Citation Nr: 21016244 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 14-24 074 DATE: March 22, 2021 REMANDED Entitlement to increases in the staged (10 percent prior to March 31, 2015, and 50 percent from that date) ratings for bilateral flat feet, with plantar fasciitis and calcaneal tuberosities, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1997 to January 1999 and November 2004 to December 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision that continued a 10 percent rating for bilateral flat feet. In August 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In January 2018 the case was remanded for further development. An interim (July 2019) rating decision increased the rating for bilateral flat feet to 50 percent, effective March 31, 2015. An October 2019 Board decision denied entitlement to increases in the staged ratings assigned for bilateral flat feet with plantar fasciitis and calcaneal tuberosities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a July 2020 Joint Motion for Remand (JMR). A July 2020 CAVC Order remanded the matter for action consistent with the terms of the JMR. Entitlement to increases in the staged ratings for bilateral flat feet, with plantar fasciitis and calcaneal tuberosities In the July 2020 JMR, the parties agreed that vacatur and remand are required because the Board erred in failing to consider whether separate (compensable) ratings (under analogous Diagnostic Codes (Codes)) were appropriate for the Veteran’s plantar fasciitis and calcaneal tuberosities. The parties cited to Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019), which states that the Board is obligated to consider analogous Codes, including Code 5284 (for other foot injuries), when rating unlisted conditions, despite the presence of listed conditions. The parties then noted that “the Board was required to provide factual findings and an explanation regarding the diagnoses of plantar fasciitis and ca[l]caneal tuberosities, not the symptoms” (emphases in original). The Board observes that some of the criteria for rating the feet were revised effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The amended regulations include a specific Code for plantar fasciitis (Code 5269), which provides for up to a 30 percent (maximum) rating for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Remand is necessary to afford the Veteran an examination to evaluate his service-connected disabilities of the feet (pes planus, plantar fasciitis, and calcaneal tuberosities) under all applicable diagnostic codes under both the older and (from their effective date) the revised rating criteria. Prior VA feet examinations of record (including the most recent in June 2018) do not fully resolve all medical questions, considering the JMR. Notably, on June 2018 examination, the examiner did not specifically identify the symptoms associated with each disability, or adequately identify the nature of the relief provided by treatment (such as arch supports, built up shoes, and orthotics) for each disability, which is pertinent under the new Code 5269. [Because VA treatment records are constructively of record (and may contain pertinent information), any outstanding VA records must also be secured. As the Veteran appears to periodically receive treatment from non-VA providers, including Drs. A.S., L.E., and D.T., he will have the opportunity on remand to provide updated records (or releases for VA to obtain updated records) from those providers. They are pertinent (and perhaps critical) evidence in the matter on appeal.] The matter is REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his feet. 2. Ask the Veteran to provide identifying information regarding all private evaluations or treatment he has received for his feet (records of which are not already in the record), and to submit authorizations for VA to secure for the record complete outstanding clinical records from all such providers identified, specifically including records from Drs. A.S., L.E., and D.T. Obtain those records. 3. When the development requested above is completed, arrange for a foot examination of the Veteran to ascertain the current severity of his bilateral pes planus, plantar fasciitis, and calcaneal tuberosities. The entire record (to include this Remand) and a copy of the current (revised) criteria for rating foot disabilities (under 38 C.F.R. § 4.71a, Codes 5269-5284) should be available, and reviewed by, the provider. All indicated tests and studies should be completed, and all clinical findings should be reported in detail. The consulting provider should respond to the following: (a) Identify all symptoms and impairment associated with each of the Veteran’s diagnosed eight and left foot disabilities, including specifically pes planus, plantar fasciitis, and calcaneal tuberosities. To the extent possible, distinguish the symptoms and impairment attributable to each. If it is not possible to separate or distinguish the symptoms attributable to such disabilities, identify such symptoms and explain why. If a symptom is considered a manifestation of multiple diagnosed entities, identify the disability among them that is pre-dominant. (b) Regarding bilateral plantar fasciitis, indicate whether the treatment for such disability provides no relief, partial relief, or full relief of the attributable symptoms and impairment. (c) Regarding the bilateral calcaneal tuberosities, indicate whether there are any attributable symptoms that are not included in the criteria for rating plantar fasciitis (under Code 5269) OR pes planus (under Code 5276), and opine whether such symptoms manifest in a mild, moderate, moderately severe, or severe foot injury. Include rationale with all opinions, citing to supporting factual data and medical principles, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.