Citation Nr: 21011934 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-09 616 DATE: March 3, 2021 ORDER Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015, to November 19, 2019, is denied. Entitlement to a 50 percent rating for bilateral pes planus with plantar fasciitis from November 19, 2019, to July 1, 2020, is granted. Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from July 1, 2020, is denied. FINDINGS OF FACT 1. From April 23, 2015 to November 19, 2019, the Veteran's bilateral pes planus with plantar fasciitis was manifested by pain with use and manipulation of the bilateral feet accentuated on manipulation, marked pronation, characteristic callouses, and inward bowing of the Achilles tendon. There was no evidence of extreme tenderness of plantar surfaces on one or both feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation. 2. From November 19, 2019 to July 1, 2020, the Veteran's bilateral pes planus with plantar fasciitis was manifest by evidence of marked pronation, extreme tenderness of plantar surfaces on one or both feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthotic shoes or appliances. 3. From June 1, 2020, the Veteran’s bilateral pes planus with plantar fasciitis was manifest by pain with decreased longitudinal arch height. There was no evidence of marked pronation, extreme tenderness of plantar surfaces on one or both feet, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015 to November 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for entitlement to a 50 percent rating for bilateral pes planus with plantar fasciitis from November 19, 2019 to July 1, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 3. The criteria for entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from July 1, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2005 to February 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In March 2020, the Board remanded the issue for additional development. The matter has been returned to the Board for adjudication. 1. Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015 to November 19, 2019 is denied. 2. Entitlement to a rating of 50 percent for bilateral pes planus with plantar fasciitis from November 19, 2019 to July 1, 2020 is granted. 3. Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from July 1, 2020 is denied. A November 2013 rating decision granted service connection for bilateral pes planus with plantar fasciitis and assigned a 30 percent rating from November 39, 2011 under 38 C.F.R. § 4.71A, Diagnostic Code 8852-5276. VA received a claim for increase in December 2014. See VA Form 21-526 (November 2014). A July 2015 rating decision found clear and unmistakable error in the previously assigned disability rating; and, given this, assigned a 50 percent rating from November 30, 2011 and a 30 percent rating from April 23, 2015 (date of VA examination). This appeal arises from the Veteran’s disagreement with the 30 percent disability rating assigned from April 23, 2015. See NOD (October 2016) (requests a 50% evaluation for pes planus with plantar fasciitis). The Veteran contends that a rating ine excess of 30 percent is warranted because his feet are painful (hurt) all the time, he wears orthotics without improvement, and his condition impacts his daily activities. Id. The Board concludes that the criteria for entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015, to November 19, 2019, and from July 1, 2020 have not been met. However, the criteria for a 50 percent rating for bilateral pes planus with plantar fasciitis from November 19, 2019, to July 1, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. It is noted that different ratings may be assigned for different periods of time, which is knowns as a staged rating, when there are distinct periods of time where the rating criteria are met. See Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 22 Vet. App. 505 (2007). As explained below, while the evidence supports the assignment of a 50 percent rating for the period from November 19, 2019, to July 1, 2020, the preponderance of the evidence is against a rating in excess of 30 percent prior to November 19, 2019, and from July 1, 2020, as the competent, credible evidence of record does not more nearly approximate the criteria for the higher rating. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The Veteran’s pes planus with plantar fasciitis is rated under Diagnostic Code 8852-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 8852 corresponds with an undiagnosed disability associated with service with Southwest Asia. Diagnostic Code 5276 rates acquired flatfoot. Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). An April 2015 VA examination report reflects the Veteran experienced burning, throbbing pain in both arches that made it difficult to walk long distances. There were clinical findings for pain with use and manipulation of the bilateral feet accentuated on manipulation, decreased longitudinal arch height on weightbearing, and pain on movement. There was no objective evidence of extreme tenderness of plantar surfaces on one or both feet, weightbearing line fall over or medial to the great toe, swelling, characteristic calluses, or marked deformity or pronation on examination. There was no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasm of the Achilles tendon on manipulation. No functional loss as a result of flare ups or repeated use over a period of time was noted. The Veteran reported use of arch supports, which were noted to relieve symptoms bilaterally. At a January 2018 VA examination, the Veteran continued to report pain and burning sensation. He described flare ups that caused decreased strength in his feet and difficulty walking and standing for long periods. He reported daily severe flareups. However, extreme tenderness of the plantar surface, characteristic callouses, swelling on use, marked deformity, and pronation were not shown on examination. Although decreased longitudinal arch height was documented, weight bearing did not fall over or medial to great toe, there was no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasm of the Achilles tendon on manipulation. VA treatment records show the Veteran reported limitation in his activities of daily living due to his bilateral foot pain. However, he walked without assistive devices or a limp. In September and November 2018, he described his foot pain as intermittent and reported that although podiatry had provided orthotic inserts, he did not use them. February 2019, August 2019, and November 2019 podiatry treatment notes record the presence of callouses, as well as collapse of the bilateral arches, heel eversion, and bowing of the Achilles tendon. The November 2019 treatment note also documented marked pronation with inward displacement and severe spasms of the Achilles tendon on manipulation that is unimproved with orthopedic shoes or devices. An April 2020 VA podiatry treatment note continued to diagnose bilateral pes planus with pronounced and marked pronation, tenderness of the plantar surfaces of the feet, and inward displacement and severe spasm of the Achilles tendon on manipulation, which is not improved by shoes or orthopedic appliances. In July 2020, the Veteran was afforded a new VA examination of his bilateral foot disability. At that time, the Veteran described 7/10 pain across the bottoms of his feet. He reported that he needs to take a break every few hours when on his feet. The examiner diagnosed the Veteran with bilateral pes planus with plantar fasciitis and first metatarsal phalangeal joint degenerative joint disease. The examiner found that the Veteran had pain on the use of his feet, but that the pain was not accentuated on use or manipulation. There was no swelling on use or characteristic callouses. The Veteran did not have extreme tenderness of the plantar surface of either foot on examination. The Veteran had decreased longitudinal arch height on weight-bearing bilaterally, but no marked deformity or pronation. Weight-bearing did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon or inward displacement or severe spasm of the Achilles tendon on manipulation of one or both feet. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pea planus with plantar fasciitis from April 23, 2015 to November 19, 2019 and from after July 1, 2020, because the disability was not more nearly manifested by extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Relevant VA treatment records show that the Veteran was seen in 2015 on an outpatient basis for symptomatic pes planus characterized as generalized foot pain. A March 2015 VA treatment note indicated that there was no pain throughout range of motion and no pain at the end of range of motion. A November 2015 VA treatment note indicated that the Veteran had pain with inserts after walking or standing for long periods of time but with less pain; he walked barefoot in the house. A May 2016 note reflects follow-up for pes planus with pinch callous pain—the Veteran states that “he does not trim his callouses because he is too lazy to buy a pumice stone” and noted that his new job will allow him to wear tennis shoes, “which have reduced his pain to 0/10 today.” A November 2017 note indicated complaints of burning/tenderness of both soles of feet, but no abnormal pathology of the neurological system and that the Veteran had a plantar fasciitis diagnosis that he is to treat with orthotics and a stretching program. The Board acknowledges the Veteran’s lay testimony describing pain and that there was functional loss due to pain on weight-bearing and with repeated use over time. However, the Board finds that the Veteran’s lay reports of symptoms and functional loss (daily flareups of foot pain would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot) made in the context of attempting to obtain greater VA benefits are incongruous with complaints made to his medical providers. For example, a September 2018 VA treatment note reflects that the Veteran reported “intermittent” pains in his feet and that, although he had been given insoles by podiatry, he had not yet tried them and that he wore sneaker and was “very active in his job as a supply technician.” A November 2018 VA treatment note reflects that, while the Veteran reported foot pain, he again reported that he had not used his issued orthotics. A February 2019 VA treatment note reflects that he was able to work and lift boxes, which suggests that weight-bearing did not result in extreme tenderness of the plantar surface. A May 2019 note shows that the Veteran had a steady and independent gait; and an August 2019 note shows that, while complaining of calf pain, he reported that he walked a lot at work. Additionally, VA examinations in April 2015, January 2018, and July 2020 each explicitly note the absence of “extreme” tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Given the above, the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015, to November 19, 2019, and from July 1, 2020. However, the Board finds that the evidence supports a 50 percent rating for bilateral pes planus with plantar fasciitis from November 19, 2019 to July 1, 2020. This is because VA podiatry treatment notes in November 2019 and April 2020 diagnosed marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the Achilles tendon on manipulation, unimproved by orthotics. Accordingly, a higher rating of 50 percent is assigned from November 19, 2019, the date of the treatment note first showing that the Veteran met the criteria for a higher rating, until July 1, 2020, the date of the VA examination which documented a marked improvement in the Veteran's condition. Because 50 percent is the maximum schedular rating that can be assigned under Diagnostic Code 5276, a rating in excess of 50 percent cannot be assigned for that period. The Board has also considered the other diagnostic codes pertaining to the foot in determining whether a higher rating should be assigned during any period on appeal. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous diagnostic codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s disability of pes planus is specifically listed under the rating schedule and therefore cannot be rated under a different diagnostic code. The Board notes that the Veteran has other service-connected foot disabilities- plantar fasciitis and degenerative joint disease of the first metatarsal phalangeal joint; however, the evidence of record is against a finding that these disabilities have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. All three disabilities are productive of foot pain, with difficulty with prolonged standing and walking. In conclusion, the Board finds that (1) the criteria for a 50 percent rating for bilateral pes planus with plantar fasciitis have been met from November 19, 2019, to July 1, 2020; (2) the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis from April 23, 2015, to November 19, 2019, and from July 1, 2020. To the extent that a rating has been denied, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.