Citation Nr: 21029597 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 10-37 517 DATE: May 14, 2021 REMANDED Entitlement to a higher initial rating in excess of 10 percent for the bilateral plantar fasciitis with arthritis from August 26, 2009 to June 17, 2019 is remanded. Entitlement to a higher initial rating in excess of 30 percent for the bilateral plantar fasciitis with arthritis from June 17, 2019 to February 11, 2020 is remanded. Entitlement to an increased rating in excess of 10 percent for the bilateral pes cavus from August 26, 2009 is remanded. REASONS FOR REMAND 1. Entitlement to a higher initial rating in excess of 10 percent for the bilateral plantar fasciitis with arthritis from August 26, 2009 to June 17, 2019 is remanded. 2. Entitlement to a higher initial rating in excess of 30 percent for the bilateral plantar fasciitis with arthritis from June 17, 2019 to February 11, 2020 is remanded. 3. Entitlement to an increased rating in excess of 10 percent for the bilateral pes cavus from August 26, 2009 is remanded. The Veteran served on active duty from October 1963 to August 1967. This matter is on appeal from an October 2009 rating decision issued by the Regional Office (RO). These issues have been before the Board several times, including in September 2016. The Veteran appealed the September 2016 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In February 2018, CAVC issued a memorandum decision, holding that the Board provided inadequate reasons or bases for its determination that the issue of entitlement to a higher disability rating for plantar fasciitis with degenerative arthritis was not on appeal. The Court also held that the Board erred by failing to consider whether the Veteran is entitled to a separate disability rating under DC 5271 for left ankle limitation of motion. In August 2018, the Board remanded in order to obtain outstanding VA treatment records and for a VA examination. A VA examination was conducted in June 2019. A September 2019 rating decision granted a higher initial rating for 30 percent for the bilateral plantar fasciitis with degenerative arthritis from June 17, 2019. A September 2019 supplemental statement of the case (SSOC) denied an increased rating in excess of 10 percent for the bilateral plantar fasciitis with degenerative arthritis from August 29, 2009 to June 17, 2019. In February 2020, the Board remanded again for both a VA foot examination and a VA ankle examination. VA examinations were conducted in February 2020. A July 2020 rating decision granted a 50 percent (maximum) rating for the bilateral plantar fasciitis/arthritis from February 11, 2020. A November 2020 SSOC denied a higher initial rating for bilateral plantar fasciitis/arthritis in excess of 10 percent from August 29, 2009 to June 17, 2019 and in excess of 30 percent from June 17, 2019 to February 11, 2020. These matters were before the Board again in February 2021. The Board noted that medical evidence was submitted to the record over the course of the appeal but the issue of entitlement to increased rating in excess of 10 percent for the bilateral pes cavus had not been adjudicated. The Board found that the December 2009 and May 2014 VA examinations were inadequate because, although both bilateral pes cavus and bilateral plantar fasciitis/arthritis were diagnosed on these VA examinations, the examiners did not differentiate which symptoms and functional impairments noted on examination were attributable to each service-connected foot disability plantar fasciitis versus pes cavus. The Board's February 2021 remand also noted that when assessing additional factors of disability, such as periods of flare-ups, extent of functional loss, and resulting functional impairment, the VA examiners did not attempt to explain which of the service-connected foot disabilities (plantar fasciitis or pes cavus) causes this additional impairment. The Board remanded for additional VA examination opinions. In March 2021, a VA examination opinion was rendered. The VA examiner explained that the Veteran's "symptoms and functional impairments which include plantar fasciitis, degenerative arthritis, and pes cavus (claw foot) deformities are a direct result and/or fully related to his service-connected pes cavus deformities." The VA examiner also explained that "exacerbations of plantar fasciitis and degenerative arthritis are frequent sequelae of [the Veteran's] pes cavus deformities." These explanations are not responsive to the February 2021 Board remand as they show the interrelatedness of the service-connected foot disabilities, but do not distinguish the symptomatology/impairment caused by the plantar fasciitis from the symptomatology/impairment caused by the pes cavus, or identify what symptoms/impairment are overlapping and cannot be separated. The VA examiner also opined that he did "not visualize any evidence [of the] pes planus deformity on any of his prior x-rays or specifically mentioned in any of his prior clinical visits." The evidence shows that the Veteran was diagnosed with pes planus bilaterally in the May 2014 VA examination and in the right foot in the September 2020 VA examination; therefore, the assumption that there had not been pes planus on prior testing is an inaccurate factual assumption that renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board finds that the March 2021 VA examination is neither responsive nor probative. In this case, service connection was granted for bilateral pes cavus, which was rated 10 percent under Diagnostic Code 5278. Diagnostic Code 5278 rates based on tenderness under the metatarsal head, dorsiflexion at the ankle and toes, shortened plantar fascia, contraction of plantar fascia with dropped forefoot, hammer toes, painful callosities, and marked varus deformity. In this case, the rating for bilateral pes cavus was assigned based on the great toe dorsiflexed with some limitation of dorsiflexion at the ankle. In a November 2014 rating decision, service connection was granted for hallux valgus in the left foot and rated at 10 percent from August 26, 2009 under 5280. Diagnostic Code 5280 rates based on whether there has been an operation with resection of the metatarsal head and whether it is equivalent to amputation of the great toe. In this case, the rating for hallux valgus in the left foot was assigned based on an operation with resection of the metatarsal head. Service connection was also granted for bilateral plantar fasciitis with degenerative arthritis as secondary to the service-connected pes cavus, rated at 10 percent from August 26, 2009 under DC 5010-5276. Diagnostic Code 5276 rates based on pronation, tenderness of plantar surfaces of the feet, inward displacement and spasm of the tendo achillis on manipulation not improved by orthopedic devices, deformity, swelling on use, characteristic callosities, weight-bearing line over or medial to the great toe, inward bowing, pain on manipulation with use of feet. In this case, the rating for bilateral plantar fasciitis was assigned based on pain with the use of the feet and weight-bearing line over the great toe. The Veteran was diagnosed with pes planus bilaterally in the May 2014 VA examination and again in the right foot in the September 2020 VA examination. The September 2020 VA examination diagnosed both pes planus and pes cavus, although these diagnoses appear to be at odds with one another, as one typically contracts the arch while the other flattens the arch. The pes planus is not service connected and cannot be considered when rating the service-connected disabilities. See 38 C.F.R. § 4.14. The Board will remand for a VA examination addendum opinion to assist in adjudicating the issues on appeal, including for the purpose of attempting to differentiate symptoms and functional impairment so as to not rate (compensate) the same symptoms or impairments twice. See 38 C.F.R. § 4.14 (prohibiting rating the same disability under different diagnoses); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Such questions of differentiation of symptoms and impairment are raised in this continued appeal for even higher and separate compensation than already granted because of the multiple diagnoses of foot disabilities with similar symptoms such as tenderness, and diagnosis of non-service-connected foot disability that cannot be considered when rating the foot disability, as well as a quest for service connection for ankle symptoms when ankle symptoms are already in the rating criteria being used to rate the service-connected foot disabilities. The continued appeal raises all these questions and invites close examination of the already granted ratings in order to delineate what symptoms and functional impairment have been assigned to each service-connected disability, as the Board cannot simply adopt pyramiding that may have already occurred in this case of multiple disability ratings, non-service-connected impairment, and claim for service connection a separate ankle disability that involves ankle symptoms for which rating criteria for the service-connected disabilities is already available. The matters are REMANDED for the following action: Request addendum opinions from a VA physician of appropriate expertise (i.e. podiatry or orthopedics). A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. Functional Loss (a.) The VA examiner is requested to fully describe the functional effects caused by the service-connected bilateral pes cavus, including after prolonged repetitive use and flare ups. (b.) The VA examiner is requested to fully describe the functional effects caused by the service-connected bilateral plantar fasciitis with arthritis, including after prolonged repetitive use and flare ups. The VA examiner should elicit relevant information as to the flares or ask the Veteran to describe the additional functional loss, if any, he experiences during flares, and then estimate the functional loss due to flares in terms of range of motion based on all the evidence of record. Symptom Differentiation (c.) Can the symptoms/impairment of the service-connected bilateral pes cavus be differentiated from the symptoms/impairment of the service-connected bilateral plantar fasciitis with arthritis? If so, please specifically differentiate each of the symptoms. (d.) Can the symptoms of the non-service-connected pes planus be differentiated from the symptoms of the service-connected bilateral pes cavus and/or service-connected bilateral plantar fasciitis? If so, please specifically differentiate each of the symptoms. (Continued on the next page) (e.) If symptoms of the non-service-connected pes planus can be differentiated from the service-connected bilateral pes cavus and service-connected bilateral plantar fasciitis, what has been the overall degree of severity of symptoms of the pes planus? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.