Citation Nr: 21074142 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-42 041 DATE: December 14, 2021 ORDER An initial disability rating in excess of 10 percent for the period prior to September 7, 2011 for bilateral pes planus and plantar fasciitis is denied. An initial disability rating in excess of 30 percent for the period from September 7, 2011 to December 7, 2016 for bilateral pes planus and plantar fasciitis is denied. An initial 50 percent rating from December 7, 2016 to December 22, 2017, but ni higher, for bilateral pes planus and plantar fasciitis is granted, subject to the rules and regulations governing the award of monetary benefits. An initial disability rating in excess of 50 percent for the period from December 22, 2017 for bilateral pes planus and plantar fasciitis is denied. FINDINGS OF FACT 1. For the period prior to September 7, 2011 the Veteran's service-connected bilateral foot disability is not manifested by severe manifestations of pes planus, such as marked deformity, accentuated pain on manipulation, indications of swelling on use, and characteristic callosities. 2. For the period from September 7, 2011 to December 7, 2016, the Veteran's service-connected bilateral foot disability is not manifested by pronounced manifestations of pes planus, such 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. 3. For the period from December 7, 2016 to December 22, 2017, the evidence is at least in equipoise as to whether the Veteran's bilateral foot disability was manifested by more pronounced symptoms not improved by orthopedic appliances. 4. For the period from December 7, 2016, the Veteran's service-connected bilateral foot disability is assigned the maximum evaluation under the rating criteria. CONCLUSIONS OF LAW 1. For the period prior to September 7, 2011, the criteria for a rating in excess of 10 percent for bilateral pes planus with bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276. 2. For the period from September 7, 2011 to December 7, 2016, the criteria for a rating in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276. 3. For the period from December 7, 2016 to December 22, 2017, criteria for an initial 50 percent for bilateral pes planus with bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276. 4. For the period from December 22, 2017 criteria for a rating in excess of 50 percent for bilateral pes planus with bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to May 1997 and had an earlier period of active duty for training (ACDUTRA) from November 1989 to April 1990. This matter is on appeal from a September 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, a videoconference hearing was held before another Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In December 2019, the Veteran was informed that the VLJ who conducted the December 2016 hearing was no longer employed by the Board. He was advised to submit a request for another hearing within 30 days if he wished to have one, and no such request was received. The case was previously before the Board in March 2021 when it was remanded for further development. Entitlement to a higher disability rating for bilateral pes planus and plantar fasciitis. The Veteran currently assigned an initial 10 percent rating prior to September 7, 2011, a 30 percent rating for the period from September 7, 2011 to December 22, 2017; and a 50 percent rating from December 22, 2017 for his bilateral pes planus and plantar fasciitis disability, rated pursuant to DC 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, DC 5276. Historically, plantar fasciitis was rated by analogy, usually under DC 5276 or DC 5284, and in this case, under DC 5276. However, effective February 7, 2021, VA amended the rating schedule by adding DC 5269 for plantar fasciitis. Effective February 7, 2021, under DC 5269, a 10 percent rating is assigned for unilateral or bilateral plantar fasciitis; a 20 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of one foot (unilateral); a 30 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of both feet (bilateral). Id. A 40 percent rating is assigned under DC 5269 for actual loss of use of the foot. Id., DC 5269, Note (1). If a veteran has been recommended for surgical intervention, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. Id., Note (2). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021, do not apply prior to that date. See Id.; 85 Fed. Reg. 76453. However, the Board may continue to apply any former rating criteria pertaining to the disability at issue, if such application is more favorable to the claim. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral plantar fasciitis with pes planus for the period prior to September 7, 2011. The Veteran was afforded a VA feet examination in October 2009. His diagnoses of bilateral pes planus and plantar fasciitis were confirmed. He complained of constant pain in both feet, worsening with standing or walking for prolonged periods. The Veteran reported treating his foot disability with medications and reported experiencing flare ups. He indicated wearing bilateral shoe inserts which result in improvement of foot pain with use. He was noted to have tenderness on palpation of the sole of the foot in the area of the heel, arch and fore foot bilaterally. The examiner assessed that it was difficult to separate pes planus and plantar fasciitis given their similar symptomatology of pain in the soles of the feet. The examiner also noted that the Veteran's pes planus was evaluated as mild in service but has progressed to being moderate in nature. On September 7, 2011, the Veteran subjectively reported that his plantar fasciitis caused extreme pain on motion, with walking. [Parenthetically, the Board notes that, based on this report, in a June 2014 rating decision, the RO assigned a higher initial 30 percent rating for bilateral plantar fasciitis and pes planus, effective September 7, 2011.] In June 2012, the Veteran was afforded another VA foot examination to address his plantar fasciitis, specifically. The Veteran reported waking in severe pain under his arches, at the ball of his feet and heels, as well as across his bilateral insteps. He reported wearing inserts daily and using ice packs every evening for pain relief. No functional impact was noted. On December 7, 2016, the Veteran testified at a Board hearing and indicated that he was unable to walk for long periods, and his insoles were not working. The Veteran also testified it was painful to stand, and he was unable to walk on his heels in the morning. The Veteran stated he did work but could not carry as much equipment and had to take breaks. The Veteran was afforded another VA foot conditions examination in December 2017. He reported increased pain affecting his mobility. He indicated the use of orthotics which result in little relief. Current symptoms were noted to include sharp, aching pain, tingling, numbing and difficulty walking. Use of NSAID's was also reported. Flare ups were reported as a result of prolonged walking and activity, raising foot pain to a level of 10/10. He also reported his foot disability impacted his ability to exercise and lose weight. Pain was noted on manipulation of the feet. There was also marked pronation of both feet, not improved by orthopedic shoes or appliances. No surgical procedures were noted. Functional loss was noted to include weakened movement, incoordination, pain on movement, pain on weight bearing, disturbance of locomotion and interference with standing. Functional impact was noted to include limited walking, standing and aggravated pain. The Veteran was most recently afforded a VA foot examination in September 2021. Again, the Veteran reported bilateral foot pain which limits walking, standing, running and sports. Flare ups were noted to occur three times per week, precipitated by prolonged walking. Pain on use and manipulation of the feet was noted. Arch supports were noted to provide no relief. Bilateral decreased longitudinal arch height of both feet on weight bearing was noted. For both feet, the weight-bearing line was over or medial to the great toe. The Veteran was shown to have inward bowing of the Achilles' tendon of both feet. The examiner noted that the Veteran has undergone nonsurgical treatment for plantar fasciitis, which has not resulted in symptom relief. Functional loss was noted to include limited walking, standing, running and sports. Pain was noted to contribute to functional loss, including disturbance of locomotion, interference with standing, pain and lack of endurance. Pain was also noted on passive motion and on weight bearing. The examiner indicated pain on palpation of the fascia on examination; objective moderate to severe pes planus; and objective pain on the ball of both feet. The examiner further explained that both conditions produce synergistic symptoms of plantar aspect pain which limit standing, walking or high impact activities rendering it impossible to delineate the extent of each disability without resorting to speculation. For the period prior to September 7, 2011, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, productive of difficulty standing for a prolonged period. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he experiences flare ups brought about by strenuous physical activity would not result in symptomatology more nearly approximating severe unilateral or bilateral acquired flatfoot. In this regard, the 2009 VA examiner conducted an evaluation of the Veteran's bilateral feet and determined that, based on the Veteran's symptoms, this disability was mild to moderate in severity. Furthermore, the Veteran shown to have objective evidence of marked deformity, indication of swelling on use or characteristic callosities. The October 2009 VA examiner noted mainly tenderness to palpation of the sole of the feet and a flattened arch. Furthermore, the examiner noted that the Veteran had improvement with use of orthotics, he missed no time from work due to his feet conditions, and he could attend to daily activities. 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 Veteran's disability of bilateral pes planus is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. While the Veteran is also diagnosed with plantar fasciitis, the evidence of record is against a finding that the Veteran's planar fasciitis has distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. In this regard, the Board notes that the October 2009 VA examiner specifically indicated that it is difficult to separate pes planus and plantar fasciitis given their similar symptomatology of pain in the soles of the feet. This opinion is compounded by additional VA examiners, including the September 2021 examiner who also indicated that both conditions produce synergistic symptoms of plantar aspect pain which limit standing, walking or high impact activities rendering it impossible to delineate the extent of each disability without resorting to speculation. Accordingly, for the period prior to September 7, 2011, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis. For the period from September 7, 2011 to December 7, 2016, the Veteran's bilateral pes planus with plantar fasciitis is evaluated as 30 percent disabling under the same DC 5276. The Board reiterates that under DC 5276, a 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.) and 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. In light of the evidence of record and the legal criteria above, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral flatfoot with plantar fasciitis for the period from September 7, 2011 to December 7, 2016. The Board acknowledges the Veteran's lay reports of severe pain and prolonged symptoms of pain. See June 2012 VA Examination. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of limitation reflected by the Veteran's statements would not more nearly approximate pronounced bilateral acquired flatfoot. In this regard, the record does not reflect evidence of marked pronation, extreme tenderness of the plantar surfaces of the Veteran's feet, marked inward displacement or severe spasm of the tendo achillis on manipulation. The June 2012 VA examiner makes no findings in regard to the above criteria. Review of VA medical records during this period reflects that the Veteran experienced pain, swelling, excess pronation and inflammation. The Veteran was prescribed orthotics, physical therapy and cortisone injections. Notably, the Veteran's VA podiatrist assessed his bilateral pes planus to be mild in severity. Furthermore, while the Veteran is showed to have excess pronation during the applicable appeal period as well as swelling and pain on manipulation these symptoms are not shown to be "pronounced" in severity. Some excess deformity is not the same as marked deformity. As indicated, the Veteran's VA provider during this appellate period categorized the Veteran's foot disability as mild. Accordingly, the Board finds that, for the period from September 7, 2011 to December 7, 2016, the criteria for an initial rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is not warranted. For this period, 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. As indicated previously, the Veteran's disability of bilateral pes planus is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. While the Veteran is also diagnosed with plantar fasciitis, the evidence of record is against a finding that the Veteran's planar fasciitis has distinct manifestations from those that are already being compensated, as explained above. For the period from December 7, 2016 to December 22, 2017, however, the Board finds that the evidence is at least in equipoise as to whether the criteria for a higher 50 percent rating are met. In that regard, the record reflects the Veteran's December 7, 2016 testimony that his feet were very painful, and his insoles did not really relieve these symptoms. The Veteran also testified that that his treatment providers have indicated to him that he might need surgery. Following the Veteran's testimony, in December 2017, the Veteran was afforded a VA examination and the VA examiner documented the Veteran's reports of increased pain affecting his mobility and the use of orthotics resulted in little relief. Based on the December 2017 VA examination findings of marked pronation and symptoms not improved by orthopedic appliances, the RO awarded the Veteran a higher 50 percent rating. Likewise, consistent with the RO's findings, the Board finds that the Veteran's bilateral feet symptoms, consisting of very painful feet, not relieved by orthopedic appliances, are at least commensurate to the criteria for a higher 50 percent rating. With regard to whether an initial rating in excess of 50 percent is warranted for the Veteran's bilateral foot disorder from December 7, 2016, the Board emphasizes that the 50 percent rating currently assigned for this disability under DC 5276 is the highest assignable rating under this provision and no other higher/separate ratings are available under any other diagnostic code. The Board has considered whether separate ratings may be awarded for each foot pursuant to DC 5284, in lieu of the single rating currently assigned under DC 5276, to render a higher overall rating. To that effect, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under DC 5284, a 10 percent rating is warranted for moderate symptoms, a 20 percent rating is warranted for moderately severe symptoms, and a 30 percent rating is warranted for severe symptoms. With actual loss of use of the foot, a 40 percent rating is assigned under DC 5167. Nevertheless, the Board's reading of VA regulations leads it to conclude that separate ratings under DC 5284 are not warranted in this case. In this regard, VA's Schedule for Rating Disabilities sets forth a specific diagnostic code applicable to acquired flatfoot (i.e., DC 5276) and plantar fasciitis (from February 7, 2021, DC 5269). It is significant in the Board's view that pes planus and plantar fasciitis are expressly addressed by specific diagnostic codes. When a condition is specifically listed in the Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under DC 5284 was not permitted). Because there are specific diagnostic codes for pes planus and plantar fasciitis (after February 7, 2021), it is not appropriate to rate the Veteran's disability under DC 5284. The Board also finds that, prior to the February 7, 2021 regulation change that added a specific diagnostic code for plantar fasciitis, the Veteran's bilateral foot symptomatology was otherwise contemplated by the rating criteria for DC 5276, which accounts for moderate and severe symptoms regarding pain, tenderness, characteristic callosities, swelling, deformity, and achilles tendon displacement and spasm. Thus, while DC 5284 may apply to plantar fasciitis (prior to the February 7, 2021 regulatory changes) and other foot disorders, the Veteran is service-connected for a bilateral foot disability characterized as bilateral pes planus with plantar fasciitis and the Board finds that the Veteran's overall foot symptomatology is best represented by and compensated for under DC 5276, rather than 5284. The Board has also considered whether a separate rating would be warranted under DC 5269 (since February 7, 2021) for plantar fasciitis. Nevertheless, the Board emphasizes that assigning a separate rating under this diagnostic code would constitute impermissible pyramiding because the Veteran's bilateral foot symptomatology, to include the symptoms attributable to his plantar fasciitis, are already adequately contemplated under DC 5276. As indicated by the evidence above, to include the September 2021 VA examination report, the Veteran's plantar fasciitis, produced synergistic symptoms of plantar aspect pain which limit standing, walking or high impact activities and it was impossible to delineate the extent of each disability. Likewise, the Board concludes that the bilateral plantar fasciitis symptoms are adequately accounted for by the criteria under DC 5276 that already contemplates tenderness, pain, and marked deformity, and is considered in the rating evaluation assigned. To afford the Veteran a separate rating under this diagnostic code would result in compensation for duplicative symptomatology. See Esteban, 6 Vet. App. 259. As noted above, this is prohibited. Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, while the Veteran is service-connected for plantar fasciitis as well, the evidence of record does not reflect that a separate rating under a different Diagnostic Code would be warranted. In this regard, as previously discussed, the evidence of record is against a finding that the disabilities have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. The Board also observes that the Veteran has no foot disability characterized by weak foot (i.e., a foot disability with muscular atrophy and circulatory compromise), claw foot, metatarsalgia, hallux rigidus, hammertoe, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, the DCs pertaining to those disabilities are not applicable in the instant case. See 38 C.F.R. § 4.71a, DCs 5277, 5278, 5279, 5280, 5281, 5282, 5283. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.