Citation Nr: 21010357
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 15-46 693
DATE: February 24, 2021

ORDER

Entitlement to a compensable rating for a left heel spur is denied.

Entitlement to a compensable rating for a right heel spur is denied.

FINDINGS OF FACT

1. The Veteran’s left heel spur manifestations, to include associated pain on movement and use, are best characterized as “moderate” but are adequately encompassed by his disability rating for his bilateral pes planus.  Assigning a separate compensable rating would result in impermissible pyramiding.  

2. The Veteran’s right heel spur manifestations, to include associated pain on movement and use, are best characterized as “moderate” but are adequately encompassed by his disability rating for his bilateral pes planus. Assigning a separate compensable rating would result in impermissible pyramiding.  

CONCLUSIONS OF LAW

1. The criteria for a separate compensable disability rating for a left heel spur have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5015, 5276, 5284.

2. The criteria for a separate compensable disability rating for a right heel spur have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5015, 5276, 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1980 until his honorable retirement in July 2004.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied a compensable rating for the Veteran’s service-connected left and right heel spurs. The Board will refer to the Veteran’s left and right heel spurs collectively as his “bilateral heel spurs” unless otherwise indicated.

In December 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. 

In a February 2020 order, the Board remanded the claims to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination on which to rate the Veteran’s bilateral heel spurs, which the RO accomplished. The RO then issued an October 2020 supplemental statement of the case continuing denial of a compensable disability rating for the Veteran’s bilateral heel spurs.

The case now returns to the Board. 

Evidentiary Standards

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is “based upon facts different from the prior claim”). An increased disability rating is generally assigned based on a showing that a service-connected disability has worsened. The Board is to consider each disability in relation to the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. 

Applicable Diagnostic Codes and Rating Criteria 

Various DCs are applicable to this case and need explanation. First, the Veteran’s bilateral heel spurs have been rated individually under 38 C.F.R. § 4.71a, DC 5015 (“Bones, new growths of, benign”) (prior to February 7, 2021). The Rating Schedule instructs: “The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.” Diagnostic Code 5015 was amended as of February 7, 2021. 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020). Diagnostic Code 5015 now instructs an adjudicator to “[e]valuate the diseases under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts.” The substance of DC 5015, thus, has not changed. 

Degenerative arthritis is rated under 38 C.F.R. § 4.71a, DC 5003 (2021). Diagnostic Code 5003 was amended as of February 7, 2021, but the amendments do not have a substantive effect on the rating criteria as applied in this case. 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020). Therefore, the Board’s reference to DC 5003 will be in reference to both versions unless otherwise indicated. 

Diagnostic Code 5003 provides, in relevant part, “Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). . . . Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.” 38 C.F.R. § 4.71a, DC 5003 (2021).

Here, the Veteran’s “specific joints” are his heels. There is no DC that particularly pertains to the heel. When an unlisted condition is encountered, it is permissible to rate the condition under a DC that is closely related to the disability. 38 C.F.R. § 4.20. An adjudicator should select a DC based on the function affected, the anatomical location, and symptomatology to ensure the disabilities are closely analogous. Here, the analogous diagnostic code is DC 5284, “Foot injuries, other,” which provides:

	Rating (%)

Foot injuries, other:	

Severe	30

Moderately severe	20

Moderate	10

Note: With actual loss of use of the foot, rate 40 percent.	

Accordingly, a compensable rating under DC 5284 is not awarded based on a mechanical application of the rating schedule, but rather based on a determination of whether a foot injury is “moderate,” “moderately severe,” or ‘severe.” 38 C.F.R. § 4.71a, DC 5284. These terms, however, are not defined within VA regulations or other relevant law. In the absence of an express definition, the Board gives the words their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015). The Board finds the ordinary dictionary definitions are appropriate to use in this context for guidance.

“Moderate” means “not violent, severe, or intense”; “limited in scope or effect.” Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Jan. 22, 2021).

“Severe” means “causing discomfort or hardship”; very painful or harmful”; “of a great degree.” Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Jan. 22, 2021).

“Moderately severe” is not a precisely defined term because “moderately,” as an adverb, modifies “severe.” “Moderately” means “to a moderate degree or extent.” Moderately, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderately, (last visited Jan. 22, 2021). Thus, the Board finds that “moderately severe” indicates an injury that is more than moderate but less than severe, although it may encompass symptoms associated with either a moderate or severe injury.

It should also be noted that use of terminology such as “moderate,” “moderately severe,” and “severe” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. 

Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. 

In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule—to include heel spurs—it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Petitti v. McDonald, 27 Vet. App. 415, 424 (2015). These regulations permit an adjudicator to award, where warranted, a higher disability rating than would otherwise be supported by an appliable DC. See Thompson v. McDonald, 815 F.3d 781, 785‒86 (Fed. Cir. 2016). 

Under section 4.40, a veteran’s disability rating may be elevated where there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of “the normal working movements of the body . . . in order to constitute functional loss”). Application of section 4.40 is limited to DCs involving limitation of motion or functional loss. Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

Section 4.45 expands upon the concept of functional loss, noting six factors that are important in evaluating a disability: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995).

Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of “actually painful, unstable, or malaligned joints.” 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Analysis

1. Entitlement to a compensable rating for a left heel spur

2. Entitlement to a compensable rating for a right heel spur

As the disposition for each of these issues is the same, the Board will address them together.

The Veteran filed his claim for a compensable rating for his service-connected bilateral heel spurs on April 16, 2012. An increased rating is generally assigned based on a showing that a service-connected disability has worsened. VA regulations provide three possible effective dates for an increased rating:

(1) If an increase in disability occurs after the claim is filed, then the date that the increase is shown to have occurred, whichever is later (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, then the date that the increase is factually shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, and it is not factually ascertainable that the disability increased within the year prior to the filing of the claim, then the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Accordingly, the Board is required to look back one year from the date the Veteran filed the claim to determine if it is factually ascertainable that a disability has worsened thus warranting a higher disability rating. 

The earliest medical evidence the Board has located relating to the Veteran’s bilateral heel spurs is found within his August 2012 VA examination for flatfoot (pes planus) for which he is also service connected. During that examination, the Veteran reported he experienced “excruciating” heel pain that was “worse first thing in the morning” and after “walking/marching.” He did not provide a statement when his heel pain began to worsen. The Board finds the Veteran’s report of heel pain to have probative value because the Veteran is competent to report his own physical sensations of pain, and the Board finds his statement credible. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis).

The Veteran was also provided a general VA examination for his feet at the same time. The examiner documented that the Veteran continued to have bilateral heel spurs that prohibited him from “any activity that put[] added pressure on the [feet], such as running or jumping, prolonged walking or prolonged standing for more than 20 minutes.” The examiner also noted the Veteran would need special accommodations for frequent rest periods of non-weight bearing. Again, the Veteran did not provide any information as to when he began to experience a worsening of his bilateral heel spurs. 

Absent evidence to the contrary, the Board finds the August 2012 VA examiner was competent to exam and diagnose the Veteran. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical conclusion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, and considered the Veteran’s relevant medical records, medical history, and lay statements.  

The Veteran submitted medical records from his private physician. According to an October 2013 private medical note, the Veteran received his fourth Cortisone injection in each heel at that time, which the physician explained would be the last ones. During his December 2018 Board hearing, the Veteran testified he received Cortisone injections to relieve his heel pain. He did not testify when he began receiving his injections or otherwise testify about the onset of his worsening bilateral heel pain. The Board finds these medical records credible and probative. The Board also finds the Veteran’s testimony on this subject credible and probative.

In June 2019, the Veteran submitted a “Foot Conditions, Including Flatfoot (Pes Planus) Disability Benefits Questionnaire” (Foot DBQ) completed by his private physician in April 2019. The physician noted the Veteran described “sharp pains near his heel and his arch.” The Foot DBQ was primarily focused on the Veteran’s service-connected flatfeet. The physician also diagnosed the Veteran with plantar fascitis. The physician did not distinguish any of the medical findings as belonging to the Veteran’s bilateral heel spurs. Notably, the physician did not indicate the Veteran suffered from bilateral heel spurs. Thus, it is not reasonable for the Board to afford any probative value to the overall examination. The Board only finds the Veteran’s report of sharp heel pain to be of any probative value because the Veteran is competent to report his own physical sensations of pain, and the Board finds his statement credible. Nonetheless, the Veteran did not describe the frequency, duration, or onset of the sharp heel pain. Therefore, the statement is afforded minimal probative value. 

Consistent with the Board’s February 2020 remand directives, the Veteran was afforded a VA-contracted examination in August 2020. The examiner confirmed the Veteran had bilateral heel spurs. The Veteran reported his disability worsened because of “sharp pain in the bottom of his heels, worse with any pressure on the foot.” He reported his pain was worse during flare-ups, to the point he could not walk. The examiner reported that the severity of the Veteran’s bilateral heel spurs was “moderate” as his disability is marked by excess fatigability, pain on movement, pain on weight bearing, disturbance of locomotion, and interference with standing. In a September 2020 addendum medical opinion, the examiner opined the Veteran’s pain symptoms associated with his bilateral heel spurs were located at the bottom of the heels and back lower part of the feet. The examiner stated the Veteran’s pain due to his flatfeet was located at the bony arch of each foot, the mid lower foot.

Absent evidence to the contrary, the Board finds the August 2020 VA-contracted examiner was competent to exam and diagnose the Veteran’s bilateral heel spurs. Cox, 20 Vet. App. at 569. The Board also finds the examiner’s overall examination, findings, and medical opinion credible and significantly probative as to the issues on appeal. The examiner thoroughly documented the Veteran’s relevant medical records on which he relied, considered the Veteran’s lay statements and medical history, and relied on his own medical judgment and expertise when examining the Veteran and opining on the Veteran’s bilateral heel spurs. 

Based on the relevant evidence of record discussed above, the Board finds that the Veteran experienced pain causing functional loss in his bilateral heels due to his respective heel spurs. The Board imagines the Veteran’s pain likely began prior to his April 2012 claim for an increased rating, but there is no evidence of record by which the Board can factually ascertain this to be true. The Veteran’s medical records are silent about worsening of his disability until his August 2012 VA examination. Furthermore, the Veteran has not offered any lay statements, testimony, or other evidence reasonably suggesting the point at which he began experiencing worsening bilateral heel pain. Therefore, the Board finds an increased rating is not warranted prior to the Veteran’s April 2012 claim for an increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

During the pendency of his claim, the Veteran consistently complained of bilateral heel pain to medical professionals. At various times, he described his pain as “excruciating” or “sharp.” He also described that his bilateral heel pain worsened after prolonged standing, walking, or marching. He experienced a general increased pain on movement/use, and excess fatigability. In total, the Board finds the Veteran experienced functional loss of each of his heels due to pain during the appeal period. 

Considering the lay and medical evidence of record, the Board finds the Veteran’s bilateral heel spurs, which are characterized by pain causing functional loss, do demonstrate “moderate” severity consistent with the 10 percent rating under DC 5284. See also 38 C.F.R. §§ 4.40, 4.45, 4.59.

The Veteran’s bilateral heel pain is not best characterized as “moderately severe” or “severe” because the Veteran did not experience prolonged bilateral heel pain due to his heel spurs, rather it was limited in effect. That is, his bilateral heel pain occurred with movement and weight-bearing. There is no indication that the Veteran’s bilateral heel pain was constant at all times, that it prevented him from daily activities, except during flare-ups, or that it was unbearable. The Board finds the Veteran’s one reference to “excruciating pain” in 2012 of no significance because it is unaccompanied by any context for the Board to evaluate why the Veteran characterized it that way once throughout the pendency of his appeal. 

Nonetheless, the Board finds that he is not entitled to a 10 percent disability rating under DC 5284 because his associated symptoms, pain and functional loss, are already accounted for within his disability rating for his service-connected bilateral flatfeet (pes planus) under 38 C.F.R. § 4.71a, DC 5276. To award him a separate rating would constitute impermissible pyramiding. 38 C.F.R. § 4.14.

VA regulation 38 C.F.R. § 4.14 prohibits duplicate compensation for the same manifestation (symptom) of disability under different diagnoses, known as “pyramiding.” See generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (“[A] veteran cannot be compensated more than once for the same disability.”). It follows that, where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding. See Fanning v. Brown, 4 Vet. App. 225, 230 (1993). A manifestation of disability has not been compensated by an assigned evaluation if the manifestation is “distinct and separate” from the manifestations that form the basis of the assigned evaluation. Murray v. Shinseki, 24 Vet. App. 420, 423 (2011) (explaining that separate knee evaluations may be warranted where “the appellant’s symptoms are distinct and separate” (internal quotation omitted)). “[T]he key consideration in determining whether rating under more than one [DC] is in order is whether the ratings under different [DCs] would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping.” VAOPGNPREC 9-2004 (emphasis added).

The Veteran is service connected for flatfoot of the left and right foot (bilateral flatfeet), which is rated under 38 C.F.R. § 4.71a, DC 5276. Diagnostic Code 5276 provides:

 	Rating (%)

Flatfoot, acquired:	

Pronounced; 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	

Bilateral	50

Unilateral	30

Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:	

Bilateral	30

Unilateral	20

Moderate; 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	10

Mild; symptoms relieved by built-up shoe or arch support	0

The Veteran is currently rated at 30 percent as of April 16, 2012, because his bilateral flatfeet display symptoms of “pain on manipulation and use accentuated.” The 30 percent rating criteria accounts for pain and functional loss due to pain as contemplated by 38 C.F.R. §§ 4.40, 4.45, and 4.59. 

The 30 percent rating criteria specifically state the adjudicator is to consider “pain on manipulation and use accentuated” and provides separate ratings depending on whether one (unilateral) or both (bilateral) feet are affected. 38 C.F.R. § 4.71a, DC 5276. Importantly, DC 5276 requires consideration of pain on manipulation and accentuated use of the whole foot, not just those portions specifically related to the flatfoot disability. Therefore, the Veteran’s pain and associated functional loss due to his bilateral heel spurs, which are part of the whole foot, have already been accounted for within the Veteran’s 30 percent disability rating for his service connection bilateral flatfeet under DC 5276. As the Veteran’s symptoms associated with his bilateral heel spurs have already been rated under DC 5276, to rate them again under DC 5284 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. 

The Board also finds the Veteran’s bilateral-heel-spur pain and associated functional loss, to include excess fatiguability, pain on movement and weight-bearing, disturbance of locomotion, and interference with standing, are reasonably encompassed and appropriately compensated within the 30 percent rating criteria, such that a higher rating of 50 percent under DC 5276 is not appropriate based on 38 C.F.R. §§ 4.40 and 4.45.

The Board also points out that in Prokayrm v. McDonald, 27 Vet. App. 307, 311 (2015), the United States Court of Appeals for Veterans Claims observed the Secretary’s judgment that a “severe” foot injury under DC 5284 represents a more disabling condition than “severe” flatfoot under DC 5276. The court concluded that a “severe” disability under DC 5276 is not equivalent to a “severe” disability under DC 5284. Id. Accordingly, the mere fact that the Veteran is rated at that 30 percent disabled under DC 5276, labeled as “severe,” it does not follow that the Veteran is entitled to a “severe” rating under DC 5284. In this case, as explained previously, the Veteran’s bilateral heel spurs are appropriately considered “moderate” disabilities under DC 5284, not “severe.”

Finally, the Board has considered whether it would be more beneficial for the Veteran to rate his bilateral heel spurs under DC 5284, rather than DC 5276; it would not. See 38 C.F.R. § 4.7 (if two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies). As discussed, the Veteran’s bilateral heel spurs would warrant a 10 percent rating under DC 5284, whereas he is rated at 30 percent under DC 5276. 

In sum, the Veteran is not entitled to a compensable rating for his bilateral heel spurs under DC 5015, via DCs 5003 and 5284, even though he meets the criteria for a 10 percent rating, because the manifestations of his disabilities are adequately encompassed by his rating for flatfeet under DC 5276. 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. F. Sawka, 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.