Citation Nr: 21013987 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-25 081 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 30 percent for pes planus with plantar fasciitis is denied. Entitlement to a separate 10 percent rating for Morton’s neuroma is granted. FINDINGS OF FACT 1. The pes planus with plantar fasciitis does not result in pronounced impairment. 2. The Veteran has a Morton’s neuroma related to the pes planus with plantar fasciitis. 3. The plantar fasciitis is not manifest by symptoms not contemplated in the currently assigned rating. 4. The hallux valgus and hallux rigidus are not severe or post-operative treatment, and the Veteran does not have hammertoe. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5276, 5280, 5281, 5282, 2. The criteria for a separate 10 percent rating for Morton’s neuroma have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5279. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1991 to February 1992. While the matter was on appeal, the Veteran withdrew her claim for a total disability rating based on individual unemployability (TDIU). See June 2018 VA Form 21-4138; June 2018 Correspondence. Bilateral pes planus with plantar fascitis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). 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). 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 claim 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 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. 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 agency of original jurisdiction. 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 claim. A March 2011 VA treatment record reveals the Veteran’s history of bilateral foot pain and bunion deformities. She reported heel pain that at times travelled up the leg and caused weakness. She reported plantarflexion of the toes for the last month and indicated that she cannot walk for a few days after that happens. Examination revealed that the Veteran was “fairly” flatfooted. There was no apparent weakness to regular motion and resistance. The pain was mostly palpable on the forefoot under the second metatarsophalangeal joint and in the third interdigital webspace. There was a mild amount of bunion with lateral deviation of the great toe and prominent medial eminence. The great toes were unable to move or flex dorsally with the forefoot loaded or without weight in the foot. The diagnoses included hallux rigidus, flatfoot, bunion deformity, and possible neuritis. A June 2011 private treatment record reveals the Veteran’s history of bilateral foot pain, worse in the left foot in the medio-longitudinal arch and dorsum over second through fourth metaheads. The record indicates that the current orthotics did not control pronation and that orthotics would be provided. A November 2011 VA examination record reveals diagnosis of functional mild pes planus. The record indicates that the Veteran had pain on use but it was not accentuated. There was not pain with manipulation of the feet, indication of swelling on use, or extreme tenderness of plantar surfaces. There were characteristic calluses and inward bowing of the Achilles tendon. The record reports that symptoms were not relieved by arch supports or orthotics but does not indicate a side that remained symptomatic despite orthotics. There was decreased longitudinal arch height on weight-bearing. There was not objective evidence of marked deformity of the foot (pronation, abduction, etc) or marked pronation, and the weight-bearing line did not fall over or medial to the great toe. There was no other lower extremity deformity causing alteration of the weight-bearing line. There was not marked inward displacement and severe spasm of the Achilles tendon on manipulation. The record reveals regular use of a cane. The examiner determined the flatfoot condition did not affect occupational functioning. The examiner stated that functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. A May 2012 VA podiatry record reveals the Veteran’s history of toes curling into the heels. She reported that she compensated for her daily foot pain by walking on the outside areas of the feet. The Veteran noted that she had bilateral calluses on the medial aspect of the hallux and reported that her feet were very sensitive to touch. Examination revealed thick calluses of the medial hallux. There was prominent hallux valgus bilaterally, and the Veteran’s feet were very sensitive to light palpation. The record indicates that the current orthotics brought in curve away from the foot in the neutral position. The record notes that the Veteran walked cautiously and slowly but not quite antalgic. Diagnoses included pes planus, gait abnormality, bunions, fibromyalgia, and calluses. A March 2013 VA podiatry record reveals the Veteran’s history of pain, weakness, and “toes curling” in both feet. The record indicates that she had “very sensitive” feet and walked cautiously. The record notes that the Veteran had pain with slightest pressure and had weakness to motion of the feet. Examination revealed hypersensitivity and pain to the slightest pressure. Muscle strength was weakened to all groups and was +1/4 to dorsiflexion, plantarflexion, inversion, and eversion. The examiner diagnosed dropfoot deformity bilaterally, neuromuscular disease, and fibromyalgia. An October 2016 VA podiatry record reveals the Veteran’s history that it was difficulty to straighten out her toes. She also reported heel and arch pain. She indicated that she had previously used orthotics and found them helpful. Examination revealed mild hypersensitivity to light touch. Muscle strength was 4/5, and motion was normal. The feet were pronated with everted heels on stance. There was lateral deviation of the great toes with mild hammer toe deformities. There were no apparent plantar contracture or cramps. A February 2017 VA examination record reveals diagnosis of bilateral plantar fasciitis. The Veteran reported that she can only stand for 15 to 20 minutes or walk eight blocks due to foot pain. She reported that it bothered her feet to flex her toes downwards. The record reports that the Veteran had bilateral foot pain on use that was accentuated. There was pain on manipulation of the feet, but the pain was not accentuated. There was no indication of swelling on use or characteristic callouses. The Veteran used arch supports but remained symptomatic. She did not have extreme tenderness of plantar surfaces, decreased longitudinal arch height, or marked deformity. The weight-bearing line did not fall over or medial to the great toe. There was not inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles on manipulation. The Veteran did not have Morton’s neuroma, metatarsalgia, or hammertoe. The Veteran did not have symptoms due to hallux valgus or hallux rigidus and had not had surgery for hallux valgus. There was no other foot injury or condition. There was disturbance of locomotion due to the bilateral foot disorder. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flares or repeated use over time and there was no other functional loss during flares or after repeated use over time. The functional impairment was not so diminished as to approximate amputation with prothesis. A November 2017 VA podiatry record reveals the Veteran’s history of painful heels at the medial heels around the tarsal tunnel area. She reported increased symptoms when she sits and leans forward to get something from the floor. Examination revealed normal motion and 4/5 strength. The feet were pronated with everted heels and lateral deviation of the great toes with mild hammer toe deformities. There was no apparent plantar contracture or cramp. The orthotics appeared to bring her left heel into rectus position but there was still pronation on the right side. The record indicates the podiatrist determination that the pain symptoms of the heel were consistent with the low back etiology. The reported diagnoses include hammer toes, flat feet, hallux rigidus, and bunions. February, July, and August 2019 private treatment record indicates that the Veteran had normal gait, station, and range of motion of the musculoskeletal system. The records reveal diagnoses including chronic pain syndrome and idiopathic peripheral autonomic neuropathy. A July 2019 VA examination record reveals diagnoses of flat foot with mild plantar fasciitis. She reported foot pain increased with walking one block or standing over eight minutes. She reported forefoot pain when bending over when standing on toes. She also reported daily pain in the toes/forefoot and heels, greater than arches. The Veteran walked on toes and heels with increased foot pain. She had flexible feet, mild arches, mild pronation, and moderate tenderness of toes, forefoot, and heels. There was minimal tenderness to arches. There was pain with passive motion but not non-weight bearing. The Veteran denied flares. There was pain on use that was accentuated on use. There was not pain on manipulation of the feet, indication of swelling on use, or characteristic calluses. The Veteran used arch supports but remained symptomatic bilaterally. There was no extreme tenderness of plantar surfaces or objective evidence of marked deformity. There was decreased longitudinal arch height. The weight-bearing line did not fall over or medial to the great toe. There was no inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. There were not symptoms of hallux valgus or hallux rigidus. There were no effects of pes cavus. There was pain but it did not contribute to functional loss. There was pain with weight-bearing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flares or repeated use over time. The functional impairment was not so diminished as to approximate amputation with prothesis. The examiner stated that the foot disability did not restrict the Veteran from her current caregiver status or otherwise restrict her from light and sedentary occupations. November and December 2019 and February 2020 private treatment record reports full active range of motion and no tenderness to palpation of the musculoskeletal system and normal alignment and gait of the extremities. January and February 2020 VA treatment record reports that gait and station were normal. A September 2020 VA examination record reveals diagnoses of bilateral pes planus with plantar fasciitis, Morton’s neuroma, and hallux rigidus and right hallux valgus. The record reveals the Veteran’s history of increased burning pain and tingling sensation with weightbearing, which persisted even after she stopped walking or standing. The Veteran reported a feeling as if something were in the shoe and arch of both feet. She also reported a tingling sensation in the front or ball of the foot, under the toes. She reported a burning pain that spreads from the ball of the foot to the end of the toes with numbness often. She reported difficulty with stairs. She reported that she has increased pain and loss of coordination due to insensation of surface after a few minutes of standing. She reported symptoms with plantar flexion of the toes and inability to get the toes to relax, which made it difficult to stand or walk. Examination revealed that the feet were fairly flatfooted. The points of pain in the feet were palpable on the forefoot under the second metatarsophalangeal and third interdigital webspace. There were mild bunions with lateral deviation of the great toe and prominent medical eminence. The Veteran was unable to move or flex dorsally the great toes with the forefoot loaded or without weight on the foot. She was unable to balance on toes or heels. She reported flares with reduced ability to stand, walk, jog, run, or climb stairs. There was pain of the feet that was accentuated on use and manipulation. There was no indication of swelling on use. There were characteristic calluses. The Veteran used orthotics and arch supports which effected relief. There was extreme tenderness of plantar surfaces, improved by orthopedic shoes or appliances. There was decreased longitudinal arch height on weight-bearing and objective evidence of marked deformity. There was marked pronation of the feet, improved by orthopedic shoes or devices. The weight-bearing line fell over or medial to the great toe. There was not inward bowling of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. There was a Morton’s neuroma but not metatarsalgia. There was not hammer toe. There were mild or moderate symptoms due to hallux valgus of the right great toe and hallux rigidus of the bilateral great toe. There was no acquired pes cavus or malunion or nonunion of tarsal or metatarsal bones. There was pain on examination, motion, and weight-bearing. There was not pain in non-weightbearing or with passive motion. There was instability of station and standing, lack of endurance, and disturbance of locomotion. The functional impairment was not so diminished as to approximate amputation with prothesis. The examiner determined the Morton’s Neuroma and hallux rigidus and right foot hallux valgus were related to the service-connected pes planus. The examiner explained that the Veteran had multiple anomalies of the feet with bilateral pes planus, fasciitis, bunions, and constant foot pain. The examiner reported the Veteran’s description of gradual onset of numbness and tingling in the ball of the feet, especially between the base of the third and fourth toes, is consistent with the medical description of Morton’s Neuroma. The examiner determined the March 2011 history of pain in the foot on the forefoot under the second and third toe areas was also consistent with Morton’s neuroma. The examiner explained that Morton’s neuroma can occur if there are physical anomalies of the foot, such as flat feet or bunions. The examiner stated that examination did not reveal severe tenderness, so plantar fasciitis was not the cause of the forefoot pain. The examiner noted the March 2011 podiatry report of plantar flexion of the toes and stated that hypotonic muscles can be in a constant state of high tone and not know how to relax. The examiner reported that hallux rigidus can develop due to overuse injury or other repetitive stress and that people with flat feet are particularly susceptible. The Veteran’s bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, for acquired flatfoot, a 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliance. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter Diagnostic Code 5276. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus. There are no findings of pronounced impairment due to the pes planus with plantar fasciitis, and the clinical findings and histories do not support such a finding. Notably, there is no evidence of marked inward displacement or severe spasm, and the record indicates that some of the symptoms, notably heel pain, is due to the low back disorder. The Board acknowledges that the record includes histories and findings of extreme hypersensitivity of the feet and the 2020 VA examination report reveals marked pronation. The record, including the 2020 VA examination record, indicates that the marked pronation and sensitivity were improved by orthopedic devices, however. The Board acknowledges that the 2011, 2017, and 2019 VA examination records report that the Veteran’s symptoms were not relieved by orthotics or orthopedic devices. The records do not indicate that the symptoms were not improved at least in part, however, and the Board notes that the Veteran was not shown to have marked pronation or extreme tenderness during any of these examinations. In sum, the Board finds the record does not more nearly approximate pronounced pes planus, even after consideration of symptoms and impairment with and without weight bearing and with active and passive range of motion. Thus, the Board finds a higher rating is not warranted under Diagnostic Code 5276. The Board has considered the other Diagnostic Codes pertaining to the foot. 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 Courts 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 Courts 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. The record includes diagnoses of plantar fasciitis, hallux valgus, hammertoes, Morton’s neuroma, and hallux rigidus. The recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter the diagnostic codes applicable to hallux valgus, Morton’s neuroma, hammertoe, or hallux rigidus. It did create a new diagnostic code for plantar fasciitis. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The Board finds a separate 10 percent rating is warranted for Morton’s neuroma under Diagnostic Code 5279. The Board notes that Diagnostic Code 5279 does not place any requirements other than the existence of Morton’s disease to warrant the rating. The Board finds the assignment of a separate rating is not pyramiding because there is evidence of symptoms not contemplated by the rating assigned under Diagnostic Code 5276, notably numbness and tingling in the ball of the foot, as described in the September 2020 VA examination record. A separate rating is not warranted based on the hallux valgus or hallux rigidus. Diagnostic Code 5281, which rates hallux rigidus, unilateral, severe, states that it should be rated as hallux valgus, severe. Diagnostic Code 5280, which rates hallux valgus, unilateral, provides a 10 percent rating for severe hallux valgus if equivalent to amputation of great toe or status-post operative resection of metatarsal head. Although the record includes findings of hallux valgus and hallux rigidus, there are no findings that either is severe or equivalent to amputation of the great toe, and the Veteran has not undergone operative resection of the metatarsal head. Notably, VA examiners have consistently determined the hallux valgus and hallux rigidus are of moderate impairment at worst. Although the Veteran may have symptoms which she attributes to these conditions, the Board finds the clinical determinations are more significant because the multiple overlaying conditions affecting the feet and the rating assigned for pes planus already contemplates pain and functional impairment of movement. In short, the Board finds the criteria for a compensable separate rating is not warranted based on either condition because they do not meet the minimal criteria for such a rating. In making this determination, the Board has considered 38 C.F.R. § 4.59, but finds 38 U.S.C. § 4.59 and its interpreting caselaw do not apply because the Veteran is already in receipt of a compensable rating under Diagnostic Code 5276 for the bilateral pain and functional impairment. Notably, there is no evidence of a symptom of hallux valgus or hallux rigidus not contemplated in the 30 percent rating under Diagnostic Code 5276. In making this determination, the Board finds it notable that Diagnostic Codes 5280 and 5281 require more than the mere existence of hallux valgus and/or rigidus. A separate rating is not warranted under Diagnostic Code 5282 for hammertoes. Although VA podiatry records report findings of hammertoe, the same records report findings of no flexion contracture, which the Board finds is irreconcilable with the diagnoses of hammertoe. VA examination records, and X-ray imaging, report that the Veteran does not have hammertoe. Due to the contradictory findings in the podiatry records, the Board finds the VA examination records are more probative in determining the existence of hammertoe. Finally, the Board finds a separate rating is not warranted for plantar fasciitis. The new diagnostic code for rating plantar fasciitis, Diagnostic Code 5269, provides a 30 percent rating for bilateral plantar fasciitis without relief from both nonsurgical and surgical treatment, a 20 percent rating for unilateral plantar fasciitis without relief from nonsurgical and surgical treatment, and a 10 percent rating for “otherwise, unilateral or bilateral.” The “old” rating criteria do not include a diagnostic code specific to plantar fasciitis, but Diagnostic Code 5284, which rates “foot injuries, other” provides a 10 percent rating for moderate impairment, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. After consideration of the record, the Board finds the assignment of a separate rating for the plantar fasciitis would result in pyramiding because the record does not suggest symptoms beyond that contemplated in the rating assigned for pes planus. Notably, the record reveals findings and histories of foot pain, tenderness, and impairment of motion and function. There are no symptoms specifically attributed to plantar fasciitis which are not already contemplated by the rating assigned under Diagnostic Code 5276. The Board has also considered the application of special monthly compensation (SMC) based on loss of use of the foot. VA law provides that loss of use of a foot will be held to exist when no effective function remains 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. 38 C.F.R. § 3.350 (a)(2)(i). The record does not support a finding of loss of use of the foot. VA examiners have consistently determined that functional impairment was not so diminished as to approximate amputation with prothesis, and the record consistently indicates that the Veteran is able to walk and use the feet. The Board finds the clinical evidence weighs against a finding that the Veteran’s bilateral foot disability has resulted in loss of use. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.