Citation Nr: 21013042 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-01 208 DATE: March 8, 2021 ORDER An initial rating in excess of 10 percent for left knee iliotibial band disability syndrome is denied. An initial rating in excess of 20 percent for right foot plantar fasciitis is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s left knee disability has not resulted in moderate recurrent subluxation or lateral instability upon clinical testing nor has he contended experiencing such symptomology. 2. Throughout the entire appeal period, the Veteran’s right foot plantar fasciitis resulted in severe pain on use and manipulation of his right foot, accentuated on use and manipulation, and decreased longitudinal arch, but did not result in marked pronation, extreme tenderness of the plantar surface of the foot, or marked inward displacement and severe spasm of the tendo-achillis on manipulation in the right foot; the Veteran’s right foot plantar fasciitis resulted in no relief from non-surgical treatment in a unilateral foot only. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee iliotibial band disability syndrome have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for an initial rating in excess of 20 percent for right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5276; 38 C.F.R. § 4.71a, DC 5269 (effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2010 to December 2013. The Board notes that the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in September 2013. However, the form was unsigned by the appointed representative and as such, is not valid. The Veteran was informed of the invalid appointment in a June 2020 letter and was provided the opportunity to submit a new form electing a representative. To date, no validly executed form has been received. As such, and although other communications from VA recognized the previously-named representative, the Veteran is unrepresented for purposes of these claims. These matters were previously before the Board in April 2019, at which time they were remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for the Veteran’s left knee and right foot disabilities was granted at noncompensable rates, respectively, effective December 16, 2013. In a September 2020 rating decision, the rating for the left knee was increased to 10 percent and the rating for the right foot was increased to 20 percent, effective December 16, 2013. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claims for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claims 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. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claims. 1. Left Knee Iliotibial Band Disability Syndrome The Veteran’s left knee disability was initially rated under 38 C.F.R. § 4.71a, DC 5257, pertaining to other impairment of the knee. As noted above, the disability is currently in receipt of a 10 percent rating throughout the entire appeal period. Under the pre-amended criteria, DC 5257 provides that slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under the pre-amended criteria, DC 5262 provides that a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, the Veteran underwent a VA pre-discharge examination in November 2013. He described pain in the lateral aspect of the left knee, typically bothering him after extended impact activity such as running. He denied swelling and locking but noted that he occasionally had popping that was not painful. He had not run much recently but had previously been averaging 8 to 10 miles per week without significant limitations in the past year. He denied any occupational limitations or difficulties with activities of daily living due to his left knee pain. The Veteran stated that he did not experience flare-ups that impacted function of the knee or lower leg. Flexion was to 140 degrees or greater without pain and extension was normal without evidence of painful motion. The Veteran was able to perform repetitive use testing without any loss of range of motion. The examiner indicated that he did not have any functional loss or impairment in the left knee or lower leg. Pain was noted on palpation in the left knee. Muscle strength testing yielded normal results. Joint stability tests measuring anterior instability, posterior instability, and medial-lateral instability were all normal in the left knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran had no shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment, no meniscal conditions, and no other pertinent physical findings. He did not use any assistive devices. The examiner determined that there was no functional impact due to the left knee disability. Another VA examination was conducted in September 2020. The Veteran stated that he had noticed more intense flare-ups of pain, affecting the entire knee. His current symptoms were described as intermittent and flaring pain. Flare-ups were noted to be severe and occurring during or after physical activity. His treatment included stretching, icing, and elevating the knee and rarely taking Aleve. He described the functional impact as not being able to be as physically active. Passive and active flexion was from 0 to 140 degrees and extension was from 140 to 0 degrees. Pain was noted on flexion. There was no evidence of localized tenderness or pain on palpation. There was no pain with weight-bearing but there was pain with nonweight-bearing. There was evidence of crepitus. The Veteran was able to perform repetitive use testing without any additional loss of function or range of motion. The examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups and that pain would limit functional ability. The examiner was not able to determine additional loss in terms of range of motion but stated that repetitive use and flare-ups resulted in severe pain once a week caused by being physically active. The impact on function was trouble walking. Alleviating factors included icing and stretching the knee. There were no additional contributing factors of disability. Muscle strength testing yielded normal results and there was no muscle atrophy. There was no ankylosis in the left knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability tests measuring anterior instability, posterior instability, and medial-lateral instability were all normal in the left knee. The examiner noted that the Veteran did not claim that his knees gave way. There were no shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment, no meniscal conditions, and no other pertinent physical findings. The Veteran did not require assistive devices. The examiner determined that the functional impact of the left knee disability was that it limited physical activity. The Board notes at the outset that the VA examinations of record are an adequate basis upon which to determine the extent and severity of the Veteran’s left knee disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the November 2013 examination, the Veteran indicated that he had symptoms in his left knee after extended impact activity such as running, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by both examinations is more likely to represent the most severe limitation of motion caused by the disability. When the Veteran reported flare-ups, the September 2020 VA examiner determined that his description of limitations was consistent with the physical examination and although additional loss of function in terms of range of motion could not be determined, the practical effects of such flare-ups were provided. Given the totality of the information, including the Veteran’s own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. (a.) An initial rating in excess of 10 percent for left knee iliotibial band disability syndrome is denied. The Board notes that no medical evidence has been added to the record since February 7, 2021, such that consideration under the amended criteria is warranted. As such, the Board will consider the severity of the Veteran’s left knee disability under the pre-amended criteria. Throughout the entire appeal period, the Veteran’s left knee disability has not demonstrated any recurrent subluxation or lateral instability. Clinical testing was negative upon examination, the Veteran’s own description of his symptomology has not included dislocation or giving way, and he has not been prescribed assistive devices to aid in stability. As such, there is no evidence of moderate recurrent subluxation or lateral instability warranting a 20 percent rating under DC 5257. Despite no evidence of subluxation or instability, the Veteran was awarded a 10 percent rating throughout the entire appeal period under DC 5257 based on painful motion. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). The Veteran continues to have painful motion in his left knee, warranting a 10 percent rating under DC 5257. The Board has considered whether rating the knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran. However, rating the disability under DC 5256 is not indicated as there is no evidence of ankylosis. Further, the Veteran does not have any meniscal conditions warranting rating under DC 5258 or DC 5259. Flexion has not been limited to 60 degrees such that additional rating might be available under DC 5260 and extension has not been limited to 5 degrees such that additional rating might be available under DC 5261. Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263. As such, continuing to rate the left knee disability under DC 5257 is most appropriate and advantageous to the Veteran. The Board finds that the left knee disability is fully capable of evaluation under the rating schedule. Additionally, the Veteran indicated in his Substantive Appeal that a 10 percent rating for the disability would satisfy his appeal. 2. Right Foot Plantar Fasciitis The Veteran’s right foot plantar fasciitis was rated by analogy under 38 C.F.R. § 4.71a, DC 5276, pertaining to flatfoot. As noted above, he is currently in receipt of a 20 percent rating throughout the entire appeal period. Under DC 5276, for acquired flatfoot, 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. Under DC 5277, for bilateral weak foot, which states that bilateral weak foot is a symptomatic condition secondary to many constitutional conditions, characterized by atrophy to the musculature, disturbed circulation and weakness: rate the underlying condition, minimum rating of 10 percent. Under DC 5278, for acquired claw foot (pes cavus), a noncompensable rating is warranted for slight acquired claw foot. A 10 percent rating is warranted for unilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads. A 10 percent rating is also warranted for bilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads. A 20 percent rating is warranted for unilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. A 30 percent rating is warranted for bilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. A 30 percent rating is also warranted for unilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. A maximum 50 percent rating is warranted for bilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. Under DC 5279, a maximum 10 percent rating is provided for unilateral or bilateral anterior metatarsalgia (Morton’s disease). Under DC 5280, for unilateral hallux valgus, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. Under DC 5281, for severe unilateral hallux rigidus, the condition is rated as hallux valgus severe. A note to Diagnostic Code 5281 instructs that hallux rigidus is not to be combined with claw foot ratings. Under DC 5282, for hammer toe, a noncompensable rating is warranted for hammer toes of single toes. A maximum 10 percent rating is warranted for hammer toe of all toes, unilateral, without claw foot. Under DC 5283, for nonunion or malunion of tarsal or metatarsal bones, a 10 percent rating is warranted for moderate nonunion or malunion of tarsal or metatarsal bones. A 20 percent rating is warranted for moderately severe nonunion or malunion of tarsal or metatarsal bones. A 30 percent rating is warranted for severe nonunion or malunion of tarsal or metatarsal bones. A Note to Diagnostic Code 5283 instructs that with actual loss of use of the foot rate as a maximum 40 percent. Under DC 5284, for other foot injuries, a 10 percent rating is provided for a moderate condition, 20 percent for a moderately severe condition, and 30 percent for a severe condition. The Note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The terms “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Therefore, the Board finds that it is appropriate to turn to a general purpose dictionary definition of these terms. See Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (in the absence of an express definition, words are given their ordinary meaning). The Board observes that “severe” is defined as “extremely intense.” Webster’s New World Dictionary (2nd ed. 1999), 1012. The term “severe” is used throughout the rating schedule, including in DC 5284, to indicate a very great or intense case of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of DC 5284, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. “Loss of use of a foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Effective February 7, 2021, an additional diagnostic code was added to the rating schedule. 38 C.F.R. § 4.71a, DC 5269, pertains specifically to plantar fasciitis. For plantar fasciitis with no relief from both non-surgical and surgical treatment in the bilateral feet, a 30 percent rating is warranted. For no relief from both non-surgical and surgical treatment in a unilateral foot, a 20 percent rating is warranted. Otherwise, plantar fasciitis in the unilateral or bilateral feet merits a 10 percent rating. Note [1] provides that with actual loss of use of the foot, a 40 percent rating is warranted. Note [2] provides that if a veteran has been recommended for surgical intervention but is not a surgical candidate, the disability should be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. Turning to the evidence of record, prior to discharge, the Veteran was prescribed an orthotic insert and a night splint for his right foot plantar fasciitis. An x-ray revealed no acute osseous abnormality or significant finding relevant to his plantar fasciitis. A VA pre-discharge examination was conducted in November 2013. The Veteran described pain in his right heel and arch especially when first walking on his feet in the morning or after prolonged periods of time on his feet. Orthotics, arch supports, and splints, as well as rolling his arch on a tennis ball or frozen paper cup, did not fully eliminate his symptoms. He still had pain in the same area with the same activity, although the relative severity had diminished somewhat with reduced running. He denied any occupational limitations or difficulties with activities of daily living. The examiner diagnosed right foot plantar fasciitis and indicated that the Veteran did not have Morton’s neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, bilateral weak foot, other foot injuries, or other pertinent findings. He did not require assistive devices for locomotion. The examiner determined that there was no functional impact from the right foot disability. The Veteran underwent another VA examination in September 2020. The examiner diagnosed right foot plantar fasciitis and nonservice-connected bilateral pes planus. The Veteran stated that his right foot disability had gotten worse and he had noted a decrease in range of motion recently. He experienced a baseline pain of 3 out of 10 in the heel through the arch, flaring with weight-bearing. He reported that flare-ups occurred with prolonged walking. His functional impairment was that he could not walk for prolonged periods. Current treatment included elevating, icing, and stretching the foot and rare use of Aleve. The Veteran had pain on use and manipulation of his right foot, accentuated on use and manipulation. There was no indication of swelling on use, no characteristic calluses, no extreme tenderness on the plantar surface of the foot, no marked deformity of the foot, no marked pronation of the foot, no lower extremity deformity other than pes planus, no inward bowing of the Achilles’ tendon, no marked inward displacement and severe spasm of the Achilles’ tendon, and the weight-bearing line did not fall over or medial to the great toe. There was decreased longitudinal arch. The Veteran reported that he did not currently use arch supports, built-up shoes, or orthotics. The examiner did not diagnose Morton’s neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal and metatarsal bones, or other foot injuries or conditions. The examiner stated that the Veteran had pain on physical examination in the right foot which contributed to functional loss including disturbance of locomotion, given his notation of pain with walking too far. There was no pain during nonweight-bearing, active motion, or passive motion. There was pain on palpation. The examiner also stated that functional loss during flare-ups resulted because right foot pain interfered with weight-bearing. There was no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. The examiner also noted that the Veteran had a decrease in plantar flexion and dorsiflexion of the foot at the ankle, about two-thirds of the range of motion in the left extremity. There was no pain with the additional loss of range of motion, but it changed his biomechanics of walking. The Veteran did not require assistive devices for locomotion. The examiner stated that the functional impact was limiting standing and walking. The Board notes at the outset that the VA examinations of record are an adequate basis upon which to determine the extent and severity of the Veteran’s right foot disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the November 2013 examination, the Veteran indicated that his symptomology increased with prolonged walking, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability. This is further supported by the fact that there was no pain with passive movement or nonweight-bearing at the September 2020 examination. When the Veteran reported flare-ups, the VA examiner determined that additional loss of function included difficulty with weight-bearing and prolonged walking. Additional loss of function in terms of degrees of range of motion during flare-ups was not provided, but the examiner noted that pain did not result from reduced range of motion. Given the totality of the information, including the Veteran’s own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. The Board has considered which rating criteria pertaining to disabilities of the foot is most appropriate for the Veteran’s right foot plantar fasciitis. Prior to the recent diagnostic code amendments, plantar fasciitis was not specifically listed in the rating schedule. He does not have service-connected bilateral weak foot, claw foot, Morton’s disease, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones such that rating the condition under DC 5277 to 5283 is appropriate. The Veteran has pain on use and manipulation of his right foot, accentuated on use and manipulation, and decreased longitudinal arch, such that rating the disability by analogy under DC 5276 is appropriate. Under the criteria of DC 5276, the Veteran’s right foot plantar fasciitis does not warrant a rating in excess of 20 percent at any time during the appeal period. He only has plantar fasciitis in his right foot; as such, a 30 percent rating under DC 5276 for severe symptomology is not available. Further, there is no evidence of marked pronation, extreme tenderness of the plantar surface of the foot, or marked inward displacement and severe spasm of the tendo achillis on manipulation in the right foot warranting a 30 percent rating for unilateral pronounced symptomology. As such, a rating in excess of 20 percent under DC 5276 is not warranted. The Board finds that consideration of the Veteran’s right foot disability under the criteria of DC 5284 is appropriate, as his diagnosed condition of plantar fasciitis is not specifically listed in the diagnostic criteria pertaining to the feet. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015); Yancy v. McDonald, 27 Vet. App. 484 (2016). However, the Board concludes that rating the Veteran’s plantar fasciitis by analogy under DC 5284 is not appropriate in this particular case. He is service-connected for right foot plantar fasciitis but also has a diagnosis of pes planus in the right foot. Service connection for pes planus has not been awarded. However, there are no medical opinions of record differentiating the symptomology of the service-connected condition from that of the nonservice-connected condition. As such, the Board will consider the entirety of the right foot symptomology. See Mittleider v. West, 11 Vet. App. 181 (1998). As the other right foot condition is pes planus, the Board finds that rating the condition by analogy under the criteria of DC 5276 pertaining to pes planus is most appropriate to address all symptomology in the right foot. As outlined above, a rating in excess of 20 percent for right foot plantar fasciitis is not warranted under the criteria of DC 5276. The Board notes that no medical evidence has been added to the record since February 7, 2021, such that consideration under the amended criteria is warranted. However, as of that date, plantar fasciitis is now a listed condition in the rating schedule for the feet. As such, it may no longer be rated by analogy. Copeland v. McDonald, 27 Vet. App. at 337 (reaffirming that “when a condition is specifically listed in the schedule, it may not be rated by analogy”). As such, by operation of law the Veteran’s right foot plantar fasciitis may not be rated under the criteria of DC 5276 from February 7, 2021, and must thereafter be rated under the criteria of DC 5269 pertaining to plantar fasciitis. (Continued on the next page)   From February 7, 2021, the Board finds that a rating in excess of 20 percent is not warranted under DC 5269. There is evidence that the Veteran did not find relief from non-surgical treatment for his right foot disability, warranting a 20 percent rating. However, he only has service-connected plantar fasciitis in one foot; as such, the criteria for a 30 percent rating under DC 5269 have not been met. The Board finds that the right foot disability is fully capable of evaluation under the rating schedule. Indeed, the Veteran indicated in his Substantive Appeal that a 10 percent rating for the disability would satisfy his appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.