Citation Nr: 21003578 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-38 007 DATE: January 22, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for a bilateral foot disability, from January 17, 2012 to December 4, 2019, is granted. FINDINGS OF FACT 1. From January 17, 2012 to December 4, 2019, the Veteran’s bilateral foot disability was manifested by symptoms, primarily pain while walking, pain after sitting for long periods of time and pain during prolonged periods of standing, that were no more than moderately severe in degree. 2. The preponderance of the evidence shows that the Veteran has been in receipt of the maximum rating possible for a service-connected hallux valgus disability at all times during the pendency of the appeal. 3. The preponderance of the evidence shows that the Veteran was employed, other than for brief periods of convalescence, throughout the period on appeal. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for a bilateral foot disability, from January 17, 2012 to December 4, 2019, have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision from the Department of Veterans (VA) Regional Office (RO). In September 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In May 2019 the Board remanded the Veteran’s claim for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an August 2020 rating decision, the RO granted the Veteran a 10 percent rating (increased from 0 percent), from January 17, 2012 to December 4, 2019, and a 50 percent rating, thereafter. The Board notes that 50 percent is the highest available rating under the applicable diagnostic code and therefore, a higher rating is not warranted for any time after December 4, 2019. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276. The Board finds no basis to provide the Veteran more compensation for this disability on a scheduler or extra-scheduler basis and no other Diagnostic Code is warranted for this problem. The Veteran has not indicated any issue with the recent grant. However, since the Veteran was presumed to be seeking the maximum benefit allowed by law and regulation, from January 17, 2012 to December 4, 2019, the additional assignment of benefits during this time period was not considered to have resolved the Veteran’s claim. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that the Veteran is in receipt of a combined 100 percent disability rating from December 4, 2019. However, the current appeal does not include a claim for a total rating based on individual unemployability (TDIU) and the record does not suggest that the Veteran’s service-connected bilateral foot disability renders him unemployable. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the claim for a higher rating in this case. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In any event, considering the 100 percent rating this issue is effectively moot. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The regulation does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In adjudicating below whether the Veteran meets the criteria for a higher evaluation for his bilateral foot disability the Board has not overlooked the United States Court of Appeals for Veterans Claims (Court) holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Tellingly, the Board finds that the information provided by the June 2012, October 2013, December 2013 and December 2019 VA foot examiners is adequate to address the concerns raised by the Court in these two cases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to an evaluation in excess of 10 percent disabling for a bilateral foot disability from January 17, 2012 to December 4, 2019 From January 17, 2012 to December 4, 2019, the Veteran’s bilateral foot disability was rated as 10 percent disabling under Diagnostic Code 5299 – 5284 (Other Foot Injuries). Thereafter, the Veteran’s bilateral foot disability has been rated as 50 percent disabling under Diagnostic Code 5276 (Flatfoot). Under Diagnostic Code 5276, for acquired flatfoot, a noncompensable (0 percent) rating is assigned where the flatfoot is mild with symptoms relieved by built-up shoe or arch support. A 10 percent disability rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, 20 and 30 percent disability ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent disability ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276. It is important for the Veteran to understand the criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Under Diagnostic Code 5282, for hammer toe, a noncompensable rating is assigned for evidence showing hammer toe in a single toe and a 10 percent rating is assigned for the disability manifesting in all toes, unilateral, without claw foot. Diagnostic Code 5284 provides a 10 percent rating for a moderate foot injury, a 20 percent rating for a moderately severe foot injury, and a 30 percent rating for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The terms “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board also notes that the Veteran’s service-connected bilateral foot disability has not been manifested during the period on appeal by weak foot, claw foot (pes cavus), Morton’s disease, or impairment of the tarsal or metatarsal bones, and therefore Diagnostic Codes 5277, 5278, 5279, 5281, and 5283 are not for application. The Board now turns to the merits of the Veteran’s claim for a higher disability rating for his foot disability from January 17, 2012 to December 4, 2019. At the outset, the Board notes the Veteran is service connected for a plantar fasciitis condition, not flatfoot. The Board notes that plantar fasciitis is a distinct and separate condition from flatfoot (pes planus). See VA Medical Opinion Addendum Dr. K.C. dated September 11, 2020. Plantar fasciitis can occur both in the presence and absence of a flatfoot condition. Id. Here, the Veteran’s symptoms of plantar fasciitis have, at times, been shown to be most closely associated with Diagnostic Code 5276 (Flatfoot), while at other times with Diagnostic Code 5299 – 5284 (Other Foot Injuries). Therefore, the Veteran’s bilateral foot disability has been rated by analogy throughout the appeal period, since there is no rating schedule to be applied to the Veteran’s diagnosis of plantar fasciitis directly. 38 C.F.R. §§ 4.20, 4.27. In June 2012 the Veteran underwent a VA examination for his bilateral foot disability. The VA examiner saw the Veteran in person and reviewed his file. Here, the Veteran reported his bilateral foot condition had become worse over time, at one time requiring him to go to the emergency room, and that he received [cortisone] shots in his feet, which helped alleviate pain temporarily. The Veteran also stated that he was fitted for orthotic inserts for his shoes, but reported they made his feet hurt worse than without inserts. Diagnostic testing revealed degenerative or traumatic arthritis in multiple joints bilaterally. The examiner reported other significant findings were bone spurs in both heels, but that there was no functional impact on the Veteran’s ability to work. In October 2013 the Veteran underwent another VA examination for his bilateral foot disability. The examiner saw the Veteran in person and reviewed his file. The Veteran reported that he wore orthotic inserts in his boots and tennis shoes and stated that he was working as a police officer at the time, which required him to wear gear adding at least 30 pounds, and this worsened his bilateral foot pain over a 12-hour shift. On examination, the Veteran was found to have metatarsalgia (pain in the ball of the foot). The examiner noted that there was mild tenderness at the ball and heel bilaterally consistent with arthritis and possibly insertion points of his tendons. There was no objective evidence of redness, swelling, or arch pain at the mid foot bilaterally. The examiner opined there was no functional impact on the Veteran’s ability to work. In December 2013 the Veteran underwent two separate VA examinations for his bilateral foot disability. On the December 2013 Miscellaneous Foot (Other than Flatfoot) Disability Benefits Questionnaire (DBQ), the examiner saw the Veteran in person and reviewed his file. The Veteran continued to complain of bilateral heel pain worse in the morning upon taking first steps and after prolonged sitting. The examiner noted the Veteran recently underwent a left bunionectomy surgery and was convalescing at that time. The examiner reported there was functional impact on the Veteran’s ability to work, but that impact was due to his left bunionectomy surgery and that he was scheduled to return to work at the end of that month. On the December 2013 Flatfoot DBQ, the examiner saw the Veteran in person and reviewed his file. Here, the examiner noted that the Veteran had a diagnosis of plantar fasciitis but there was no objective evidence of bilateral pes planus (flatfoot) upon examination. The examination recorded that the Veteran did not have pain on use of his feet, no pain on manipulation, no swelling on use, and no extreme tenderness of plantar surface of either foot was noted. The examiner reported that the Veteran’s symptoms were relieved by arch supports. Additionally, there was no evidence of decreased longitudinal arch height on weight-bearing, no objective evidence of marked deformity of the foot, no marked pronation of the foot, weight-bearing line did not fall over or medial to the great toe, no lower extremity deformity other than pes planus causing alteration of the weight bearing line, no “inward” bowing of the Achilles’ tendon, and no marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation. Furthermore, the examiner noted that the Veteran’s flatfoot condition did not impact his ability to work (because there was not a diagnosis of flatfoot). In December 2019 the Veteran underwent a VA examination for all foot conditions (including flatfoot). The examiner saw the Veteran in person and reviewed his file. The Veteran reported ongoing symptoms that have progressively worsened, no therapy (physical therapy, home exercises, cortisone shots) alleviated his pain and that sometimes the pain is so bad it wakes him up at night. The Veteran also reported being in pain every day. The examiner noted pain with flare-ups causing functional impact, pain on use of the feet, pain on manipulation of the feet, pain on weight-bearing and non weight-bearing and extreme tenderness of plantar surfaces. The examiner opined that there was functional loss as a result of the Veteran’s bilateral foot disability. Next, the Board finds that the Veteran’s treatment records, at all times since at least one year before he filed his claim for an increased rating, document his complaints and treatment for, among other things, adverse symptomatology caused by his service connected bilateral foot disability to include pain getting worse over time, most notably in the bottom of his heel, pain with prolonged standing and that the inserts he was using were not helping his bilateral foot condition. See, e.g., VA treatment records dated in January 2012, September 2016, November 2017. In October 2018 and April 2019, the Veteran was seen by a VA podiatrist. Here, the Veteran reported aching and sharp bilateral foot pain that was aggravated by walking and alleviated by resting. The Veteran also reported cramping in his feet during weight-bearing exercises, and that his orthotics were not helping with his foot condition. On examination, the podiatrist reported palpation of bones, joints and ligaments were abnormal with pain around the plantar and post achilles tendon. The Veteran was reported as having a pronated gait and medial boney prominence with lateral toe deviation due to hallux bilaterally. The podiatrist was of the impression that the Veteran’s bilateral foot condition was described as plantar fasciitis with hammer toes, hallux valgus, gastrocnemius equinus, and radiculopathy. It is important to point out that to assign the Veteran a separate rating under Diagnostic Code 5282 for hammer toe(s) in this case would compensate the Veteran twice for the same symptoms of his bilateral foot disability where he is already rated separately under 5280 (hallux valgus) and 5284 (other foot injuries). Moreover, the highest available rating under Diagnostic Code 5282 in this case is 10 percent; thus, Diagnostic Code 5282 does not allow for a higher rating than the 10 percent disability rating currently assigned under Diagnostic Code 5284 for the period on appeal. Therefore, a separate and/or increased rating under Diagnostic Code 5282 is not warranted in this case. See 38 C.F.R. § 4.14. Additionally, the Board acknowledges that the Veteran was referred to a private (non-VA) podiatrist in April 2012. See Medical Report from M.A. dated April 17, 2012. At the examination the Veteran reported pain in both of his feet for many years’ duration and that symptoms of his bilateral heel pain and plantar fasciitis had become “much worse” starting the prior year. The examiner reported the Veteran had moderate to severe flatfoot bilaterally and pain on palpation about the plantar medial tubercle of both heels. However, in August 2020, VA was asked to provide an addendum opinion regarding the April 2012 private medical report from Dr. M.A. The purpose of the addendum opinion was to review the private medical report from April 2012, combined with information from the Veteran throughout the appeal period, to determine if there are rating factors (symptoms) that would allow VA to increase the rating for the Veteran’s plantar fasciitis condition. After reviewing the available treatment records, the August 2020 VA examiner found that the record failed to demonstrate any evidence of a flatfoot condition other than the single entry by the non-VA podiatrist in April 2012. The examiner further reported that the most recent VA podiatry treatment, in 2019, noted the presence of a “slightly high arch,” which is the opposite of a flat foot anatomy. See VA Podiatry Clinic Note dated December 12, 2019. “Based on the physiological implausibility beyond the realm of possibility” of the veteran having a moderate to severe flatfoot condition (in April 2012), which then resolved within weeks (at VA examination in June 2012), to never appear again, the examiner found that the private medical report from April 2012 lacked credibility to justify a diagnosis of flatfoot. The August 2020 examiner’s opinion was formed on the basis that “flat foot is not a transient but a permanent anatomic finding, which can only progress to become more pronounced…short of a major specific foot surgery (for which there is no evidence found for this Veteran).” Therefore, for the reasons stated by the August 2020 VA examiner, the Board finds that the April 2012 private medical report has serious credibility issues and is of little probative value in the present claim. The Veteran’s main contention in this case appears to be that previous VA examinations did not consider his description of pain or its effect on his work and home life in the calculation of the severity of his bilateral foot disability during the appeal. See e.g., Veteran’s Correspondence dated July 22, 2013; VA Form 9 dated September 24, 2014; Hearing Transcript dated September 25, 2018. The Veteran also reported on multiple occasions that his arch supports and/or orthotic inserts have not improved his foot condition despite what VA examiners stated to the contrary. Id. In this regard, the Board finds that the basis for the 10 percent disability rating during the appeal period, from January 17, 2012 to December 4, 2019, was in fact based on pain. See August 2020 rating decision. Therefore, the Board finds that the VA examiners (and adjudicators) did include pain in their analysis of the Veteran’s symptoms and the degree of his bilateral foot disability, which formed the basis of the Veteran’s current 10 percent disability rating during the period on appeal. Additionally, the Board has considered the statements from the Veteran that inserts did not help his symptoms throughout the appeal period. However, even considering his statements, the record does not indicate the Veteran had conjunctive problems with marked pronation, marked inward displacement and severe spasm of his Achilles tendon. Importantly, while the Veteran and his examiners both reported pain in his feet, the medical professionals did not indicate that this amounted to extreme tenderness of the plantar surfaces of the feet. Further, the evidence does not even show that the Veteran had a marked deformity (pronation, abduction, etc.), indications of swelling on use and characteristic callosities at any point during the period on appeal. See e.g., VA Examinations from June 2012, October 2013, December 2013 and December 2019. Therefore, the most probative evidence of record fails to show that a 30 percent, let alone a 50 percent rating, under Diagnostic Code 5276, is warranted for the period on appeal where the symptoms of the Veteran’s bilateral foot disability do not meet the elements required by the higher rating criteria, as stated above. See 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also Melson, supra. Regarding all the above, the Board acknowledges the Veteran’s statements that he believes his bilateral foot disability is worse than indicated by his assigned rating and that his conditions continue to give him pain, interfere with his daily life, and affect his ability to work. However, while the Veteran is competent to report symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his foot condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board has placed more weight on the objective evidence and has weighted it appropriately as discussed above. This includes the examinations provided to the Veteran, which the Board finds to be adequate, as the examiners reviewed the Veteran’s record, examined the Veteran in person, rendered opinions that were supported by explanations, and performed all necessary testing during the examinations. While his disability clearly bothers him a great deal, it is important for the Veteran to understand that this is the basis for the current findings and the current rating assigned. The fact that the Veteran has these disabilities is not in dispute, it is only the degree. In any event, in light of the complaints of pain, there is competent, credible and probative evidence to warrant an increased rating to 20 percent under Diagnostic Code 5284 (Other Foot Injuries) for the period on appeal. When considering the Veteran’s complaints of pain, flare-ups, as well as lost function with weight bearing and non-weight bearing as directed by the Court in Correia, supra, Sharp, supra, and DeLuca v. Brown, 8 Vet. App. 202 (1995), the adverse symptomatology documented at the above VA examinations (i.e., bone spurs in both heels, mild tenderness at the ball and heel bilaterally consistent with arthritis, pain with flare-ups causing functional impact), and the Veteran’s claims regarding pain while walking, pain after sitting for long periods of time and pain during prolonged periods of standing, the Board finds that the evidence shows that his disability equated to at least “moderately severe” foot injuries. See Owens, supra. Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that the Veteran’s bilateral plantar fasciitis approximated the criteria for a 20 percent rating, but no more, for a moderately severe foot injury at all times between January 17, 2012 and December 4, 2019, under Diagnostic Code 5284. See Fenderson, supra; Hart, supra. It is important for the Veteran to understand that there is a limited basis for a finding of a 20 percent rating that the Board can take based on a detailed review of the Veteran’s complaints and the medical evidence of record. There is no basis for a higher rating beyond this. Some of the evidence cited above does not support the grant of this claim to 20 percent, let alone a higher rating of 30 percent, under Diagnostic Code 5284. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a higher rating of 20 percent, but no higher, for his bilateral foot disability is warranted under Diagnostic Code 5284 for this limited period of time. See U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, shows that the Veteran remained employed throughout the period on appeal. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.