Citation Nr: 21067496 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-18 744A DATE: November 4, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for bilateral foot plantar fasciitis prior to March 9, 2021 is granted. Entitlement to a disability rating in excess of 50 percent from March 9, 2021 for bilateral foot plantar fasciitis is denied. FINDINGS OF FACT 1. Prior to March 9, 2021, the most probative evidence of record shows that the Veteran's bilateral plantar fasciitis was manifested by extreme tenderness of the plantar surfaces of the feet, swelling on use, pain on manipulation of the feet, and pain on use of the feet; symptoms not improved by orthopedic shoes or appliances. 2. Beginning March 9, 2021, the Veteran's bilateral plantar fasciitis disability has been assigned the maximum disability rating authorized under Diagnostic Code 5276, and the symptomatology associated with the Veteran's bilateral plantar fasciitis is adequately addressed by this rating. CONCLUSIONS OF LAW 1. Prior to March 9, 2021, the criteria for a rating of 50 percent, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159. 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. Beginning March 9, 2021, the criteria for a rating in excess of 50 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159. 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to October 2010. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2011 rating decision, service connection was granted for bilateral plantar fasciitis with an evaluation of 0 percent, effective November 1, 2010. In a February 2021 rating decision, the RO increased the disability rating assigned for bilateral plantar fasciitis from 0 percent to 10 percent, effective November 1, 2010. In June 2021, the Board remanded the claim for further development. Specifically, the Board requested that the RO obtain an addendum opinion for the Veteran's claim for an increased rating for bilateral plantar fasciitis. In connection with the claim, an addendum opinion was obtained in July 2021. The Board finds that this addendum opinion is adequate. Thus, there has been substantial compliance with the Board's prior remand directives, and the matter is now properly before the Board. Stegall v. West, 11 Vet. App. 268 (1998). In August 2021, the RO increased the disability rating assigned for bilateral plantar fasciitis from 10 percent to 50 percent, effective November 1, 2010. The Board notes that 50 percent is the highest schedular rating assigned for the disability. However, the Veteran's increased rating claim for the period prior to March 9, 2021 remains before the board. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to an initial disability rating in excess of 10 percent for prior to March 9, 2021 bilateral plantar fasciitis 2. Entitlement to a disability rating in excess of 50 percent from March 9, 2021 for bilateral foot plantar fasciitis The Veteran contends that his service-connected bilateral plantar fasciitis is worse than his current rating reflects. On January 18, 2012, VA received the Veteran's claim for an increased rating. The Veteran is in receipt of a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot for the period prior to March 9, 2021 and a 50 percent rating thereafter. 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 terms mild, moderate, and severe are not defined, and VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. 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. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). The Board adds that effective February 7, 2021, VA amended the rating schedule by adding Diagnostic Code 5269 for plantar fasciitis. Under this code, plantar fasciitis with no relief from both non-surgical and surgical treatment, bilaterally, warrants a 30 percent rating, and, unilaterally a 20 percent rating. Otherwise, unilateral or bilateral plantar fasciitis is rated at 10 percent. Note (1) instructs that with actual loss of use of the foot, rate at 40 percent. Note (2) instructs that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. Turning to the evidence of record, the Veteran was afforded a VA General Medical examination in September 2010, at which time the examiner noted a diagnosis of bilateral plantar fasciitis. The Veteran reported that his feet began hurting while he was in Basic Training. The Veteran noted that he had pain bilaterally in both arches. He used inserts which were noted to provide some relief depending upon what type of shoe he was wearing. The Veteran denied having surgery or any other treatment of his feet. His symptoms did not affect his ability to perform his job. He denied flare-ups. He stated that he can stand and walk for a couple of miles until he has an increase in foot pain that affect his activities of daily living. Upon examination, the examiner noted that the Veteran's feet did not reveal corns, calluses, or edema. The Veteran's feet were not flat, and there was no painful or restrictive motion. The examiner also noted that there was no abnormal weightbearing, weakness, or instability. There was bilateral tenderness or palpation over the arches. An April 2013 VA treatment record showed severe pes planus, bilaterally; arthritic great toe joints; and plantar fasciitis. A July 2013 VA treatment record showed that the Veteran presented for follow-up for fitting of orthotics and shoes. The Veteran also reported that his orthotics make his knees and hips hurt and noted that he discontinued those. The Veteran also stated that if he did not see improvement, he would try nerve ablation. Most recently, the Veteran underwent a VA Foot Conditions, Including Flatfoot (Pes Planus) DBQ in March 2021. The VA examiner noted diagnoses of bilateral plantar fasciitis and a bilateral bunionectomy. The VA examiner noted that the Veteran reported pain and flare-ups of his foot conditions precipitated by long periods of walking. In Section III Flatfoot (Pes Planus) of the report, the examiner noted that the Veteran endorsed pain on use and accentuated on use of both feet, as well as pain on manipulation and accentuated on manipulation of both feet. The VA examiner noted no indication of swelling nor characteristic calluses. The Veteran reported attempted use of arch supports, bilaterally with no relief of pain. The VA examiner found the Veteran's feet to have extreme tenderness of the plantar surfaces, not improved by orthopedic shoes or appliances. The examiner also noted that the Veteran had decreased longitudinal arch height in both feet. There was also objective evidence of marked deformity of both feet. There was also marked pronation of both feet, with both conditions improved by orthopedic shoes or appliances. There was no weight-bearing line over or medial to the great toe, bilaterally. The Veteran also did not exhibit inward bowing of the Achilles' tendon, or marked inward displacement or severe spasm. In Section IV Plantar Fasciitis, the Veteran denied non-surgical or surgical procedures for his plantar fasciitis. The examiner also noted that the Veteran had functional loss of both feet due to plantar fasciitis, to include difficulty walking due to increased pain. In Section XII Surgical Procedures, the examiner noted that the Veteran underwent a bunionectomy of both great toes. In an April 2021 Appellate Brief, the Veteran (via his representative) stated that in connection with his August 2010 initial claim, he did not receive any examinations. He also stated that he received other veterans' mail to his home address regarding their examinations and not his after filing his initial claim. As such, the Veteran reported that he was not provided proper due process to determine the current level of severity of his foot condition. Further, the Veteran stated that the signs and symptoms that he has today are the same that he had in 2010. In a July 2021 Medical Opinion DBQ, a VA examiner stated that the Veteran's bilateral foot pain was in relation to his plantar fasciitis. The examiner also noted that the Veteran had pain on the bottoms of his feet when walking, which is due to his plantar fasciitis. The marked deformity was alleviated with orthotics. The Veteran's history of bunionectomies have alleviated the pain associated with that deformity. The pain in his great toes was noted to be less severe than the pain on the bottoms of his feet. Additionally, the examiner stated that the pain on manipulation and use of accentuated and swelling were related to the Veteran's service-connected bilateral plantar disability. In a September 2021 Appellate Brief, the Veteran (via his representative) stated that the Veteran filed his original claim in 2010, his appeal for an increase in January 2012, and that he has never wavered from the assertion that the rating for his feet was inadequate. Further, the Veteran noted that it took the AOJ over nine years to set up a new examination to determine the severity of his feet. The Veteran further reported that it was reasonable to presume that had the AOJ requested an examination prior to March 2021, he would have presented for the examination. Period Prior to March 9, 2021 Although it was not until the Veteran's March 2021 VA examination that more severe symptoms were documented, the record suggests that the onset of those symptoms was much earlier. For instance, lay statements, including April 2021 and September 2021 submissions from the Veteran, suggest that severe bilateral foot problems were already longstanding by that time. Here, the Veteran explained that his symptoms from 2010 were the same as those currently experienced. Further, 2013 VA treatment records show that the Veteran had been using custom orthotics, without relief. The Board finds the Veteran's lay statements probative as to the severity of his plantar fasciitis disability for the period prior to March 9, 2021. As there is simply no convincing evidence that the Veteran's foot symptoms changed significantly in intensity during the appeal period, the Board finds that the 50 percent evaluation under DC 5276 ought to have extended to the beginning of the appeal period. Thus, the Board finds that entitlement to a 50 percent evaluation, but no higher, under DC 5276 is warranted for the period prior to March 9, 2021. However, the Board finds that a rating greater than 50 percent is not available for this period. In this regard, the Board notes that 50 percent is the highest rating possible under Diagnostic Code 5276, the rating provision under which the Veteran's bilateral foot disability has been rated. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Thus, a higher rating under this provision is not possible. Further, the Board notes that the amendments to the rating schedule do not have any retroactive application. Therefore, the Board has not considered the Veteran's claim under the new criteria prior to February 7, 2021. For the period beginning February 7, 2021, however, the Board finds that the old criteria are more favorable to the Veteran. Here, the maximum rating under the new Diagnostic Code 5269 is 30 percent, because he does not have loss of use of the foot and he has no relief from both non-surgical and surgical treatment, bilaterally. As the grant of the 50 percent rating under Diagnostic Code 5276 (for the period beginning February 7, 2021 to March 8, 2021) is more favorable to the Veteran, the Board will not disturb it. Finally, the Board notes that a separate rating under the new DC 5269 would be impermissible pyramiding of the same symptomatology under both Diagnostic Code 5276 and Diagnostic Code 5269. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Period Beginning March 9, 2021 The Board finds that a rating greater than 50 percent is not available for this period. Initially, the Board notes that 50 percent is the highest rating possible under Diagnostic Code 5276, the rating provision under which the Veteran's bilateral foot disability has been rated. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Thus, a higher rating under this provision is not possible. 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). However, the Veteran does not demonstrate symptomatology supportive of a separate rating under any of the other Diagnostic Codes governing evaluation of the foot, i.e. no atrophy, no contraction of the toes, no Morton's disease, no equivalent of amputation of the great toe, no hammer toe, and no malunion of the tarsal bones. 38 C.F.R. § 4.71a, Diagnostic Codes, 5277, 5278, 5279, 5280, 5281, 5282, 5283. While the Veteran has significant symptoms related to his bilateral foot disability, these symptoms do not warrant a severe foot injury for each foot as would be required for a higher rating under Diagnostic Code 5284 governing the evaluation of foot injuries, and to assign a separate rating under this provision would be impermissible pyramiding as these symptoms are already being contemplated in his current 50 percent rating. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5284. Additionally, as noted above, as of February 7, 2021, the foot regulations were amended to add a specific code for evaluating plantar fasciitis. However, the maximum disability rating under this Diagnostic Code is 30 percent because he does not have loss of use of the foot and he has no relief from both non-surgical and surgical treatment, bilaterally. As the assigned 50 percent rating is more favorable to the Veteran, the Board will not disturb it. In conclusion, the Board finds that the preponderance of the evidence is against a disability rating in excess of 50 percent for bilateral plantar fasciitis from March 9, 2021. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.