Citation Nr: 23014240 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 14-25 323 DATE: March 9, 2023 ORDER A rating higher than 10 percent for bilateral pes planus with plantar fasciitis prior to May 2, 2016, and higher than 50 percent, thereafter, is denied. FINDING OF FACT Prior to May 2, 2016, pes planus was manifested by moderate symptoms, including pain on use of the bilateral feet; from May 2, 2016, the Veteran is assigned the maximum schedular rating for pes planus. CONCLUSION OF LAW The criteria for a rating higher than of 10 percent for pes planus with plantar fasciitis prior to May 2, 2016, and higher than 50 percent, thereafter, have not 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from July 1999 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in August 2017. The matter was then remanded for additional development in May 2018. In a September 2019 rating decision, the Agency of Original Jurisdiction (AOJ) noted a clear and unmistakable error in the prior evaluation of the Veteran's pes planus. This decision assigned a 10 percent rating from February 8, 2006, and a 50 percent rating from May 2, 2016. Therefore, while the Veteran's claim was filed in May 2012, the appeal period goes back to February 2006. Increased Rating The Veteran's pes planus with plantar fasciitis is rated under 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. Prior to May 2, 2016, she is assigned a 10 percent rating. From that date, she has a 50 percent rating. Under DC 5276, 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 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 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. The Board finds that the evidence of record persuasively weighs against a rating higher than 10 percent prior to May 2, 2016. Service treatment records from December 2005 and January 2006, shortly before the Veteran's discharge from service, noted only symptomatic pes planus. Private treatment records from February 2006 noted the presence of tenderness. However, there was no pronation, abduction, or other marked deformity, nor were any callosities present. A September 2009 VA examination also noted the absence of any malalignment, deformity, abnormal wear patterns or callosities. Only slight tenderness was present. A comparison between these findings and the rating criteria shows that a 30 percent rating is not warranted, as marked deformity, objective evidence of accentuated pain, characteristic callosities, and swelling were not present. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to bilateral foot pain. However, in February 2006, she noted that pain was greater at the start and end of the day, with improvement in between, suggesting a level of severity less than that contemplated by the 30 percent rating criteria. During the September 2009 VA examination, the Veteran reported higher levels of pain. Even if this established "accentuated pain on use," the absence of any deformity, callosities, and swelling means the overall disability picture associated with the Veteran's pes planus is more closely aligned with the 10 percent rating prior to May 2, 2016. From that date, the Veteran is assigned the maximum 50 percent schedular rating for her pes planus. The Board has considered whether referral for consideration of an "extraschedular rating" is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). However, neither the Veteran nor her representative have asserted that her pes planus is not adequately addressed by the rating schedule, and the record does not otherwise indicate that her pes planus results in any symptoms not already contemplated under DC 5276. Therefore, referral for an extraschedular rating is not warranted. 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 Federal Circuit expressly adopted the 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)). Here, the Veteran's pes planus disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Finally, the Board notes that the Veteran's pes planus disability also includes plantar fasciitis. Historically, plantar fasciitis was rated by analogy, usually under DC 5276 or DC 5284. Effective February 7, 2021, VA amended the rating schedule by adding DC 5269 for plantar fasciitis. Under that code, a maximum 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 10 percent rating is warranted for plantar fasciitis, otherwise, unilateral or bilateral. VA treatment records from May 2017 noted that plantar fasciitis was manifested by tenderness with pressure. A February 2019 VA examination noted burning pain from plantar fasciitis. The Veteran's assertions regarding plantar fasciitis also reference pain and are conflated with her reports regarding pes planus. In sum, there is no indication that plantar fasciitis results in symptoms other than bilateral foot pain, which is already contemplated by the assigned ratings under DC 5276. As a result, the assignment of a separate rating for plantar fasciitis, either under DC 5284 or DC 5269, would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.