Citation Nr: 21027272 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-09 731 DATE: May 5, 2021 ORDER A rating in excess of 10 percent prior to June 19, 2018 and 30 percent thereafter for bilateral plantar fasciitis under Diagnostic Code 5284 is denied. FINDINGS OF FACT 1. Prior to June 29, 2018, the Veteran's bilateral plantar fasciitis was indicative of a moderate disability; and did not result in bilateral pronounced symptoms, including 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 orthotic shoes or appliances. 2. As of June 29, 2018, the Veteran's bilateral plantar fasciitis is indicative of a severe disability; and does not result in bilateral pronounced symptoms, including 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 orthotic shoes or appliances. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to June 29, 2018, and 30 percent thereafter for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276, Diagnostic Code 5269 (in effect February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1990 to June 1999, October 2001 to October 2003, and August 2007 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue in February 2018 for further development, and in a February 2020 Board decision denied an increased rating of 10 percent for the Veteran's bilateral plantar fasciitis prior June 29, 2018 and awarded an increased rating of 30 percent thereafter under Diagnostic Code 5284-5276. Thereafter, the Veteran appealed such decision to the United States Court of Appeal for Veteran's Claims (Court) and, in November 2020, the Court issued a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board's February 2020 decision to the extent that the Board failed to consider whether the Veteran was entitled to separate rating for each foot under Diagnostic Code 5284 for his service-connected bilateral plantar fasciitis for either period on appeal. The case now returns to the Board for further appellate review. Entitlement to a rating in excess of 10 percent prior to June 19, 2018 and 30 percent thereafter for bilateral plantar fasciitis under Diagnostic Code 5284. As an initial matter, the Board notes the JMPR was narrow in scope. In this regard, as set forth in their JMPR, the parties identified one deficiency in the Board's February 2020 decision, namely the Board's failure to consider whether the Veteran was entitled to a separate rating for each foot under Diagnostic Code 5284 for his service-connected bilateral plantar fasciitis. In this regard, "when an attorney agrees to a Joint Motion for Remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier v. Nicholson, 19 Vet. App. 414, 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed." Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Here, neither the Veteran nor his representative has raised any challenge or issue beyond that addressed in the JMPR. Based on the foregoing, and in the interest of administrative efficiency, the Board will proceed by addressing only that aspect of its February 2020 decision that the parties identified as inadequate. Id. 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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When a disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. § 4.20. Plantar fasciitis is not listed under VA's rating schedule; however, prior to February 7, 2021 it is typically rated under Diagnostic Code 5276 as its symptomatology is analogous to pes planus. See VA Adjudication Procedures Manual M21-1, III.iv.4.A.7.e; 38 C.F.R. § 4.71a. As of February 7, 2021, plantar fasciitis is rated under new Diagnostic Code 5269 which provides that a 30 percent rating is warranted when there is bilateral plantar fasciitis with is no relief from both non-surgical and surgical treatment. A 20 percent rating is warranted for unilateral plantar fasciitis when there is no relief from both surgical and non-surgical treatment. Otherwise, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis. Note (2) states that if a veteran has been recommended for surgery, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). The Board also notes the Veteran is diagnosed with two additional foot disorders; bilateral pes planus and bilateral hallux valgus. However, while he is service connected for hallux valgus, he is not service connected for pes planus, or flatfoot. In this regard, Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for a unilateral disability, and is rated 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for a unilateral disability, and is rated 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a. The words "slight," "moderate," "severe," and "pronounced," as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. In the instant case, prior to June 29, 2018, the Veteran's symptoms included pain and swelling. There was no evidence of marked deformity, but there was evidence of mild pain on manipulation along the entire plantar aspect of the feet at a January 2013 VA examination, however, there was no swelling or calluses noted. There is also evidence of pain on use and accentuated on manipulation, and pain on manipulation and pain accentuated on manipulation per a May 2014 VA examination. No swelling on use or callosities were noted. At his June 2018 VA foot examination, the Veteran reported pain and stated he could only walk one block without pain and rest improved the pain. The Veteran reported that flare-ups impacted the function of the foot and after heavy exertion there is pain for 2-3 days, treated with rest. The Veteran reported having functional loss where he could not stand or walk for long periods. He tried orthotics but remained symptomatic. There was no indication of swelling on use, no characteristic callouses, and the Veteran did not have extreme tenderness of plantar surfaces on either foot. Decreased longitudinal arch height of one or both feet on weight-bearing bilaterally was noted, but there was no objective evidence of marked deformity of either foot (pronation, abduction, etc.) or marked pronation of either foot. Pain on both feet was noted on physical exam contributing to functional loss. Functional loss was noted with contributing factors such as bilateral pain on weight-bearing, bilateral disturbance of locomotion, bilateral interference with standing, and bilateral lack of endurance. Pain, weakness, fatigability, or incoordination significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time with increased pain for 2-3 days after heavy exertion, treated with rest and elevation of the foot. He also has trouble walking even short distances and leaving the house during flare-ups. Use of a brace and cane was reported. The examiner noted imaging studies from January 2011 indicating bilateral pes planus, right calcaneal spur, and bilateral osteoarthritis. The examiner reported that there was evidence of pain on passive range of motion testing and evidence of pain when the joint is used in non-weight bearing. Regarding ROM, active motion was the same as passive motion and passive motion was the same as active motion, and weight-bearing and non-weight-bearing ROM are the same. Finally, the examiner indicated that the Veteran's motion was limited by pain. In this regard, the Veteran's symptoms for the period before and after June 29, 2018 are contemplated by Diagnostic Code 5276. Specifically, prior to June 29, 2018, the Veteran was noted to have pain on use, pain on manipulation and pain accentuated on manipulation, but no swelling on use, callosities, or marked deformity. Such symptoms are commensurate with the 10 percent rating criteria. Thereafter, he was noted to have pain on use, pain on manipulation and use accentuated, without swelling on use, or characteristic callosities. However, decreased longitudinal arch height of one or both feet on weight-bearing bilaterally was noted and the Veteran used arch supports, but remained symptomatic. Such symptoms are commensurate with the 30 percent rating criteria. The Board will also consider Diagnostic Code 5284, Foot Injuries, Other. See Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (if a given foot disability is not a listed disability under another Diagnostic Code, the Board must consider whether to rate foot disability by analogy under Diagnostic Code 5284). As a matter of law, Diagnostic Code 5284 does not apply to the eight-foot conditions specifically listed in § 4.71a, and so listed conditions cannot be rated under that Diagnostic Code as it would constitute an impermissible rating by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). However, as mentioned supra, prior to February 7, 2021, plantar fasciitis is not a listed foot condition; therefore, Diagnostic Code 5284 will be considered. In this regard, under Diagnostic Code 5284, the criterion for a 10 percent rating is a moderate foot injury. The criterion for a 20 percent rating is a moderately severe foot injury. The criterion for a 30 percent rating, the maximum schedular rating under Diagnostic Code 5284, is a severe foot injury. Actual loss of use of the foot is rated at 40 percent. However, Diagnostic Code 5284 is generally limited to disabilities resulting from specific injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions. See Yancy v. McDonald, 27 Vet. App. 484 (2016). The Board concludes, however, that Diagnostic Code 5284 is not applicable to the Veteran's bilateral plantar fasciitis as the symptoms of his disability are expressly contemplated under Diagnostic Code 5276. Specifically, separate ratings under Diagnostic Code 5284 are not warranted as the clear intent of such code is to encompass disabilities not contemplated by the other diagnostic codes of the foot, as evidenced by its title of "Foot injuries, other." The Board finds that, in order to qualify for an increased disability rating under Diagnostic Code 5284, the Veteran's bilateral plantar fasciitis would need to include symptoms not appropriately contemplated by Diagnostic Code 5276. As stated supra, Diagnostic Code 5276 rates bilateral, acquired flatfoot on the severity of the impairment, as well as evidence of deformity, pain, and swelling. As such, the application of Diagnostic Code 5284, for "other foot injuries," would not be appropriate in this case where the Veteran's symptoms are adequately addressed under Diagnostic Code 5276, which specifically considers symptoms such as pain, pronation, tenderness, pain on palpitation, inward bowing of his achilles tendon, pronation of gait, and foot spasms. Additionally, the Veteran indicated his bilateral plantar fasciitis syndrome is not related to a specific injury, as necessary for rating under Diagnostic Code 5284. See May 2014 VA examination. Further, as noted supra, the Board observes that, as of February 7, 2021, VA has amended the Rating Schedule to include plantar fasciitis, which would preclude rating under Diagnostic Code 5284, as such would constitute an impermissible rating by analogy after such date. The Board also finds that a higher rating for bilateral plantar fasciitis is not warranted under Diagnostic Code 5284. In order for a higher rating to be warranted under Diagnostic Code 5284, the evidence of record must demonstrate symptoms analogous to a moderate injury to each foot. See 38 C.F.R. §§ 4.25, 4.26, 4.71a, Diagnostic Code 5248 (2018). As found above, the Veteran's service-connected plantar fasciitis has been manifested by bilateral foot pain on use, pain on manipulation, and pain accentuated on manipulation. The 30 percent rating already assigned under Diagnostic Code 5276 also contemplates additional symptoms, including marked deformity, abduction, swelling, and callouses, which the Veteran does not have. Therefore, it would not be equitable and just to find that the Veteran's symptoms of bilateral plantar fasciitis are analogous to a moderate injury of each foot such that a higher rating would be warranted when the currently-assigned rating under Diagnostic Code 5276 contemplates more severe symptoms than the Veteran has. See 38 C.F.R. § 4.6. Accordingly, the Board finds that a higher rating is not warranted under Diagnostic Code 5284. Furthermore, the Board finds that, to assign separate ratings under Diagnostic Code 5276 (5269 as of February 7, 2021) and Diagnostic Code 5284 for the same symptomatology would be tantamount to pyramiding as the Veteran would be compensated twice for the same manifestations of his bilateral plantar fasciitis. See Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that separate ratings may be assigned if the symptomatology is not duplicative or overlapping). The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral plantar fasciitis; however, the Board finds that the symptomatology referable to such disability has been stable throughout each of the aforementioned periods on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in connection with his increased rating claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against his claim for a rating in excess of 10 percent prior to June 29, 2018, and in excess of 30 percent thereafter for bilateral plantar fasciitis, or any additional separate ratings, the doctrine is not applicable in such regard, and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.