Citation Nr: 21011700 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-25 600 DATE: March 2, 2021 ORDER Entitlement to a rating of 50 percent, but no greater, for bilateral plantar fasciitis is granted. Entitlement to a rating of 10 percent, but no greater, for right foot hammertoes is granted. Entitlement to a rating of 10 percent, but no greater, for left foot hammertoes is granted. FINDINGS OF FACT 1. The Veteran's service-connected bilateral plantar fasciitis has been manifested by pronounced symptoms throughout the entire period on appeal. 2. The Veteran's right foot hammertoes manifest with functional loss due to pain on movement and with weight-bearing, causing disturbance of locomotion, interference with standing, and lack of endurance. 3. The Veteran's left foot hammertoes manifest with functional loss due to pain on movement and with weight-bearing, causing disturbance of locomotion, interference with standing, and lack of endurance. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for plantar fasciitis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5276. 2. The criteria for a 10 percent rating for right foot hammertoes are met. 38 U.S.C.§1155; 38 C.F.R.§§ 4.59, 4.71a, Diagnostic Code (DC) 5282 3. The criteria for a 10 percent rating for left foot hammertoes are met. 38 U.S.C.§1155; 38 C.F.R.§§ 4.59, 4.71a, Diagnostic Code (DC) 5282 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 2003 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran filed a claim for an initial compensable rating for his service-connected bilateral plantar fasciitis with hammertoe deformities, rated under diagnostic code 5276. In a July 2019 rating decision and a July 2019 statement of the case (SOC), the RO modified the Veteran’s service-connected plantar fasciitis with hammertoe deformities into three separate disabilities, to include bilateral plantar fasciitis, rated under diagnostic code 5276; left foot hammertoes and right foot hammertoes each rated under diagnostic code 5282. The RO assigned a 30% rating for plantar fasciitis and assigned noncompensable ratings for the Veteran’s now service-connected right and left foot hammertoes. The Veteran filed a substantive appeal, VA Form 9, in August 2019 and filed VA Form 10182, Notice of Disagreement, in November 2019 attempting to “opt-in” to the new modernized review system (AMA). AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. If a rating decision notice issued on or after February 19, 2019, grants a higher rating for a disability that is subject to an increased rating appeal pending in the legacy system, that decision is not an “initial decision” that can be appealed under the AMA. In July 2019, the RO issued an increased rating for the Veteran’s service-connected plantar fasciitis and issued non-compensable ratings for his right and left hammertoes; however, the July 2019 rating decision and SOC are not “initial decisions” that may be appealed under AMA because the claims were already in appellate status. Accordingly, the Veteran’s claims will proceed under the legacy system. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the Veteran’s bilateral plantar fasciitis was rated under diagnostic code 5276, Flatfoot, acquired. As of February 7, 2021, plantar fasciitis has its own diagnostic code, 5285. The Board will apply diagnostic code 5276 because it is more favorable to the Veteran. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss 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. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. 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. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 1. Entitlement to an increased rating for bilateral plantar fasciitis, rated at 30 percent disabling The Veteran contends that his service-connected bilateral plantar fasciitis is more severe than reflected in his current 30 percent disability rating because of extreme tenderness without relief from orthotics and near constant pain. The Veteran’s bilateral plantar fasciitis is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under this diagnostic code, the highest rating available is a 50 percent rating. Under DC 5276, a 50 percent rating is warranted for: bilateral; 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. 38 C.F.R. § 4.71a, DC 5276. A 30 percent rating is warranted for: unilateral; 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. Id. A 30 percent rating is also warranted for: bilateral; severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. The Board finds that the medical and lay evidence of record supports the assignment of a 50 percent disability evaluation for the Veteran's service-connected bilateral plantar fasciitis throughout the entire period under appeal. VA provided the Veteran an examination in June 2019 to determine the functional impact of his service-connected plantar fasciitis. The Veteran reported constant pain, with an increase in pain during weight-bearing activities that becomes a sharp, stabbing sensation that radiates into his Achille’s tendons. He reported orthotics do not help with his pain. The Veteran indicated he cannot walk long distances, feels pain while standing, is unable to run or jog, and experiences pain while ascending and descending stairs. The Veteran reported extreme tenderness bilaterally, that is not alleviated by orthotics. He also reported pain on manipulation, bilaterally. The examiner noted the Veteran experiences functional loss and limitation of motion because of pain. Specifically, the examiner noted bilateral excess fatigability, pain on weight-bearing, pain on non weight-bearing, interference with standing, and lack of endurance that impact the Veteran’s ability to walk, stand, and ascend and descend stairs. VA provided the Veteran an examination in February 2017 to determine the functional impact of his service-connected bilateral plantar fasciitis. The examiner noted the Veteran experienced bilateral pain that is worse on use. Furthermore, the Veteran reported he does not experience pain relief from his orthotics. The examiner noted the Veteran experienced pain, weakness, fatigability or incoordination, bilaterally, that limited the Veteran’s functional ability. Specifically, the examiner noted the Veteran experienced worsening pain with prolonged standing, especially if he is barefoot. Throughout the period on appeal, the Veteran has asserted that his bilateral foot disability causes severely painful symptoms not relieved by shoe inserts or orthopedic shoes or physical therapy. He described pain worsening with standing, walking, and climbing stairs. Moreover, the Veteran submitted statements in January 2017 that he is unable to walk or stand without shoes, as the pain is too great. In July 2017, he indicated that he experiences an 8 of 10 on the pain scale. The Veteran is competent to testify as to these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that his accounts of the nature and severity of his symptomatology and functional impairment are not credible. As such, they are entitled to significant probative weight. In sum, the Veteran has experienced symptoms listed in the 50 percent rating criteria under Diagnostic Code 5276 since the date of his increased rating claim, and that these symptoms have not been improved by orthopedic shoes or appliances. Thus, the Board finds the Veteran's disability has more nearly approximated the 50 percent rating criteria from the date of his increased rating claim. Resolving any remaining reasonable doubt in his favor, the Board finds a 50 percent rating under Diagnostic Code 5276 is warranted. Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 2. Entitlement to an initial compensable rating for hammertoes of the right foot and left foot. The Veteran's hammertoe disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282, the specific provision for rating hammer toe. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toe of single toes. A maximum 10 percent rating is warranted for hammer toe of all toes, unilateral, without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. 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 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Under the schedule, it is noted that its intent 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. See also, Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the criteria of 38 C.F.R. § 4.59 applies in foot disabilities involving pain such as Diagnostic Code 5280). As noted above, the RO separated the Veteran’s service-connected plantar fasciitis with hammertoe deformities into separate disabilities. The Veteran contends his hammertoe disabilities are more severe than reflected in his present disability rating and warrant a compensable rating. The Board finds that, based on the evidence of record, the Veteran's right and left hammertoe disabilities were painful throughout the appeals period. At the June 2019 examination, the Veteran reported pain on standing, walking, and ascending and descending stairs. The Veteran further reported that he did not experience relief from orthotics. Moreover, the Veteran submitted lay statements in January 2017 where he reported worsening pain with prolonged standing and walking and that he cannot go without shoes because of increased pain. In a July 2017 statement the Veteran reported he continues to have severe pain bilaterally that averages an 8 of 10. The Board concludes that the criteria for a 10 percent rating, and no higher, for the Veteran's left foot disability is warranted based on the competent and credible evidence of record. Specifically, the assignment of a 10 percent rating is warranted based on the June 2019 VA examination report showing functional loss due to pain on movement and the Veteran’s lay statements regarding his pain. This competent and credible evidence of record shows that the condition caused pain and made prolonged weight-bearing activity more difficult during the entire appeals period. Given this, the Board finds that the disability picture presented more closely approximates the criteria for a 10 percent rating than those for a noncompensable rating during this time. As such, the Veteran's left and right hammertoe disabilities warrant 10 percent disability ratings throughout the appeals period. The Veteran is now in receipt of 10 percent evaluations for each foot pursuant to Diagnostic Code 5282 for hammer toes. This is the maximum evaluation under this code. The Board observes that higher evaluations are available for other disabilities of the feet; however, there is no evidence demonstrating claw foot or malunion or nonunion of the tarsal or metatarsal bones. Thus, a higher evaluation is not available. Moreover, while higher evaluations are available for other foot injuries, examination reports specify that there is no indication of any other foot injury, except plantar fasciitis noted above. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.