Citation Nr: 22017458 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-52 914 DATE: March 25, 2022 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of kidney transplant surgery, to include as secondary to hypertension, is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected left heel spur prior to November 19, 2019, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service event, injury, or disease. 2. Residuals of kidney transplant surgery are the result of non-service-connected hypertension. 3. Prior to November 19, 2019, the Veteran's left heel spur manifested by pain accentuated on use, but not pain accentuated on manipulation. 4. From November 19, 2019, the Veteran's left heel spur manifested by pain on manipulation and use accentuated, indication of swelling on use, and characteristic calluses. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for residuals of kidney transplant surgery as secondary to hypertension are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for a rating in excess of 10 percent prior to November 19, 2019, for a left heel spur are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.26, 4.59, 4.71a, Diagnostic Codes (DC) 5276, 5269. 4. The criteria for a rating in excess of 20 percent from November 19, 2019, for a left heel spur are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.26, 4.59, 4.71a, DCs 5276, 5269. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1981 to December 1985. He also had additional verified periods of inactive duty for training (INACDUTRA) in the Air Force Reserve until November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). These matters were last before the Board in November 2018, when they were remanded. At that time, the Veteran's service-connected left heel spur was evaluated as 10 percent disabling. However, in a January 2022 rating decision, VBA increased the evaluation of this disability to 20 percent disabling, effective November 19, 2019, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Since the maximum benefit was not granted, the issue of entitlement to higher staged evaluations remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for hypertension. The Veteran seeks entitlement to service connection for hypertension. He asserts that his hypertension had its onset in service or shortly after service and should thus be subject to service connection. He has related having been diagnosed with hypertension in 1990. He notes that in 1995, he was also diagnosed as having renal disease with 55 percent renal capacity as the result of the hypertension. He argues that because his renal insufficiency was of such severity in 1995, hypertension began earlier, particularly in service. See July 2015 Notice of Disagreement (NOD). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To establish a right to compensation for a present disability, a Veteran must show:" (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Service connection for hypertension is available if the disease becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence which may be considered in rebuttal of service incurrence of a disease listed in 38 C.F.R. § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease. 38 C.F.R. § 3.309(d). However, service connection on a presumptive basis is not available where the service performed is ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. at 476-78 (1991). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran initially had active service in the Air Force from June 1981 to December 1985. Thereafter, he had periods of INACDUTRA in the Air Force Reserve in 1986 and 1988 and was ultimately discharged from the Air Force Reserve in November 1992. See November 20, 2021, Memorandum for Record. Entitlement to service connection on a presumptive basis for hypertension related to any period of ACDUTRA or INACDUTRA cannot be considered by the Board. Likewise, because hypertension is a disease, and the Veteran had only INACDUTRA service, service connection is not available for hypertension based upon that service. The question for the Board is whether the Veteran has hypertension that was noted as chronic during the Veteran's initial period of active service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since the Veteran's active service. The Board concludes that while the Veteran has a current diagnosis of hypertension, which is a chronic disease, it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. A review of the Veteran's service treatment records discloses no assessment of hypertension. At discharge, the Veteran denied a history of hypertension and examination of the cardiovascular system was normal. The Veteran has stated that he was first assessed as having hypertension in 1990, during a routine employment physical. See November 2014 VA hypertension examination. No evidence otherwise suggests that hypertension was shown or diagnosed as chronic during any period of active service or that hypertension manifested within a presumptive period. The earliest competent evidence pertaining to a diagnosis of hypertension is the Veteran's statement that hypertension was assessed in 1990. Thus, entitlement to service connection on a presumptive basis is not warranted. Service connection for hypertension may still be granted on a direct basis; however, the evidence persuasively weighs against finding that a medical nexus exists between the Veteran's hypertension and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA examiners in November 2019 and January 2022 opined that the Veteran's hypertension was unlikely due to service. The examiners reasoned that the Veteran had normal blood pressure and kidney function in service and that the Veteran was not diagnosed as having hypertension and renal insufficiency until the 1990s. While the Veteran believes his hypertension is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, and the claim is denied. Accordingly, the Board finds that the evidence persuasively weighs against the claim. The Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 999 F.3d 1391, at 1395 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. Here, the evidence shows that the Veteran's hypertension manifested over one year following his discharge from active duty, was not incurred in service, and is not otherwise related to an in-service event, injury, or disease. Hypertension manifested in the 1990s, but not during a period of active-duty service. The evidence is not in approximate balance, and the benefit of the doubt doctrine is not applicable. The claim must be denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for residuals of kidney transplant as secondary to hypertension. The Veteran contends that the residuals of his kidney transplant are secondary to hypertension. The Veteran has not raised, nor has the record reasonably raised, entitlement to service connection on a direct basis. As such, the Board's adjudication will focus on entitlement to service connection on a secondary basis. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progression, by a service-connected disability. While the evidence clearly shows that the Veteran's residuals of a kidney transplant are attributable to hypertension, as explained above, entitlement to service connection for hypertension has been denied. See September 2013 note from R.J.T., M.D., P.A. Since the Veteran's kidney transplant residuals are the result of non-service-connected hypertension, the claim must be denied. Accordingly, the Board finds that the evidence persuasively weighs against the claim. The Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Here, the evidence shows that the Veteran's residuals of kidney transplant are attributable to the non-service-connected hypertension. The evidence is not approximately balanced, and the benefit of the doubt doctrine is not applicable. The claim must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to an initial evaluation in excess of 10 percent for a service-connected left heel spur prior to November 19, 2019, and in excess of 20 percent, thereafter, is remanded. 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 a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular DC, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's heel spurs have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. 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, Diagnostic Code 5276. 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. As of February 7, 2021, Diagnostic Code 5269 was created to rate plantar fasciitis. Under this diagnostic code, a 10 percent is assigned for bilateral or unilateral plantar fasciitis. A 20 percent rating is assigned for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 30 percent rating is assigned for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Note 1 states that actual loss of use of the foot should be rated as 40 percent. Note 2 states that if the veteran has been recommended for surgical intervention, but is not a surgical candidate, then it should be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. 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). VA examination in April 2014, resulted in assessment of bilateral hallux valgus and heel spurs. The Veteran described that he had intermittent pain in the heel if he walked or stood too long. He had a plantar fasciotomy on the left heel in 2003. He had a broken sesamoid bone removed from the right foot in 1985. He occasionally wore custom insoles, with some relief. In November 2015, the Veteran received another VA examination. At that time, examination resulted in assessments of bilateral pes planus (flat foot), plantar fasciitis and heel spurs, with a history of removal of a left heel spur in 1982. He related constant dull and achy pain, made worse with prolonged standing and walking. He denied flare-ups. Each foot had pain, accentuated on use. However, pain was not accentuated on manipulation, and there was no indication of swelling or characteristic callosities. There was no extreme tenderness, marked deformity, pronation, and the weight-bearing line of the left and right feet did not fall over or medial to the great toe. There was no other deformity, inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles' tendon. On flare-ups and following repetitive use over time, the conditions limited prolonged standing and walking, and prohibited running or repetitive jumping. He used no assistive devices. Orthotics were ineffective in relieving symptoms. A July 2018 private podiatry note documents a follow-up regarding heel pain. The Veteran related that his pain was next to nothing, but then he injured his left foot camping. He described pain in the heel and arch, worse in the arch. A heel spur and plantar fascial fibromatosis was assessed. The Veteran was treated with custom orthotics and an injection. VA examination in August 2018, resulted in assessment of plantar fasciitis and pes planus. The Veteran described heel pain as the day progressed. He used orthotics and had been treated with injections. The examiner explained that plantar fasciitis led to calcaneal spurs, which the Veteran did not then have. The Veteran denied flare-ups. He had pain on use of the foot, accentuated on use. There was no pain with manipulation of the foot, no indication of swelling on use or characteristic calluses. Orthotics provided relief. There was not extreme tenderness of the plantar surface. The Veteran used no assistive devices. On November 19, 2019, the Veteran was afforded another VA examination, which VBA utilized to award the staged ratings, outlined above. At that time, examination resulted in assessments of heel spurs, plantar fasciitis, and pes planus. The Veteran reported pain in the arches and heels, relieved somewhat by inserts and cortisone injections. There was pain on use of both feet, accentuated on use. There was pain on manipulation of the feet, indication of swelling on use and characteristic callouses. While the Veteran wore arch supports, they did not relieve symptoms. There was extreme tenderness of the plantar surface, improved by orthopedic shoes or appliances. There was decreased longitudinal arch, but no objective evidence of marked deformity or marked pronation. The weight bearing line did not fall over or medial to the great toe. The Achille's was normal. While the Veteran wore arch supports, they did not relieve symptoms. In August 2020, VBA obtained a medical opinion to attempt to distinguish between the symptoms of the service-connected heel spur and the non-service-connected pes planus and hallux valgus. The examiner concluded that the left heel spur and plantar fasciitis symptoms could not be differentiated because both caused the same pain. They explained that the plantar fascia is a fibrous, soft tissue that stretched from the heel to the toes, and that if this tissue experienced small tears and inflammation, it is called plantar fasciitis. The examiner explained that many people that have heel spurs have plantar fasciitis because the plantar fascia inserts at the heel. The examiner noted that the Veteran did not have any symptoms due to hallux valgus or pes planus. In January 2022, the Veteran was afforded an additional VA examination. At that time, pes planus, plantar fasciitis and heel spurs were assessed. The Veteran reported continued pain in the feet, with only temporary relief from cortisone injections. Current symptoms were foot pain with swelling. The Veteran characterized the pain as throbbing and at a level of 8/10. He denied flare-ups, but described that when he overdid it, he would "pay for it" at night. The feet had pain on use and pain on manipulation. There was indication of swelling on use and the Veteran had characteristic calluses. He wore arch supports, but they did not relieve symptoms. There was not extreme tenderness of the plantar surfaces. Both arches had decreased height on weightbearing. There was no evidence of marked deformity or pronation. Weightbearing was aligned. The Achilles' tendons were normal. Non-surgical treatment did not relieve the symptoms and while the Veteran had surgery to remove a bone spur in 1982, he had not had surgery for plantar fasciitis. Noting that the symptoms of the plantar fasciitis and left heel spur are indistinguishable, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's left heel spur prior to November 19, 2019. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain with prolonged standing and walking. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating severe unilateral or bilateral acquired flatfoot. Prior to November 19, 2019, the Veteran's left heel spur exhibited pain, accentuated on use. It is not until the November 19, 2019, VA examination report that it is factually ascertainable that the disability manifested by pain on manipulation and use accentuated, indication of swelling on use, and characteristic calluses. VA examination on that date reflects indications of severe symptoms contemplated by the 20 percent evaluation currently assigned, such as pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. While there was extreme tenderness of the plantar surfaces noted by the November 2019 VA examiner, the tenderness was improved by the use of orthotic appliances. Notably, similar symptoms were noted on examination in January 2022, but there was no pain on manipulation. Thus, entitlement to an evaluation in excess of 20 percent is not warranted from November 19, 2019. In reaching these conclusions, the Board notes that VBA should not mechanically assign effective dates based on the date of a diagnosis or a VA examination report. Swain v. McDonald, 27 Vet. App. 219, 224, n. 4 (2014). However, after reviewing all of the facts in this case, the November 19, 2019, VA examination report marks the earliest date in the record that the increase in severity can be ascertained. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (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)). The Federal Circuit also 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. Here, prior to the amendments providing for Diagnostic Code 5269 for the evaluation of plantar fasciitis, the Veteran's disability was unlisted and rated by analogy to pes planus under Diagnostic Code 5276. 38 C.F.R. § 4.71a. In this regard, Diagnostic Codes 5277 - 5283 are not applicable. The Veteran's disability is a heel spur/plantar fasciitis manifested by pain. There is no indication of weak foot, claw foot, anterior metatarsalgia, hammer toe or involvement of the tarsal bones. While hallux valgus was assessed, it is not a condition subject to service-connection. Although Diagnostic Code 5284 is applicable to rating other foot injuries, it is not applicable here. Under Diagnostic Code 5284, a 20 percent rating is assigned for a moderately severe foot injury and a 30 percent rating is assigned for a severe foot injury. The Veteran's condition causes pain which results in interference with standing and walking. Physical examination of the feet has shown pain to palpation, pain accentuated on use and extreme tenderness of the plantar surface relieved by orthotics. These manifestations are contemplated by the currently assigned rating. As a result, and because the Veteran has not experienced a foot injury, the Board concludes that Diagnostic Code 5284 is not for application. The Board has considered whether application of the new Diagnostic Code 5269 would be more favorable to the Veteran, from February 7, 2021. From February 7, 2021, the Veteran's left heel spur is evaluated as 20 percent disabling under Diagnostic Code 5276. Also, from February 7, 2021, the Veteran has a separate 20 percent evaluation for plantar fasciitis of the right foot under Diagnostic Code 5276, tinnitus, evaluated 10 percent disabling and a right shoulder disability evaluated as 10 percent disabling. VBA has evaluated each foot separately as 20 percent disabling under Diagnostic Code 5276, by analogy. VBA has combined each foot's 20 percent evaluation and added an additional 10 percent for the bilateral factor, resulting in a 40 percent combined evaluation, which when combined the with the remaining two 10 percent disabilities, results in an overall disability evaluation of 50 percent from February 7, 2021. 38 C.F.R. §§ 4.25, 4.26. Under Diagnostic Code 5269, the maximum 30 percent evaluation contemplates bilateral plantar fasciitis. If the Board was to assign the maximum 30 percent schedular evaluation for bilateral plantar fasciitis under Diagnostic Code 5269, it would result in a decrease in the Veteran's overall disability evaluation from 50 to 40 percent. Thus, the new criteria are unfavorable to the Veteran and will not be applied in this case. (Continued on the next page) In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the left heel spur prior to November 19, 2019, and in excess of 20 percent from that date. As the evidence of record persuasively weighs against higher evaluations, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.