Citation Nr: 23045149
Decision Date: 08/15/23	Archive Date: 08/15/23

DOCKET NO. 14-14 282
DATE: August 15, 2023

ORDER

From March 26, 2014, to January 28, 2020, a rating in excess of 10 percent for left foot plantar fasciitis with pes planus is denied.

From January 28, 2020, to March 22, 2021, a rating in excess of 30 percent for bilateral plantar fasciitis with left foot pes planus is denied.

As of January 28, 2020, but no earlier, a separate noncompensable rating, but no higher, for left toe hammertoes is granted, subject to the laws and regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. From March 26, 2014, to January 28, 2020, the Veteran's left foot plantar fasciitis with pes planus resulted in no more than moderate pes planus without symptomatology more nearly approximating severe pes planus with objective evidence of marked deformity and characteristic callosities, or pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spams of the tendo achilles on manipulation.

2. From January 28, 2020, to March 22, 2021, the Veteran's bilateral plantar fasciitis with left foot pes planus resulted in no more than severe pes planus, without symptomatology more nearly approximating pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation. 

3. As of January 28, 2020, but no earlier, the Veteran's has left foot hammertoes that did not affect all toes.

CONCLUSIONS OF LAW

1. From March 26, 2014, to January 28, 2020, the criteria for a rating in excess of 10 percent for left foot plantar fasciitis with pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276.

2. From January 28, 2020, to March 22, 2021, the criteria for a rating in excess of 30 percent for bilateral plantar fasciitis with left foot pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5276.

3. As of January 28, 2020, but no earlier, the criteria for a separate noncompensable rating, but no higher, for left foot hammertoes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.22, 4.40, 4.45, 4.59, 4.71a, DC 5282.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 2002 to November 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2011 by a Department of Veterans Affairs (VA) Regional Office, which as relevant, awarded service connection for left foot plantar fasciitis with a noncompensable rating, effective December 1, 2005.

In May 2016 and December 2018, the Board remanded the case for additional development. In an October 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's left foot plantar fasciitis with pes planus to 10 percent as of March 26, 2014. In a May 2021 rating decision, the AOJ combined the Veteran's disability ratings for his left foot plantar fasciitis with pes planus with his service-connected right foot plantar fasciitis and increased such to 30 percent as of January 28, 2020, and 50 percent as of March 23, 2021.

In September 2021, the Board awarded an initial rating of 10 percent prior to March 26, 2014, and denied a rating in excess of 10 percent prior to January 28, 2020, for left foot plantar fasciitis with pes planus. The Board also denied entitlement to ratings in excess of 30 percent prior to March 23, 2021, and in excess of 50 precent thereafter for bilateral plantar fasciitis with left foot pes planus. Thereafter, the Veteran appealed the Board's denial to the extent that it denied a rating in excess of 10 percent for left foot plantar fasciitis with pes planus from March 26, 2014, to January 28, 2020, and in excess of 30 percent for bilateral plantar fasciitis with left foot pes planus from January 28, 2020, to March 23, 2021, to the United States Court of Appeals of Veterans Claims (Court). In April 2023, the Court granted the Secretary of VA's and the Veteran's (the parties') Joint Motion for Partial Remand (JMPR), which vacated the September 2021 Board decision regarding such issues. 

In this regard, the JMPR noted that the Veteran was not appealing the Board's denial of ratings in excess of 10 percent prior to March 26, 2014, for left foot plantar fasciitis with pes planus or in excess of 50 percent as of March 23, 2021, for bilateral plantar fasciitis with left foot pes planus. Therefore, such issues are no longer on appeal, and the Board will proceed by addressing only the aspects of the September 2021 decision that the Court vacated and remanded, which include the issues of entitlement to a rating in excess of 10 percent from March 26, 2014, to January 28, 2020, for left foot plantar fasciitis with pes planus and in excess of 30 percent from January 28, 2020 to March 22, 2021, for bilateral plantar fasciitis with left foot pes planus.

1. Entitlement to a rating in excess of 10 percent from March 26, 2014, to January 28, 2020, for left foot plantar fasciitis with pes planus.

2. Entitlement to a rating in excess of 30 percent from January 28, 2020, to March 22, 2021, for bilateral plantar fasciitis with left foot pes planus.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C. § § § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.  

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

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. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

For the appeal period from March 26, 2014, to January 28, 2020, the Veteran's left foot plantar fasciitis with pes planus has been evaluated as 10 percent disabling and, from January 28, 2020 to March 22, 2021, his bilateral plantar fasciitis with left foot pes planus has been evaluated as 30 percent pursuant to DC 5276. 

DC 5276 addresses acquired flatfoot and defines the symptomatology that is understood to represent moderate, severe, and pronounced flat foot. In this regard, the Board notes that, in the September 2021 decision, the Board stated that such terms were not defined in the rating criteria and, as such, the April 2023 JMPR directed the Board to define, or provide an understanding of such terms. However, such statement in the September 2021 decision was clearly in error as DC 5276 defines the terms used therein, which the Board has applied herein.  

Specifically, under DC 5276, moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, is rated 20 percent disabling for a unilateral disability and 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for a unilateral disability and 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a.

The Board observes that, as of February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, to include plantar fasciitis, was amended. Specifically, as of such date, plantar fasciitis is rated pursuant to DC 5269, which provides for a maximum 30 percent rating where there is bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 20 percent rating is warranted where there is unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Otherwise, a 10 percent rating is assigned for unilateral or bilateral plantar fasciitis. Note (1) indicates that, with actual loss of use of the foot, a 40 percent is assigned. Note (2) states that, if a veteran has been recommended for surgical intervention, but is not a surgical candidate, his or her plantar fasciitis is evaluated under the 20 percent or 30 percent criteria, whichever is applicable. 85 Fed. Reg. 230. (Nov. 30, 2020). 

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 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 as of February 7, 2021, applying the criteria that is more favorable to him.

Based upon a review of the evidence of record, the Board finds that a rating in excess of 10 percent from March 26, 2014, to January 28, 2020, for left foot plantar fasciitis with pes planus and a rating in excess of 30 percent from January 28, 2020, to March 22, 2021, for bilateral plantar fasciitis with left foot pes planus is not warranted. 

In this regard, the Veteran underwent a VA examination in July 2014. At such time, the examiner noted diagnoses of left foot plantar fasciitis and right foot neuroma, status post third metatarsal osteotomy with residual numbness in toes. The Veteran reported his current symptoms included having constant, throbbing pain in both feet, but his right foot was worse. He also started to recently have tingling in right second, third, and fourth toes. However, the examiner noted that the Veteran's left foot disability had resolved without any residuals. He also observed that the Veteran's treatment records, physical examination, and medical literature review were not consistent with a current clinical diagnosis of plantar fasciitis and there was no functional limitation. Nonetheless, subsequent private treatment records revealed that, in September 2016, October 2016, and March 2017, the Veteran complained of bilateral foot pain and, upon physical examination, his right and left third web spaces showed evidence of limited range of motion, and there was pain on palpation, painful range of motion, and swelling.  

In February 2017, the Veteran underwent another VA examination, at which time noted diagnoses of right foot Morton's neuroma, bilateral plantar fasciitis, and status post right foot neuroma surgery were noted. The Veteran reported symptoms including pain while walking, running, or standing for long periods of time. He also indicated that orthotics or arch supports did not alleviate his symptoms. The VA examiner noted that the Veteran exhibited pain on use of the left foot, which was accentuated on use, as well as pain on manipulation of the feet, which was also accentuated on use. He also observed that there was no swelling or characteristic calluses of the left foot. He further noted that there was no extreme tenderness of the plantar surface of the Veteran's left foot, decreased longitudinal arch height on weight-bearing, or any objective evidence of marked deformity of the left foot. He also found that there was no marked pronation of the left foot, and no inward bowing of the Achilles' tendon.

In September 2018, the Veteran was afforded another VA examination. At such time, the examiner noted a diagnosis of left flat foot, and the Veteran reported that, since its onset, such disability has stayed the same. His current symptoms included pain in the left foot with standing or walking for prolonged periods of time. The examiner noted the Veteran had pain with use of his left foot, but such was not accentuated on use. The Veteran also denied pain on manipulation of the left foot. The examiner noted there was no swelling or characteristic calluses of the left foot. He also observed that the Veteran has used orthotics for his left foot pes planus but without relief of his symptoms. He further noted there was no extreme tenderness of the plantar surface of the left foot, but observed that the Veteran has a decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity or marked pronation of the left foot observed. The examiner also noted no inward bowing of the Achilles' tendon.

On January 28, 2020, the Veteran underwent another VA examination. At such time, the examiner noted diagnoses of bilateral flat foot, right foot Morton's neuroma, bilateral hammertoes, right foot hallux valgus, and right foot residuals, status post right 3rd metatarsal osteotomy. The Veteran had pain on use and on manipulation of both feet, which was accentuated on use. However, there was no indication of swelling on use or characteristic calluses. He also noted that the Veteran has used orthotics for his feet but without relief of his symptoms. The Veteran did not have extreme tenderness of the plantar surface of the left foot, but there was decreased longitudinal arch height on weight-bearing of both feet. There was no objective evidence of marked deformity or marked pronation of the left foot, and no inward bowing of the Achilles' tendon. Regarding the Veteran's hammer toes, the VA examiner indicated that his left second through fourth, and little, toes were all affected.

Thus, based on the foregoing, the Board finds that, from March 26, 2014, to January 28, 2020, the Veteran's left foot plantar fasciitis with pes planus resulted in no more than moderate pes planus. In this regard, while swelling was noted in the Veteran's private treatment records, the evidence does not show that such disability resulted in severe pes planus with objective evidence of marked deformity and characteristic callosities, or pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spams of the tendo Achilles on manipulation. Thus, the Board finds that a rating in excess of 10 percent for left foot plantar fasciitis with pes planus from March 26, 2014, to January 28, 2020 is not warranted under DC 5276. 

Additionally, a rating in excess of 30 percent for bilateral plantar fasciitis with left foot pes planus from January 28, 2020, to March 22, 2021, is not warranted. Specifically, the evidence does not show marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation to satisfy the criteria for a 50 percent rating under DC 5276. Specifically, the January 2020 VA examiner found no marked pronation, extreme tenderness, or inward displacement and severe spasm of the Achilles tendon. Thus, the Veteran's disability picture is most consistent with a 30 percent rating. The symptoms shown by the evidence, including pain on use and accentuated by use, pain on manipulation and accentuated by manipulation, are enumerated in the 30 percent criteria. The 50 percent rating criteria contemplates pronounced flatfoot, including effects on the Achilles tendon, as not improving with orthotics. While the Veteran has not found relief of pain from orthotics, the evidence simply does not show the level of impairment contemplated by the 50 percent rating.

Finally, the Board notes that, as referenced above, effective as of February 7, 2021, the recently enacted new rating criteria for plantar fasciitis (DC 5269) are in effect, and thus, VA is obligated to consider their applicability, with the understanding that, if applicable, a related rating could be awarded no earlier than the February 2021 effective date of the regulation. However, as the highest rating allowed by DC 5269 is 30 percent, and the Veteran is in receipt of a 30 percent rating as of January 28, 2020, the application of this regulation would not result in the award of an increased rating. Moreover, it would result in impermissible pyramiding to assign a separate rating under DC 5269 based on the same symptomatology. 38 C.F.R. § 4.14;  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The Board has further considered whether higher and/or separate ratings are warranted under any other potentially applicable DC. In this regard, the Board finds that a separate noncompensable rating is warranted for hammertoes of the Veteran's left foot as of January 28, 2020, pursuant to DC 5282, which provides for a noncompensable rating for single toes, and a 10 percent rating for all toes, unilateral without claw foot. Specifically, during the Veteran's January 28, 2020, VA examination, the examiner found that he had hammertoes affecting his left second, third, fourth, and little toes. However, as such were not noted prior to such examination, an earlier effective date for such award is not warranted. Moreover, as the great toe was not affected, a compensable rating is not warranted. Accordingly, the Veteran is entitled to a noncompensable rating, but no higher, for left foot hammertoes as of January 28, 2020, but no earlier, under DC 5282. 

However, as the evidence does not reflect weak foot, claw foot, hallux rigidus, or malunion of tarsal or metatarsal bones of the left foot, DCs 5277, 5278, 5281, and 5283, respectively, are inapplicable.  Additionally, the Board notes that the Veteran is already in receipt of separate ratings for right foot neuroma, status post third metatarsal osteotomy with residual numbness in toes, right foot hallux valgus, right toe hammer toe deformity of the second, third, fourth, and little toe, right foot scar between third and fourth digit, and right foot neuropathy of musculocutaneous nerve. 

In reaching the conclusions above, the Board acknowledges the Veteran's belief that his symptoms related to his foot disabilities are more severe than as reflected by the currently assigned ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran in regard to his foot disabilities, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities.

The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected foot disabilities; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings for the Veteran's foot disabilities are not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence of record persuasively weighs against the Veteran's claim for increased ratings for his foot disabilities, the benefit of the doubt doctrine is not applicable and his increased rating claims must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Clark

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.