Citation Nr: 21011857 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-31 449A DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent, prior to March 10, 2017, for bilateral pes planus and plantar fascitiis is denied. Entitlement to an evaluation in excess of 30 percent, from March 10, 2017, for bilateral pes planus and plantar fasciitis is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. FINDINGS OF FACT 1. Prior to March 10, 2017, the Veteran’s bilateral pes planus and plantar fasciitis did not manifest as severe with objective evidence of marked deformity, pain on manipulation and use accentuated, and characteristic callosities. 2. From March 10, 2017, the Veteran’s bilateral pes planus and plantar fasciitis did not manifest as pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet not improved by orthopedic shoes or appliances, marked inward displacement and severe spasm of the tendo achillis on manipulation. CONCLUSIONS OF LAW 1. The criteria for an initial rating for bilateral pes planus and plantar fasciitis in excess of 10 percent prior to March 10, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5276. 2. The criteria for bilateral pes planus and plantar fasciitis in excess of 30 percent from March 10, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1993 to July 1994. He also has more than two months of prior inactive service of an unspecified nature. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in October 2018, when it was remanded for further development. The Board notes that the October 2018 Board remand included the issues of entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder and entitlement to an effective date prior to January 22, 2015 for the grant of a TDIU. See October 2018 Board Decision. However, during the pendency of the appeal, a May 2020 rating decision granted the Veteran’s claim for service connection for major depressive disorder and generalized anxiety disorder. See May 2020 Rating Decision. Accordingly, as the Veteran’s service connection claim has been granted, the issue is no longer in appellate status as there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Additionally, the May 2020 rating decision also granted an earlier effective date of April 21, 2010 for the grant of entitlement to a TDIU. To this end, the RO noted that the Veteran initially filed his claim of entitlement to a TDIU on April 11, 2011, which was within one year of the Veteran’s schedular rating for his service-connected psychiatric disability (rated 70 percent effective April 21, 2010). See May 2020 Rating Decision. The August 2020 Board decision noted that April 21, 2010, was the earliest possible effective date for a TDIU, as the Veteran was not eligible for service connection at a prior date. The Board found that the issue was no longer in appellate status as there was no case or controversy presently before the Board. In August 2020, the Board remanded the claims in the instant appeal for further development. Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial rating in excess of 10 percent, prior to March 10, 2017, for bilateral pes planus and plantar fasciitis is denied. 2. An evaluation in excess of 30 percent, from March 10, 2017, for bilateral pes planus and plantar fasciitis is denied. Initially, the Board notes that the Veteran is service-connected for bilateral ankle achilles tendon equinus with posterior calcaneal spurring associated with bilateral pes planus and plantar fasciitis; bilateral feet hammer toes associated with pes planus and plantar fasciitis; bilateral hallux limitus, dorsal bunion, tailor’s bunionette, and hallux limitus, associated with bilateral pes planus and plantar fasciitis. To the extent that these diagnoses are mentioned and/or their correlating symptoms, it will not be further discussed in the decision. If the Veteran feels that any of these disabilities have worsened, he is encouraged to file a claim with VA. The Veteran asserts that his bilateral pes planus and plantar fasciitis are worse than what his current ratings reflect and that he is entitled to a higher rating. The Veteran’s bilateral pes planus and plantar fasciitis have been evaluated a 10 percent disability rating prior to March 10, 2017, and at 30 percent thereafter, under diagnostic code 5276. Under Diagnostic Code 5276 a 10 percent evaluation is warranted for symptoms which are 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 38 C.F.R. § 4.71a, DC 5276. A 20 percent evaluation is warranted for symptoms which are severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities unilaterally. Id. A 30 percent evaluation is warranted for the aforementioned severe symptoms when manifested bilaterally; or when symptoms are 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 unilaterally. Id. A 50 percent evaluation is warranted for the aforementioned pronounced symptoms when such symptoms manifest bilaterally. Id. The 50 percent evaluation is the highest rating available for this condition. Id. The words “moderate,” “severe,” and “pronounced” are not defined by DC 5276. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. In August 2010, the Veteran presented for a VA examination. The Veteran was diagnosed with bilateral pes planus. The Veteran reported functional limitation with standing/walking and painful forefoot motion bilaterally and tenderness along the plantar fascia bilaterally. The examiner reported that the Veteran did not have ulcerations, edema, instability, or abnormal wear pattern to the shoes. The examiner noted that the Veteran had normal alignment of the right Achilles tendon when weightbearing; however, he had very mild valgus alignment of the left Achilles tendon when weight-bearing; and there was no painful manipulation of either Achilles tendon. Ultimately, the examiner noted that such disability was considered mild in nature. In March 2011, the Veteran presented for another VA examination. The Veteran was diagnosed with bilateral pes planus and bilateral calcaneal spurs with degenerative joint disease and chronic plantar fasciitis. The Veteran stated that his bilateral pes planus caused pain, weakness, fatigability, stiffness, lack of endurance, and swelling at rest. He also reported pain, weakness, fatigability, and lack of endurance with standing, and pain, weakness, fatigability, stiffness, and lack of endurance while walking. The Veteran stated that he used orthotic shoe inserts. The Veteran also reported that he was unable to stand for more than 15-30 minutes and able to walk a quarter mile. On examination, the examiner noted evidence of painful motion and tenderness bilaterally. The examiner noted that the Veteran’s gait was abnormal and that he planted his feet flat on the floor gingerly with a slow, wide base. The examiner noted signs of abnormal weightbearing, to include callosities and unusual shoe wear patterns. In March 2011, the Veteran was afforded an x-ray of his bilateral feet for bilateral pes planus deformities status post fall. The impression was revealed there was no evidence of pes planus deformity, plantar arches appeared normal, there was mild osteoarthritis of the first metatarsophalangeal joints bilaterally, and mild spurring of the calcaneus bilaterally. In July 2011 the Veteran presented for another VA examination. The Veteran was diagnosed with osteoarthritis of the first metatarsophalangeal joint of the Veteran’s bilateral feet and mild calcaneus bone spur of the Veteran’s bilateral feet. The Veteran reported pain, weakness, fatigability, stiffness, lack of endurance, and swelling at rest and while standing, as well as pain, weakness, stiffness, lack of endurance, and swelling with walking. Additionally, the Veteran stated that he could not stand without enduring constant pain and that he could not walk without feeling a throbbing sensation and pain. The Veteran further stated that he was not very stable. On examination, the examiner noted tenderness in the Veteran’s feet. The examiner noted signs of abnormal weight-bearing, to include an unusual shoe wear pattern. The examiner did not find evidence of hammertoes, high arch, or claw foot. An x-ray conducted in conjunction with the examination revealed bilateral mild osteoarthritis of the first metatarsophalangeal joints and bilateral spurring of the calcaneus. A February 2011 VA treatment record noted no lower or upper extremity edema, ulceration, or tenderness. An August 2011 VA treatment record noted on examination that the Veteran’s gait was normal and there was no joint swelling. A June 2016 private treatment record notes bilateral arch pain. July 2016, September 2016, and November 2016 private treatment records assessed the Veteran as having plantar fascial strain bilaterally, pronation, equinus bilaterally with posterior calcaneal spurring left foot, and bilateral hammer toe deformity. His use of orthotics was discussed as well. After reviewing all of the clinical evidence and subjective complaints, the Board finds that the evidence does not show that a disability evaluation in excess of 10 percent for the Veteran’s service-connected pes planus and plantar fasciitis is warranted prior to March 10, 2017. Neither the VA examinations nor treatment records revealed pes planus or plantar fasciitis symptoms consistent with severe or pronounced disability, and thus, higher ratings of 30, or 50 percent under Diagnostic Code 5276 are not warranted for bilateral pes planus and plantar fasciitis. The Board acknowledges the March 2011 VA examination noting callosities, but without further accompanying symptoms, a higher rating is not warranted. Moreover, the March 2011 x-rays revealed that the Veteran had no pes planus deformities and his arches appeared normal. Although the disability appeared to worsen between examinations, it was not to the level of more than moderate impairment. According to Diagnostic Code 5276, the Veteran’s pes planus and plantar fasciitis show symptoms most consistent with a 10 percent rating because of the bilateral pain on use of the feet and tenderness of both of the feet. Therefore, a higher initial rating is not warranted for this rating period. The Veteran presented for a VA examination in March 2017. He was diagnosed with bilateral foot pes planus, hammer toes, bilateral plantar fasciitis, bilateral tailors bunionettes; bilateral metatarsus primus elevatus with dorsal bunion; bilateral equinus with posterior calcaneal spurring; and bilateral Hallux limitus. The Veteran reported accentuated pain on use of both of his feet and accentuated pain on manipulation of the feet. The Veteran reported that he has tried orthotics for both of his feet but remains symptomatic. The examiner noted the Veteran had decreased longitudinal arch height of both feet on weight-bearing. The examiner reported that there was no indication of swelling on use, characteristic callouses, tenderness of plantar surfaces, extreme tenderness, objective evidence of marked deformity, marked pronation, evidence of the weight-bearing line falling over or medial to the great toe, lower level deformity, “inward” bowing of the Achilles’ tendon, or inward displacement and severe spasm of the Achilles’ tendon. It was also noted that arch supports, built up shoes or orthotics are used and provide partial relief as the Veteran reports recurrent foot pain, especially with flare-ups, which impact his ability to bear weight and do prolonged standing and walking. A June 2017 letter from a private physician, Dr. L.C., noted the Veteran’s various foot modalities, that his pain has not decreased, and how he would benefit from orthosis. The Veteran presented for a VA examination in November 2019. The Veteran was diagnosed with bilateral pes planus, bilateral hallux valgus, and bilateral plantar fasciitis. The examiner noted pain on use of the feet and pain accentuated on use and on manipulation. There was no indication of swelling, but the Veteran was found to have bilateral characteristic callosities. Additionally, the examiner found tenderness of the plantar surfaces of the Veteran’s feet bilaterally, which was improved by orthopedic shoes or appliances. The Veteran was found to have decreased longitudinal arch height of both feet on weight-bearing. The examiner noted objective evidence of a marked deformity of both of the Veteran’s feet but did not find evidence of marked pronation. The weight-bearing line fell over or medial to the great toe bilaterally. There was no inward bowing, inward displacement, or severe spasm of the Achilles’ tendon. After reviewing all of the clinical evidence and subjective complaints and focusing on the evidence that could potentially warrant a higher rating, the Board finds that the evidence does not show that a disability evaluation in excess of 30 percent for the Veteran’s service-connected pes planus and plantar fasciitis are warranted from March 10, 2017. Neither the March 2017 VA examination, November 2019 VA examination, nor treatment records revealed pes planus or plantar fasciitis symptoms consistent with pronounced impairment, and thus, a higher rating of 50 percent under Diagnostic Code 5276 is not warranted for bilateral pes planus and plantar fasciitis. Furthermore, the evidence does not show pronounced flatfeet with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement or severe spasm of the Achilles tendon, not improved by orthopedic shoes or appliances, and thus, the medical evidence does not support a rating of 50 percent rating, despite the Veteran’s foot complaints. Therefore, a higher rating is not warranted for this time period. Consideration of other diagnostic codes is not required here as the Veteran’s disability (bilateral pes planus) is assigned a specific diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. The Board regrets further delay, but another remand is needed as the November 2019 VA examination is inadequate as it is not Correia v. McDonald, 28 Vet. App. 158 (2016) compliant. The examiner noted pain with flexion and extension that causes functional loss but does not determine where the pain begins. The Board acknowledges that Correia ranges of motion results were noted at the conclusion of the examination, however, the Board emphasizes that pain on flexion and extension that cause functional loss, should be noted as well. The matter is REMANDED for the following action: 1. Obtain and any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Thereafter, obtain a VA medical opinion from an examiner other than the August 2010, March 2011, July 2011, April 2015, and November 2019 VA examiners to determine the nature and severity of his right knee disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. (a.) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s right knee disabilities due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.