Citation Nr: 21007728 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-00 268 DATE: February 10, 2021 ORDER Entitlement to a disability rating more than 30 percent for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally prior to September 22, 2020 is denied. Entitlement to a disability rating more than 50 percent for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally from September 22, 2020 is denied. FINDINGS OF FACT 1. Prior to September 22, 2020, the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally was manifested by severe impairment; the bilateral pes planus did not show pronounced disability with extreme tenderness and/or marked inward displacement or severe spasm of the tendo Achillis on manipulation that was not improved by orthopedic shoes or appliances. 2. From September 22, 2020, the Veteran is evaluated at the highest available schedular rating for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally. There are no symptoms or findings that make application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. Prior to September 22, 2020, the criteria for a disability rating more than 30 percent for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5276 (2019). 2. From September 22, 2020, the criteria for a disability rating more than 50 percent for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5276 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to September 1997. The Board is aware of regulatory changes effective February 7, 2021. The Veteran is at liberty to file an appropriate claim for consideration of such prospective regulations. Since the Veteran is at the maximum evaluation for plantar fasciitis, r remand would serve no useful purpose. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). The Board remanded the claim in July 2015, July 2016, and March 2020 for evidentiary development. In a subsequent rating decision dated October 2020, the RO combined the previous separately rated disabilities of bilateral plantar fasciitis with degenerative changes to the metatarsals bilaterally (rated 10 percent disabling) and bilateral pes planus (rated noncompensable) to bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally and assigned a rating of 30 percent prior to September 22, 2020 and 50 percent thereafter. However, as the increased rating did not constitute a full grant of the benefits sought, the Veteran’s claim for higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran’s claims folder has returned to the Board for further appellate consideration. Higher evaluation for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2019). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally is rated as 30 percent disabling prior to September 22, 2020 and 50 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5276 (degenerative arthritis; acquired flatfoot). The Veteran alleges her bilateral pes planus is more severe than currently rated. Diagnostic Code 5003 instructs that arthritis is to be rated on the limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint involved does not rise to a compensable level under the appropriate diagnostic code, then a 10 percent minimum rating should be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Further, disabilities of the foot are rated under Diagnostic Codes 5276 through 5284. As an initial matter, neither of the Veteran’s feet has been shown to be characterized by weak foot, claw foot, metatarsalgia, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones such that rating the Veteran under the corresponding Diagnostic Codes would provide the Veteran with a higher rating. Also, although the Veteran evidences hammer toes and hallux valgus, rating such disabilities under their appropriate Diagnostic Codes would not provide the Veteran with a higher rating. Accordingly, the Diagnostic Codes pertaining to the aforementioned disabilities are not for application in the instant case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, 5283 (2019). Under Diagnostic Code 5284, moderate residuals of other foot injuries warrant a 10 percent rating. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. 38 C.F.R. § 4.71a, Diagnostic Code 5284. A note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. The Board finds that Diagnostic Code 5284 is not the most appropriate code to apply in the Veteran’s case because it is a very general, catch-all provision which is intended to cover a variety of foot disabilities; whereas Diagnostic Code 5276 expressly contemplates the exact anatomical location (bilateral feet), symptomatology (tenderness and pain), and functions that are affected (pain on manipulation) by pes planus. In this regard, the Board notes that when a condition is specifically listed in the Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under Diagnostic Code 5284 was not permitted); see also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993). Also, VA’s General Counsel (GC) precedential opinion advises that Diagnostic Code 5284 contemplates such miscellaneous injuries as “trauma to the foot involving the forefoot and toes, the talus and midfoot, and the os calcis and heel cord,” as well as “[f]ractures and dislocations [that] may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints.” See VAOPGCPREC 9-98 (citing 2 Disorders of the Foot 1449-1542 (Melvin H. Jahss ed., 1982); C. DeLee, Fractures and dislocations of the foot, in 2 Surgery of the Foot 592 (Roger A. Mann ed., 5th ed. 1986)). As such, the Board reasons that the Veteran’s symptoms associated therewith, standing alone, do not support an evaluation under Diagnostic Code 5284 beyond that which is warranted under Diagnostic Code 5276. Indeed, the assignment of such a higher rating would render the latter code essentially superfluous as its underlying criteria would be wholly duplicated within Diagnostic Code 5284. Lastly, the Board notes that the competent and probative evidence does not indicate loss of either foot such that a higher 40 percent disability rating is warranted prior to September 22, 2020. Accordingly, the Board finds that Diagnostic Code 5276 is the most appropriate Diagnostic Code for evaluation of the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally. Under Diagnostic Code 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Moderate flatfoot with weight-bearing line over or   medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Id. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability. Id. A 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achillis on manipulation, that is not improved by orthopedic shoes or appliances. Id. The Veteran was afforded a VA examination in October 2009. He reported progressively worse pain in both feet, in particular in the forefoot around the metatarsal region in both feet and in the heels. There was also associated foot weakness, fatigability, stiffness and occasional swelling. Flare-ups occurred on a daily basis, lasted for several hours, and were precipitated by weight bearing activities and alleviated with rest and with Motrin. The Veteran used Motrin, cream, and Epsom salts for treatment. He also used corrective orthotic inserts to help with the plantar fasciitis, although the inserts did not help. The Veteran reported that he worked in a warehouse and had to miss two weeks of work due to flare-ups of foot pain. He avoided yard work and outdoor activities. Upon examination, the VA examiner reported no arches present on the weight bearing or non-weight bearing. The alignment of the Achilles tendon was normal with weight bearing and non-weight bearing. There was tenderness to palpation at the plantar surface of the calcaneus and along the plantar fascia. There was also tenderness to palpation over the metatarsal heads in all five metatarsal heads bilaterally. Forefoot and mid-foot alignment were normal except for right hallux valgus with 40 degrees of angulation. There was no dorsiflexion at the first metatarsophalangeal (MTP) joint. On the left side, there was 20 degree angulation at the first MTP joint with no dorsiflexion noted. The Veteran was provided another VA examination in September 2015. He continued to report foot pain and flare-ups as well as functional loss. Although he used a cane to assist with ambulation, he noted that the cane was only for his knees. He was unable to walk more than 100 yards due to foot pain. Upon examination, the VA examiner reported pain accentuated on manipulation of the feet but no finding of characteristic callouses. The examiner noted the Veteran’s use of arch supports and orthotics as well as extreme tenderness of plantar surfaces and decreased longitudinal arch height of both feet. There was no finding of objective evidence of marked deformity, marked pronation, weight bearing line falling over or medial to the great toe, lower extremity deformity other than pes planus causing alteration of the weight bearing line, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. The examiner noted additional symptoms of bilateral excess fatigability, pain on movement, pain on weight-bearing, pain on nonweight-bearing, disturbance of locomotion, interference with sitting, and interference with standing. The examiner further documented findings of bilateral pes planus, hammertoes, hallux valgus, plantar fasciitis, and degenerative arthritis of the distal interphalangeal and proximal interphalangeal joints of the toes. The Board also notes that in a February 2020 Informal Hearing Presentation, the Veteran’s representative indicated that the Veteran had additional complaints in VA treatment records including symptoms of foot pain, cramping to his bilateral plantar mid foot, burning sensation to his feet, a level 1 deformity of his bilateral foot, and degenerative arthritis. However, he reported in multiple VA podiatry evaluations that his custom orthotics worked “great.” See, e.g., a VA treatment record dated November 2017. After consideration of all of the evidence of record, the Board acknowledges the Veteran’s report of pain and functional impairment associated with his bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally. However, the Board finds that a disability rating in excess of 30 percent is not warranted under Diagnostic Codes 5003-5276 prior to September 22, 2020. Specifically, while the evidence during that period arguably demonstrated extreme tenderness of plantar surfaces of the feet, the evidence did   not show marked pronation or marked inward displacement and severe spasm of the endo Achillis on manipulation in either foot. Also, as noted above, the Veteran reported in multiple VA podiatry evaluations that his custom orthotic shoes worked “great.” Indeed, the evidence indicates at most severe impairment of the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally and no other symptoms are contemplated by a 50 percent rating. There is no competent and probative evidence contrary to the VA examination reports prior to September 22, 2020. Thus, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally prior to September 22, 2020. With regard to the assigned 50 percent disability for the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally from September 22, 2020, this is the highest evaluation allowed under the law for this condition. The Board can find no basis for a higher schedular evaluation, nor has the Veteran offered specific argument in this regard. In evaluating the Veteran’s level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. During the period under consideration, the Veteran complained of pain in his feet, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence, in particular the VA examination reports, have associated these symptoms to the Veteran’s bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally. Further, these symptoms are included in the basis for the 30 percent and 50 percent ratings. Therefore, these factors, and their resulting functional limitation, are fully contemplated by the current assigned ratings.   The Board finds the current ratings encapsulate the Veteran’s current symptoms. 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent prior to September 22, 2020 and 50 percent thereafter for bilateral plantar fasciitis with bilateral pes planus and degenerative changes to the metatarsals bilaterally. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.