Citation Nr: 21030413 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-37 586 DATE: May 18, 2021 ORDER Prior to December 30, 2020, an initial rating in excess of 30 percent for bilateral pes planus (flat feet) with plantar fasciitis and calcaneal enthesopathy is denied. From December 30, 2020, an initial rating of 50 percent for bilateral flat feet with plantar fasciitis and calcaneal enthesopathy is granted. FINDINGS OF FACT 1. Prior to December 30, 2020, the Veteran's bilateral flat feet with plantar fasciitis and calcaneal enthesopathy have been manifested with pain, muscle spasms, characteristic callosities, and occasional swelling, use of shoe inserts, and limitations on standing, and walking, but not by marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement or severe spasm of tendo achillis on manipulation, which were not improved by orthopedic shoes or appliances. 2. Since December 30, 2020, the Veteran's bilateral flat feet with plantar fasciitis and calcaneal enthesopathy have manifested with marked pronation which was not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. Prior to December 30, 2020, the criteria for an initial rating in excess of 30 percent for bilateral flat feet, plantar fasciitis and calcaneal enthesopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.71a, Diagnostic Code 5276. 2. From December 30, 2020, the criteria for a 50 percent initial rating for bilateral flat feet, plantar fasciitis and calcaneal enthesopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from December 1990 to November 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been remanded several times, including an October 2014 remand pursuant to a Joint Motion for Partial Remand (JMPR), which directed the Board to consider whether separate ratings were warranted for the Veteran's service-connected foot disabilities and whether the Veteran was entitled to a rating in excess of 30 percent for his bilateral pes planus. In January 2019, after additional development, the RO granted service connection for bilateral hallux valgus with degenerative joint disease of the big toe joint and assigned an evaluation of 10 percent for each foot, the maximum schedular evaluation allowed under the law for hallux valgus. In May 2019, the Board remanded the Veteran's claim for a rating in excess of 30 percent for his bilateral flat feet with plantar fasciitis and calcaneal enthesopathy for a new VA examination based on the Veteran's allegations of worsening. The case now returns to the Board after satisfactory completion of the ordered development; therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased rating. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Pes Planus with Plantar Fasciitis and Calcaneal Enthesopathy During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under Diagnostic Code 5276, which was not changed by February 2021 regulation, moderate pes planus warrants a 10 percent rating when the weight-bearing line is over or medial to the great toe, there is inward bowing of the Achilles tendon, or pain on manipulation and use of the feet (bilateral or unilateral). A 30 percent rating may be assigned for severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, or characteristic callosities. A maximal 50 percent rating may be assigned for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. While some of the symptoms listed in the rating criteria of Code 5276 are conjunctive - e.g., "pain on manipulation and use accentuated" - the rating criteria themselves are not. In other words, a veteran does not need to demonstrate all of the symptoms under a particular rating to be assigned that evaluation. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (discussing how some DCs, such as DC 7903 for hypothyroidism, are not conjunctive); Dyess v. Derwinski, 1 Vet. App. 448 (1991). Where a disability manifests in some criteria from a lower evaluation and some criteria for a higher evaluation, the Board should address 38 C.F.R. §§ 4.7 and 4.21 and explain which evaluation the disability more nearly approximates. Disabilities of the feet are also rated under Diagnostic Codes 5277 through 5284. 38 C.F.R. § 4.71a. These Codes were not affected by the February 2021 regulatory changes. Diagnostic Code 5277 pertains to bilateral weak foot, Diagnostic Code 5278 addresses claw foot (pes cavus), Diagnostic Code 5279 rates anterior metatarsalgia, Diagnostic Code 5280 pertains to hallux valgus, Diagnostic Code 5281 addresses hallux rigidus, Diagnostic Code 5282 rates hammer toe, Diagnostic Code 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones, and Diagnostic Code 5284 addresses other foot injuries. The February 2021 regulatory changes created a new Diagnostic Code for plantar fasciitis Diagnostic Code 5269. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). Code 5269 provides a maximum rating of 30 percent for bilateral plantar fasciitis when there has been no relief of symptoms from both non-surgical and surgical treatment. A 20 percent rating is assigned when there is unilateral plantar fasciitis that was not relieved by both non-surgical and surgical treatment. Otherwise, unilateral and bilateral plantar fasciitis is assigned a 10 percent rating. Note (1) provides that if there is actual loss of the use of the foot due to plantar fasciitis, it should be rated as 40 percent. Note (2) explains that if a Veteran has been recommended for surgical intervention, but is not a surgical candidate, the disability should be evaluated under the 20 percent or 30 percent criteria, as applicable. VA medical treatment records show complaints of foot pain, diagnoses for pes planus and plantar fasciitis as well as treatment including prescription orthotic inserts and pain medication. Overall, treatment records generally documented normal foot examinations, and the Veteran's foot disabilities were treated with custom orthotic inserts. The Veteran was provided with VA examinations in July 2009, May 2011, February 2015, May 2016, November 2018, and December 2020. At the July 2009 VA examination, the Veteran reported that he had daily foot pain with an 8/10 intensity and flare-ups occurred once or twice a week. During flare-ups, the Veteran's foot pain increased to a 10/10 intensity. The Veteran reported that his flare-ups were relieved with one to two hours rest. The Veteran denied invasive treatment for his foot disabilities, describing his custom orthotics as helpful. The Veteran stated that his weight-bearing was limited to an hour or less before he had to sit down due to arch pain. However, he told the examiner that he was able to complete all routine yard, household, vehicle maintenance and repair tasks except those that required standing or walking for more than an hour. X-rays of the Veteran's feet showed mild bilateral pes planus, calcaneal enthesopathy and mild degenerative joint disease in his big toe joints. The examiner also diagnosed the Veteran with bilateral plantar fasciitis. Physical examination showed tenderness to palpation along the entire bilateral longitudinal plantar arches with normal skin and nails. The Veteran's Achilles' tendons were non-tender and in normal alignment bilaterally, although there was four degrees of valgus angulation of the os calcis in relationship to the long axis of the tibia bilaterally. The Veteran's ankles were normal without ligamentous laxity. There were no fixed or flexible hind, mid or forefoot deformities or abnormal motion and no evidence of abnormal weightbearing. The examiner noted that there was no apparent pain, loss of motion, weakness, fatigability, or loss of coordination during or following three repetitions of range of motion. In May 2011 at the VA examination, the Veteran described chronic foot pain lasting at least half of the day, but described being able to drive and do normal activities of daily living. He denied flare-ups, incoordination, excess fatigue, or lack of endurance. On examination, bilateral hallux valgus was observed, although the Veteran was able to flex his toes 10 degrees on both feet. His right Achilles tendon was aligned, but there was a four centimeter callus over the posterior os calcis in the area of the insertion of the Achilles tendon, which was described by the examiner as the only evidence of abnormal weight bearing. The skin on the Veteran's feet was soft and good peripheral circulation was documented. The examiner recorded no change in the range of motion, coordination, fatigue, or lack of endurance. At the February 2015 VA examination, the Veteran reported constant pain that was not prevented by orthotic inserts. He described avoiding walking on concrete and only being able to walk for an hour or two before his feet started hurting. He related feelings of numbness in both of his feet, especially in the mornings. The Veteran rolled a tennis ball or Coke bottle under his feet to help with his foot pain, but this did not fully relieve the pain. He denied flare-ups of his foot disabilities. The examiner documented that the Veteran had pain on use of his feet, which was accentuated on use. However, there was no pain noted on manipulation of his feet, no indication of swelling on use and no characteristic calluses. The Veteran had decreased longitudinal arch on both feet, although he did not have extreme tenderness on the plantar surface of either foot. The examiner stated that there was evidence of marked deformity of either or both feet, but then clarified this answer, stating that there was no "marked deformity" but significant pes planus and loss of the longitudinal arch. Examination did not show marked pronation, a weightbearing line falling over or medial to the great toe, "inward" bowing of the Achilles tendon, or rigid hindfoot on manipulation. The examiner stated that there were no calluses, but the Veteran explained that he uses Epsom salt to remove his calluses. The examination showed marked bilateral forefoot valgus of 30 degrees, but no tibial torsion. The Veteran's shoes were relatively new and there was no significant wear pattern on them. The Board notes that the February 2015 and May 2016 examinations were conducted by the same VA examiner. In both reports, the examiner stated that there was no pain on examination of either of the Veteran's feet, but failed to provide a rationale despite the Veteran's report of foot pain. The examiner also concluded that there was no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over time. However, the examiner provided no explanation for these conclusions in light of the Veteran's descriptions of constant foot pain. Accordingly, the Board affords these conclusions no probative weight. At the May 2016 VA examination, the Veteran reported similar symptoms regarding his feet with his average pain at 7/10 intensity. He also told the examiner that his feet swell by the end of the day. Examination showed that the Veteran had pain on use of his feet, but did not have pain on manipulation of his feet, indications of swelling on use or characteristic calluses. There was no extreme tenderness of plantar surfaces on one or both feet, but the Veteran did have decreased longitudinal arch height on both feet. The examiner noted that there was no objective evidence of marked deformity or marked pronation of either foot and the Veteran's weight-bearing line did not fall over or medial to the great toe. The Veteran did not have marked inward displacement or severe spasm of the Achilles tendon. Again, the examiner did not observe calluses on the Veteran's feet, but the Veteran reported that he removed the calluses with Epson salt. However, the examiner did document a callus on the Veteran's great toe and spurring at the Achilles tendon insertions. The examiner characterized the Achilles tendon spurring as asymptomatic. The November 2018 VA examiner diagnosed the Veteran with bilateral flat feet, plantar fasciitis, hallux valgus and degenerative arthritis in the joint at the base of the big toe. The Veteran described bilateral daily foot pain and spasm that he treated with orthotics, ibuprofen and by rolling his foot on a tennis ball. He reported that he has flare-ups on a daily basis, with aching foot pain, with intermittent spasms, tingling and numbness. The Veteran told the VA examiner that due to his foot disabilities he has had to stop running and lost up to a week of work time in the past 12 months. Physical examination showed bilateral foot pain on use and manipulation. There was no evidence of a marked deformity and no marked pronation or other deformities caused by the alteration of the weight-bearing line. The Veteran's weight bearing line was not over or medial to his great toe, and there was no inward bowing, displacement, or spasm of his Achilles tendon. The most recent VA examination was conducted in December 2020. The Veteran said that he experienced foot pain every day, starting after he had been on his feet for an hour. The more the Veteran is on his feet, the worse the pain in his feet becomes, and at times it will start going up his legs and his feet will become less flexible. Flare-ups of his feet occur daily and last about eight hours and during flare-ups he has trouble walking. Examination showed that the Veteran had pain on use and manipulation of his feet as well as characteristic calluses on both feet. The examiner noted that the Veteran did not have extreme tenderness of plantar surfaces of his feet or objective evidence of marked deformity or pronation on either foot. The Veteran's weight bearing line fell over or medial to the great toe on both feet. However, he did not have inward bowing of the Achilles' tendon, marked inward displacement or severe spasm of the Achilles' tendon. The examiner noted that the Veteran's foot disability caused pain on both weight-bearing and non-weightbearing as well as a disturbance of locomotion and standing due to a decrease in range of motion of the Veteran's feet and toes during flares. Even at rest, the Veteran has foot pain which increases with weight bearing. With repetitive use over time, the Veteran has trouble walking as his feet become tired and less flexible. The examiner noted that the Veteran's foot disabilities limit all of his weightbearing activities. In May 2021, the Veteran submitted a statement. He reported that he had pain, tenderness, stiffness, loss of inner foot arch that caused his Achilles to bow into a backwards "c" shape, and spasms in both feet daily. He stated that the pain can be described as burning, stabbing, throbbing, and aching. By the end of the day, his feet were painful. The symptoms were exacerbated if he did any activity or movements that involved prolonged standing or walking, standing up and walking, using stairs, running and jogging. The Veteran avoided things that required him to be on his feet for a prolonged period such as walking around in a store, yard work, playing with his children, long car rides, sports, hiking and dancing which can cause pain. He developed calluses on the outside edge of his right foot and his left foot. The Veteran noticed that his feet tilted inward and outer aspects of his shoes always wear down. He continued to wear custom-made shoe inserts for good arch support which does not always help with the pain. He took Diclofenac and Advil to treat his pain. He also reported mood changes, low sex drive, irritability, difficulty enjoying social interactions, poor balance, and a hard time staying on task. Prior to December 30, 2020, the Board finds that a rating in excess of 30 percent under Diagnostic Code 5276 is not warranted. The Board recognizes the Veteran's reports of constant intense foot pain, spasms and swelling on use that limit his ability to walk. Though the Veteran is competent to report that he has experienced swelling, tenderness and pain, neither treatment records nor the five VA examinations conducted between 2009 and 2018 documented the marked pronation, extreme plantar tenderness, severe spasm and inward displacement of the tendo achillis on manipulation described by Code 5276. Throughout this period, the Veteran continued to work as a federal security guard, which required fairly extensive walking and standing by the Veteran's report. Despite this, at the November 2018 VA examination, the Veteran reported losing no more than a week's work in the past 12 months. Treatment records indicate that doctors have not recommended more aggressive treatment, such as surgery or injections. The Board has considered the Veteran's statements, but attributes greater probative value to the objective examination findings and finds that the Veteran's bilateral pes planus with plantar fasciitis and calcaneal enthesopathy was not akin to a pronounced disability prior to December 30, 2020. However, since December 30, 2020, the Board finds that the Veteran's bilateral pes planus with plantar fasciitis and calcaneal enthesopathy warrants a 50 percent rating under Code 5276. At the December 2020 VA examination, the Veteran described near constant foot pain that worsened with weightbearing, especially after standing for an hour. The VA examiner noted that the Veteran's foot disabilities limited his ability to perform weightbearing activities. Additionally, physical examination showed marked pronation and that the Veteran's weightbearing line was over or medial to his great toe. The examiner also noted foot pain on non-weightbearing, and the loss of flexibility which occurred during flare-ups and after repeated use over time interfered with the Veteran's locomotion. The objective evidence is consistent with the Veteran's reports of worsening symptoms. Therefore, a rating of 50 percent since December 30, 2020 is warranted. As noted above, the Veteran was awarded separate ratings of 10 percent under Code 5281 for his bilateral hallux valgus with degenerative joint disease in a January 2019 rating decision. As this is the maximum schedular rating for this disability, and the Veteran has not filed a notice of disagreement with that decision, the Board will not further discuss Code 5281. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, there is no evidence of weak foot, claw foot, hammer toe, malunion of tarsal or metatarsal bones, or other foot injury. Thus, Diagnostic Codes 5277, 5278, 5281, 5282, 5283 and 5284 are not for application. The Board notes that the Veteran's bilateral foot disabilities have been evaluated in multiple examinations during the appeal period. Those examinations have diagnosed additional disabilities, including plantar fasciitis and calcaneal enthesopathy. While the rating schedule contains separate Diagnostic Codes pertaining to plantar fasciitis and other foot injury, assignment of separate ratings would be prohibited because their symptoms of pain on manipulation, pain on use and plantar tenderness overlap in a way that would violate the rule against pyramiding. 38 C.F.R. § 4.14; 38 C.F.R. § 4.71a , DC 5276, 5284, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). Moreover, alternatively rating the Veteran's disability under Code 5269 or 5284 would not result in a higher rating. 38 C.F.R. § 3.321 The Veteran contends that he is entitled to an extraschedular rating of his foot condition. However, the Board finds the evidence does not support an extraschedular evaluation. Other manifestations of the Veteran's foot disabilities, especially his hallux valgus with degenerative joint disease, have been compensated separately and account for the complete disability picture based on the evidence as a whole, including the Veteran's reports of his functional limitations. Diagnostic Code 5276 explicitly contemplates and compensates for passive and active foot pain and changes in the weightbearing structure of the feet. The Board recognizes that the Veteran's foot disabilities limit how long he can comfortably stand and walk. However, given that the Veteran continues to be employed as a federal security guard and has reported losing no more than one week of work in a 12 month period, the Board cannot say that there are other related factors such as marked interference with employment or frequent hospitalizations. Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Yancy v. McDonald, 27 Vet. App. 484 (U.S. 2016). In sum, the evidence in this case does not portray an exceptional disability picture requiring consideration of 38 C.F.R. § 3.321 or supporting ratings in excess of those assigned in this decision. JESSICA SEAY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.