Citation Nr: 21042330 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-34 953 DATE: July 12, 2021 ORDER A rating in excess of 20 percent for a right ankle disability is denied. A rating in excess of 30 percent for bilateral pes planus with plantar fasciitis and heel spurs is denied. FINDINGS OF FACT 1. The Veteran's right ankle disability was not manifested by ankylosis. 2. The Veteran's bilateral pes planus with plantar fasciitis and heel spurs was not manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles' tendon on manipulation. CONCLUSIONS OF LAW 1. There is no basis for an assignment of a disability rating in excess of 20 percent for a right ankle disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis and heel spurs have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.22, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1977 to August1980. In January 2018, the Board granted an initial 20 percent rating, but no higher, for a right ankle disability from November 28, 2012 to July 20, 2014, and denied an increased rating thereafter. The Board also granted an initial 30 percent rating for bilateral foot disability from November 28, 2012, to October 24, 2013, and denied an increased rating thereafter. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Memorandum Decision, the Court vacated the Board's January 2018 decision and remanded the matter to the Board. The Board remanded the claim in March 2020 for further development by the RO, as consistent with the Court's Memorandum Decision. The Board again remanded the claim in February 2021 to provide the Veteran and/or his representative another opportunity to provide a release for records at the State Correction Institute at Laurel Highlands in Somerset, Pennsylvania (SCI) so that the AOJ could obtain these medical records. Pertinently, the Veteran had submitted records releases for SCI in January 2013 and October 2014. However, these forms clearly state on them that: "If you do not revoke this authorization, it will automatically end 180 days from the date you signed and date the form." Consequently, at the time of the Court's July 2019 Memorandum Decision and the Board's March 2020 and February 2021 remands, these releases were no longer valid and could not be used to obtain records from SCI. Consequently, it was imperative for the Veteran to submit a new release if he wanted VA to obtain these records on his behalf. Per the Board's March 2020 and February 2021 remands, the AOJ exhausted all reasonable attempts to have the Veteran provide an appropriate release for medical records in the possession of SCI. The AOJ had ascertained the appropriate email address for the medical department at SCI to obtain medical records. In April 2020, the AOJ contacted the Veteran by phone to inform him that VA received a response from SCI, and that SCI would need a written release signed by the Veteran with a witness signature to release medical records in their possession. Also, in April 2020, the AOJ contacted the Veteran's representative by email to inform him that SCI required the Veteran to sign a release with a witness signature in order to obtain medical records in their possession. Neither the Veteran nor his representative responded to the AOJ inquiries about obtaining an appropriate release for SCI. Following the February 2021 Board remand, the AOJ that same month sent the Veteran a letter asking him to complete VA Form 21-4142 for records from SCI. The Veteran never returned this form. The Board finds the AOJ exhausted all reasonable efforts to obtain the SCI medical records and substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As the January 2013 and October 2014 VA Forms 21-4142 were no longer valid and could not be used, it was necessary that the Veteran provided a current release in order for the AOJ to obtain these records. The fulfillment of VA's duty to assist sometimes requires the cooperation of the Veteran to obtain medical records that are not in possession of the federal government. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, there have been several attempts to have the Veteran supplied the needed release that were met with non-response. As such, the duty to assist has been satisfied with regard to the SCI records. While it is noted that in March 2021 the Veteran indicated to VA that he was waiting on SSI records, there is nothing to suggest that SSA records uploaded to the claims file in 2011 and 2013 are incomplete. In fact, CAPRI records indicate that he was working. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Right ankle The Veteran's right ankle disability is rated as 20 percent disabling under DC 5271. Under this diagnostic code, a 20 percent rating is the maximum rating allowed when there is marked limitation of motion. Therefore, the Veteran has been in receipt of the maximum schedular rating for his right ankle disability throughout the appeal period. The rating schedule addressing the musculoskeletal system was revised effective February 7, 2021, and the revisions in DC 5271 now provide that the requisite limitation of motion for "marked" is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. However, as the Veteran is already in receipt of the maximum available rating, these revisions will not be discussed. In order to obtain a rating in excess of 20 percent for an ankle disability under the rating criteria, there must be ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. Under DC 5270, a 30 percent rating is warranted when the ankle is ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A maximum 40 percent rating is warranted when the ankle is ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Id. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992). VA examinations in February 2013, July 2014, and August 2020 did not find ankylosis. The February 2013 VA examination showed plantar flexion to 40 degrees with objective pain, and dorsiflexion to 20 degrees with objective pain. There was no additional limitation of motion following repetitive use testing. Functional loss was due to less movement than normal and pain on movement. The July 2014 VA examination showed plantar flexion to 10 degrees and dorsiflexion to 5 degrees with no objective evidence of painful motion. Repetitive use testing was not performed due to pain. Functional loss was due to less movement than normal, weakened excess movement, excess fatigability, incoordination, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with standing, sitting, and weight-bearing. While flareups were reported, the examiner did not provide the limitation of motion during a flareup. The August 2020 VA examination showed plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Pain was noted on examination but was found not to result in functional loss. Repetitive use testing was not performed due to pain. The examiner noted that during a flareup pain, weakness, fatigability and lack of endurance would significantly limit functional ability. The examiner explained range of motion during a flareup to be plantar flexion to 25 degrees and dorsiflexion to 10 degrees. Review of medical treatment records, to include private and VA records, associated with the claims file also do not show ankylosis. The Board finds that a rating higher than 20 percent cannot be assigned. While the Veteran had limitation of motion in his right ankle, as well as symptoms such as pain, weakness, swelling, and limited mobility, 20 percent is the maximum rating that can be assigned under DC 5271. No higher rating can be assigned unless the Veteran's right ankle demonstrates ankylosis. The preponderance of the evidence shows that the Veteran does not have ankylosis. None of the VA examiners have opined that the Veteran experiences ankylosis, and all of the remaining medical evidence indicates that while the Veteran has limitation of motion in his right ankle, he nonetheless has always had at least some degree of range of motion. This evidence also does not indicate that the disability is tantamount to ankylosis or equivalent to ankylosis. The Veteran has limitations in the ankle but retains greater functional range that reflected by ankylosis, as documented in the lay and medical records. Moreover, in this case, as the Veteran has been assigned the maximum rating for his right ankle based on limitation of motion, the manifestation of pain alone does not allow for a higher rating. See 38 C.F.R. § 4.59; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As to Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the Veteran is already being compensated for his current symptoms related to painful motion, a higher rating under Correia is not warranted. Similarly, as to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the reported limitation of motion during a flareup as documented in the August 2020 VA examination did not amount to nor was akin to ankylosis. In sum, as the maximum rating has been awarded throughout the appeal, the Board concludes that the Veteran is not entitled to a higher rating. Therefore, a rating in excess of 20 percent for a right ankle disability is not warranted. 2. Bilateral pes planus with plantar fasciitis and heel spurs The Veteran's bilateral foot disability is rated as 30 percent disabling under DC 5271. Importantly, the rating schedule addressing the musculoskeletal system was revised effective February 7, 2021 and provided a new diagnostic code to rate plantar fasciitis in DC 5269. See 38 C.F.R. § 4.71a, Diagnostic Code 5269. Prior to February 7, 2021, there was no specific rating criteria for plantar fasciitis, and it was rated by analogy to flat feet. The maximum rating available under DC 5269 is 30 percent. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim considering both the former and revised schedular rating criteria. As DC 5269 will not afford the Veteran with a higher rating, it will not be discussed, and the Board will continue to apply DC 5276 to the Veteran's bilateral foot disability. Under DC 5276, a 30 percent rating is warranted for bilateral severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for bilateral pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the Achilles' tendon on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The April 2013 VA examination showed no marked pronation, no extreme tenderness of plantar surfaces of the feet, no marked inward displacement or bowing, and no deformity of the feet. The Veteran did report use and relief from foot pain from over the counter shoe inserts. October 2013, November 2013, and January 2014 VA podiatry notes indicated pain with palpation of the plantar heels but did not provide the severity. Later VA podiatry notes reported that the Veteran found use of orthotics helpful for his foot pain. Private records, to include those from A.C. Podiatry, did not report any symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles' tendon on manipulation that was not improved by orthopedic shoes or appliances. The February 2014 VA examination continued a diagnosis of plantar fasciitis and heel spurs. The examiner did not note any pertinent physical findings, complications, conditions, signs or symptoms related to this diagnosis. It was noted that the Veteran used arch supports. In June 2015, the Veteran's left foot was reported to have very painful plantar fasciitis and he received an injection of lidocaine in the left heel at VA. To which he subsequently reported gave him relief. There are also additional notes regarding tweaking of his custom-made orthotics. The December 2018 VA examination showed no marked pronation, no extreme tenderness of plantar surfaces of the feet, no marked inward displacement and severe spasm of the Achilles' tendon on manipulation that was not improved by orthopedic shoes or appliances. Use of orthotics was noted by the examiner and were indicated to provide symptom relief. A February 2018 VA podiatry note reported the Veteran's plantar fasciitis was stable. Later an April 2018 VA podiatry note indicated the plantar fasciitis was resolving and he was to continue using his custom-made orthotics. An October 2019 VA podiatry note reported that plantar fasciitis was treated by continued use of custom-made orthotics. Then a February 2020 VA podiatry note indicated no complaints or treatment for plantar fasciitis. The August 2020 VA examination showed no marked pronation, no extreme tenderness of plantar surfaces of the feet, no marked inward displacement and severe spasm of the Achilles' tendon on manipulation that was not improved by orthopedic shoes or appliances. Use of orthotics was noted by the examiner, but the Veteran's feet remained symptomatic. Based on review of the record, the Board finds that a 50 percent rating is not warranted for the bilateral foot disability. The VA foot examinations did not find marked pronation, extreme tenderness of the plantar surface, marked inward displacement, nor severe spasm of the Achilles' tendon on manipulation. While the evidence denotes that the Veteran had orthotics but at times remained symptomatic, this alone is not sufficient to warrant a higher rating. As consistently documented over the entire appellate period, the Veteran's feet were absent for symptomatology associated with pronounced flatfeet for a 50 percent rating. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). VA examinations and medical treatment notes did not reveal symptoms required for the 50 percent rating criteria. As a result, the Veteran does not meet the 50 percent rating criteria and his disability is best approximated by his assigned 30 percent rating. As to callouses, the criteria under DC 5276 does not provide for a rating in excess of 30 percent based on the presence of callouses. The Veteran is already in receipt of a 30 percent rating and the 30 percent criteria under DC 5276 directly contemplates callouses while the 50 percent rating criteria do not. Hence, to the extent callouses cause pain, the Veteran is already compensated by his 30 percent rating. Moreover, to the extent the examiners found functional impact due to limitations with prolonged walking and standing, these functional limitations are adequately compensated by the 30 percent rating. This is further supported by CAPRI records indicating that the Veteran was maintaining employment from about September 2014 forward. The Board has considered other foot diagnostic codes and finds they do not apply. The only other diagnostic code providing a higher rating is DC 5278 for claw foot, and the evidence is not suggestive of a diagnosis of claw foot. The Board acknowledges the Veteran's reports of foot pain and trouble with activities such as walking and standing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, there is no indication that this pain results in any further functional loss which would allow for a rating higher than what is currently assigned. See DeLuca v. Brown, 8 Vet. App. 202 (1995). VA regulations do allow for consideration of a Veteran's pain and its impact on his functional mobility when assigning evaluations. However, the Veteran has already been assigned a rating that is higher than the minimum compensable rating, and there is no indication that a higher rating based on functional impairment due to pain is warranted. The Board therefore finds that the medical evidence of record does not indicate that any higher rating is warranted in the absence of rating criteria for a 50 percent rating. In sum, the Board finds that the preponderance of the evidence is against this increase rating claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.