Citation Nr: 21023644 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-05 082 DATE: April 21, 2021 ORDER Entitlement to a rating higher than 50 percent for a left foot disability is denied. FINDING OF FACT The Veteran’s left foot disability is rated as 50 percent disabling, which is the maximum schedular rating for any of the Veteran’s service-connected left foot disabilities. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for a left foot disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1980 and October 1980 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in March 2015, November 2017, December 2018, and March 2020 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At the outset the Board notes that the Veteran was issued a supplemental statement of the case in October 2020 that continued the rating of 10 percent prior to June 18, 2020 and the rating of 30 percent since then. In October 2020 the Veteran submitted a VA Form 10182 regarding the issue of entitlement to a disability rating higher than 10 percent prior to June 18, 2020. However, the Veteran opted to keep the issue of entitlement to a rating higher than 30 percent from June 18, 2020 in the legacy system. In a January 2021 rating action, the RO granted a 50 percent rating for the Veteran’s left foot plantar fasciitis, effective June 18, 2020. In March 2021 the RO, citing clear and unmistakable error in the January 2021 rating action, proposed to reduce the Veteran’s left foot plantar fasciitis rating to 30 percent. The Veteran, if he so chooses, has the option of appealing any reduction but that issue is not before the Board at this time. As such, the Board will only address the issue of entitlement to a rating higher than 50 percent from June 18, 2020. Entitlement to a rating higher than 50 percent for a left foot disability Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a higher rating for his service-connected left foot disability. As the Veteran is in receipt of the highest schedular rating for his left foot disability, there is no basis to award a higher rating. The Board has also 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). The Veteran has diagnoses of left foot plantar fasciitis, left foot flatfoot, left ankle ankylosis, and malunion of left fracture calcaneus, which the August 2020 VA examiner has attributed to service. Further, the Veteran has nonservice-connected left foot tarsal coalition of navicular type and left fifth metatarsal fracture invoked by MTP Joint which the VA examiner has determined is not due to or aggravated by service. The evidence of record is against a finding that the disabilities have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. The VA examiner opined that it was not possible to differentiate the symptoms caused by any of the Veteran’s disabilities. As such, a separate rating for any of the disabilities would be impermissible pyramiding. However, the Board will evaluate the Veteran’s disability under all of the appropriate diagnostic codes to determine what is the most favorable rating. The Board notes that the Veteran’s disability is currently rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5276 for acquired flat foot. Although one of the Veteran’s left foot disabilities is flatfoot, the issue as described by the RO is “chronic peroneal tendonitis; plantar fasciitis, left foot.” Effective February 7, 2021, the rating criteria for the musculoskeletal system were amended and a new Diagnostic Code specifically for plantar fasciitis was created. The maximum rating under the new Diagnostic Code 5269 is 30 percent. As it is not more favorable than the Veteran’s current rating the Board will not evaluate the Veteran’s condition under this Diagnostic Code. No other Diagnostic Codes relevant to the Veteran’s foot disabilities were affected by the amended regulations. The Veteran’s left foot and ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under 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). As noted above, plantar fasciitis is now rated under 38 C.F.R. § 4.71a, Diagnostic Code 5269. Under Diagnostic Code 5269, a maximum 30 percent rating is warranted for no relief from both surgical and non-surgical treatment bilaterally. A 20 percent rating is warranted for no relief from both surgical and non-surgical treatment unilaterally. Ankle ankylosis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5270. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees. The maximum 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Lastly, malunion of the left calcaneus fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5273. Under Diagnostic Code 5273, the maximum rating of 20 percent is warranted for marked deformity. The Veteran’s left foot disability is currently rated as 50 percent disabling. Thus, a rating under Diagnostic Codes 5273 and 5269 would not be more favorable than the currently assigned rating under Diagnostic Code 5276. The maximum 40 percent rating under Diagnostic Code 5270 for ankylosis requires ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. On examination in June 2020, the Veteran was found to have left ankle ankylosis at 0 degrees in both plantar flexion and dorsiflexion with an abduction and eversion deformity. Thus, although the Veteran satisfies the criteria for the maximum 40 percent rating under Diagnostic Code 5270, it is not more favorable than the 50 percent rating currently assigned. As the Veteran already has the maximum schedular disability rating the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.