Citation Nr: 22009150 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 16-22 040 DATE: February 16, 2022 ORDER Entitlement to an initial 30 percent rating for service-connected bilateral pes planus is granted. Entitlement to a separate 10 percent rating for service-connected bilateral plantar fasciitis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's bilateral pes planus is manifested by flat arches that are painful on use and manipulation of the feet that is accentuated at times and accompanied by extreme tenderness on the plantar surfaces on both feet, and marked pronation. There is no evidence of marked inward displacement and severe spasm of the tendo achilles on manipulation of the feet, and the evidence reflects that the Veteran's symptoms are improved by orthopedic shoes or appliances. 2. The Veteran's bilateral plantar fasciitis is manifested by pain in his Achilles and the back of both feet while walking. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for service-connected bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for a separate 10 percent rating for service-connected bilateral plantar fasciitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5279. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to August 1995. This matter is on appeal from rating decisions issued in June 2013 and April 2014. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims fie. Thereafter, the appeal was certified to the Board for adjudication and, at that time, included entitlement to service connection for vertigo, bilateral pes planus, right knee disability, right shoulder disability, erectile dysfunction, lumbar spine disability, headaches, and sleep apnea, entitlement to an increased rating for service-connected bilateral plantar fasciitis, and entitlement to a total disability rating based upon individual unemployability (TDIU). In November 2019, the Board dismissed the vertigo claim, denied the lumbar spine claim, and granted service connection for bilateral pes planus, erectile dysfunction, and disabilities involving the right knee and right shoulder. The Board remanded the increased rating claim for bilateral plantar fasciitis, the service connection claims for headaches and sleep apnea, and the TDIU claim for further evidentiary development. Thereafter, in May 2020, the Regional Office (RO) awarded a noncompensable (zero percent) rating for bilateral pes planus and combined the evaluation with the noncompensable rating assigned for service-connected bilateral plantar fasciitis. In that rating decision, the RO also assigned ratings for the service-connected right shoulder, right knee, an erectile dysfunction disabilities. In July 2021, the RO also granted service connection for migraine headaches and, in October 2021, the Veteran's representative submitted a written statement indicating that he wished to withdraw the TDIU claim. See 38 C.F.R. § 20.204. Therefore, the headache and TDIU claims are no longer on appeal. At this juncture, the Board notes that, following the May 2020 rating decision, the Veteran submitted an October 2020 VA Form 10182, Decision Review Request: Board Appeal, wherein he indicated disagreement with the ratings assigned for service-connected bilateral pes planus and the right knee disability. The Board notes that the submission of the VA Form 10182 indicated the Veteran's desire to have those issues adjudicated in the modernized review system. However, the Board concludes that the issue of entitlement to an increased rating for service-connected bilateral pes planus and bilateral plantar fasciitis will continue to be adjudicated in the legacy system. The Board acknowledges that the modernized review system applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. However, because the May 2020 rating decision addressed the rating for a disability that was subject to an increased rating appeal already pending in the legacy system, the Board finds the May 2020 rating decision is not an "initial decision" that can be appealed under the AMA. See 38 C.F.R. §§ 3.2400(a)(1), 19.2. In this regard, the Board also notes that the Veteran chose not to opt-in to the AMA system following the October 2021 supplemental statement of the case (SSOC), which further supports a finding that the increased rating claim should continue to be adjudicated in the legacy system. 1. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral plantar fasciitis and bilateral pes planus Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities ("Rating Schedule"), found in 38 C.F.R. § 4.1. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.10. When there is a question as to which evaluation should be applied to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In the June 2013 rating decision appeal, the RO granted service connection for bilateral plantar fasciitis and assigned an initial noncompensable (zero percent) rating, effective July 11, 2012. The initial rating for plantar fasciitis was rated by analogy to acquired flatfoot under DC 5276, as the rating schedule did not contain a diagnostic code to evaluate plantar fasciitis at the time. The Veteran disagreed with the initial rating assigned to his plantar fasciitis disability and, during the pendency of the appeal, the RO also granted service connection for bilateral pes planus and assigned a noncompensable rating, effective July 11, 2012; however, the RO noted that the rating for bilateral pes planus would be included and evaluated with the rating assigned for bilateral plantar fasciitis under DC 5276, as those conditions are rated analogous to each other. See May 2020 rating decision. In July 2021, the RO awarded an increased 10 percent rating for service-connected bilateral plantar fasciitis and bilateral pes planus under DC 5279-5276, effective July 11, 2012. Generally, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code reveals that DC 5279 was assigned for metatarsalgia, while DC 5276 was assigned for acquired flatfoot. However, the claims file reflects that, in addition to bilateral plantar fasciitis and pes planus, the Veteran is also in receipt of a 10 percent rating for bilateral metatarsalgia, which suggests that assigning a rating for bilateral plantar fasciitis and pes planus using DC 5279 was inappropriate. Nevertheless, the Board notes that the RO awarded the 10 percent rating for bilateral plantar fasciitis and pes planus based upon evidence of painful motion pursuant to 38 C.F.R. § 4.79 and that, in evaluating this claim, the Board will consider whether a rating higher than 10 percent is warranted under DC 5276 or any other potentially applicable diagnostic code. The Board also notes that, effective February 7, 2021, VA amended the rating schedule. While DC 5276, which evaluates acquired flatfoot, were not changed, DC 5269 was added to the schedule to evaluate plantar fasciitis. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board must consider whether separate ratings for bilateral pes planus and bilateral plantar fasciitis are appropriate from February 7, 2021. As will be explained in detail below, the Board finds that separate ratings are, indeed, appropriate for bilateral pes planus and bilateral plantar fasciitis throughout the appeal period, including prior to and after February 7, 2021. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. As of February 7, 2021, under Diagnostic Code 5269, a 10 percent rating is warranted for plantar fasciitis, otherwise, unilateral or bilateral. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A maximum 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The evidence of record reflects that the Veteran has consistently complained of painful, flat arches in both feet, as well as pain in his Achilles and the back of both feet while walking. See VA treatment records dated August 2012 and August 2016; VA examination reports dated December 2012 and July 2021. During the December 2012 examination, the VA examiner noted there was no evidence of pain on use of or manipulation of the feet, but this is not consistent with the other evidence of record which, as noted, shows consistent reports of foot pain while walking. However, during the July 2021 examination, the VA examiner noted the Veteran's pain on use and manipulation of his feet was accentuated and accompanied by extreme tenderness on the plantar surfaces on both feet, which was improved with the use of orthotics. The Veteran has consistently reported using medication, icing, and over the counter orthotics and shoe inserts to treat his foot pain. The evidence also shows that he received custom orthotics in 2016. See Id. The evidence reflects that, in August 2012, the Veteran initially reported that there was no improvement in his symptoms with the use of his orthotics and inserts but, thereafter, he has consistently reported that his orthotics improved his symptoms. The Board acknowledges that the Veteran has intermittently reported that his orthotics were not effective when they had worn out, but he generally reported that they were effective after receiving replacements. See e.g., VA treatment records dated August 2016, June 2017, and October 2021; see also VA examination reports dated December 2012 and July 2021. In applying these facts to the rating criteria, the Board finds that the evidence of record persuasively supports the grant of a 30 percent rating for bilateral plantar pes planus under DC 5276 throughout the appeal period. The Board notes that pain on use and manipulation of both feet have been noted throughout the appeal period, which is consistent a moderate disability as contemplated by the rating criteria under DC 5276. However, accentuated pain on use and manipulation of both feet, which is characterized as a severe symptom completed by the higher, 30 percent rating under DC 5276, was noted during the July 2021 VA examination. The Board also notes that the Veteran was noted to demonstrate overpronation in 2012, with an additional notation of excessive pronation upon weightbearing in 2016. See VA treatment records dated August and September 2012 and August 2016. While the objective evidence does not characterize the Veteran's pronation as a "marked" deformity, the Board finds probative that the Veteran's pronation was described as overpronation and excessive in nature, which suggests a distinctive or more than normal deformity. In this regard, "marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. The Board also notes that pronation was not noted during the VA examinations; nor is there evidence of the other symptoms specifically contemplated as indicative of a severe flatfoot disability, such as swelling on use or characteristic callosities. However, the Board finds probative that the Veteran has demonstrated at least one severe symptom throughout the appeal period, which the Board finds persuasively supports a finding that the symptoms he expereinced as a result of bilateral pes planus more nearly approximated a severe disability as contemplated by DC 5276. Therefore, a 30 percent rating is warranted for the Veteran's bilateral pes planus under DC 5276 throughout the appeal period. A higher, 50 percent rating is not warranted, however, because the evidence does not persuasively establish that the Veteran's disability has been manifested by pronounced symptoms or functional impairment at any time during the appeal period. Indeed, while there is evidence of marked pronation and extreme tenderness of the plantar surfaces was noted during the July 2021 examination, there is no evidence of marked inward displacement and severe spasm of the tendo achilles on manipulation of the feet; nor does the evidence reflect that the Veteran's symptoms are not improved by orthopedic shoes or appliances. In this regard, the Board acknowledges that the Veteran has not experienced complete amelioration of his pain with the use of orthotics. For example, in 2021, he reported a 50 percent improvement after using a new set of custom orthotics, but the Board notes that a 50 percent improvement is improvement, albeit only partially, and that the Veteran has generally reported that the use of orthotics has resulted in improvement of his symptoms. As noted, effective February 7, 2021, VA amended the rating schedule by adding DC 5269 for plantar fasciitis. In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). While a specific diagnostic code for plantar fasciitis was not in the rating schedule prior to February 7, 2021, the Board finds that the Veteran's bilateral plantar fasciitis and bilateral pes planus should be rated separately throughout the appeal period. In this regard, the evidence suggests that the symptoms the Veteran experiences due to his plantar fasciitis and pes planus are not duplicative or overlapping in nature. Indeed, while both disabilities are manifested by foot pain, the Board notes that the evidence suggests that the Veteran's plantar fasciitis is manifested by pain in the back of both feet, e.g., the heel, and in the Achilles tendons, whereas his pes planus is manifested by pain in the arches of his feet. Because these areas are anatomically different and involve different areas of the foot, the Board finds that the pain experienced in those areas are different manifestations that warrant separate ratings. Similarly, the Board notes that metatarsalgia involves pain in the ball of the foot, which is also different from pain experienced in the arches or heel of the feet. Therefore, the Board finds that assigning separate ratings for service-connected bilateral metatarsalgia, bilateral pes planus, and bilateral plantar fasciitis in this case does not violate the rule against pyramiding, as the evidence persuasively establishes that the symptoms attributable to each disability are distinct and involve different areas of the foot. See 38 C.F.R. § 4.14. The Federal Circuit expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. The Board acknowledges that the Veteran's bilateral plantar fasciitis is not shown to be manifested by symptoms that are similar to bilateral weak foot, claw foot, hallux valgus, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. Therefore, rating the Veteran's plantar fasciitis under DCs 5277, 5278, 5280, 5281, 5282, and 5283 prior to February 7, 2021 is not appropriate. However, DC 5284 evaluates other foot injuries and allows a 10 percent rating for a moderate disability, 20 percent for moderately severe disability, and 30 percent rating for severe disability. A 40 percent rating is also warranted for actual loss of use of the foot. The Board finds that the pain the Veteran experiences due to his bilateral plantar fasciitis is similar to a moderate foot disability contemplated under DC 5284. While the Rating Schedule does not otherwise define "moderate," according to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. In this regard, while neither the lay nor medical evidence specifically characterizes the Veteran's plantar fasciitis pain, the Board finds the evidence of record persuasively establishes that the pain the Veteran experiences in the back of both feet and in his Achilles tendons is likely average in nature, particularly given that the evidence shows it occurs primarily when the Veteran ambulates. Therefore, a 10 percent rating is warranted for bilateral plantar fasciitis under DC 5284 prior to February 7, 2021. As there is no evidence of increased pain with other activities and no evidence of any additional symptoms attributable to plantar fasciitis, the Board finds the evidence persuasively weighs against a finding that the Veteran's bilateral plantar fasciitis is manifested by symptoms or functional impairment that more nearly approximates a moderately severe or severe disability to warrant a rating higher than 10 percent under DC 5284. Effective February 7, 2021, the Veteran's bilateral plantar fasciitis warrants a 10 percent rating, but no higher, under DC 5269, as that code specifically evaluates plantar fasciitis. Indeed, under that code a 10 percent rating is warranted for plantar fasciitis, whether unilateral or bilateral and, in this case, the evidence shows the Veteran has been diagnosed with bilateral plantar fasciitis throughout the appeal period. A rating higher than 10 percent is not warranted under DC 5269, however, as the evidence does not reflect that the symptoms the Veteran experiences due to bilateral plantar fasciitis are not relieved by non-surgical and surgical treatment. In this regard, the Board, again, notes that the Veteran experiences improvement in his symptoms with the use of orthotics, medication, and icing, albeit partial relief that requires his orthotics be replaced when necessary. As a final matter, the Board notes that assigning a separate 10 percent rating for bilateral plantar fasciitis under DCs 5284 and DC 5269 does not violate the amputation rule, as the combined rating with bilateral factor assigned for the Veteran's bilateral metatarsalgia, bilateral plantar fasciitis, and bilateral pes planus is 50 percent, whereas the maximum rating for bilateral lower extremities allowed by the amputation rule is 70 percent. See 38 C.F.R. § 4.68. In conclusion, the Board finds that the evidence of record persuasively supports the grant of an initial 30 percent rating for service-connected bilateral pes planus. The Board also finds the evidence persuasively supports the grant of a separate 10 percent rating, but no higher, for service-connected bilateral plantar fasciitis throughout the appeal period. In making these determinations, all reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea is secondary to his service-connected PTSD, to include medication taken therefor. In November 2019, the Board remanded this claim to obtain an addendum opinion noting that, while the VA opinion of record addressed whether there is a causative relationship between the Veteran's sleep apnea and PTSD, the opinion did not address if there is a relationship the medications taken for PTSD and his sleep apnea. See October 2017 VA opinion. In June 2020, a VA clinician provided the requested opinion as to whether the Veteran's sleep apnea is aggravated by the medications taken for his service-connected PTSD; however, the Board notes that the opinions of record do not address whether the Veteran's sleep apnea is aggravated by his PTSD. See Allen v. Brown, 7 Vet. App. 439, 449 (the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection). Therefore, while the Board regrets the additional delay, this claim must be remanded to obtain a medical opinion that addresses the full scope of the Veteran's secondary service connection claim for sleep apnea. The matter is REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and opine as to the following: Is the Veteran's sleep apnea aggravated (i.e., undergoes any incremental increase regardless of permanence) by his service-connected PTSD, to include any manifestations or symptoms thereof? A clear, well-reasoned rationale must be provided for all opinions, with consideration of the lay and medical evidence of record. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.