Citation Nr: 21011624 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-18 720 DATE: March 2, 2021 ORDER Entitlement to an initial rating of 50 percent for bilateral heel spurs with plantar fasciitis is granted from March 10, 2010, subject to the laws governing monetary benefits. REMANDED Entitlement to separate ratings for the Veteran’s bilateral foot disabilities, to include bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease of the left great toe, is remanded. FINDING OF FACTS From March 10, 2010, the Veteran’s service-connected bilateral bone spurs with plantar fasciitis has been characterized by symptoms such as pain and extreme tenderness which are not improved by orthopedic shoes or appliances. CONCLUSION OF LAW From March 10, 2010, the criteria for a rating of 50 percent for a bilateral foot disability have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1990 and from December 2003 to May 2005. This matter is on appeal from a December 2015 rating decision and was most recently remanded by the Board in November 2020. The Veteran is currently seeking a higher initial rating of 50 percent for his service-connected bilateral heel spurs with plantar fasciitis prior to December 9, 2020. See Notice of Disagreement, March 2016; Remarks to December 15, 2020 SSOC, received, February 2021. Specifically, the Veteran’s attorney contends that the Veteran should be granted the increased 50 percent evaluation for the entire period on appeal. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. The Veteran’s service-connected bilateral foot condition is currently rated under diagnostic code 5276, which finds that a 30 percent rating is warranted if the disability is manifested by severe pes planus evidenced by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for bilateral pes planus that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board also notes that Diagnostic Code 5276 separated the various criteria with commas, it did not use the word “and” or the word “or” to help distinguish whether the criteria are conjunctive or disjunctive; thus the parties could not determine how the Board found that the regulation was conjunctive. See Malone v. Gober, 10 Vet. App. 539, 542 (1997) (“In view of Congress’ use of the conjunctive ‘and,’ “all three statutory requirements would have to be met.”); Drosky v. Brown, 10 Vet. App. 251, 255 (1997). The Board further notes that the Court has held that even when the word “and” is used in the rating criteria, this does not always mean that the criteria are conjunctive. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). This finding is distinguished from the Court’s holding in Camacho v. Nicholson, 21 Vet. App. 360 (2007), where the rating criteria at issue used the word “and” and involved successive rating criteria. In light of the preceding caselaw, and the fact that the rating criteria described under DC 5276 do not involve successive criteria, the Board has determined that the rating criteria are more appropriately described as variable and not cumulative. Thus, the Veteran need not meet all criteria for a specific rating to be assigned. Procedurally, the Veteran was initially granted service connection for bilateral heel spurs with plantar fasciitis at a 30 percent rating, assigned by a December 2015 rating decision, with an effective date of March 10, 2010. He filed a timely Notice of Disagreement and was ultimately assigned a 50 percent rating from December 9, 2020 by a December 2020 rating decision. Thus, the issue before the Board is whether an evaluation in excess of 30 percent is warranted from March 10, 2010. VA treatment records show treatment for bilateral heel pain since 2008. At his November 2008 podiatry consult, the Veteran reported a long history of heel pain, which manifested during his period of active duty. He was diagnosed with Achilles’ tendonitis and possible Haglund’s deformity. A subsequent October 2009 treatment note indicated that the Veteran received orthotics a year prior, but that it did not alleviate his symptoms. He was noted to have palpable bone prominences in the posterior lateral heels. By May 2010, the Veteran was noted to also have retrocalcaneal heel pain. In July 2012, VA podiatry notes showed continued complaints of bilateral heel pain which worsened to the extent that he could barely walk. On physical examination, he had pain in the posterior heels at the Achilles’ insertion and to the retrocalcaneal spurring. Surgical intervention was suggested to the Veteran in January 2013. The Veteran was afforded a VA examination in August 2015. There, he complained of bilateral feet pain with use and on manipulation, with characteristic calluses. There was decreased longitudinal arch height of one or both on weight bearing. There was no evidence of swelling. The Veteran denied extreme tenderness and the evidence did not show marked deformity of the feet or marked pronation. There was also no indication of weight bearing line fall over or medial to the great toe of either feet. There was no evidence of any other deformity of the feet, inward bowing of the achilles tendon, marked inward displacement or severe spasm of the achilles tendon. In conclusion, the VA examiner concluded that the Veteran’s heel spurs were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness improper footwear and overuse, ultimately causing plantar fasciitis as well as heel spurs. Overall, his condition renders him unable to perform jobs that requires standing or walking more than 1 hour per day. After being assigned a 30 percent rating, the Veteran submitted a March 2016 statement, arguing in favor of a higher rating. He indicated that he experienced severe pain on a daily basis, especially when walking. After noon time, his pain would become so severe that he is unable to continue walking. He noted that his feet sag inward and that the pain is most severe in his heel, where the spurs are located. Despite using orthotics, his symptoms did not abate. The Board notes that the Veteran’s representative generally discussed the requirements of an adequate examination. However, he failed to specifically address or identify why the August 2015 VA evaluation was inadequate for rating purposes. Here, the representative has merely expressed generalized grievances with the VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In August 2017, VA podiatry noted pain in the Veteran’s posterior heels at the achilles insertion and to the retrocalcaneal spur. He has some more pain proximal also on the Achilles with some thickening of the Achilles. Based on the Veteran’s September 2017 DBQ completed by his VA podiatrist confirmed the diagnosis of bilateral posterior heel pain and Achille’s tendinitis. The Veteran complained of pain on movement and weight-bearing, swelling, affecting his ability to stand and walk. When the matter came to the Board in March 2018, it was remanded so that the Veteran may be reevaluated to ascertain his true disability picture of his bilateral foot condition and any other conditions that may be affecting his feet. Subsequently, the Veteran underwent a new VA examination in November 2018. The examination report showed a diagnosis of pes planus, with additional diagnoses of old avulsion fracture left navicular (left foot) and degenerative joint disease of the great toe. These diagnoses were confirmed by a November 2018 radiology imaging results. Upon physical examination, it was documented that the Veteran reported flareups that impact the function of the feet. The pain is so severe that he is unable to walk or exercise. There was pain with use and pain on manipulation of the feet. He reported extreme tenderness of the plantar surfaces and demonstrated decreased longitudinal arch height of one or both on weight bearing. There were no swelling or characteristic calluses of the feet. There was no evidence of marked deformity or marked pronation of either feet. The physical evidence did not suggest that the weight bearing line fall over or medial to the great toe, any other deformity other than pes planus causing alteration of the weight bearing line, any inward bowing of the achilles tendon, or inward displacement and severe spasms of the achilles tendon. The VA examiner, however, concluded that the diagnoses of pes planus, with old avulsion fracture left navicular (left foot) and degenerative joint disease of the great toe were less likely than not related to the Veteran’s service-connected bilateral heel spurs with plantar fasciitis. The examiner explained that the Veteran’s risk factors for developing plantar fasciitis and spurs include his high BMI, advanced age, and occupation which require long hours of standing. These factors all have a more significant impact on his service-connected bilateral foot condition than his pes planus, which has no record of being symptomatic while in service, or at the time of his separation in 2005. The November 2018 VA evaluation report, however, did not offer a medical opinion on whether the Veteran’s pes planus (with additional diagnosis of old avulsion fracture of the foot navicular and degenerative joint disease of the left great toe) was aggravated by the Veteran’s service-connected bilateral heel spurs with plantar fasciitis. Additionally, the Veteran’s overall medical treatment record clearly show a long history of chronic bilateral heel pain so severely that at times, the Veteran is unable (or barely able) to walk due to his bilateral foot disability. In finding that it is more likely that the Veteran’s condition was worse than what was depicted in his VA examinations, a new evaluation should be conducted. The matter was therefore, remanded again in January 2020. In that remand directives, the Board also instructed that the examiner address whether extraschedular consideration was warranted for the Veteran’s bilateral foot disability. The Veteran was reexamined in September 2020. The VA examiner confirmed the Veteran’s bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease of the left great toe and opined that the conditions are less likely related to his service-connected bilateral foot condition. Rather, the conditions are a result of his weight. The Veteran has had a history of pes planus since 2005, while in service, serving as a heavy equipment engineer. Morbid obesity adversely affects the foot structure, since the heavy weight will eventually cause a breakdown of the arch. A 2019 Journal Article on Foot and Ankle Surgery found that obesity is a common cause of foot pain. The Veteran’s claims file does not show any documentation reflecting any service connection of any foot fracture or degenerative joint disease of the left great toe and that his entrance and exit examinations both revealed normal arches. Upon physical examination, the Veteran continued to report difficulty walking. He denied flare ups that impact the function of the foot. He reported pain on use of his feet. He denied pain on manipulation. He did not demonstrate any swelling on use or any characteristic calluses. He denied extreme tenderness of the plantar surfaces of his feet. There was no evidence of marked deformity or marked pronation. There is no indication that the weight bearing line fall over or medial to the great toe. There is no deformity other than the pes planus causing alteration of the weight bearing line, inward bowing of the achilles tendon, nor is there marked inward displacement and severe spasm of the achilles tendon on manipulation. He does, however, demonstrate decreased longitudinal arch height. His overall foot condition chronically compromises weight bearing, which requires arch support and custom orthotic inserts. The Veteran indicated that such appliances, however, do not offer alleviation of his symptoms. The examiner also did not find contributing factors affecting his disability. With regards to flareups, the Veteran denied pain, weakness, fatigability, or incoordination that significantly limits functional ability during flareups or when the foot is used repeatedly over a period of time. Furthermore, under Correia, the examiner found that pain was not noted during weight-bearing or non-weight bearing, active and passive motion in the right foot. However, it was noted that the Veteran demonstrated pain in the left foot during weight bearing activities but not during non-weight-bearing activity. He denied pain during both active and passive motion. A more recent radiological imaging result in September 2020 revealed moderate degenerative changes of the interphalangeal joint with mild degenerative changes of the talonavicular and intertarsal joints. There was small plantar calcaneal enthesophyte with mild insertional calcific tendinopathy of the Achilles. There was no acute fracture or malalignment in his feet. The matter was remanded again in November 2020 when the Board found that the September 2020 VA evaluation failed to comply with the prior remand instructions. The September 2020 examiner neglected to determine whether a referral for extraschedular consideration was warranted regarding the Veteran’s bilateral foot condition. Moreover, the examiner had found that the Veteran’s service-connected foot condition had resolved and that the additional conditions were unrelated to the service-connected disability. However, the specific finding that the bilateral heel spurs with plantar fasciitis had resolved was not adequately explained and appeared to be inconsistent with the September 2020 x-rays study of the left foot, which clearly shows small calcaneal enthesophyte with mild insertional calcific tendinopathy of the Achilles tendon. This was again confirmed by newer x-rays in November 2020. In a December 2020 correspondence, the Veteran’s representative argues in contrary to the September 2020 VA examiner’s conclusion, asserting that the Veteran’s service-connected bilateral foot condition caused him to become morbidly obese. However, in support, he submitted a June 2016 article which mostly discussed a link between weight gain and PTSD. A December 2020 VA medical opinion was ultimately obtained. The VA examiner confirmed the prior medical opinion in finding that the Veteran’s claimed secondary condition of bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease is less likely related to his service-connected condition as they are medically unrelated. The Veteran’s bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease are entirely separate and distinct entities from his service-connected bilateral heel spurs with plantar fasciitis. A thorough review of the medical literature failed to demonstrate a causal relationship. According to the information gathered by the American Academy of Orthopedic Surgeon, heel spurs do not cause plantar fasciitis. According to the AAOS, most cases of plantar fasciitis develop without a specific or identifiable reason. Known risk factors for plantar fasciitis include tight calf muscles, obesity, having a very high arch, engaging in repetitive impact activities such as running or playing sports, or engaging in new or increased activity. According to the Mayo Clinic, heel spurs occur in at least 50 percent of people with plantar fasciitis. According to Healthline, heel spurs are directly caused by long term muscle and ligament strain on the calcaneus (heel bone). A physical evaluation noted that the Veteran complained of shooting pain from the heel to toes and ankle when getting up from a sitting position, or when he walks a lot. He complained of more pain in his left foot than his right. He denied flareups that impact the function of his feet. He demonstrated pain on use of feet, pain on manipulation of the feet. He had swelling in the left foot. There was no indication of characteristic calluses. He had extreme tenderness of the plantar surfaces, which is not improved by the use of orthopedic shoes or appliances. The Veteran has decreased longitudinal arch height. There was no objective evidence of marked deformity or marked pronation. There was no indication that the weight bearing line fall over or medial to the great toe. There was no deformity other than pes planus causing alteration of the weight bearing line. There was no inward bowling of the achilles tendon or marked inward displacement and severe spasms of the achilles tendon. Further evaluation revealed no evidence of morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallus rigidus, or acquire pes cavus. Pursuant to the December 2020 VA evaluation, AOJ assigned a 50 percent rating, effective December 9, 2020 by a December 2020 rating decision. Additionally, in a Supplemental Statement of Case that same month, the AOJ found that an extra schedular consideration is not warranted and thus, the case was not referred to the Director of Compensation. In reviewing the record, the Board notes that the Veteran was rated under Diagnostic Code 5276: Flatfoot, acquired, despite not having been service-connected for pes planus. Various VA medical opinions of record all have found that the Veteran’s service-connected bilateral foot condition is unrelated to the Veteran’s newer diagnoses of pes planus, with old avulsion fracture left navicular (left foot) and degenerative joint disease of the great toe. The Board will continue to the evaluate the Veteran’s symptoms under Diagnostic 5276. The Board finds that a rating of 50 percent is warranted for the entire appeal period, beginning March 10, 2010. Given that Diagnostic Code 5276 does not necessarily involve successive criteria, the evidence suggests that the Veteran has demonstrated adequate symptoms under a 50 percent rating. The record clearly shows that the Veteran has a long history of heel pain directly attributed to his heel spurs with bilateral plantar fasciitis. Medical evidence has revealed palpable bone prominences in the posterior lateral heels with retrocalcaneal spurring, which affects his ability to walk for long periods of time. He has complained of extreme plantar tenderness in his feet. On several occasions, the pain is so severe that it prevents him from walking even short distances. Despite the use of appliances such as inserts and orthotics, his symptoms have not abated. Over the course of several years, the Veteran has consistently indicated that the pain has significantly affect activities of daily living and working. He even has occasional episodes of flare ups that severely hinders his ability to walk or even stand. His attempts to use foot inserts and orthotics have been almost futile in alleviating his symptoms. Finally, while the Board finds that the Veteran’s symptoms warrant a higher rating, it does not find that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, including foot pain that causes limitations to his activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. During this time period, the Veteran’s symptoms mostly include pain with use and manipulation, characteristics calluses, and tenderness. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Neither the Veteran nor his representative have contended otherwise. Morover, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. In conclusion, the overall evidence both medical and lay, support an initial rating of 50 percent from March 10, 2010 for the Veteran’s service-connected bilateral heel spurs with plantar fasciitis. REASONS FOR REMAND Despite the Board’s grant of the Veteran’s increased rating claim, it finds that further development is required to adequately assess his full disability picture concerning his feet. In March 2018, the Board first raised questions about the etiology of the other disabilities of the bilateral feet, in addition to the Veteran’s service-connected bilateral feet bone spurs with plantar fasciitis. Such question remains outstanding and a remand is necessary to adequately determine whether the Veteran’s service-connected bilateral foot condition resulted in multiple diagnoses of his feet. In order to prevent any potential prejudice to the Veteran, the Board should consider whether the Veteran’s other bilateral foot disabilities may be separately rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5277 to 5284. When determining whether Diagnostic Code 5284 is “more appropriate” than Diagnostic Code 5276, the Court has noted that a more specific statute should be “given precedence over a more general one.” See Zimick v. West, 11 Vet. App. 45, 51 (1998). The March 2018 Board remand instructed that a new medical opinion be obtained to address the Veteran’s separate diagnoses of bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease of the left great toe. In its instructions, the examiner was asked to identify the Veteran’s symptoms and to attribute each identified symptom to a specific diagnosed disability, if possible. A November 2018 VA examination subsequently identified additional diagnoses of pes planus, old avulsion fracture of the left navicular on the left foot, and degenerative joint disease of the great toe. The examiner concluded that the newly identified diagnoses were less likely than not related to the Veteran’s service-connected bilateral foot conditions. In his rationale, however, the examiner did not discuss whether the conditions may have been aggravated by the Veteran’s bone spurs with plantar fasciitis. Upon another remand in January 2020, the Veteran was reexamined in September 2020. The VA examiner confirmed the Veteran’s bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease of the left great toe and also found that they are less likely related to the Veteran’s service-connected bone spurs with plantar fasciitis, which again ignored the discussion on aggravation. Furthermore, the September 2020 VA examiner found that the Veteran’s service-connected disability had resolved, which contradicts x-ray evidence taken in September 2020. The x-ray study also noted small calcaneal enthesophyte and mild insertional calcific tendinopathy of the Achilles tendon. Thus, the Board remanded the matter in November 2020 requesting a new medical opinion be obtained to address the unanswered questions pertaining to aggravation. Unfortunately, this was not achieved by the most recent December 2020 VA examination report. The December 2020 VA examiner merely found that the Veteran’s bilateral pes planus, old avulsion fracture of the left foot navicular, and degenerative joint disease are entirely separate and distinct entities from his service-connected bilateral heel spurs with plantar fasciitis. He then began a discussion on the medical relationship between the Veteran’s heel spurs and plantar fasciitis, which failed to address the questions posed by the November 2020 Board remand. With outstanding questions regarding the Veteran’s true disability picture of his bilateral foot condition, another remand is necessary to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Schedule a new VA examination with podiatrist or other appropriate orthopedic specialist to assess the severity of the Veteran’s bilateral foot disabilities. In doing so, the VA examiner should perform all necessary diagnostic testing and review all relevant medical treatment records. The examiner should also have available for review, a copy of the diagnostic criteria along with new regulatory updates pertaining to foot disabilities. In doing so, the VA examiner is asked the following: The examiner must note and consider the Veteran’s non-service-connected foot disabilities which include: 1) bilateral pes planus; 2) old avulsion fracture of the left foot navicular; 3) degenerative joint disease of the left great toe; and 4) tendinopathy of the Achilles tendon. For each of these disabilities, the examiner must determine: Identify the Veteran’s symptoms and attribute each identified symptom to a specific diagnosed disability, if possible. Whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is caused by or related to the Veteran’s service-connected bilateral heel spurs with plantar fasciitis? Why or why not? Whether it is at least as likely as not ((50 percent probability or greater) that the diagnosis is aggravated (made worse) by the Veteran’s service-connected bilateral heel spurs with plantar fasciitis? Why or why not? Aggravation in this context means the disability increased in severity beyond its natural progression The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare ups, and the degree of functional loss during a flare up. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare ups. (Continued on the next page)   The examiner must provide a thorough and comprehensive description of all bilateral foot symptoms and their related functional limitations, to include additional limitations during flare-ups. \ Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.