Citation Nr: 21025198 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-28 290A DATE: April 27, 2021 ORDER A 20 percent, but no higher, rating is warranted for left foot plantar fasciitis, rated by analogy as a foot injury, prior to August 15, 2016, subject to regulations governing the payment of monetary awards. A 20 percent, but no higher, rating is warranted for right foot plantar fasciitis, rated by analogy as a foot injury, prior to August 15, 2016, subject to regulations governing the payment of monetary awards. A disability rating in excess of 50 percent from August 15, 2016 for bilateral plantar fasciitis is denied. FINDINGS OF FACT 1. Prior to August 15, 2016, the Veteran’s left foot plantar fasciitis manifested in moderately severe symptoms. 2. Prior to August 15, 2016, the Veteran right foot plantar fasciitis manifested in moderately severe symptoms. 3. Beginning August 15, 2016, the Veteran’s bilateral plantar fasciitis is most appropriately evaluated under Diagnostic Code 5276 based on pronounced disability, as manifested by symptoms including extreme tenderness of plantar surfaces of the feet and symptoms not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for a 20 percent, but no higher, rating for left foot plantar fasciitis prior to August 15, 2016, are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284 (2020). 2. The criteria for a 20 percent, but no higher, rating for right foot plantar fasciitis prior to August 15, 2016, are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284 (2020). 3. The criteria for a rating in excess of 50 percent for bilateral plantar fasciitis from August 15, 2016, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5276 (2020); 5269 (Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020)). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from February 2003 to July 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In a June 2019 decision, the Board granted a 10 percent disability rating for bilateral plantar fasciitis prior to August 15, 2016 and denied a rating in excess of 50 percent from August 15, 2016. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (the Court). In April 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, which requested a vacatur and remand of the June 2019 rating decision as to the claim for an increased rating for bilateral plantar fasciitis. The Board remanded the claim for further development in August 2020. Entitlement to a disability rating in excess of 10 percent prior to August 15, 2016, and in excess of 50 percent thereafter for bilateral plantar fasciitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s bilateral plantar fasciitis has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for bilateral flat foot, as the rating criteria effective prior to February 7, 2021 did not contain a specific Diagnostic Code to evaluate bilateral plantar fasciitis. As such, it must be rated by analogy to a closely related disease or injury. 38 C.F.R. § 4.20. The disability rating criteria for bilateral flatfoot, acquired, are as follows. A 50 percent rating is warranted in cases of pronounced disability, 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 appliances. A 30 percent rating is warranted for severe cases, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic calluses. A 10 percent rating is to be assigned in cases of moderate symptoms, such as the weight-bearing line over to medial the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276.   As the Veteran’s condition is rated by analogy under Diagnostic Code 5276, the Board has also considered whether it may be more appropriate to evaluate his condition under another Diagnostic Code. In particular, Diagnostic Code 5284 provides for evaluation of foot injuries, other and provides a 10 percent rating for moderate symptoms, a 20 percent rating for moderately severe symptoms, and a 30 percent rating for severe symptoms. Where there is actual loss of use of the foot a 40 percent rating is warranted. The Board has also considered other potentially applicable Diagnostic Codes. However, the evidence of record does not show that the Veteran has diagnoses of or symptoms more nearly approximating weak foot, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones during the appeal period. As such, ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5280, 5281, 5282, 5283 will not be further considered. The rating criteria for evaluating the musculoskeletal system were revised during the course of the Veteran’s appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These revisions added Diagnostic Code 5269 for plantar fasciitis and provide a 10 percent rating for unilateral or bilateral plantar fasciitis; a 20 percent rating for unilateral plantar fasciitis where there is no relief from both non-surgical and surgical treatment; and a 30 percent rating for bilateral plantar fasciitis where there is no relief from both non-surgical and surgical treatment. A 40 percent rating is warranted where there is actual loss of use of the foot. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. Prior to August 15, 2016 On March 2011 VA examination, the Veteran reported that he had been seen and treated multiple times for bilateral plantar fasciitis. He reported seeing two different podiatrists with multiple different treatment modalities including steroid injections, which provided some limited but significant relief. He had no history of surgery. He complained of pain with rest, standing, and walking. He did not have any complaints of weakness or fatigability with rest, standing or walking. He was able to stand for 8/8 hour periods; however, he reported that he will develop significant foot pain after standing about 20 minutes. He denied any significant limitation in his ability to walk and no effect on his usual occupation. He reported having shoe inserts that provided significant good relief. He also has been treated with Tramadol in the distant past that did provide relief while he was taking the medication. On examination, the arches of the feet were normal and pedal pulses were palpable. There was no painful motion, edema, weakness, or instability. There was pain to palpation of the plantar arch and the calcaneal area in both feet. There was normal dorsiflexion and plantar flexion of the feet and toes. The clinician diagnosed bilateral plantar fasciitis with a mild functional limitation. VA treatment records reflect that in July 2012 the Veteran reported that his shoe inserts were not helping, and he was wondering about getting cortisone injections. The Veteran reported continued bilateral foot pain in April 2013 and said that his shoe inserts had not relieved his pain. In his August 2014 VA Form 9, Substantive Appeal, the Veteran reported pain on the use of his feet that was described as excruciating. He indicated that nothing had helped to relieve the pain and that he has had at least four pairs of inserts professionally made to help relieve the pain, but all were unsuccessful. He reported his feet constantly swelled, turned purple, and spasmed in pain. He indicated that he was unable to play sports or coach his sons’ sports teams. In a January 2015 VA treatment record, the Veteran reported that his foot pain was becoming more severe. For the period prior to August 15, 2016, the Board concludes that it is most favorable to change the Veteran’s Diagnostic Code and to evaluate the Veteran’s bilateral plantar fasciitis under Diagnostic Code 5284. VA can change the diagnostic code that a particular disability is rated under so long as the rating under that diagnostic code has not been in effect for 20 years. See 38 C.F.R. § 3.951(b); see Murray v. Shinskeki, 24 Vet. App. 420, 425 (2011). VA must explain the change in the diagnostic code. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the Board is changing the Diagnostic Code prior to August 15, 2016 because it provides the Veteran with a more favorable evaluation than the previously assigned Diagnostic Code 5276. More specifically, a rating in excess of 10 percent under Diagnostic Code 5276 for bilateral pes planus is only warranted where there are severe symptoms with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Although the Veteran reported swelling of the feet in his August 2014 VA Form 9, Substantive Appeal, treatment records and examination did not indicate swelling on use during this period. The Veteran did not report, and the treatment records did not indicate objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, or characteristic calluses during this period. Therefore, a preponderance of the evidence is against a higher 30 percent rating under Diagnostic Code 5276 prior to August 15, 2016. Under Diagnostic Code 5284, for foot injuries, other, each foot affected is separately evaluated. Here, the Board concludes that the Veteran’s symptoms in the right and left feet of pain in the feet with rest, standing, and walking, but without complaints of weakness or fatigability with rest, standing or walking; symptoms incompletely relieved by shoe inserts; reports of swelling; and spasms most nearly approximated moderately severe symptoms in each foot and thus warranted a 20 percent rating in each foot under Diagnostic Code 5284 prior to August 15, 2016. The weight of the evidence is against a finding that these symptoms more nearly approximate severe disability. As a result, the Board finds that it is more favorable to switch the Diagnostic Code to evaluate each foot separately under Diagnostic Code 5284, rather than to evaluate the condition under Diagnostic Code 5276. When considering the provisions of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Veteran’s symptoms more nearly approximate moderately severe symptoms in each foot prior to August 15, 2016. As explained above, the Veteran’s symptoms do not more nearly approximate severe bilateral pes planus under Diagnostic Code 5276; therefore, separate 20 percent, but no higher, ratings under Diagnostic Code 5284 are more favorable to him prior to August 15, 2016. In summary, prior to August 15, 2016, the Diagnostic Code assigned to the Veteran’s bilateral plantar fasciitis is changed to Diagnostic Code 5284 and separate 20 percent evaluations, but no higher, are assigned for the right and left foot under Diagnostic Code 5284 based on moderately severe symptoms in each foot. From August 15, 2016 A VA examination for foot conditions was completed in August 2016. The VA examiner diagnosed bilateral plantar fasciitis. The Veteran stated that his foot pain had dramatically escalated over time and he has constant pain in the soles of his feet, mostly in the plantar fascial area. The Veteran’s feet were sensitive to the touch and he said that he could not walk much. He said that his feet were painful on walking and that his capacity to walk was limited. The examiner said that the Veteran did not have flat foot condition and that his arches were normal. The examiner stated that the Veteran had excess fatigability, pain on movement, pain on weight-bearing, and lack of endurance in both feet. The Veteran reported limited mobility and said that he was not working. The Veteran underwent a VA examination for foot conditions in September 2017. The examiner diagnosed bilateral plantar fasciitis. The Veteran described the pain as excruciating and constant, with occasional cramps and spasms, and that the pain felt like his muscles were ripping apart with throbbing pain. He reported flare ups including swelling and throbbing, with involuntary twitching and discoloration. He reported functional loss of walking differently because of the pain. He used to be very active in sports and exercise but could not do those things anymore because of constant pain and the pain forced him to take baby steps and walk like a penguin. He had pain on the use and/or manipulation of both feet. The examiner found no swelling or characteristic calluses. The Veteran had extreme tenderness of the plantar surfaces of both feet which was not improved by the use of orthopedic shoes or appliances. The Veteran wore arch supports and orthotics which did not relieve his symptoms. There was no decreased longitudinal arch height, marked deformity, marked pronation, inward bowing or inward displacement of the achilles tendon. There was pain on movement and pain on weight-bearing of both feet, but no other symptoms. Repeated use of the feet in walking, standing, and running could cause the Veteran pain that could have significant limitation on his functioning, and he cannot stand for long periods of time or walk for long distances. The examiner stated that there were no other pertinent physical findings, complications, signs, or symptoms. In November 2018, the Veteran testified before the Board that the bottoms of his feet feel like they were ripped in half and he is in constant pain. The Veteran said that his feet have had the same symptoms since 2011 and that he is not using medication for fear of the side effects. He testified that he receives treatment for his feet primarily from the VA, but that in the past he received treatment from a private physician whose records are in the claims file. In June 2020 correspondence to VA, the Veteran said that he is unable to stand up or walk for long periods of time because of pain in his feet and back. He reported that he has a limp and that his feet swell so badly that at times he cannot wear shoes and stated that his “feet are mashed like hamburger meat.” The Veteran underwent another VA examination for foot conditions in December 2020. The examiner diagnosed bilateral plantar fasciitis. The Veteran reported a sharp and aching pain in his bilateral feet, with daily flare ups. The Veteran said that the bilateral flare ups are severe and last all day and are brought on by walking. The Veteran reported that he was unable to walk or stand for more than 5 to 10 minutes or bend down using his feet, and unable to lift objects over 10 pounds. The examiner found he had accentuated pain on the use and manipulation of both feet. There was indication of swelling and characteristic calluses. The Veteran used orthotics which did not relieve symptoms in either foot. The Veteran had extreme tenderness of plantar surfaces of both feet which was not improved by orthopedic shoes or appliances. He did not have decreased longitudinal arch height, marked deformity, marked pronation, or inward bowing or marked inward displacement of the achilles tendon of either foot. The examiner found that the condition resulted in functional impairment including pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. The examiner stated that the Veteran is unable to walk or stand for more than 5 to 10 minutes or bend down using his feet, or carry objects weighing more than 10 pounds. The Veteran used a cane for assistance on a regular basis. As noted above, from August 15, 2016, the Veteran’s bilateral plantar fasciitis has been assigned a 50 percent rating under Diagnostic Code 5276. This is the maximum schedular rating available under Diagnostic Code 5276. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered whether it would be more favorable to the Veteran to continue with separate ratings under Diagnostic Code 5284 during this period; however, the Board finds that from August 15, 2016 the Veteran’s symptoms more nearly approximated the pronounced symptomatology described under Diagnostic Code 5276 given symptoms including extreme tenderness of plantar surfaces of the feet, symptoms not improved by orthopedic shoes or appliances, and spasms. Therefore, the Board finds that it is more favorable to evaluate the Veteran’s bilateral plantar fasciitis under Diagnostic Code 5276 based on pronounced disability, rather than under Diagnostic Code 5284 for severe symptomatology, from August 15, 2016. As noted above, effective February 7, 2021 Diagnostic Code 5269 was added to specifically evaluate plantar fasciitis; however, this Diagnostic Code provides for a maximum evaluation of 40 percent; thus, it would not be more favorable to evaluate the Veteran’s bilateral plantar fasciitis under this Diagnostic Code from February 7, 2021. Therefore, the Veteran’s bilateral plantar fasciitis disability is most appropriately evaluated under Diagnostic Code 5276 from August 15, 2016 and the Veteran has been assigned the maximum schedular rating under these criteria. In a March 2021 written brief, the Veteran’s representative generally argued that the Veteran’s bilateral plantar fasciitis warranted an extraschedular rating. The Veteran’s symptoms throughout the periods both prior to and from August 15, 2016 have included pain in the feet, limitations in walking and standing, extreme tenderness in the soles of the feet on use and manipulation, and symptoms not relieved by orthopedic shoes and appliances. The Veteran’s symptoms are contemplated by the pertinent rating criteria, including when considering DeLuca criteria. On December 2020 VA examination the Veteran reported that he felt socially isolated from fear of pain in his feet when moving and that this negatively affected his relationships with his friends and family. However, the Veteran is separately service connected for posttraumatic stress disorder at a 70 percent rating, and such symptoms are already contemplated and evaluated in conjunction with that disability. Therefore, an extraschedular rating on this basis is not warranted as these symptoms are being separately compensated. There are no other symptoms associated with his bilateral plantar fasciitis beyond that which is contemplated by pertinent rating criteria, and the condition does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted. 38 C.F.R. § 3.321. In summary, the Board finds that the preponderance of the evidence is against a finding of entitlement to any higher or separate ratings for bilateral plantar fasciitis from August 15, 2016. The Board has considered the benefit-of-the-doubt doctrine. However, as the weight of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   For the reasons listed above, the claim for a rating in excess of 50 percent for bilateral plantar fasciitis from August 15, 2016, is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.