Citation Nr: 21021953 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-07 839 DATE: April 14, 2021 ORDER A disability rating of 50 percent for bilateral pes planus, plantar fasciitis, heel spurs and degenerative arthritis, and osteophytosis of the right foot, is granted.   FINDINGS OF FACT Throughout the appeal period, the Veteran’s bilateral pes planus, plantar fasciitis, heel spurs and degenerative arthritis, and osteophytosis of the right foot, was manifested by a pronounced bilateral foot disability. CONCLUSIONS OF LAW The criteria for an award of a 50 percent disability rating for bilateral pes planus, plantar fasciitis, heel spurs and degenerative arthritis, and osteophytosis of the right foot, throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to October 1997. The case is on appeal from a May 2011 rating decision. At that time, the issue was entitlement to an increased disability rating for heel spur, left foot. In March 2016 and again in December 2020, the Veteran testified at a Board hearing. In a July 2016 decision, the Board dismissed a sinusitis claim, grant service connection for a r foot disorder and denied an earlier effective date for a dependency issue. At that time, the Board also remanded the left foot rating claim for additional development. When the case was in remand status, in an April 2020 rating decision, the RO combined the left heel spur disability with a separately service-connected right foot disability. The RO recharacterized the combined disability as “bilateral pes planus, plantar fasciitis, heel spurs and degenerative arthritis, and osteophytosis of the right foot,” and assigned a 50 percent rating effective from August 13, 2016. The Board finds that this staged, 50 percent rating is part and parcel of the pending appeal because the combined disability incorporates the service-connected left heel spur into the award. The current staged ratings do not represent the maximum ratings assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the appeal for higher ratings, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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). An increased disability rating in excess of 10 percent for left foot heel spur prior to August 13, 2016; and in excess of 50 percent for bilateral pes planus, plantar fasciitis, heel spurs and degenerative arthritis, and osteophytosis of the right foot, thereafter. The Veteran is seeking an increased rating for his service-connected foot disability. He filed a claim for increase in June 2010. This disability has been assigned a 10 percent rating prior to August 2016, and a 50 percent rating beginning from that date. As explained in the introduction of this decision, the service-connected disability was previously limited to left foot heel spur. Since that time, the scope of the disability has been expanded to include a right and left foot disability. The instant appeal encompasses the combined disability both before and after August 2016 to the extent the grant of a combined rating from August 2016 implicitly denied a higher rating for the earlier staged rating period. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The applicable rating schedule for disabilities of the feet under 38 C.F.R. § 4.71a was amended in February 2021. The applicable schedular criteria for disabilities of the feet is set forth as follows: The Foot Rating 5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances Bilateral 50 Unilateral 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral 30 Unilateral 20 Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral 10 Mild; symptoms relieved by built-up shoe or arch support 0 5277 Weak foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10 5278 Claw foot (pes cavus), acquired: Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity: Bilateral 50 Unilateral 30 All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads: Bilateral 30 Unilateral 20 Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads: Bilateral 10 Unilateral 10 Slight 0 5279 Metatarsalgia, anterior (Morton’s disease), unilateral, or bilateral 10 5280 Hallux valgus, unilateral: Operated with resection of metatarsal head 10 Severe, if equivalent to amputation of great toe 10 5281 Hallux rigidus, unilateral, severe: Rate as hallux valgus, severe. Note: Not to be combined with claw foot ratings. 5282 Hammer toe: All toes, unilateral without claw foot 10 Single toes 0 5283 Tarsal, or metatarsal bones, malunion of, or nonunion of: Severe 30 Moderately severe 20 Moderate 10 NOTE: With actual loss of use of the foot, rate 40 percent. 5284 Foot injuries, other: Severe 30 Moderately severe 20 Moderate 10 NOTE: With actual loss of use of the foot, rate 40 percent. Effective February 7, 2021, the diagnostic codes pertaining to the musculoskeletal disabilities of the feet were amended. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). As pertinent in this case, the amendments added DC 5269, which now provides as follows: Rating 5269 Plantar fasciitis: No relief from both non-surgical and surgical treatment, bilateral 30 No relief from both non-surgical and surgical treatment, unilateral 20 Otherwise, unilateral or bilateral 10 Note (1): With actual loss of use of the foot, rate 40 percent. Note (2): If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. Here, the revised criteria were not intended to have a retroactive effect. Hence, the claim will be adjudicated under the former criteria for the entire period, but under the revised criteria for the period only beginning on the effective date of the new provisions. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). B. Discussion In this case, the Veteran’s disability involves plantar fasciitis, degenerative arthritis, and heel spur. Because plantar fasciitis and heel spur are not listed conditions in the rating schedule for the earlier period, the Veteran’s disability will be rated by analogy to flatfoot as the most closely related disease in which not only the functions of the feet are affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The RO awarded the current 50 percent rating effective from August 13, 2016, as that was the date of a VA examination found to first demonstrate the 50 percent disability level. The VA examination indicated moderately severe plantar fasciitis and severe left heel spur that had caused a change in gait and stance that had led to other problems including pes planus, degenerative joint disease (DJD), and worsening of the hammer toe. The Veteran also walked on the edge of his feet by that time. An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating—as well as for an initial rating or for staged ratings—is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Here, the Board finds that the 50 percent disability level is factually ascertainable throughout the entire appeal period for the now-bilateral foot condition. For example, a June 2010 VA Podiatry consultation found notable arch and heel pain with only partial relief from orthotics; he opted for further orthotic adjustment. In a June 2010 supporting statement, the Veteran wrote that his feet continued to hurt during walking and, even though he was prescribed inserts, they did not relieve the pain such that he had missed work as he had to do some walking as part of his job. On follow-up with VA Podiatry in July 2010, it was noted that he reported an overall 40 percent relief of symptoms. At a July 2020 VA examination, the Veteran reported symptoms “just about the same if not a little bit worse.” This involved pain when first getting up in the morning. His inserts provided “minor relief” although he still had daily foot pain he rated as 9 out of 10. Physical examination found tenderness over the bilateral arches and heels. Follow-up consultations at VA, including Physical Therapy and Podiatry from September to November 2010 revealed ongoing pain with some relief from wearing inserts, but ongoing, constant pain. He received an injection in November 2010 to help decrease the pain. He was seen in an emergency room in April 2011 after a fall on vacation; he had moderate tenderness and swelling of the left foot. Physical therapy follow-up in February 2012 indicated mild pes planus. In a March 2012 testimonial statement, the Veteran reiterated that his special shoe inserts did not totally relieve the pain. At a July 2014 VA examination, the Veteran complained of sharp and persistent pain in his feet with swelling on prolonged walking. He had flare-ups twice per week, which made it too severe for him to work. He had to cancel work on those days. He had shoe inserts providing “little relief.” At his March 2016 Board hearing, the Veteran reported a burning and near constant pain in both feet, although no swelling. Board Hr’g Tr. 10-11. He had special inserts for his shoes, but they only helped somewhat as his feet continued to hurt after walking “a little while.” Board Hr’g Tr. 11. He stated that the severity of both feet was the same. Board Hr’g Tr. 13. The Board observes that the July 2014 VA examination did not evaluate the severity of the bilateral plantar fasciitis. Rather, it was limited to the left heel spur. Nonetheless, the overall disability picture described by the examiner more closely approximates that described by the August 2016 VA examiner and is consistent with the earlier evidence. Of note, the Veteran had foot pain so severe it impacted his ability to walk as required by his job. This is consistent with a pronounced disability involving plantar fasciitis and heel spur. Hence, a 50 percent disability rating is warranted under DC 5276. A disability rating higher than 50 percent is not available under any applicable DC. Likewise, under the amended criteria in effect from February 7, 2021, there is a separate DC available for plantar fasciitis, but the evidence here does not sufficiently distinguish the symptomatology of plantar fasciitis from the other service-connected disabilities. Hence, the Board finds that the combined 50 percent rating under DC 5276 remains the most favorable rating. A separate rating under the new DC 5269 would be impermissible pyramiding of the same symptomatology under both DCs 5276 and DC 5269. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). With this in mind, the 50 percent rating from July 2014 is a full grant of the maximum available for the disability. The Veteran argued at his December 2020 Board hearing that the combined 50 percent rating for his bilateral foot disability effectively severed the separate 10 percent rating for left heel spur. The Board finds that no reduction took place. Prior to August 2016, the Veteran was in receipt of a 10 percent rating for left heel spur. In a July 2016 rating decision, the RO awarded a 30 percent disability rating for heel spur, degenerative changes, osteophytosis, plantar fasciitis right foot, effective from June 28, 2010. The combined rating prior to August 2016 was 40 percent. See 38 C.F.R. §§ 4.25, 4.26. The 10 percent rating was in effect for less than 20 years, so was not a protected rating. See 38 C.F.R. § 3.951(b). Moreover, symptoms from heel spurs, such as heel pain are contemplated by the 5 percent rating. The Board herein grants a 50 percent disability rating for the combined bilateral foot disabilities from June 28, 2010. The current 50 percent rating is an overall increase from the combined 40 percent rating previously in effect. Hence, a rating reduction did not occur. See, e.g., Murray v. Shinseki, 24 Vet. App. 420, 424 (2011). Moreover, this is simply a change in the DC, so does not represent a severance of service connection for the left heel spur; the disability remains service-connected. See Read v. Shinseki, 651 F.3d 1296, 1300-01 (Fed. Cir. 2011). For these reasons, a reduction did not take place, and there is no prejudice to the Veteran based on the outcome of this appeal. In conclusion, when reconciling the various medical reports into a consistent picture, the Board finds that the Veteran’s disability picture is most consistent with a 50 percent disability level throughout the appeal period. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, a 50 percent rating for the bilateral foot condition is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.