Citation Nr: 21009238 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-16 884A DATE: February 22, 2021 ORDER Entitlement to an initial evaluation of 10 percent for bilateral pes planus with plantar fasciitis with mild degenerative joint disease of the 1st metatarsophalangeal joint (bilateral pes planus with plantar fasciitis) is granted. As new and material evidence has not been received, the claim for entitlement to service connection for a chronic pulmonary disease (lung disorder) is not reopened. FINDINGS OF FACT 1. February 2014 examination findings diagnosed bilateral pes planus with plantar fasciitis without surgical treatment. 2. Service connection for a lung disorder was denied by an unappealed August 2002 rating decision. The Veteran was notified and did not appeal. Evidence received since that final rating action is cumulative and redundant and does not provide a possible basis of substantiating the claim. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a 10 percent evaluation, but no higher, for bilateral pes planus with plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5269 (in effect February 7, 2021). 2. New and material evidence has not been received since the final rating action denying service connection for a lung disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1998 to June 1996 and from August 1999 to August 2020. 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 percentage ratings are based on the average impairment of earning capacity as a result of a 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. 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 condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent to which the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to symptoms such as pain. See also 38 C.F.R. §§ 4.40, 4.45. Prior to February 7, 2021, the Veteran’s bilateral plantar fasciitis was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the Tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. On/after February 7, 2021 The Veteran’s plantar fasciitis is evaluated under Diagnostic Code 5269. A 10 percent rating is assigned for plantar fasciitis which is otherwise unilateral or bilateral. A 20 percent rating is assigned for plantar fasciitis where there is no relief from both non-surgical and surgical treatment, unilaterally. A 30 percent rating is assigned for plantar fasciitis where there is no relief from both non-surgical and surgical treatment, bilaterally. Note (1): With actual loss of use of the foot, rate 40 percent. Note (2): 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. Diagnostic Code (DC) 5284 provides for foot injuries. A 10 percent rating is assigned for a moderate condition, 20 percent for moderately severe, and 30 percent for a severe condition. 38 C.F.R. § 4.71a New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2020). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new and material. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. Here, it is concluded that the evidence received is not new and material. For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Entitlement to an initial compensable evaluation for bilateral pes planus with plantar fasciitis. The Veteran contends that she is entitled to an initial compensable evaluation for her bilateral pes planus with plantar fasciitis. In a March 2015 rating decision, the Veteran was granted service connection for her bilateral pes planus disorder and assigned a noncompensable evaluation effective December 29, 2011. This grant was based on the Veteran’s pre-existing pes planus disorder which was aggravated by military service. In an August 2012 VA flatfoot examination, the examiner diagnosed the Veteran as negative for a bilateral flatfeet disorder. During the examination, the examiner noted pain and swelling of the feet with tenderness diagnosed on the plantar surface of the feet. The examiner noted no evidence of marked deformity, decreased longitudinal arch height, or marked pronation of the feet on weight bearing. Pain on manipulation of the feet was diagnosed as negative with no evidence of the weight-bearing line falling over the medial great big toe or inward bowing of the Achillis Tendo. The examiner also noted that the Veteran’s symptoms were not relieved by arch supports. The examiner concluded that there is no pathology to render a bilateral flatfeet disorder as the Veteran has low arches, but not a pes planus disorder. In a February 2014 VA flatfoot examination, the examiner diagnosed the Veteran with bilateral pes planus and plantar fasciitis. Pain and swelling were noted in the feet with no extreme tenderness of the plantar surfaces of the feet diagnosed. The examiner noted no objective evidence of marked deformity of the feet but did diagnose decreased longitudinal arch height on weight bearing with no evidence of marked pronation of the feet. Pain on manipulation of the feet was diagnosed with no evidence of the weight-bearing line falling over the medial great big toe or inward bowing of the Achillis Tendo. The examiner also noted that the Veteran’s flatfeet symptoms are relieved by arch supports. Imaging of the Veteran’s feet reveal findings of mild degenerative changes of the first metatarsophalangeal joint with mild hallux valgus. Imaging findings of the feet also reveal small plantar calcaneal and enthesophyte suggesting chronic plantar fasciitis with no acute osseous injury. Concerning functional and occupational limitations, the examiner noted that the Veteran is unable to perform physical labor that requires prolonged standing, walking, and running. The examiner also noted that the Veteran’s right and left foot do not interfere with sedentary employment. After a thorough review of the record, the Board concludes that the current evidence provides a basis for granting a 10 percent rating for the Veteran’s bilateral pes planus with plantar fasciitis. As determined by the February 2014 examination, there are findings of bilateral pes planus with plantar fasciitis which warrants a 10 percent evaluation. The Board finds that a higher evaluation of 30 percent is not warranted as there is no evidence of plantar fasciitis with no relief from both non-surgical and surgical treatment, bilaterally. As indicated in the record, the Veteran’s pes planus with plantar fasciitis symptoms are relieved by arch supports and there was no evidence of extreme tenderness of the plantar surfaces of both feet. Thus, the evidence of the record does not warrant the awarding of a 30 percent evaluation. The Board also considered whether any other Diagnostic Codes related to disabilities of the foot would provide for a higher disability rating. However, as noted, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran has experienced relief from non-surgical treatment of her feet as indicated by the February 2014 examiner findings which noted that the Veteran’s pes planus with plantar fasciitis symptoms are relieved by arch supports and there is no evidence of extreme tenderness of the plantar surfaces of both feet. Moreover, there is no evidence that the Veteran’s pes planus with plantar fasciitis is the result of a foot injury. Thus, the assignment of a separate higher evaluation under Diagnostic Code 5284 for injuries of the foot is not warranted. Lastly there is no evidence of severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Thus, the assignment of a separate higher evaluation under Diagnostic Code 5276 is not warranted. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that the level of severity of the Veteran’s disability manifested by bilateral pes planus with plantar fasciitis and unilateral relief from non-surgical treatment satisfy the criteria for a higher disability evaluation under Diagnostic Code 5269 and the Veteran’s claim for an increased 10 percent rating, but no higher, is granted. 2. Whether new and material evidence has been received to reopen a claim for a lung disorder. At the time of the final rating decision in August 2002, the Veteran’s evidence of a lung disorder consisted of STRs revealing normal pulmonary functioning at discharge. The record also consisted of a July 2002 VA general medical examination which diagnosis the Veteran with chronic pulmonary disease (COPD) which appears to be related to the Veteran’s history of smoking. Since the final rating decision, the Veteran has submitted the following: a May 2013 VA outpatient treatment record diagnosing the Veteran with mild restrictive lung disease; a July 2014 VA outpatient treatment record noting a diagnosis of mild restrictive disease and COPD; and a November 2016 VA respiratory conditions examination which diagnosed the Veteran with restrictive lung disease, but the examiner opines that the Veteran’s COPD was incurred during her military service. Lastly, the record contained lay statements asserting that her lung disorder is related to her time in-service. The Board finds that the clinical evidence submitted by the Veteran, if presumed credible for the purposes of reopening, does not support the Veteran’s contention that the onset of her lung disorder was related to or was aggravated by her time in-service. The evidence submitted does not raise the possibility of substantiating an   unestablished fact necessary to pursue the claim. The clinical or objective evidence submitted by the Veteran does not substantiate an in-service claim for which service connection may be granted. Accordingly, the claim of entitlement to service connection for a lung disorder is not reopened. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.