Citation Nr: 21008596 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-31 452A DATE: February 17, 2021 ORDER 1. Entitlement to service connection for bilateral foot gout, to include as secondary to service-connected foot disabilities, is denied. 2. Entitlement to an initial rating in excess 10 percent rating for right foot ligamentous strain, metatarsalgia, and degenerative arthritis prior to June 14, 2011 is denied. 3. Entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia and degenerative arthritis status post left fifth metatarsal head prior to June 14, 2011 is denied. 4. Entitlement to a rating in excess of 50 percent for bilateral plantar fasciitis, pes planus, metatarsalgia, and degenerative arthritis with right foot ligamentous strain status post left fifth metatarsal head osteotomy from June 14, 2011 is denied. FINDINGS OF FACT 1. The preponderance evidence of record is against a finding that the Veteran has bilateral foot gout that causes functional impairment in earning capacity. 2. There is also no competent evidence that the Veteran has developed bilateral foot gout that had its onset in service, manifested to a compensable degree within one year of service discharge, caused or aggravated by service-connected foot disabilities, or is otherwise related to service. 3. The Veteran's right foot disability has not been manifested by moderately severe symptoms prior to June 14, 2011. 4. The Veteran's left foot disability has not been manifested by moderately severe symptoms prior to June 14, 2011. 5. The Veteran is in receipt of the highest disability rating allowed for the service-connected bilateral foot disability from June 14, 2011. 6. For the entire period on appeal, the Veteran’s left foot scar was not greater than one centimeters (cm) long, was not painful or unstable, and did not result in any limitation of function. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot gout, to include as secondary to service-connected foot disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria an initial rating in excess 10 percent rating for the right foot disability prior to June 14, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. 3. The criteria for an initial rating in excess of 10 percent for the left foot disability prior to June 14, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5284. 4. The criteria for a rating in excess of 50 percent for bilateral foot disability from June 14, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to August 1988. In November 2017, the Board remanded the claims for service connection for bilateral plantar fasciitis, bilateral metatarsalgia, bilateral gout, degenerative changes of the right first metatarsophalangeal joint, right Taylor bunionette and hallux limitus, and left hallux limitus, and the claims for increased ratings for status post left fifth metatarsal head osteotomy and right foot ligamentous strain for updated VA treatment records and a new VA examination after finding the April 2013 and August 2015 VA examinations were inadequate. In May 2020, the Board again remanded the claims for service connection for bilateral plantar fasciitis, bilateral metatarsalgia, bilateral gout, degenerative changes of the right first metatarsophalangeal joint, right bunionette and hallux limitus, and left hallux limitus and the claims for increased ratings for residuals of left fifth metatarsal head osteotomy and right foot ligamentous strain for a new VA examination after finding the January 2018 VA examination was also inadequate. The Board finds there was substantial compliance with this development. In October 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for left foot metatarsalgia, effective April 24, 2009, the date VA treatment records documented a clinical diagnosis of the disability; for left foot degenerative arthritis, effective November 24, 2009, the date the medical evidence documented a clinical diagnosis of the disability; for right foot metatarsalgia, effective June 18, 2010, the date VA received the Veteran’s claim for service connection for a right foot disability; for left foot scar, residual with a noncompensable rating, effective May 16, 2008, the date VA received the claim for service connection for a left foot disability; and for right foot degenerative arthritis (hallux limitus), effective March 22, 2012, the date medical evidence documented a clinical diagnosis of the disability. The claims now to return to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as gout, which is arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for bilateral foot gout, to include as secondary to service-connected foot disabilities. The Veteran contends he has bilateral foot gout that is interrelated with his other bilateral foot disabilities. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for bilateral foot gout. The reasons follow. The Board notes that the April 2013, August 2015, and January 2018 VA examinations were found to be inadequate by prior Board decisions; therefore, they will not be discussed. Regarding evidence of a current disability, the preponderance of the evidence is against a finding that the Veteran has current bilateral foot gout that causes functional impairment of earning capacity. For example, a March 2012 VA treatment record documents the Veteran most likely had a gout flare after presenting for right foot pain with swelling of the right first toe. X-ray results showed degenerative changes in the right first toe. The Veteran stated on his April 2012 VA Form 21-4138 Statement in Support of Claim that he has possible gout that is more likely hallux rigidus. In an April 2012 VA treatment record, the Veteran was referred for further testing to confirm if his right foot pain was related to gout or degenerative joint disease. A May 2014 VA treatment record shows the Veteran has possible gout; however, an October 2015 x-ray report showed degenerative changes in the first right toe, bilaterally, but there were no erosions consistent with gout. In April 2016, the Veteran thought he had gout, but uric acid levels were normal, which is evidence against gout. A December 2017 VA treatment record documents a gout flare in July, but the July 2017 VA treatment record notes “gout?” in the past medical history. This notation shows a diagnosis of gout was unclear. The September 2020 VA examiner found there was no evidence on examination to support a diagnosis of gout. This is evidence against a current bilateral foot gout disability. The Board has considered Saunders v. Wilkie, 886 F. 3d 1356, 1368 (Fed. Cir. 2018), wherein the United States Court of Appeals for the Federal Circuit held that pain alone resulting in functional impairment is a disability for VA compensation purposes. Here, the evidence shows active bilateral foot pain since approximately August 2009, but this foot pain has been attributed to the service-connected foot disabilities. The Veteran has alleged having possible gout without additional facts to show that his symptoms are separate from his existing service-connected foot disabilities. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran has current gout symptoms that result in functional impairment in earning capacity to establish evidence of a current bilateral foot gout disability for VA compensation benefits. There is also no competent evidence of a nexus between bilateral foot gout and service. Although the Veteran has asserted that he has possible gout and/or pain that is attributable to gout, he is a lay person and, under the facts of this case, does not have the requisite medical expertise to directly link bilateral foot gout to service. In this regard, the question of a current diagnosis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of diagnosis in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Additionally, there is no competent evidence that gout was manifested within one year following service discharge. The Veteran was first suspected to have gout in March 2012 which is 24 years following service discharge. As noted above, the Veteran has not been diagnosed with gout; although, it has been suspected at multiple times during the appeal. Even if the Board takes the first possibility of gout as evidence to substantiate the claim, the lengthy time between this manifestation and the Veteran’s discharge from active service is also probative evidence that weighs against the Veteran’s claim. Thus, service connection based on a chronic disease is not warranted. The Board has also considered service connection for bilateral foot gout as secondary to service-connected foot disabilities. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral foot gout as secondary to service-connected foot disabilities. The reasons follow. Service connection may be granted on a secondary basis for a current disability which is proximately due to or the result of a service-connected disease or injury. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. As noted above, the preponderance of the evidence is against the Veteran having a current disability of bilateral foot gout. Additionally, there is no competent evidence of a nexus between bilateral foot gout and service-connected foot disabilities, to include whether such symptoms are caused or aggravated by the service-connected foot disability or disabilities. Although the Veteran has asserted that he has bilateral foot gout and/or pain from gout that is attributable to a service-connected disability or disabilities, he is a lay person and, under the facts of this case, does not have the requisite medical expertise to directly link bilateral foot gout to a service-connected foot disability or disabilities. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. In sum, without competent evidence of a current disability that shows functional impairment of earning capacity and evidence of a nexus between a current disability and service, to include as secondary to a service-connected foot disabilities, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral foot gout and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims held that that the provisions of § 4.59 are not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated upon range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Disability of the musculoskeletal system is primarily the inability due to damage or infection in the parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 2. Entitlement to an initial rating in excess of 10 percent for a right foot disability prior to Jun 14, 2011. The claim for service connection for right foot ligamentous strain was granted in a March 2011 rating decision and was assigned a noncompensable rating, effective June 18, 2010, the date VA received the claim for service connection for a right foot condition. In an October 2020 rating decision, the initial rating was increased to 10 percent, effective June 18, 2010, and right foot ligamentous strain was combined with metatarsalgia and degenerative arthritis. The Veteran’s service-connected right foot disability is evaluated under the General Rating Formula for rating diseases and injuries of the foot. 38 C.F.R. § 4.71a, DC 5284. Under this formula, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran contends that a higher rating is warranted for his right foot disability. He feels the callus over the first metatarsophalangeal joint on the plantar surface accompanying pain and soft tissue swelling warrant more than a 10 percent rating. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for entitlement to an initial rating in excess of 10 percent for a right foot disability prior to June 14, 2011. The reasons follow. The Veteran underwent VA examinations in September 2008 and November 2009, but these examinations do not discuss the right foot. The Veteran underwent a VA examination in December 2010. During the examination, the Veteran reported right foot pain with moderate intensity that waxes and wanes. Right foot pain gets better with rest and worse with activity and walking. He did not report flare-ups, but his right foot bothers him daily. The examiner documented a two by two centimeters callus on the right foot plantar aspect of the first metatarsal head without skin breakdown which is tender to palpation. The first toe was also tender. The final diagnosis was mild right foot strain with a mild impact on activities of daily living and occupation functioning. The Veteran underwent a VA examination in April 2011. During the examination, the Veteran did not report right foot pain as it appears the examination was focused on the left foot and ankle. The examiner documented there was no evidence of callus formation on the feet to suggest abnormal gait creating abnormal strain on adjacent joints. The Board finds that the evidence shows that the Veteran's right foot disability is marked by pain throughout the appeal period, which the Board finds is contemplated by the 10 percent rating that was granted throughout the appeal period. However, the preponderance of the evidence is against a finding that the Veteran's right foot disability alone is manifested by a moderately severe foot disability to warrant the 20 percent rating under DC 5284 prior to June 14, 2011. For example, the December 2010 VA examiner found the Veteran’s right foot strain had a mild impact on activities of daily living. Furthermore, the preponderance of the evidence is against a finding that the service-connected right foot disability compromises the Veteran's ability to bear weight, pain on use, or swelling on use. At the time of the December 2010 VA examination, the examiner documented that the Veteran did not have flare-ups, but the right foot bothered the Veteran daily. Even with daily pain, the examiner found the right foot’s impact on activities of daily living was mild. For these reasons, the Board finds that a 20 percent or higher rating under DC 5284 is not warranted. The Board has considered the effects of the Veteran's symptom of pain. Pain is specifically contemplated by the rating criteria for other foot injuries, as noted above. The Board finds that the 10 percent rating already assigned contemplates the symptom of pain, to include pain on weightbearing. Thus, a higher rating than 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the disability picture for the period on appeal. The Board has considered whether an increased disability rating would be appropriate under alternative DC provisions. However, the file does not demonstrate a diagnosis of, or treatment for, other disorders of the feet attributable to the service-connected foot disability, to include DC 5276 (acquired flatfoot), DC 5277 (bilateral weak foot), DC 5278 (acquired claw foot), DC 5280 (unilateral hallux valgus), DC 5281 (unilateral, severe hallux rigidus), DC 5282 (hammer toe), or DC 5283 (malunion or nonunion of the tarsal or metatarsal bones) prior to June 14, 2011. The Veteran is service connected for right foot metatarsalgia which could be rated under DC 5279 (anterior metatarsalgia), but DC 5279 offers a maximum rating of 10 percent. Furthermore, as the Veteran's symptomology of a right foot disability such as right foot pain and stiffness is already considered by the Veteran's 10 percent evaluation, a separate rating for the same symptoms under a different DC is not warranted. 38 C.F.R. § 4.14. In so far as the Veteran contends that his right foot disability deserves more than a noncompensable rating, he was correct, and the AOJ assigned a 10 percent rating in an October 2020 rating decision, but the Veteran’s disability picture does not show a rating in excess of 10 percent is warranted for the right foot disability. In sum, the preponderance of the evidence is against a disability rating in excess of 10 percent for the right foot disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial rating in excess of 10 percent for left foot disability prior to June 14, 2011. The claim for service connection for status post left fifth metatarsal head osteotomy was granted in a November 2008 rating decision and was assigned a 10 percent rating, effective May 16, 2008, the date VA received his claim for service connection for a left foot condition. The Veteran’s service-connected left foot disability is evaluated under the General Rating Formula for rating diseases and injuries of the foot. 38 C.F.R. § 4.71a, DC 5284. The Veteran contends his left foot disability is worse than the 10 percent rating assigned prior to June 14, 2011. He stated on the January 2010 VA Form 21-4138 Statement in Support of Claim that he has indicated to doctors that he has to walk on the side of his foot to avoid pressure on the fifth toe, and a November 2009 MRI report showed degenerative changes in the left foot. He continued to have persistent pain in the surgical area of the left foot as well as pain to the big toe and heel. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for entitlement an initial rating in excess of 10 percent for a left foot disability prior to June 14, 2011. The reasons follow. The Veteran was provided a VA examination in September 2008. During that examination, he reported intermittent left foot pain that was not helped by special shoe inserts. The Veteran reported occasionally using over-the-counter medications. The examiner noted the Veteran experienced tenderness to deep palpation of the base of the fifth metatarsal region on the lateral side of left foot, but there was no abnormal weight bearing, functional limitations, or pain on manipulation of the feet. He was documented as having no callus formation on the plantar aspect of the fifth metatarsal region, and there was no painful limitation of motion. The examiner opined the Veteran was still able to function at a high level. The Veteran underwent a VA examination in November 2009. During the examination, he reported that several years after his left foot surgery he began to experience pain in the area of the head of the fifth metatarsal, He has received injections in this area, uses shoe inserts, and occasionally takes over-the-counter medications. The Veteran reported increased left foot discomfort with prolonged standing, and he attempts to shift his weight to the inside of the foot to relieve pain. The examiner noted the wear on the left shoe was increased on the outside rather than the inside of the shoe. The examiner also noted the Veteran had subjective tenderness on palpation and pain with palpation over the head of the metatarsal, but no pain on movement of the toes. There were no gross abnormalities, no weakness, fatigability, incoordination, incapacitating episodes, radiation of pain or neurological findings which would affect the Veteran’s usual occupation. The examiner documented there were no objective findings of swelling, tissue loss, erythema, or crepitus. The Veteran underwent a VA examination in December 2010. During the examination, the Veteran reported continuous pain in the fifth metatarsal since the left foot surgery which conflicts with what the Veteran reported during the November 2009 VA examination which was that left foot pain started several years after the left foot surgery. He stated he can walk one half block and stand for 30 minutes to one hour. The Veteran stopped using orthotics because he believed they caused more problems, he does not use any assistive devices, and he takes over-the-counter pain medication three times a day. The Veteran reported three years ago he had a significant flare-up where he was unable to walk due to pain and was taken to the emergency room. He did not report this flare-up during either of the previous two VA examinations, but a February 2006 emergency room visit for left foot pain is documented in the claims file. He reported two flare-ups per month lasting about a day associated with additional functional impairment, additional decline in range of motion as well as fatigue, lack of endurance, and weakness all due to pain. The Veteran reported moderate pain with usage that became severe with flare-ups but stopped with rest. The examiner documented pain and stiffness in the surgical area with occasional swelling but no heat or redness. The left foot has tenderness at the fifth joint, full active range of motion of the fifth toe when the examiner pushes it up and down but no passive movement, and there was a callus at the plantar aspect of the first toe and some tenderness of the first toe. The examiner noted there were no skin breakdown or changes, no hallux valgus, and no clinical pes planus. The examiner’s final diagnosis was left foot pain on palpation and antalgic gait with a moderate impact on activities of daily living and occupational functioning. The Veteran underwent a VA examination in April 2011. During the examination, the Veteran reported left foot pain from six months after the left foot surgery that has continued since. The Board notes this statement conflicts with his statement during the November 2009 examination. The Veteran reported pain in the region of the fifth metatarsal head with walking and some occasional tingling in the heel. Until January 2011, the Veteran would have one to two flare-ups a month, and since then, he has three to four flare-ups a month. The Veteran did not report flare-ups during the September 2008 and November 2009 examinations. The Veteran reported he was able to walk without assistive devices up to two blocks, and he had some pain in the left first toe. The examiner documented the Veteran had no sensory deficit on light touch over all toes, good dorsalis pulses bilaterally, and the Veteran was able to stand and walk on heels and toes without difficulty. The Veteran demonstrated no loss of range of motion due to pain, weakness, fatigability, incoordination, or flare-ups. There were no incapacitating episodes, radiation of pain, neurologic findings or effect on usual occupation or daily activities. Ranges of motion were the same during passive and active ranges of motion and after three repetitions. There was no evidence of callus formation on the feet to suggest abnormal gait creating abnormal strain on adjacent joints, and the Veteran’s gait was normal. The Board finds that the evidence shows that the Veteran's left foot disability is marked by pain throughout the appeal period, which the Board finds is contemplated by the 10 percent rating that was granted throughout the appeal period. However, the preponderance of the evidence is against a finding that the Veteran's left foot disability is manifested by a moderately severe foot disability to warrant the 20 percent rating under DC 5284. For example, the September 2008 VA examiner noted the Veteran could function at a high level with the left foot disability, the November 2009 VA examiner documented the Veteran did not have left foot symptoms that would affect the Veteran’s usual occupation, and the April 2011 VA examiner documented there were no symptoms that affected his usual occupation or daily activities. The December 2010 VA examiner documented the left foot disability had a moderate impact on activities of daily living and occupation functioning. While the Veteran reported flare-ups during the December 2010 and April 2011 examinations, the examiners did not find the left foot to be a moderately severe disability. This symptomology supports a finding that the left foot disability was at worst a moderate disability prior to June 14, 2011. For these reasons, the Board finds that a 20 percent or higher rating under DC 5284 is not warranted. The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for other foot injuries, as noted above. The Board finds that the 10 percent rating already assigned contemplates the symptom of pain, to include pain on weightbearing. Thus, a higher rating than 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the disability picture for the period on appeal. The Board has considered whether an increased disability rating would be appropriate under alternative DC provisions. However, the file does not demonstrate a diagnosis of, or treatment for, other disorders of the feet attributable to the service-connected foot disability, to include DC 5276 (acquired flatfoot), DC 5277 (bilateral weak foot), DC 5278 (acquired claw foot), DC 5280 (unilateral hallux valgus), DC 5281 (unilateral, severe hallux rigidus), DC 5282 (hammer toe), or DC 5283 (malunion or nonunion of the tarsal or metatarsal bones) prior to June 14, 2011. The Veteran is service connected for right foot metatarsalgia which could be rated under DC 5279 (anterior metatarsalgia), but DC 5279 offers a maximum rating of 10 percent. Furthermore, as the Veteran's symptomology of a left foot disability such as left foot pain and stiffness is already considered by the Veteran's 10 percent evaluation, a separate rating for the same symptoms under a different DC is not warranted. 38 C.F.R. § 4.14. The Board has considered whether an increased disability rating would be appropriate for left foot scar, which is service connected secondary to the left foot disability. The Veteran’s service-connected left foot scar is evaluated under the General Rating Formula for rating diseases and injuries of the skin. 38 C.F.R. § 4.118, DC 7805. The left foot scar is rated as noncompensable effective May 16, 2008. Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. DC 7801 provides that burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) will be assigned a 10 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a compensable rating for a left foot scar prior to June 14, 2011. The reasons follow. The September 2008 VA examiner documented a well healed scar along the lateral aspect of the fifth metatarsal region of the left foot. The November 2009 VA examiner documented a nontender, nonadherent one centimeter scar over the area of the osteotomy. Throughout the entire period on appeal, the Veteran has not exhibited other disabling effects not considered in a rating provided under DCs 7800-04. Therefore, a compensable rating under DC 7805 is not warranted. The Board has also considered the other DCs pertaining to scars. However, the Veteran's left foot scar is not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, the scar does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's left foot scar is not unstable or painful. Therefore, DCs 7800, 7801, 7802, and 7804, both prior to June 14, 2011, are not applicable. In sum, the preponderance of the evidence is against a disability rating in excess of 10 percent for the left foot disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to a rating in excess of 50 percent for a bilateral foot disability from June 14, 2011. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a rating in excess of 50 percent for a bilateral foot disability. The reasons follow. The Veteran underwent a VA examination in June 2012. The examiner documented there was no evidence of pain on use, pain with manipulation, swelling, calluses, or extreme tenderness of plantar surface. The foot symptoms were relieved with arch supports or orthotics. The examiner documented the Veteran experienced a marked deformity, but it was not marked pronation. The Veteran reported left foot pain with walking, but the examiner noted he had a normal gait and ambulation. The Veteran underwent a VA examination in September 2020. The Veteran reported pain on use of both feet, and prolonged walking or standing caused pain on the soles of his feet. The examiner documented during flare-ups the Veteran has to offload weight. The examiner noted pain on manipulation, characteristic calluses, and extreme tenderness of the plantar surfaces, but there was no swelling on use. The Veteran has a marked deformity of the feet, but it was not marked pronation. The marked “no” for inward bowing, marked inward displacement, or severe spasm of the Achilles tendon. The claim for service connection for bilateral plantar fasciitis and pes planus was granted and combined with bilateral metatarsalgia and degenerative arthritis in an October 2020 rating decision and was assigned a 50 percent rating, effective June 14, 2011, the date medical evidence documented a diagnosis of bilateral plantar fasciitis. All these diagnoses are contemplated under the current 50 percent rating. The Veteran is currently in receipt of a 50 percent rating under Diagnostic Code 5276, which provides rating criteria for acquired flatfoot also known as pes planus. 38 C.F.R. § 4.71a. This is the highest available rating under this rating code. The Board notes that the rating criteria applicable to the foot was revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76464 (Nov. 30, 2020). When regulations are revised during the course of an appeal, as here, the Board is required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the claimant. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change; there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recent revision added DC 5269 (plantar fasciitis). The maximum rating available under DC 5269 is 40 percent for actual loss of use of the foot; however, the maximum rating is below the currently assigned 50 percent rating under DC 5276. Therefore, the more favorable DC for the Veteran is DC 5276. Additionally, the current 50 percent rating is the highest available rating for any of the other diagnostic codes contemplating disabilities of the foot. Thus, a higher rating is not available. The Board also finds that separate, compensable ratings for the various diagnoses in his bilateral feet are not available. 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. Diagnostic codes for the feet and for a diagnosis of degenerative arthritis all contemplate pain, implicitly if not explicitly. Furthermore, the VA examinations and VA treatment records document that the Veteran's symptomatology includes significant pain that is increased by walking or prolonged standing. This criteria is provided for in the 50 percent rating currently assigned under DC 5276, which provides a 50 percent rating for marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon achilles on manipulation, not improved by orthopedic shoes or appliances of the bilateral feet. Were the Board to grant separate ratings under other diagnostic codes, the Veteran would receive compensation under two different codes for the same manifestations of pain and flare-ups, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for pes planus, as noted above. The Board finds that the 50 percent rating already assigned contemplates the symptom of pain, to include pain on weightbearing and non-weightbearing. Thus, a higher rating than 50 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the disability picture for the period on appeal. The Board has considered whether an increased disability rating would be appropriate for left foot scar which is service connected secondary to the left foot disability. The Veteran’s service-connected left foot scar is evaluated under the General Rating Formula for rating diseases and injuries of the skin. 38 C.F.R. § 4.118, DC 7805. The left foot scar is rated as noncompensable effective May 16, 2008. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a compensable rating for a left foot scar from June 14, 2011. The reasons follow. The June 2012 VA examiner documented the Veteran has a left foot scar, but the scar was not painful and/or unstable, and the total area of the scar was 39 square centimeters or less. The September 2020 VA examiner documented the Veteran did not have a left foot scar. Throughout the entire period on appeal, the Veteran has not exhibited other disabling effects not considered in a rating provided under DCs 7800-04. Therefore, a compensable rating under DC 7805 is not warranted. The Board has also considered the other DCs pertaining to scars. However, the Veteran's left foot scar is not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, the scar does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's left foot scar is not unstable or painful. Therefore, DCs 7800, 7801, 7802, and 7804, both prior to and from June 14, 2011, are not applicable. In sum, the preponderance of the evidence is against a disability rating in excess of 50 percent for the bilateral foot disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.