral plantar fasciitis with pes planus manifested as foot pain, stiffness, fatigability and lack of endurance with walking and standing as well as tenderness on the plantar surfaces and excessive pronation. The record does not establish, and the Veteran has not alleged, objective evidence of pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo achillis on manipulation and not improved by orthopedic shoes or appliances. Therefore, a rating in excess of 10 percent is not warranted. For the appeal period from November 13, 2017 to July 27, 2020, the Veteran’s bilateral pes planus manifested as sharp pain with walking and standing, toe numbness, pain accentuated on use, swelling on use, characteristic callosities and decreased longitudinal arch height. The record does not establish, and the Veteran has not alleged, marked deformity of the feet, marked pronation of the feet, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. Although the Veteran had used arch supports without relief, he had not used orthopedic shoes or appliances. Therefore, a rating in excess of 30 percent is not warranted. For the appeal period beginning on July 27, 2020, the Veteran in in receipt of the highest schedular rating under Diagnostic Code 5276. The Board has also considered the application of Diagnostic Code 5284 for "other" foot injuries. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). However, as the Veteran is currently in receipt of a rating based on bilateral foot symptomatology affecting his feet, it would be tantamount to pyramiding to award a separate rating under Diagnostic Code 5284 for the same symptomatology. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, as previously discussed, as the Veteran's bilateral symptomatology results in no more than moderate impairment prior to July 27, 2020 and severe impairment thereafter, a higher rating under Diagnostic Code 5284 for a moderately severe or severe foot injury is not warranted. The Board has also considered whether higher or separate ratings are warranted under any other potentially applicable Diagnostic Code. The record does not establish, and the Veteran has not alleged, that he suffers from weak foot, acquired pes cavus (clawfoot), Morton's neuroma, hallux rigidus, hammer toes or malunion or nonunion of tarsal or metatarsal bones, Therefore, higher or separate ratings under Diagnostic Codes 5277, 5278, 5279, 5281, 5282, or 5283 respectively, are not warranted. While the Veteran has been diagnosed with hallux valgus, he has not required surgery to include the resection of the metatarsal head. Therefore, a separate rating under Diagnostic Code 5280. In assessing the severity of the Veteran’s bilateral plantar fasciitis, the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran’s lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his bilateral plantar fasciitis according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); The Board has also considered whether further staged ratings under Fenderson, supra, are appropriate for the Veteran’s service connected bilateral plantar fasciitis; however, the Board finds that his symptomatology referable to such disability has been stable throughout each period on appeal. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his bilateral plantar fasciitis. In addition, the Veteran reported working at a courthouse in a February 2020 VA treatment note. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his increased rating claim decided herein and, consequently, no further consideration of such is necessary at this time. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for increased rating for any of the periods during the pendency of this appeal. Given that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, Associate Counsel 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.