Citation Nr: 21027351 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-11 163A DATE: May 5, 2021 ORDER Entitlement to an initial rating of 50 percent, but not higher, for a bilateral foot disability, to include plantar fasciitis with calcaneal spurs, is granted. FINDING OF FACT For the entirety of the period on appeal, the Veteran's bilateral foot disability manifested through severe symptoms reflected within Diagnostic Code 5276. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but not higher, for a bilateral foot disability, to include plantar fasciitis and calcaneal spurs, have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5269, 5276, 5284 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1980 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of brief history, the October 2013 rating decision on appeal awarded service connection for right foot plantar fasciitis assigning a non-compensable (zero percent) rating, and denied service connection for the same disability of the left foot. The Veteran timely perfected an appeal of both issues. In October 2018, the Board issued a decision granting an initial 20 percent rating of the service-connected right foot plantar fasciitis and remanding the issue of service connection for a left foot disability. The Veteran appealed the issue of an increased rating of the right foot plantar fasciitis to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Partial Remand (JMPR) to vacate and remand the part of the October 2018 Board decision denying the Veteran entitlement to an initial rating in excess of 20 percent for a right foot disability. Upon return of the right foot disability issue to the Board, another decision was issued in December 2019. The Board again denied an initial rating in excess of 20 percent for a right foot disability. The Veteran appealed the December 2019 decision to the Court, and in August 2020, the Court granted a JMPR vacating that portion of the Board's December 2019 decision denying an initial rating in excess of 20 percent, and remanding this matter to the Board. See No. 20-625, Ct. App. Vet. Cl., August 27, 2020. More specifically, the JMPR granted by the Court detailed that the Board erred in not having considered whether the Veteran's symptoms of plantar fasciitis more closely approximate the next higher rating under Diagnostic Code 5276, considering that the disability is rated by analogy. Running parallel to the appellate course outlined above, was the Veteran's claim for service connection for a left foot disability, previously remanded by the Board in October 2018. A June 2020 rating decision of the agency of original jurisdiction (AOJ), awarded service connection for the left foot disability and in doing so, recharacterized the instant claim as contemplated by the assigned diagnostic code, as one for a bilateral foot disability, specifically- bilateral plantar fasciitis with bilateral calcaneal spurs. The June 2020 rating decision assigned a 30 percent initial bilateral rating. The grant of service-connection for the left foot disability is considered a full award of the benefit sought. However, as this assigned rating for the now service-connected bilateral disability of the feet reflects less than the maximum rating sought for the right foot disability on appeal, over which the Board properly has jurisdiction, the claim, as recharacterized, is addressed below. Increased Ratings Bilateral Plantar Fasciitis with Calcaneal Spurs Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition but is considered a claim for any disability that reasonably may be encompassed by several factors including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Based on Clemons, the evidence of record, and the explanation above, the Veteran's claim includes the findings of bilateral plantar fasciitis and bilateral calcaneal spurs. Generally, disabilities of the feet are evaluated pursuant to Diagnostic Codes 5276 to 5284. These pertain to flatfoot (5276), weak foot (5277), claw foot (5278), metatarsalgia (5279), hallux valgus/rigidus (5280 & 5281), hammer toe (5282), malunion of or nonunion of the tarsal or metatarsal bones (5283) and other foot injuries (5284). 38 C.F.R. § 4.71a. Plantar fasciitis is the "inflammation of the plantar fascia, owing to repetitive stretching or tearing of the muscle fibers near their attachment to the calcaneal tuberosity; it is one the most common causes of heel pain." Dorland's Illustrated Medical Dictionary 684 (32d ed. 2012). Because the Diagnostic Code does not reflect a specific rating for plantar fasciitis or calcaneal spurs, they must be rated by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). As the Court addressed in Copeland, "the fact that the appellant ha[d] been diagnosed with two conditions does not change this analysis; rather, VA must.... apply the DCs that specifically pertain to the listed conditions and determine the appropriate disability ratings." Id. at 337 (finding that VA must rate the appellant's pes planus with hallux valgus under DCs 5276 and 5280 for the specific conditions and not under DC 5284 labeled "Foot injuries, other"). In reaching this conclusion, the Court in Copeland also rejected the argument that DC 5284 should have applied because his service-connected disabilities were not contemplated under a single DC. Id. at 338. Given the Veteran's two diagnoses, bilateral plantar fasciitis and bilateral calcaneal spurs, and following the guidance from the Court in Copeland, the Board has considered whether a separate rating for either of the unlisted conditions, is warranted under Diagnostic Code 5284, for "Foot injuries, other." See Fenderson v. West, 12 Vet. App. 119, 128 (1999) (noting that a veteran who has plantar fasciitis may be evaluated under Diagnostic Code 5284 because it is an unlisted condition). For the following reasons, the Board finds that the Veteran's bilateral foot disability is correctly rated pursuant to Diagnostic Code 5276 and does not warrant a rating under Diagnostic Code 5284. The Court recently addressed a very similar case assessing a disability of plantar fasciitis with pes planus. See Prokarym v. McDonald, 27 Vet. App. 307, 308 (2015). In Prokarym, the Board applied Diagnostic Code 5276 to the appellant's disability, finding that the appellant presented with a "pronounced" condition, entitling him to a bilateral rating of 50 percent. Id. The appellant argued that the rating should have been considered pursuant to Diagnostic Code 5284, and a "severe" rating of 30 percent should have been separately applied for each foot, entitling the Veteran to a combined rating of 50 percent. Id. The Court explained that a "severe" disability under Diagnostic Code 5276 is not equivalent to a "severe" disability under Diagnostic Code 5284, as the difference between the two codes "reflects the Secretary's judgment that a severe foot injury under Diagnostic Code 5284 represents a more disabling condition than severe flatfoot under Diagnostic Code 5276." Id. at 311. The Court further explained that although the appellant's symptoms rose to the level of a "pronounced" disability under Diagnostic Code 5276a degree greater than severe under that codesuch evaluation does not equate to a severe rating under Diagnostic Code 5284. Id. Perhaps most notable in the Prokarym case was the Court's affirmation of the Board's application of Diagnostic Code 5276 to the appellant's plantar fasciitis disability, where it was found that the record "did not contain evidence of foot symptoms other than those contemplated by Diagnostic Code 5276..." Id. at 313. As such, the Court found that the Board properly applied Diagnostic Code 5276 to the Veteran's plantar fasciitis disability. Id. The same holds true in this case, as the Board finds that the record fails to identify symptoms or manifestations of the Veteran's bilateral foot disability which are not contemplated by Diagnostic Code 5276. The Board is also mindful that VA regulations prohibit "pyramiding," or compensating a veteran more than once for the "same disability" or the "same manifestation." See 38 C.F.R. § 4.14. Hence, it is a veteran's symptomatology and not the labels placed on a disability which determines when two conditions constitute the "same disability" or allow for consideration of separate disability ratings. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("We agree with the Veterans Court that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology.") (citing Esteban v. Brown, 6 Vet. App. 259 (1994)). A review of the Veteran's October 2013, February 2016, and August 2019 VA examinations reveal that the bilateral foot disability presents with the following symptoms: extreme plantar tenderness (notably found in 2016, but not in the 2019 examination); pain on use of both feet, accentuated on use and manipulation; decreased longitudinal arch height on weight-bearing; functional loss due to incoordination; impaired ability to execute skilled movements smoothly; interference with sitting and standing (specifically reported in 2016, but not 2019); and flare-ups which reduce the ability to tolerate prolonged ambulation. The Veteran reported that built-up shoes and orthotics relieved some of the pain, but that arch supports were ineffective. Swelling of the right foot has not been indicated, but the 2013 examination reports reflects inward bowing of the right achilles tendon. The two later examinations do not make the same finding, and all three confirm that there is no demonstration of marked pronation, marked deformity, or marked inward displacement of the achilles tendon. Although the 2016 examination report noted the regular use of a cane, the 2013 and 2019 reports note that no assistive devices are utilized by the Veteran. Imaging studies of the feet show the presence of degenerative or traumatic arthritis in both feet. Each of the symptoms described above is contemplated under Diagnostic Code 5276. In evaluating the right foot, the disability on appeal, the Board finds that the maximum rating of 30 percent is warranted. However, because the disability has been recharacterized as one for a bilateral foot disability, the Board grants the maximum bilateral rating pursuant to that criteria, of 50 percent. Although the Veteran does not present with each of the specific symptoms noted therein, the Board finds that the overall disability picture and the resulting functional impact described is reflected within the 50 percent rating. 38 C.F.R. § 4.7. As this is the maximum rating available pursuant to the applicable diagnostic code, a higher rating is not warranted nor available. Moreover, there is no evidence that the Veteran has experienced loss of use of either foot. The ability to stand and walk on her feet, although limited by pain, reflects more function than would have been served by amputation of the feet. Therefore, a higher rating is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284 (2020). The compilation of the VA examinations of record has been considered in deciding this appeal. Given the variation of symptoms from one report to the next, the Board has considered whether separate ratings for different periods of time, based on the facts found, is warranted, a practice of assigning ratings referred to as "staged" ratings. However, in this case, the overall functional impact and severity has remained the same, with the individual symptoms worsening or improving throughout the period on appeal. Considering that the disability is one rated by analogy, such strict adherence to consideration of specific symptoms is not required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, the Board notes that the Schedule of Ratings pertaining to the musculoskeletal system was amended, effective February 7, 2021. The amended regulations include a diagnostic code that pertains specifically to plantar fasciitis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5269, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis; a 20 percent rating is warranted for unilateral plantar fasciitis when there has been no relief from both non-surgical and surgical treatment; and, a 30 percent rating is warranted for bilateral plantar fasciitis when there has been no relief from both non-surgical and surgical treatment. The Board has considered the application of the amended regulations for the period beginning February 7, 2021; however, as the Veteran has multiple foot disabilities manifested by a variety of symptoms, the Board finds that the Veteran's rating is most appropriately assigned under the currently utilized 38 C.F.R. § 4.71a, Diagnostic Code 5276, as that rating criteria most closely contemplates the Veteran's symptomatology related to his bilateral foot disability. Based upon the foregoing, the Board finds that the Veteran's bilateral foot disability warrants an initial rating of 50 percent, but not higher, for pronounced bilateral symptoms of a foot disability. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.