Citation Nr: 21072938 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-06 710 DATE: December 6, 2021 ORDER Entitlement to a 10 percent disability rating for residuals of cheilectomy left foot (previously rated as hallux valgus left foot with bunionectomy); navicular bone repair, effective June 30, 2009, is granted. Entitlement to a 10 percent disability rating for residuals of cheilectomy right foot (previously rated as hallux valgus left foot with bunionectomy), effective June 30, 2009, is granted. FINDINGS OF FACT 1. Prior to May 13, 2021, a resection of the left metatarsal head was conducted in 2005, and the Veteran had reported constant pain and swelling over the metatarsal head resulting in functional impairment. 2. Prior to May 13, 2021, a resection of the right metatarsal head was conducted in 2003, and the Veteran had reported constant pain and swelling over the metatarsal head resulting in functional impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, and no higher, for residuals of cheilectomy left foot, prior to May 13, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5280. 2. The criteria for entitlement to a 10 percent rating, and no higher, for residuals of cheilectomy right foot, prior to May 13, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1994 to August 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction (AOJ)). In March 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Procedurally, in September 2007, the Veteran filed a claim for entitlement to service connection for left and right foot pain. In an April 2008 rating decision, the AOJ granted service connection for hallux valgus with bunionectomy of the right and left feet and assigned each a noncompensable percent rating, effective August 18, 2007. In June 2009, the Veteran submitted an increased rating claim for her left and right foot disabilities. In an April 2010 rating decision, the AOJ continued the non-compensable ratings for the Veteran's bilateral foot disabilities. However, the disabilities were recharacterized as residuals of cheilectomy of the right and left feet. In a May 2010 rating decision, the AOJ continued the non-compensable ratings for the Veteran's bilateral foot disabilities. In April 2011, the Veteran filed a supplemental claim for an increased evaluation for her for her left and right foot disabilities. In a July 2012 rating decision, the AOJ denied entitlement to a compensable rating for the Veteran's bilateral foot disabilities. The Veteran filed a notice of disagreement in October 2012. In a December 2014 Statement of the Case (SOC), continued the non-compensable ratings for the Veteran's bilateral foot disabilities. The Veteran submitted a timely Form 9 in February 2015, appealing the AOJ decision to the Board. As noted by the Board in August 2018, the Veteran was originally service-connected for residuals of cheilectomy of the right and left feet. She had multiple non-service connected disabilities of the feet including pes planus, metatarsalgia, degenerative changes, accessory navicular syndrome and plantar fasciitis. The issue before the appeal was limited to the proper rating for residuals of cheilectomy of the right and left feet. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. An August 2021 AOJ rating decision awarded separate 10 percent ratings for residuals of cheilectomy of the right and left feet effective May 13, 2021, and granted service connection for plantar fasciitis and pes planus, and assigned an initial 10 percent evaluation effective May 17, 2002, and a 50 percent rating effective July 18, 2017. By letter dated August 17, 2021, the Veteran was advised of this rating decision and her appellate rights under the AMA. In September 2021, the Veteran elected a Higher Level Review (HLR) of this decision on the issues of earlier effective dates for "LEFT FOOT (SERVICE CONNECTED)," "RIGHT FOOT (SERVICE CONNECTED)," and "REQUEST HIGHER PERCENTAGE GREATER THAN 10% FOR THE LEFT FOOT ISSUES" and "REQUEST HIGHER PERCENTAGE GREATER THAN 10% FOR THE RIGHT FOOT ISSUES." An October 2021 HLR decision granted effective dates of August 18, 2007 for the award of service connection for left and right foot scars, an effective date of June 30, 2009 for the award of a 10 percent evaluation for pes planus and plantar fasciitis, an effective date of May 1, 2017 for the award of a 50 percent evaluation for pes planus and plantar fasciitis, and continued the assigned ratings for residuals of cheilectomy of the right and left feet. Overall, the Board has jurisdiction under the legacy appeal for the proper rating for residuals of cheilectomy of the right and left feet. The remaining issues were not part of the legacy appeal, were addressed in the AMA appeal stream and are not currently before the Board under Docket Number 15-06 710. Increased Rating Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Additionally, in evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Moreover, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, premature or excess fatigability and incoordination. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the Diagnostic Codes applicable to the affected joint). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Lastly, the statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran shall be the day following the date of a veteran's discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (a), (b)(1). 1. Entitlement to a higher disability rating for residuals of cheilectomy left foot 2. Entitlement to a higher disability rating for residuals of cheilectomy right foot During the period on appeal, the Veteran's left and right foot residuals of cheilotomy have been rated as follows: a non-compensable disability rating, under DC 5280, effective August 18, 2007; and a 10 percent disability rating, under DC 5280, effective May 13, 2021. During the pendency of the instant 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. However, these revisions did not affect DC 5280 which addresses disability ratings for hallux valgus. Under DC 5280, unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. See 38 C.F.R. § 4.71a, DC 5280. A 10 percent rating is the maximum rating provided under DC 5280. In August 2009, the Veteran was provided a VA examination to determine the severity of her bilateral foot conditions. At that time, it was noted that the Veteran uses costume inserts, which helps her constant foot pain "a little." Also, it was reported that the Veteran used over the counter medication to manage her bilateral foot pain, and her symptoms included swelling, constant pain over the metatarsal head, stiffness in the toes, some locking, as well as some flare-ups, which increase the intensity of her pain. Further, the Veteran denied any tingling, numbness, or weakness in the feet, as well as pains in her ankle joints. Functional limitation was reported as a decreased ability to walk long distances, and the inability to run or do any physical activity. Lastly, it was noted that the Veteran had two bunionectomies. In conjunction with the August 2009 VA examination, a radiology report was completed. The report noted that there was no acute fracture, dislocation, or bony destructive lesion. However, bunionectomy defect appeared to be present bilaterally, as well as degenerative subchondral cysts are noted in the right first metatarsophalangeal (MTP) joint. And the Veteran's arches appeared flattened, but the examination was noted as non-weight bearing. In June 2011, the Veteran was provided an additional VA examination to determine the current severity of her bilateral foot conditions. The Veteran's left foot was reported to have a hallux valgus deformity of first MTP joint. And her right foot showed narrowing or irregularity of first MTP joint with no sign of hallux valgus, and mild bunion formation was present. Further, non-weight-bearing arch bilaterally showed tendency towards pes planus. Lastly, it was noted that the Veteran experiences minimal functional impairment due to her bilateral foot conditions. In September 2011, during a medical consult, the Veteran reported experiencing bilateral foot pain with in the first MTP joint, as well as pain in her insteps. Additionally, swelling in both feet was noted. Upon examination, the VA physician diagnosed bilateral plantar fasciitis, flat feet, edema, foot pain in the first MTP joint, and bilateral forefoot varus. In October 2011, the Veteran received a cortisone shot in her left foot to help with the pain, and new custom orthotics were ordered. During a February 2012 podiatry visit, no hammertoe or hallux valgus deformity were reported, and both feet were noted as nontender upon palpation. However, bilateral pes planus and plantar fasciitis were noted. In May 2012, the Veteran was provided a VA examination to determine the current severity of her bilateral foot conditions. The examiner noted the Veteran's plantar and dorsiflexion of the feet and toes as normal, and reported no painful motion, edema, weakness, or instability. Also, the examiner found no functional limitations with standing or walking. However, mild tenderness on palpation and discomfort with manipulation, consistent with plantar fasciitis, was noted. Also, the Veteran's bilateral great toes were noted to be without angulation, palpable tenderness, swelling, or deformity. Lastly, no additional limitations due to flares-up were reported. In an October 2012 statement, the Veteran reported that her feet still swell, she cannot wear closed toe shoes, and that she cannot be on her feet for more than 20 minutes without discomfort. In February 2014, the Veteran was once again provided new custom orthotic inserts for her bilateral foot pain. The Veteran's private treatment records, dated October 2016, note a history of arthritis and a left foot bunion. Additionally, a history if pes planus was reported. Further, in November 2016, a pre-operation checkup was conducted for the Veteran's foot pain. Additionally, the Veteran's 2017 treatment records note painful pes planus, as well as physical therapy for left foot pain. And severe first MTP joint space narrowing with subchondral cyst formation and marginal osteophytes were found in the right foot. Also, mild right foot pes planus was reported. Further a January 2017 podiatry consult revealed moderate pain on palpation over the posterior tibial tendon in the left foot, and accessory navicularis/enthesopathy. Also, in February 2017, the Veteran reported constant left foot pain, swelling, bruising, and tenderness to touch. In May 2017, the Veteran submitted a disability benefits questionnaire, which was completed by her private treating physician, Dr. R.M. The doctor noted a diagnosis of a painful left accessory navicular bone and posterior tibial tendonitis. Also, it was found that the Veteran was born with a left accessory navicular bone, which became painful when she began marching in the military. However, it was not diagnosed until April 2017, but it was noted as painful since 2003. Due to this diagnosis, Dr. R.M found that the Veteran is unable to wear many shoes, she cannot push off with her left foot, and the pain has caused her to develop tibial tendonitis. Further, Dr. R.M. reported that the Veteran experiences pain during use and manipulation of her left foot. Also, it was noted that the Veteran is unable to stand or walk without significant pain in the left foot. And that the Veteran has decreased archers in both feet, as well as metatarsalgia. Lastly, atrophy of the left calf muscles was noted. In May 2017, the Veteran underwent an excision of a left accessory navicular with repair of the posterior tibial tendon insertion. And a steroid injection of the right first MTP joint. Following the procedure, the Veteran was required to wear a cast on her left leg. Following the surgery, the Veteran reported limited and painful range of motion and gait deviation in June 2017. However, one month later, she noted that her feet feel better, and she was seeing an increase in range of motion. In July 2017, the Veteran was provided a VA examination. After review of the entire record, the examiner opined that the Veteran's left foot accessory navicular syndrome is less likely than not caused by or related to military service or diagnosed while in service, nor is it related to the Veteran's service-connected hallux valgus in the first metatarsal phalangeal joint, post bunionectomy. Further, the examiner opined that the there is insufficient evidence to warrant or confirm a diagnosis of the posterior tibial tendonitis. During the examination, the Veteran reported that her left foot accessory navicular syndrome makes ambulation difficult. Also, it was reported that the Veteran's hallux valgus condition causes bilateral mild or moderate symptoms. The examiner confirmed that the Veteran is required to wear custom orthotics for her foot conditions. Also, although the Veteran's records note complaints of foot pain, the examiner found no pain on physical examination in either foot. Lastly, the examiner reported that no additional functional loss occurs during flare-ups. Following the July 2017 VA examination, the Veteran's treatment records continue to note complaints of bilateral foot pain, and post operation physical therapy. In March 2018, the Veteran testified at a Board hearing. During the hearing, the Veteran stated that there is no distinguishable difference between her two feet, but, in her opinion, the left foot is more severe. Further, she noted that she had surgery on her left foot in 2017 to remove left accessory navicular, and she needs the same surgery on the right foot, but it has not been done because of the residual issues with left foot. Also, the Veteran explained that she takes over the counter medications for the pain, and that she can only stand for 20 minutes before feeling uncomfortable and can only walk for 5 minutes at a time on treadmill. Lastly, she noted that she uses shoe inserts, uses a walking boot occasionally when her feet flare-up and swell, and she believes that her current diagnoses of her foot disabilities are incorrect. In October 2018, the Veteran complained of ongoing right foot pain with swelling in the metatarsal area. Further, the Veteran reported pain in both feet throughout 2018. In December 2018, the Veteran was provided an additional VA foot examination. During the examination, the Veteran described experiencing swelling, pain, and tenderness in both feet, with the left foot being worse than the right. Also, she described sharp pain in the bottom of her feet, as well as her feet being tender to touch. And that her feet swell and discolor weekly. At the time of the examination, the Veteran's diagnoses were noted as bilateral pes planus, hallux valgus, plantar fasciitis, and residuals of cheilectomy. The examiner noted bilateral pain on manipulation, bilateral swelling on use, and calluses on the left foot. Further, the Veteran was noted to use arch supports, built-up shoes, and orthotics with little relief. Further, extreme tenderness of plantar surfaces was found on both feet. Regarding the Veteran's hallux valgus, mild or moderate symptoms were reported bilaterally, and corrective surgery in 2003 and 2005 was noted. Further, the residuals of the Veteran's left foot accessory navicular bone surgery were noted as swelling, pain, and tenderness underneath left mid foot extending up toward left great toe. The Veteran's pes planus causes fatigue, weakness, swelling, and pain to bilaterally. Her plantar fasciitis causes pain. And the residuals of her bilateral cheilectomies include tenderness, weakness, pain, and swelling. Also, the contributing factors to the Veteran's functional loss were noted as pain on movement, weight bearing, non-weight bearing, as well as swelling, disturbance of locomotion, and interference with standing. Lastly, the examiner opined that the Veteran's diagnoses of pes planus, plantar fasciitis, and accessory navicular bone are new and unrelated to service or service-connected disabilities. In August 2019, the Veteran was provided another VA foot examination. At the time of the examination, the Veteran's diagnoses were noted as bilateral pes planus, hallux valgus, plantar fasciitis, residuals of cheilectomy, and accessory navicular bone repair in the left foot. During the examination, the Veteran reported constant moderate-to-severe pain at medial aspect of the left great toe post bunionectomy. Also, she reported intermittent mild pain at the right foot post cheilectomy. It was noted that the Veteran also has bilateral pes planus, which causes her weight-bearing line to fall over the left great toe, which exacerbates the Veteran's pain. Additionally, the examiner reported that the Veteran "is limited in ability to stand/ambulate for prolonged periods of time." Regarding her diagnosed pes planus, the examiner reported bilateral pain on use, bilateral swelling on use, and calluses on both feet. Further, the Veteran was noted to use arch supports and built-up shoes with little relief. However, extreme tenderness of plantar surfaces was not found on either foot. Regarding the Veteran's hallux valgus, mild or moderate symptoms were reported bilaterally, and corrective surgery in 2003 and 2005 was noted. Further, the residuals of the Veteran's left foot accessory navicular bone surgery were noted as mild. The Veteran's pes planus was found to cause fatigue, weakness, swelling, and pain bilaterally. Also, her plantar fasciitis was noted as painful. And the residuals of her bilateral cheilectomies included tenderness, weakness, pain, and swelling. Also, the contributing factors to the Veteran's functional loss were noted as pain on movement, weight bearing, non-weight bearing, as well as less movement than normal, excess fatigability, swelling, disturbance of locomotion, and interference with standing. Following the above VA examination, the Veteran's treatment records note continued complaints of foot pain, including a report of a deep burning pain in both feet in January 2020. In May 2021, the Veteran was provided another VA foot examination. At the time of the examination, the Veteran's diagnoses were noted as bilateral pes planus, hallux valgus, plantar fasciitis, residuals of cheilectomy, and accessory navicular bone repair in the left foot. During the examination, the Veteran's current symptoms were reported as bilateral painful ambulation and weight-bearing, which is worse in the morning. Also, bilateral pain on plantar surface, and intermittent swelling of the feet were noted. It was noted that the Veteran also has bilateral pes planus, which causes her weight-bearing line to fall over the left great toe, which exacerbates the Veteran's pain. Additionally, the examiner reported that the Veteran experiences flare-ups, which include roughly 12 hours of severe pain, tightness, aching, and swelling. Regarding her diagnosed pes planus, the examiner reported bilateral pain on use, bilateral swelling on use, and calluses on both feet. Further, the Veteran was noted to use arch supports and built-up shoes with little relief. Marked pronation was found bilaterally, as well as marked deformity. However, extreme tenderness of plantar surfaces was not found on either foot. Regarding the Veteran's hallux valgus, mild or moderate symptoms were reported bilaterally, and resection of metatarsal head in 2003 and 2005 was noted. Further, the residuals of the Veteran's left foot accessory navicular bone surgery were noted as mild. The Veteran's pes planus causes fatigue, weakness, swelling, and pain to bilaterally. Her plantar fasciitis causes pain. And the residuals of her bilateral cheilectomies include pain and swelling. Also, the contributing factors to the Veteran's functional loss were noted as fatigue, swelling, disturbance of locomotion, instability of station, interference with sitting, lack of endurance, and interference with standing. Lastly, the examiner found that the Veteran's bilateral pes planus, bilateral plantar fasciitis, and bilateral hallux valgus are directly due to the Veteran's service-connected disabilities. This determination was later confirmed in a July 2021 VA examination. Upon review of the record, regarding the Veteran's left and right foot residuals of cheilectomy and left navicular bone repair, the Board finds that the Veteran is entitled to a 10 percent disability rating, effective June 30, 2009. The May 2021 VA examination noted resection of the left and right metatarsal heads in 2003 and 2005. Further, the Veteran has reported constant pain and swelling over the metatarsal head, resulting in functional impairment, and severe pain that lasts up to 12 hours during flare-ups, which are consistent with the criteria contemplated by the 10 percent rating under DC 5280. Therefore, the Board finds a 10 percent rating, effective June 30, 2009, is warranted. A 10 percent rating is the maximum rating provided under DC 5280 and, thus, a rating in excess of 10 percent is not available under that Diagnostic Code. As noted above, the Veteran has multiple foot conditions all of which are capable of being evaluated under existing schedular criteria. In fact, she has been service-connected for pes planus, plantar fasciitis and foot scars which have been evaluated under the schedular criteria, and there are no aspects of service connected residuals of cheilectomy which are not properly considered in the schedular criteria. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.