Citation Nr: 21074845
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 14-22 085
DATE: December 16, 2021

ORDER

An increased rating in excess of 10 percent prior to July 7, 2016, for gastroesophageal reflux disease (GERD) with hiatal hernia is denied.

An increased rating of 30 percent, but no higher, for the period from July 7, 2016 to December 18, 2018 for GERD with hiatal hernia is granted.

An increased rating in excess of 60 percent from December 18, 2018 for GERD with hiatal hernia is denied.

An increased rating in excess of 10 percent prior to December 18, 2018, and in excess of 50 percent thereafter for bilateral plantar fasciitis is denied.

FINDINGS OF FACT

1. For the period prior to July 7, 2016, the Veteran's GERD with hiatal hernia manifested as persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and regurgitation, but they are of less severity than that contemplated by the higher criteria and do not result in considerable impairment of health.

2. For the period from July 7, 2016 to December 18, 2018, the Veteran's GERD with hiatal hernia manifested as persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal and shoulder pain that was productive of considerable impairment of his health.

3. For the period from December 18, 2018, the Veteran's GERD with hiatal hernia manifested as persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal and shoulder pain, and other symptom combinations productive of severe impairment of health.

4. For the period prior to December 18, 2018, the Veteran's bilateral plantar fasciitis manifested as moderate symptoms.

5. For the period from December 18, 2018, thereafter, the Veteran is in receipt of the maximum schedular rating for his bilateral plantar fasciitis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to July 7, 2016 for GERD with hiatal hernia are not met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7346.

2. The criteria for a rating of 30 percent, but no higher, from July 7, 2016 to December 18, 2018, for GERD with hiatal hernia are met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.114, DC 7346.

3. The criteria for a rating in excess of 60 percent from December 18, 2018 thereafter for GERD with hiatal hernia are not met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114, DC 7346.

4. The criteria for a rating in excess of 10 percent prior to December 18, 2018, and in excess of 50 percent from December 18, 2018, onward, for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 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 2003 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied entitlement to a compensable rating for GERD and assigned an increased 10 percent rating for bilateral plantar fasciitis.

This appeal has been before the Board previously. In March 2018, the Board remanded the issue on appeal of an increased rating for bilateral plantar fasciitis for the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to assess the current severity of the Veteran's bilateral plantar fasciitis with hallux valgus. Additionally, the Board remanded the issue on appeal of an increased rating for GERD with hiatal hernia for the AOJ to issue a supplemental statement of the case (SSOC) to address the VA examination from March 11, 2018. After a September 2021 SSOC considered the record, these matters were returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the AOJ afforded the Veteran a new VA examination for his bilateral plantar fasciitis and issued an SSOC that addressed the VA examination from March 11, 2018. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

While the appeal for an increased rating for bilateral plantar fasciitis was pending, the January 2013 rating decision granted an increased rating of 10 percent for bilateral plantar fasciitis with hallux valgus, effective May 18, 2011. Additionally, the September 2021 rating decision granted a separate evaluation for bilateral plantar fasciitis and granted a rating of 10 percent, effective May 18, 2011, and an increased rating of 50 percent, effective December 18, 2018. Regarding the Veteran's GERD with hiatal hernia, the September 2014 rating decision granted an increased rating of 10 percent, effective May 18, 2011. Furthermore, the September 2021 rating decision granted an increased rating of 60 percent, effective December 18, 2018. Although increased ratings were granted, the issues remain in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

Increased Ratings

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 percentages are based on the average impairment of earning capacity as a result of 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

1. A rating in excess of 10 percent prior to December 18, 2018 and in excess of 60 percent thereafter for GERD with hiatal hernia.

The Veteran contends an increased rating for GERD with hiatal hernia. Specifically, he reported symptoms such as dysphagia, persistently recurring epigastric distress, pyrosis, regurgitation, vomiting, and pain in his arm and shoulder, which affects and impairs his daily life. See 4/6/2017 NOD. Additionally, the Veteran reported that he experiences considerable pain in his sternum and left shoulder that accompanies his reflux and regurgitation. See 12/15/2018 Form 9.

The Veteran's GERD with hiatal hernia is rated by analogy under DC 7346. 38 C.F.R. § 4.20. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that "when a condition is specifically listed in [VA's schedule for rating disabilities], it may not be rated by analogy.").

Under DC 7346, a 10 percent evaluation is assigned with two or more of the symptoms for 30 percent evaluation of less severity. A 30 percent evaluation is assigned for symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, DC 7346.

The record shows that the Veteran has a 10 percent rating from May 18, 2011 and a 60 percent rating from December 18, 2018 under 38 C.F.R. § 4.114, DC 7346.

After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 10 percent prior to September 27, 2017, is not warranted. Additionally, the Board finds that a rating of 30 percent, but no higher, from September 27, 2017 to December 17, 2018 is warranted. Furthermore, the Board finds that a rating in excess of 60 percent from December 18, 2018 for GERD with hiatal hernia is not warranted.

For the period prior to July 7, 2016.

Turning to the evidence, the Veteran was afforded a VA esophageal conditions examination in December 2012. He reported having a burning sensation in his stomach and esophagus. The objective examination showed that he had no signs or symptoms due to any esophageal disability or any other recorded abnormalities related to the GERD disability, and the disability did not impact his ability to work. See 12/7/2012 VA Examination, at pages 1 through 4.

The Veteran underwent another VA esophageal conditions examination in July 2014. The examiner recorded the GERD and hiatal hernia symptom of reflux. There were no other recorded abnormalities related to the GERD with hiatal hernia disability and the disability did not impact his ability to work. See 7/5/2014 C&P Examination, at pages 1 through 3.

VA treatment records for the period prior to July 2016 generally showed that the Veteran specifically denies having any symptoms of nausea, constipation, issues with swallowing, or diarrhea.

Based on the competent and probative lay and medical evidence, the Board finds that for the period prior to July 7, 2016, a rating in excess of 10 percent for GERD with hiatal hernia is not warranted. The evidence does not demonstrate that related symptoms result in considerable impairment of the Veteran's health during the period on appeal.

The Board recognizes the Veteran's report of experiencing symptoms, such as dysphagia, persistently recurring epigastric distress, pyrosis, regurgitation, vomiting, and pain in his arm and shoulder, which affects and impairs his daily life. See 4/6/2017 NOD; see also 12/15/2018 Form 9. He is competent to make his assertions based on his observable symptomatology and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the weight of competent, probative medical evidence shows the Veteran's symptomatology reflects a frequency, severity, and duration commensurate with the criteria for a 10 percent rating, which is assigned for two or more symptoms under the 30 percent rating of less severity. In other words, the Board finds that the Veteran's GERD-related symptoms do not result in considerable impairment of his health.

As noted earlier, for the period prior to July 7, 2016, the evidence of record shows that the Veteran's GERD with hiatal hernia symptoms, while significant, are not continuous or productive of considerable of impairment of health. In this regard, the 2012 and 2014 VA examination reports reflect no functional impact from the esophageal conditions on the Veteran's ability to work. Hence, a higher rating than 10 percent under the rating criteria is not warranted.

For the period from July 7, 2016 to December 18, 2018

In July 2016, the Veteran was afforded another VA esophageal conditions examination. The examiner noted that the Veteran had esophagitis with columnar metaplasia without globet cells secondary to GERD. The examiner recorded symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and regurgitation. The examiner noted the Veteran's statement that, within one to two hours of meals, he begins to have reflux that travels back up the throat. He reported that, when not taking omeprazole 20mg twice a day, "my throat is on fire." The Veteran stated he is afraid to eat due to having reflux after each meal. Additionally, he had sleep disturbance caused by esophageal reflux, nausea, and vomiting, with a frequency of 4 or more per year and a duration of 10 days or more. Finally, as functional impact, the examiner opined that the Veteran would need frequent break times due to his frequent reflux and vomiting episodes. See 7/7/2016 C&P Examination.

The Veteran underwent an additional VA esophageal conditions examination in September 2017. He reported that at every meal he experiences reflux; as such, he restricts food intake to once per day meals with crackers. Additionally, he experiences constant diarrhea with 2 to 3 stools per day. Further, he wakes up to 3 times per night. Moreover, spicy or heavy foods, and sodas aggravate his symptoms. The examiner recorded symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal and shoulder pain. Additionally, the Veteran endorsed sleep disturbance, recurrent nausea, and vomiting caused by esophageal reflux with a frequency of 4 or more per year and a duration of 10 days or more. There were no other recorded abnormalities related to the GERD disability. Finally, as functional impact, the Veteran reported that he would need constant restroom breaks due to nausea and vomiting, and he could be late for work and could have to leave work early due to his disability. See 9/27/2017 C&P Examination.

The Veteran underwent another VA esophageal conditions examination in March 2018. The examiner recorded symptoms, such as pyrosis, reflux, and regurgitation. There were no other recorded abnormalities related to the GERD disability. Finally, the examiner reported no functional impact. See 3/11/2018 C&P Examination.

Private treatment records showed that the Veteran experiences increased bloating, gas, and gastric pain, and significant appetite loss and accompanying weight loss. Additionally, his difficulties with GERD and acid reflux lead him to vomit; as such, he avoids food. See 1/11/2018 Disability Benefits Questionnaire, at page 10; see also 1/11/2018 Medical Treatment Record  Non-Government Facility, at page 2.

Based on the competent and probative lay and medical evidence, the Board finds that for the period from July 7, 2016 to December 18, 2018, a rating of 30 percent for GERD is warranted. The Veteran had persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, and substernal and shoulder pain. These are all the symptoms required for a 30 percent rating. The Board notes that the September 2017 examiner did not opine whether or not these symptoms were productive of considerable impairment of the Veteran's health. Instead, the examiner only stated that the Veteran reported that he would need constant restroom breaks due to nausea and vomiting, and that he could be late for work and could have to leave work early due to his disability. However, the Board will resolve all doubt in favor of the Veteran and find that it did, and that a 30 percent rating is warranted for the period from July 7, 2016 to December 17, 2018.

The Board has considered entitlement to a 60 percent rating for this period, but this rating is not more nearly approximated by the evidence. In this regard, the Board notes the private treatment record dated January 2018, which showed that the Veteran's difficulties with GERD and acid reflux lead him to vomit, and that, as such, he avoids food. See 1/11/2018 Disability Benefits Questionnaire, at page 10; see also 1/11/2018 Medical Treatment Record  Non-Government Facility, at page 2. However, there is no evidence of hematemesis, melena, or anemia. Based on these factors, the Board finds that a higher rating under DC 7346 is not warranted as there was no severe impairment of health. No other symptoms that would merit a 60 percent rating were recorded at that time. Finally, the symptoms that were exhibited during this period were not shown to have been productive of severe impairment of health, as evidenced by the 2017 VA examiner's statement of the Veteran's reports of functional impact and the 2018 VA examiner's findings that GERD did not impact the Veteran's ability to work.

For these reasons, the Board finds that the criteria for a rating higher than 30 percent were not met for the period from July 7, 2016 to December 17, 2018.

For the period from December 18, 2018.

The most recent VA esophageal conditions examination was conducted in December 2018. The Veteran reported that he had not eaten over the last two days and that he frequently skips meals to avoid nausea and vomiting. The examiner recorded symptom combinations productive of severe impairment of health, such as persistently recurrent epigastric distress, and dysphagia. Additionally, he had pyrosis, reflux, regurgitation, substernal shoulder pain, and sleep disturbance caused by esophageal reflux, nausea, and vomiting with a frequency of 4 or more per year and a duration of 10 days or more. There were no other recorded abnormalities related to the GERD disability. Finally, as functional impact, the examiner reported that the Veteran would be limited to lifting and carrying 20 pounds frequently, standing and walking for 4 hours, occasionally stooping, crouching, and kneeling, and alternating between sitting and standing at will. See 12/18/2018 C&P Examination.

Based on the competent and probative lay and medical evidence, the Board finds that for the period from December 18, 2018, a rating 60 percent for GERD with hiatal hernia is warranted. The highest schedular rating provided by the appropriate rating criteria for GERD is 60 percent. The Board further notes that this is the maximum schedular rating available under DC 7346. As this is the rating assigned as of December 18, 2018, no further discussion is required for this period. See 38 C.F.R. § 4.114, Code 7346; Johnston v. Brown, 10 Vet. App. 80, 85 (1995).

The Board has considered an evaluation under a different rating code from the digestive system as the Veteran's GERD with hiatal hernia is rated by analogy, but there are no codes that are both appropriate and provide for a rating higher than 60 percent. For example, although the rating codes for chronic liver disease and for pancreatitis each provide for a 100 percent rating, neither of these involve a disability of the esophagus or upper gastrointestinal system and thus neither meet the requirements that the anatomical localization and the symptomatology both be closely analogous to GERD with hiatal hernia. See 38 C.F.R. §§ 4.20, 4.114, 7345, 7347. The highest possible rating for the Veteran's GERD with hiatal hernia is the 60 percent rating currently in effect as provided in 38 C.F.R. § 4.114, DC 7346.

2. An increased rating in excess of 10 percent prior to December 18, 2018, and in excess of 50 percent thereafter for bilateral plantar fasciitis.

The Veteran contends an increased rating for his bilateral plantar fasciitis is warranted. Specifically, the Veteran's parents reported that due to his bilateral feet disability he struggles with physical tasks and is often unable to take care of routine chores. Additionally, they reported that he has stumbled and fallen on a few occasions. See 7/12/2018 Buddy / Lay Statement. Further, the Veteran reported that he is unable to stand for any duration of time due to pain. See 10/9/2018 VA 21-4138.

The Veteran's bilateral plantar fasciitis is rated by analogy under DC 5276 for flat feet. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Copeland, 27 Vet. App. 337 (2015) (holding that "when a condition is specifically listed in [VA's schedule for rating disabilities], it may not be rated by analogy.").

Regarding the Veteran's bilateral plantar fasciitis, DC 5276 provides a noncompensable evaluation for pes planus (flatfoot) that is mild, with symptoms relieved by built up shoe or arch; a 10 percent rating is assigned for either bilateral or unilateral pes planus where symptoms are moderate; with weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet. Where pes planus is severe; with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities a 20 percent rating is assigned for unilateral, and a 30 percent rating is assigned for bilateral pes planus. For pes planus that is pronounced; with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, a 30 percent rating is assigned for unilateral, and a 50 percent rating is assigned for bilateral pes planus. 38 C.F.R. § 4.71a.

With respect to disabilities of the feet, 38 C.F.R. § 4.71a, DC 5284 applies to other foot injuries. A 10 percent rating is assigned for moderate disability to the foot; a 20 percent rating is assigned for moderately severe disability to the foot; and a 30 percent rating is assigned for severe disability to the foot. A 40 percent rating is assigned for actual loss of use of the foot. Id.

The rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. 38 C.F.R. § 4.6. Although an element of evidence to be considered by the Board, the use of terminology such as "severe" by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The Board notes that the Schedule of Ratings for the Musculoskeletal System was amended in February 2021 so that it more clearly reflects VA's policies concerning the evaluation of musculoskeletal disorders, specifically, 38 C.F.R. § 4.71a, adding Diagnostic Code 5269 for plantar fasciitis. Although there is no specific effective date provided for ratings issues under the new criteria, the regulation is not retroactive prior to February 9, 2021. Therefore, the new regulation applies to claims filed on or after February 9, 2021 and claims pending on February 9, 2021, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.71a (2021). As this appeal was pending prior to the February 2021 effective date for the revised ratings for the musculoskeletal system, the Board will consider its application to the Veteran's claim for increased rating from February 9, 2021, onward.

Under Diagnostic Code 5269 regarding plantar fasciitis under the revised Schedule of Ratings for the Musculoskeletal System, a 10 percent rating requires unilateral or bilateral plantar fasciitis. A 20 percent rating requires unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Id. A 30 percent rating requires bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Id.

Note (1) after the rating states that a 40 percent rating is warranted with actual loss of use of the foot. Id.

Note (2) states 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. Id.

The record shows that the Veteran has a 10 percent rating from May 18, 2011 under DC 5969 (and later adjusted to DC 5276), and a 50 percent rating from December 18, 2018, under DC 5276.

After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 10 percent prior to May 18, 2011, and in excess of 50 percent from December 18, 2018 thereafter for bilateral plantar fasciitis is not warranted.

Prior to December 18, 2018

Turning to the evidence, a January 2012 VA examination showed a diagnosis of claw foot (pes cavus). The Veteran complained of bilateral foot pain mostly located around the plantar heels and described mostly as a burning pain and sometimes an aching pain. Additionally, the Veteran reported that his pain is aggravated with chronic standing and walking. The objective examination showed that the Veteran had somewhat diffuse pain along the plantar heels of both feet with some mild tenderness along the calcaneal nerve branch. Additionally, he had a definite semi-rigid anterior pes cavus deformity that is semi-reducible and a lateral right foot callous formation ball. However, he had no paresthesias, or pain to the tarsal canal, tarsal tunnel region, Achilles' tendon region, or posterior heel. Further, there was no significant swelling or bruising to the foot, pes cavus pain or tenderness, effect on plantar fascia or dorsiflexion or varus deformity due to pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or bilateral weak foot. The Veteran used no assistive devices. Finally, the examiner reported no functional impact. See 12/29/2011 VA Examination.

In December 2012, the Veteran was afforded another VA examination. He was diagnosed with hallux valgus and bilateral plantar fasciitis. The objective examination showed that the Veteran had bilateral metatarsalgia and mild or moderate bilateral hallux valgus. However, he had no Morton's neuroma, hammer toes, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or bilateral weak foot. The Veteran used no assistive devices. Finally, the examiner reported no functional impact. See 12/7/2012 VA Examination, at pages 4 through 9.

The Veteran underwent another VA examination in July 2014. The Veteran was diagnosed with bilateral plantar fasciitis. The Veteran reported that he experiences a throbbing and burning pain in his bilateral heels and lateral aspect of his feet. Additionally, he reported that he experiences transient numbness in between the first and second, and third and fourth digits bilaterally. Further, he reported that while he sleeps, he experiences bilateral foot pain just from the weight of the sheets and that when he rests and stays off his feet his foot pain subsides. Moreover, the Veteran reported pain on weightbearing and non-weightbearing. The Veteran reported no flare-ups. The objective physical examination showed no pain or tenderness to palpation or manipulation, objective evidence of pain on weightbearing or non-weightbearing, or pain, weakness, fatigability, or incoordination with repeated use or flare-ups. In addition, the examiner reported that the Veteran's subjective complaints during the examination appeared out of proportion to the objective findings. The Veteran used no assistive devices. Finally, the examiner reported no functional impact. See 7/5/2014 C&P Examination, at pages 3 through 9.

VA records repeatedly showed complaints of pain, burning, and tingling in his bilateral feet throughout the pendency of this appeal. Additionally, treatment records showed that the Veteran had marked tenderness in the plantar fascia in his bilateral feet and received steroid injections and tried insole inserts, orthopedic shoes, and custom orthotics; however, he remained symptomatic. See 3/22/2016 CAPRI, at page 39; see also 8/9/2016 CAPRI, at pages 14 and 18; 9/26/2016 Medical Treatment Record  Government Facility, at page 3; 1/24/2018 CAPRI, at pages 2, 26, 50, 55, and 72; 10/23/2018 Medical Treatment Record  Government Facility, at page 16.

Based on the relevant evidence above, the Board finds that for the period prior to December 18, 2018, the Veteran's bilateral plantar fasciitis manifested as moderate symptoms. The record does not establish, and the Veteran has not alleged, objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. As such, a rating in excess of 10 percent for the period prior to December 18, 2018, is not warranted.

From December 18, 2018

During an additional VA examination in December 2018, the Veteran was diagnosed with bilateral plantar fasciitis with hallux valgus. The Veteran described his constant foot pain as "being on fire." The Veteran reported no flare-ups. As functional impact, the Veteran reported that he cannot stand for any duration of time due to the pain, he cannot perform his work duties as required, and has been sent home from work. Finally, he reported experiencing only minimal relief by elevating his feet. The objective examination showed that the Veteran had pain with use and manipulation of his bilateral feet. Additionally, the Veteran tried bilateral arch supports, built-up shoes, and orthotics; however, he remained symptomatic. Further, the Veteran had extreme bilateral tenderness of plantar surfaces that did not improve by orthopedic shoes or appliances. Moreover, he had mild to moderate hallux valgus symptoms in his bilateral feet. In addition, he had no decreased longitudinal arch height, or marked deformity or pronation. Furthermore, he had no weightbearing line fall over or medial to the great toe, lower extremity deformity other than pes planus, causing alteration of the weight-bearing line, or inward bowing or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. Also, as contributing factors of functional loss, the Veteran had pain on weightbearing, swelling, disturbance of locomotion, interference with sitting and standing, and lack of endurance in his bilateral feet. Additionally, there was no pain, weakness, fatigability, or incoordination with repeated use or flare-ups. The Veteran used no assistive devices. Finally, as functional impact, the examiner reported that the Veteran would experience a frequent limitation of lifting and carrying to 20 pounds, standing and walking is limited to 4 hours, occasional stooping, crouching, and kneeling, and he can alternate between sitting and standing at will. See 12/18/2018 C&P Examination.

The most recent VA foot conditions examination was conducted in August 2021. The Veteran was diagnosed with bilateral plantar fasciitis, hallux valgus, and acquired pes cavus. The Veteran reported a daily burning pain in the bottom of both feet, worse in the heel area, that causes difficulty with standing and walking for long periods. He also reported constant and severe flare-ups all the time. The flare-ups of the left foot are precipitated by walking, running, and standing. As functional impact, the Veteran reported difficulty with standing and walking for long periods. The objective examination showed that the Veteran had pain with use and manipulation of his bilateral feet. Additionally, the Veteran tried bilateral arch supports; however, he remained symptomatic. Further, the Veteran had extreme tenderness of plantar surfaces that did not improve by orthopedic shoes or appliances. Moreover, he had marked deformity and pronation of his bilateral feet, but no decreased longitudinal arch height on weightbearing. In addition, he had bilateral lower extremity mid claw foot, causing alteration of the weightbearing line, but no weightbearing line fall over or medial to the great toe, or inward bowing or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. Furthermore, the Veteran underwent non-surgical treatment, but experienced no symptom relief. Also, the examiner opined that due to plantar fasciitis, the Veteran experiences difficulty standing and walking for long periods. Additionally, the Veteran had bilateral mild or moderate symptoms due to hallus valgus. Further, the Veteran had bilateral plantar fasciitis with mild hallux valgus due to pes cavus. Moreover, he had pain, deformity, and lack of endurance in his bilateral feet. In addition, pain, weakness, fatigability, or incoordination caused difficulty with standing and walking for long periods with repeated use or flare-ups. Also, he had pain with weightbearing and passive and active motion in his bilateral feet. The Veteran regularly used bilateral shoe insoles. Finally, as functional impact, the examiner reported that the Veteran would experience difficulty with standing and walking for long periods. See 8/2/2021 C&P Examination.

Based on the relevant evidence above, the Board finds that for the period from December 18, 2018, the Veteran's bilateral plantar fasciitis manifested as marked pronation and extreme tenderness of the plantar surfaces of the feet, not improved by orthopedic shoes or appliances. As such, a disability rating of 50 percent for the period from December 18, 2018 is warranted. The Board notes that this is the maximum schedular rating available under DC 5276. See 38 C.F.R. § 4.114, Code 7346; Johnston v. Brown, 10 Vet. App. 80, 85 (1995).

The Board will nonetheless consider whether higher or separate ratings are warranted. Based on a review of Copeland v. McDonald, 27 Vet. App. 333 (2015) and Yancy v. McDonald, 27 Vet. App. 484 (2016), the Federal Circuit held that the Board is obligated to consider analogous diagnostic codes when rating unlisted conditions, despite the presence of other service-connected listed conditions. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019).

Regarding hallux rigidus, DC 5281 provides that severe hallux rigidus is to be rated as 10 percent disabling if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, DC 5280, 5281. In this case, the December 2012 and August 2021 VA examinations indicate that the symptoms associated with hallux rigidus are mild or moderate, with no indication that functional impairment is equivalent to amputation of the great toe. Based on the probative value and weight of these VA examinations, the Board finds that the competent evidence does not tend to support a separate compensable rating for hallux rigidus.

DC 5280 provides a single rating of 10 percent for unilateral hallux valgus if operated with resection of metatarsal head or if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. The record shows that the Veteran has not undergone resection of the metatarsal head. As such, the Veteran does not meet the criteria under DC 5280.

DC 5278 provides a rating of 10 percent for great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads. 38 C.F.R. § 4.71a. The record shows that the Veteran has no toe dorsiflexion, limitation of dorsiflexion at ankle, or definite tenderness under metatarsal heads. As such, the Veteran does not meet the criteria under DC 5278.

DC 5282 provides a noncompensable rating for hammer toe affecting single toes and a maximum rating of 10 percent for hammer toe affecting all toes, unilaterally without claw foot. 38 C.F.R. § 4.71a. The record shows that the Veteran does not have hammer toes. As such, he does not meet the criteria under DC 5282.

DC 5283 provides a minimum rating of 10 percent, but only for moderate symptoms associated with malunion or nonunion of tarsal or metatarsal bones. Similarly, DC 5284 provides a minimum rating of 10 percent for other foot disabilities if they are of moderate severity. Mild symptoms are noncompensable under these diagnostic codes. The record shows that the Veteran does not have malunion or nonunion of the tarsal or metatarsal bones or other foot disabilities of moderate severity. As such, he does not meet the criteria under DC 5283 or 5284.

Finally, under the 2021 revised Schedule for Ratings for the Musculoskeletal System, the Board has considered whether a higher rating was available under DC 5269; however, the maximum rating under DC 5269 is 40 percent. Here, the other applicable codes do not offer a higher rating. Therefore, higher ratings are not available under the other diagnostic codes.

In sum, the Board finds that higher or separate ratings are not warranted for the Veteran's bilateral foot disability.

 

 

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.