Citation Nr: 21029106 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-16 756 DATE: May 12, 2021 ORDER An initial disability rating more than 10 percent for bilateral plantar fasciitis is denied. A staged rating of 10 percent from June 29, 2014, to November 12, 2019; and 30 percent since November 13, 2019, for bilateral claw foot (pes cavus) residuals is granted. FINDINGS OF FACT 1. From June 29, 2014, to February 20, 2021, the Veteran's bilateral plantar fasciitis disability manifested as analogous to acquired flatfoot with pain on use of feet. 2. Since February 21, 2021, the Veteran's plantar fasciitis disability manifested with asymptomatic bilateral plantar fasciitis. 3. From June 29, 2014, to November 12, 2019, the Veteran's pes cavus residuals disability manifested as pain; tendency of the great toe to dorsiflex; some limitation of dorsiflexion at the ankle; and tenderness under metatarsal heads. 4. Since November 13, 2019, the Veteran's bilateral pes cavus residuals disability manifested with marked tenderness under the right metatarsal head; very painful callosities bilaterally; shortened plantar fascia bilaterally; and bilateral dorsiflexion and varus deformity demonstrated as some limitation of dorsiflexion at the ankle. CONCLUSIONS OF LAW 1. From June 29, 2014, to February 20, 2021, the criteria for an initial disability rating more than 10 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2019). 2. Since February 21, 2021, the criteria for a disability rating more than 10 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5269 (2021). 3. From June 29, 2014, to November 12, 2019, the criteria for a 10 percent disability rating for residuals of pes cavus deformity and surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5278 (2019). 4. Since November 13, 2019, the criteria for a 30 percent disability rating for residuals of pes cavus deformity and surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5278 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2008 to June 2014. In October 2018, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. The case was remanded in May 2019 and May 2020 for evidentiary development and for new and addendum medical examinations and opinions. All actions ordered by the remands have been accomplished. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes ("DCs"). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Regulatory Changes effective February 21, 2021 Changes to the schedule for musculoskeletal disabilities became effective February 21, 2021. The amended rating criteria, if favorable to the Veteran's claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Of significance to the Veteran, plantar fasciitis was added as a separate disability and is no longer rated as or with flatfoot (pes planus) under DC 5276 or as a foot injury under DC 5284. Entitlement to an initial disability rating more than 10 percent for bilateral plantar fasciitis status post-surgery The Veteran's service-connected plantar fasciitis disability has been evaluated as 10 percent disabling since June 29, 2014, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5276. As noted above, the Veteran's diagnosis was rated under DC 5276 for flatfoot. The Veteran contends he warrants a higher rating for his plantar fasciitis and that he also warrants a separate rating for bilateral pes cavus. Before the regulatory changes, the Veteran's bilateral plantar fasciitis diagnosis was rating under DC 5276 for flatfoot (pes planus). DC 5276 contemplates a 10 percent rating when a bilateral foot disability is of a "moderate" level, with a weight bearing line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use. A 30 percent rating is warranted when the evidence shows "severe" disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities. A 50 percent rating is warranted when the evidence shows pes planus that is "pronounced" in nature, with symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, and lack of improvement after use of orthopedic shoes or appliances. As of February 21, 2021, the Veteran's plantar fasciitis can be evaluated separately under DC 5269. DC 5269 indicates unilateral or bilateral plantar fasciitis warrants a 10 percent evaluation. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Notes to this DC indicate that the actual loss of the use of either foot due to plantar fasciitis warrants a 40 percent rating. See 38 C.F.R. § 4.71a, DC 5269, Note 1. A second note indicates that 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. Id. at Note 2. Under DC 5278 for acquired claw foot (pes cavus), a noncompensable rating is warranted for slight claw foot. A 10 percent rating is warranted for unilateral or bilateral claw foot that manifests with great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under metatarsal heads. When claw foot manifests as all toes tending toward dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads, a 20 percent rating is warranted for unilateral claw foot, and a 30 percent rating is warranted for bilateral claw foot. When claw foot manifests as marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, unilateral claw foot warrants a 30 percent rating and bilateral claw foot warrants a 50 percent rating. DC 5284 for other foot injuries indicates a moderate foot injury warrants a 10 percent rating. A moderately-severe foot injury warrants a 20 percent rating. And a severe foot injury warrants a 30 percent rating. Terms such as "mild," "moderate" and "moderately severe" are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is "equitable and just." See 38 C.F.R. § 4.6. At the June 2013 VA medical examination in conjunction with an in-service Medical Evaluation Board, the Veteran reported bilateral foot pain after his 2012 osteotomy surgery on his first metatarsal. Since then, he reported bilateral foot pain to include burning, aching, sharp, and cramping, that flared during physical activity and consistent sitting. He also endorsed pain, weakness, stiffness, and fatigue. On examination the Veteran demonstrated moderate tenderness over the bilateral plantar surfaces, with no painful motion, edema, disturbed circulation, weakness, atrophy, heat, redness, or instability. The examiner noted active motion of the metatarsal joint of the left great toe. Both feet demonstrated normal alignment of the Achilles tendon during weight bearing and non-weight bearing testing. The examiner noted pes planus and pes cavus was not present, with no hammer toes, hallux valgus or rigidus, and that arch support in shoes was not needed. Imaging for the left foot revealed screws near the first metatarsal; two screws in the calcaneus; evidence of remodeling the dorsal aspect of the calcaneus; a partial fracture line in the calcaneus; and a small retrocalcaneal heel spur. Imaging for the right foot revealed retrocalcaneal heel spur; remodeling of both the dorsal and ventral aspects of the calcaneus; two screws near the first metatarsal; and two sets of screws in the calcaneus. The examiner diagnosed the Veteran with a bilateral foot condition with pain status post-surgery; bilateral retrocalcaneal heel spurs; and bilateral plantar fasciitis. Functional impact of the Veteran's bilateral food condition included pain with prolonged standing and an inability to run. In a September 2013 memorandum, the Medical Evaluation Board physician reevaluated the Veteran's diagnoses from his June 2013 VA medical examination. The examiner explained that the Veteran's pes cavus deformity was congenital; that its preexisted service, but that it was permanently aggravated by his service. He changed the diagnosis listed on the VA medical examination from bilateral foot condition to bilateral cavovarus foot deformity with pain status post-surgery. In a February 2014 statement, the surgeon that performed the Veteran's bilateral reconstructive ankle and foot surgeries explained that the Veteran presented as a new patient in November 2011 with moderate to severe claw foot deformity with marked contraction of plantar fascia, painful callosities, marked varus hindfoot deformity bilaterally with concomitant but mild to moderate ankle arthritis. The surgeon performed reconstructive cavovarus surgery which included calcaneal osteotomies and first metatarsal osteotomies, soft tissue stabilization, and peroneal tendon reconstruction. The surgeon noted although rehabilitation went well, the Veteran currently demonstrated mild residual deformity, pain, and swelling that interfered with service duties and activities of daily living. The surgeon recommended a medical board separation. The examiner finally noted that the Veteran demonstrated persistent lateral forefoot callosities, metatarsalgia, and mild residual hindfoot varus deformity bilaterally, with mild residual tendency for his toes to dorsiflex or claw. In August 2014 the Veteran established care at his local VA medical center (VAMC). He reported bilateral foot pain, with calluses under the 2nd and 5th metatarsal. He reported treatment with over-the-counter pain relief medication. He was referred to an orthopedic for a followup consultation. In a followup orthopedic note, the VA examiner advised the Veteran to use orthotics for his bilateral foot pain. Imaging indicated reconstructive surgery and osteotomy with no significant soft tissue swelling. In November 2014 the Veteran complained of bilateral pain and tightness in his feet. He reported pain was minimal when sitting or when wearing sandals, but became aggravated with prolonged standing and walking. On physical examination the Veteran's bilateral ankle range of motion was within functional limits; no tenderness to palpation; with intact sensation. The examiner assessed the Veteran with minimal pain and advised the Veteran to maintain stretching and strengthening exercises and to order shoe insoles. At a November 2017 VA medical examination for foot conditions, the examiner noted the Veteran's January 2012 and August 2012 bilateral foot reconstructive surgeries. The examiner noted that in August 2014 the Veteran complained of bilateral foot pain with tightness after walking a half an hour or a half a mile, and that he ordered shoe inserts. In 2015 the Veteran reported decreased sensation bilaterally, that he avoided weight bearing by walking on his heels, and that he could no longer run. The examiner noted the Veteran did not endorse pain, flareups or functional loss or impairment due to repetitive use or during flareups. The examiner noted the Veteran did not demonstrate flatfoot; metatarsalgia; hammer toes; hallux valgus; hallux rigidus; acquired claw foot; malunions; or foot injuries or other conditions. The examiner also noted the Veteran did not demonstrate any residuals from his 2012 surgeries. The examiner noted no pain on physical examination and that his disability was asymptomatic when sedentary. The examiner noted the Veteran did not use any assistive devices. The examiner noted August 2014 imaging did not indicate degenerative or traumatic arthritis. At a November 2019 VA medical examination for foot conditions, the examiner diagnosed the Veteran with dormant bilateral plantar fasciitis that was asymptomatic; and bilateral callosities. The Veteran endorsed self-treatment to include rest; stretching; strengthening; shoe changes; pad cushioning; and anti-inflammatory agents. The Veteran denied using arch supports or night splints. The Veteran endorsed second metatarsal pain; numbness for the entire bottom of both feet, to include when standing; stiffness; and "popping" sounds first thing in the morning. The Veteran reported he stopped all athletic activities due to his bilateral foot disability, with pain at the second metatarsal head. The examiner noted the Veteran did not report pain, flareups, or functional loss or impairment due to repetitive use or flareups. The examiner noted the Veteran did not demonstrate flatfoot symptomatology; metatarsalgia; hammer toes; hallux valgus; hallux rigidus; acquired clawfoot; malunion or nonunion of tarsal or metatarsal bones; and any other foot injuries. Although the examiner noted the Veteran did not demonstrate claw foot, the examiner endorsed that the Veteran demonstrated pain and tenderness due to bilateral pes cavus; marked tenderness under the right metatarsal head; very painful callosities bilaterally; shortened plantar fascia bilaterally due to pes cavus; and bilateral dorsiflexion and varus deformity demonstrated as some limitation of dorsiflexion at the ankle due to pes cavus. The examiner also noted tender scars. The Veteran demonstrated pain on physical exam bilaterally that contributed to functional loss, with pain on weight bearing bilaterally. The examiner noted pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flareups or with repetitive use. The examiner noted the Veteran reported numbness and tingling at the bottom of both his feet secondary to a B12 vitamin deficiency. The examiner remarked the Veteran's plantar fasciitis was asymptomatic, was not a joint, and did not impact his ability to perform occupational tasks. In a March 2021 addendum opinion, a VA examiner reviewed the Veteran's claims file, to include the Veteran's service treatment records, VA medical examination reports and opinions. The examiner noted a special emphasis was given to the September 2013 opinion from the MEB physician. The examiner explained that the Veteran's plantar fasciitis and painful callosities were separate conditions and that plantar fasciitis did not cause or aggravate callosities. The examiner opined that the Veteran's callosities were more likely than not secondary to the Veteran's history of bilateral cavovarus deformity. The examiner then indicated that the September 2013 synopsis strongly suggested that the Veteran's foot conditions and symptoms were all incurred in service and related to his cavovarus deformity. The examiner agreed with this synopsis and explained that while the opinion was technically negative regarding the relationship between plantar fasciitis and callosities, both conditions were secondary to his cavovarus deformities and subsequent surgeries. The examiner also explained that the Veteran's callosities were not being aggravated beyond the natural course of the condition by the Veteran's plantar fasciitis. The examiner explained that the Veteran's callosities, which were likely to continue to grow, were secondary to the pressure being placed on the foot due to the abnormal architecture of the foot and were not related to the plantar fasciitis. Therefore, the examiner opined that it was less likely than not that the Veteran's pes cavus symptomatology was proximately due to or aggravated by his plantar fasciitis disability. From June 29, 2014, to February 20, 2021, the Veteran's bilateral plantar fasciitis disability manifested as analogous to acquired flatfoot with pain on use of feet, and warrants a 10 percent evaluation. A higher evaluation is not warranted because the Veteran's plantar fasciitis disability did not manifest as analogous to marked deformity; pain on manipulation and use accentuated; indicating of swelling on use; or characteristic callosities. Since February 21, 2021, the Veteran's plantar fasciitis disability manifested with asymptomatic bilateral plantar fasciitis and warrants a 10 percent rating under DC 5269. A higher rating is not warranted because the Veteran's plantar fasciitis was not symptomatic. However, the Veteran also has residual symptomatology from his pes cavus deformity and in-service reconstructive surgery that warrants a separate evaluation. From June 29, 2014, to November 12, 2019, the Veteran's pes cavus residuals disability manifested as pain; tendency of the great toe to dorsiflex; some limitation of dorsiflexion at the ankle; and tenderness under metatarsal heads, and warrants a 10 percent rating under DC 5278. A higher rating is not warranted because the Veteran's bilateral pes cavus residuals disability did not manifest with more toes tending toward dorsiflexion; limitation of dorsiflexion at ankle to right angle; shortened plantar fascia; and marked tenderness under metatarsal heads. Since November 13, 2019, the Veteran's bilateral pes cavus residuals disability manifested with marked tenderness under the right metatarsal head; very painful callosities bilaterally; shortened plantar fascia bilaterally; and bilateral dorsiflexion and varus deformity demonstrated as some limitation of dorsiflexion at the ankle, and warrants a 30 percent rating. A higher rating than now assigned is not warranted because the Veteran's bilateral pes cavus residuals disability did not demonstrate with marked contraction of plantar fascia with dropped forefoot; all toes hammer toes; very painful callosities; and marked varus deformity. Given these facts, the preponderance of the evidence is against the claim for an increased rating for plantar fasciitis under either DC 5276 prior to February 21, 2021, or under DC 5269 since February 21, 2021, and the appeal will be denied. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). In addition, the Board finds that the preponderance of the evidence is against the assignment of an increased rating greater than 10 percent from June 29, 2014, to November 12, 2019, and 30 percent since February 13, 2019 for the Veteran's residuals from his pes cavus deformity and surgery under DC 5278 during the relevant period. See Hart v. Mansfield, supra. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, supra. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.