Citation Nr: 21062006 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-13 721 DATE: October 6, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to September 22, 2020, and a rating in excess of 30 percent since September 22, 2020 for right foot plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to August 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2019; a copy of the transcript is associated with the case file. This case was most recently before the Board in April 2020, when it was remanded for additional development. A July 2021 supplemental statement of the case was most recently issued, and the claim is once again before the Board. 1. Entitlement to an initial rating in excess of 10 percent prior to September 22, 2020, and a rating in excess of 30 percent since September 22, 2020 for right foot plantar fasciitis is remanded. Historically, the Veteran was granted service connection for bilateral flat feet in an October 2015 rating decision under Diagnostic Code (DC) 5276 and assigned a 10 percent rating. In response to the Veteran's appeal for an increased rating, the RO promulgated a March 2017 statement of the case and recharacterized the Veteran's service-connected bilateral foot disability as "right foot plantar fasciitis" and removed "bilateral flat feet." Subsequent rating decision code sheets now list the DCs as "5299-5276." In a September 2020 rating decision, the Veteran was awarded an increased rating of 30 percent, beginning September 22, 2020, for his service-connected foot disability now characterized as right foot plantar fasciitis. He was additionally separately granted service connection for right foot fibromas with peroneal tendonitis and assigned a 10 percent rating, effective February 5, 2020, under DC 5284 for that disability. The Veteran asserts that the agency of original jurisdiction (AOJ) erred when it changed his disability from bilateral pes planus to only right foot plantar fasciitis. In other words, the Veteran argues that he has both left and right foot disabilities related to service, and these disabilities are more severe than currently rated. Under Diagnostic Code 5276 (acquired flatfoot), bilateral pes planus will be rated as noncompensable when it is mild, with symptoms relieved by built-up shoe or arch support. A 10 percent rating is assignable for moderate involvement, whether unilateral or bilateral, with objective evidence of weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 30 percent evaluation is assignable for severe bilateral involvement, (20 percent evaluation is assignable for severe unilateral) with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assignable for pronounced bilateral acquired flatfoot (30 percent for unilateral), 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The February 2021 changes to 38 C.F.R. § 4.71a resulted in the establishment of a new Diagnostic Code 5269, which specifically relates to plantar fasciitis. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Following the Board's remand, the Veteran was afforded a September 2020 VA examination. Diagnoses of bilateral pes planus and bilateral plantar fasciitis were provided. A diagnosis of bilateral plantar fibromatosis was also made. A subsequent October 2020 VA examination and opinion were provided. The examiner opined that the Veteran's pes planus, plantar fasciitis and plantar fascial fibromatosis have remained stable. She noted that the Veteran's plantar fasciitis and plantar fascial fibromatosis are not related to nor a progression of pes planus. A subsequent June 2021 medical opinion was obtained. The examiner noted that the Veteran was diagnosed with pes planus during service, and this is a permanent foot condition. He noted that in an October 2012 record the Veteran was diagnosed with calcaneal spurs and arthritis of the right midfoot, and in 2017 the Veteran was diagnosed with plantar fasciitis. The examiner opined that these diagnoses are all related to pes planus which is indicative of progression of the right foot condition. Here, the current diagnostic criteria for pes planus are distinct from the criteria for plantar fasciitis, and from his now diagnosed arthritis and calcaneal spurs. Based on the evidence of record, it appears that the Veteran has several separate disabilities of the feet. Clarification is required as to whether service connection for bilateral flat feet, initially granted in the October 2015 rating decision, was essentially severed as a result of the March 2017 statement of the case, and whether the subsequent characterization of the Veteran's bilateral foot disability as right foot plantar fasciitis represents service connection for a new disability. Based on the findings of the June 2021 medical opinion, it appears that service connection for bilateral pes planus should have remained undisturbed. Based on the June 2021 medical opinion it appears that the Veteran's calcaneal spurs, arthritis, and plantar fasciitis are separate and distinct disabilities of his feet that are secondary to his service-connected pes planus. On remand, the AOJ should review the record to determine whether the Veteran is entitled to separate ratings for bilateral pes planus (flat feet), plantar fasciitis, arthritis, and calcaneal spurs, and should assign separate ratings as appropriate for each such disability. The matters are REMANDED for the following actions: 1. Review the record to determine whether the Veteran is entitled to separate ratings for bilateral pes planus (Diagnostic Code 5276), plantar fasciitis (DC 5269), arthritis, and calcaneal spurs. The AOJ should note that by essentially switching the Veteran's rating from bilateral pes planus to right foot plantar fasciitis, the Veteran's service-connected foot disability was changed from a bilateral disability to a unilateral disability. If the AOJ determines that separate ratings are not warranted for the Veteran's feet, the AOJ should provide appropriate reasons and bases to include discussion as to whether the recharacterization of the Veteran's service-connected disability as right foot plantar fasciitis effectively resulted in the severance of service connection for bilateral pes planus originally promulgated in the October 2015 rating decision. The AOJ must also take all appropriate action to ensure that all service-connected foot disabilities are separately and appropriately rated, including consideration of both prior and current Diagnostic Codes relating to foot disabilities. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.