Citation Nr: 21067436 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-24 170 DATE: November 4, 2021 ORDER Prior to November 8, 2014, entitlement to a 30 percent disability rating, but no higher, for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet is granted. From November 8, 2014, entitlement to a disability rating in excess of 30 percent for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet has manifested with extreme tenderness of the plantar surfaces of the feet and pain on use of the feet, accentuated. 2. For the entire period on appeal, the Veteran's status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet has not manifested with marked inward displacement and severe spasm of the tendo achillis on manipulation which was not improved with orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet prior to November 8, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for a disability rating in excess of 30 percent from November 8, 2014 for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from December 1982 to November 1989, December 1990 to June 1991, and with the Army National Guard from September 1995 to January 2008. He had service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in June 2021, at which time the issue on appeal was remanded for additional development. The case has since returned to the Board for appellate consideration. Entitlement to a disability rating in excess of 10 percent prior to November 8, 2014 and in excess of 30 percent thereafter for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet The Veteran seeks higher disability ratings for his service-connected status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet, currently assigned a 10 percent disability rating prior to November 8, 2014 and a 30 percent disability rating thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 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 amended regulations include a specific Diagnostic Code for plantar fasciitis (5269), which provides for up to a 30 percent (maximum) rating for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As previously noted, the Veteran's status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis of the bilateral feet is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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 maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Turning to the evidence, the Board notes that the Veteran was first afforded a VA examination in connection with his claim for increased ratings in July 2013, though the Board notes it was a "Foot Miscellaneous (other than Flatfoot/Pes Planus)" examination and did not specifically address pes planus or plantar fasciitis. The examiner wrote that the Veteran developed pain at the bottom of his feet after repeated jumps during service, and that he had bilateral plantar fasciotomy surgery during service. The examiner further wrote that the Veteran had bilateral plantar calcaneal spurs. The examiner noted that the Veteran required bilateral shoe inserts for daily activities, and that he had mild pain at the insertion of the plantar fascia on prolonged standing, with no swelling or redness. Imaging studies showed degenerative or traumatic arthritis in multiple joints of both feet. The examiner found that the Veteran's foot disability did not impact his ability to work and noted again that the Veteran required the use of shoe inserts bilaterally to help with pain or walking. The Veteran was afforded a VA Foot Conditions, including Flatfoot (Pes Planus) examination in February 2015. The examiner diagnosed pes planus, plantar fasciitis, and degenerative arthritis of the bilateral feet. The Veteran reported pain consisting of a dull ache at rest in both feet, as well as sharp pains with prolonged walking or standing. He denied flare-ups impacting the function of the feet but endorsed functional loss or impairment consisting of an inability to walk more than half a mile, and an inability to run. He endorsed pain accentuated on use of both feet and pain accentuated on manipulation of both feet. There was no indication of swelling on use and no characteristic callouses. The Veteran reported use of bilateral orthotics. There was extreme tenderness of the plantar surfaces of both feet that was improved by orthopedic shoes or appliances. There was decreased longitudinal arch height of the right foot on weight-bearing. There was no evidence of marked deformity of one or both feet, and no marked pronation of one or both feet. The weight-bearing line fell over or medial to the great toe in both feet. There was otherwise no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon of one or both feet, nor did he have marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. The examiner noted that the Veteran had pain on physical examination of both feet which contributed to functional loss. Contributing factors of disability included pain on movement of both feet, pain on weight-bearing of both feet, pain on non-weightbearing of both feet, disturbance of locomotion of both feet, interference with standing in both feet, and lack of endurance of both feet. The Veteran reported that during flare-ups and after repeated use over time, he was unable to walk more than half a mile without having to sit, and he was unable to run. There was otherwise no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. The examiner noted that the Veteran had surgical scars related to the in-service surgeries he had undergone to treat his bilateral foot disability, but none of the scars met the criteria for a separate disability rating. The Veteran required constant use of orthotics for his disability, and he also reported using splints on both feet at night specifically for plantar fasciitis. The examiner found that the Veteran's disability would impact his ability to work in that he could not be on his feet for prolonged periods of time, equivalent to walking half a mile, due to increasing pain. The Veteran most recently underwent a VA Foot Conditions, including Flatfoot (Pes Planus) examination in July 2021. The examiner diagnosed pes planus, plantar fasciitis, and degenerative arthritis of the bilateral feet. The examiner also diagnosed bilateral plantar calcaneal spurs. The examiner indicated that the Veteran's disability had progressed/worsened since onset in 2004. The Veteran reported symptoms of persistent, worsening pain after sitting for a long period of time, when driving. He also reported numbness and pain when climbing stairs or standing up after prolonged sitting. Treatment included custom orthotic inserts, medication, and surgery. He reported experiencing achy pain in the bottoms of the feet. He endorsed flare-ups and described them as occurring three times per week for three hours at a time, consisting of increased pain and stiffness. Precipitating factors included running, prolonged walking or standing, and using stairs. Alleviating factors included taking 800 mg of Motrin three times per day and rest. Functional impairment during flare-ups was described as difficulty with running, prolonged walking or standing, and using stairs. Overall, functional loss, including but not limited to repeated use over time, was described as difficulty with running, prolonged walking or standing, and using stairs, and the Veteran further reported that any foot movement, including standing on the feet for more than 15 minutes, was very difficult. The Veteran endorsed pain accentuated on use of both feet and pain accentuated on manipulation of both feet. There was indication of swelling on use and characteristic callouses on both feet. The Veteran reported use of bilateral arch supports but stated that they did not relieve his symptoms. There was extreme tenderness of the plantar surfaces of both feet that was not improved by orthopedic shoes or appliances. There was decreased longitudinal arch height of the right foot on weight-bearing. There was objective evidence of marked deformity of both feet and marked pronation of both feet, not improved by orthopedic shoes or appliances. The weight-bearing line fell over or medial to the great toe in both feet. There was otherwise no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon of one or both feet, nor did he have marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. Regarding his plantar fasciitis, the examiner indicated that the Veteran had undergone non-surgical and surgical treatment for his plantar fasciitis, none of which relived his symptoms. The Veteran reported functional loss of the bilateral feet due to plantar fasciitis, which he described as consisting of difficulty with running, prolonged walking or standing, and using stairs; any foot movement, including standing on the feet for more than 15 minutes, was reportedly very difficult. Functional loss consisted of weakened movement, swelling, instability of station, disturbance of locomotion, interference with sitting, interference with standing, pain, fatigue, weakness, and lack of endurance in both feet. In the remarks section, the examiner noted that the Veteran had easily tired, painful and achy feet, especially in the area of the arches and heels, and that the inside bottoms of the feet would become swollen. The examiner further wrote that the Veteran's bilateral pes planus and bilateral plantar fasciitis had the same symptoms. Overall, after careful review of the evidence of record, the Board finds that a 30 percent disability rating is warranted for the entire period on appealnot just the period from November 8, 2014. In correspondence received by the Board and in Board hearing testimony, the Veteran indicated that the severity of his bilateral foot disability had remained the same and/or had worsened since onset, to include the period on appeal. Unfortunately, the examination he underwent in July 2013 was a "Foot Miscellaneous (other than Flatfoot/Pes Planus)" examination and did not specifically address his pes planus or plantar fasciitis. The Veteran is competent to testify that the symptoms associated with his disability have remained the same or worsened since onset, and his testimony in that regard is credible. The evidence from the period shows that although there was not marked deformity or swelling of the feet, there were characteristic callositiesa criteria listed under Diagnostic Code 5276 for severe pes planus and suffice to warrant a higher, 30 percent rating for the entire period on appeal. To this limited extent, the Veteran's claim for an increased rating prior to November 8, 2014 is granted. However, the Board finds that the claim for an increased rating from November 8, 2014 must be denied. In order to approximate the maximum allowed rating of 50 percent bilaterally, the Veteran would have to present with marked pronation, extreme tenderness of his plantar surfaces, marked inward displacement, and severe spasm of the tendo achillis on manipulation. Though the Veteran did present with marked pronation and extreme tenderness of his plantar surfaces, he was not found to have marked inward displacement and severe spasm of his Achillis tendon upon manipulation. Therefore, he did not satisfy all of the criteria necessary to warrant a 50 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and functional loss. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the Veteran's statements describing difficulty with running, prolonged walking or standing, using stairs, and any foot movement would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot, which, as discussed above, would require marked inward displacement and severe spasm of his Achillis tendon upon manipulation. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Board finds that the symptoms associated with the Veteran's disability are specifically contemplated by the assigned Diagnostic Code. In this regard, the Board acknowledges that the Veteran has been diagnosed with bilateral pes planus and bilateral plantar fasciitis, which are separately diagnosable disabilities, although symptoms may overlap. The Veteran also has degenerative arthritis. However, in this case, the evidence does not show that the Veteran's symptoms overlap. Indeed, the July 2021 VA examiner specifically found that the Veteran's bilateral pes planus and bilateral plantar fasciitis had the same symptoms. Therefore, if the Board were to assign a separate disability rating for plantar fasciitis under Diagnostic Code 5269, it would constitute pyramiding, which, as previously discussed, is to be avoided. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. at 107. The Board likewise finds that a higher or separate disability rating is not warranted under Diagnostic Code 5284. First, there is no evidence of loss of use of either foot. Further, the severity of the Veteran's symptoms is already contemplated by the disability rating assigned under Diagnostic Code 5276. Therefore, separate, additional evaluations are not warranted under Diagnostic Code 5269 or 5284. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for status post plantar fasciotomy with inferior calcaneal spurs, pes planus, and arthritis at any point during the period on appeal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.