Citation Nr: 21065135 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-19 673 DATE: October 25, 2021 ORDER Entitlement to a disability rating of 50 percent for service-connected bilateral pes planus with plantar fasciitis is granted. FINDING OF FACT The Veteran's bilateral pes planus with plantar fasciitis is manifested by marked pronation and extreme tenderness of the plantar surfaces of the feet which is not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 50 percent for service-connected bilateral pes planus with plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1977 to January 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in September 2019 for further development. 1. Entitlement to a disability rating of 50 percent for service-connected bilateral pes planus with plantar fasciitis is granted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and the residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities and the criteria for specific ratings. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. Id.; § 4.3. A Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. However, the present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. In increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Hart, 21 Vet. App. at 509; Hazan v. Gober, 10 Vet. App. 511, 519 (1992). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38C.F.R. §4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain must "affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and balance,' [under] 38 C.F.R. §4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. §4.45. The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's bilateral pes planus with plantar fasciitis and hindfoot valgus (bilateral foot disability), is rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flat foot. The Veteran maintains that the evidence necessitates an increased disability rating for his bilateral foot disability. VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Relevant to the present case, the new regulations include DC 5269, specifically contemplating plantar fasciitis. Under DC 5269, a maximum 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. However, Note 1 provides that with actual loss of use of the foot, a 40 percent rating is warranted. As the Veteran is already in receipt of a 30 percent disability rating, and as the evidence does not show that the Veteran has actual loss of use of the foot, the new regulations do not provide a more favorable rating to the Veteran and the Board will therefore only consider the old version of DC 5276. Under the old version of Diagnostic Code 5276, a 30 percent rating is assigned for severe bilateral flat feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating, the highest available under this code, is assigned for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement, and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that the words "moderate," "severe," and "pronounced" are not defined in DC 5276. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 C.F.R. §§ 4.2, 4.6. In evaluating the severity of the Veteran's bilateral foot disability, he was afforded a February 2013 Flatfoot (Pes Planus) Disability Benefits Questionnaire. The examination report states that the Veteran has a diagnosis of bilateral pes planus. The examination report states that bilaterally, the Veteran has pain on use of feet, which is accentuated on use; pain on manipulation of feet, which is accentuated on manipulation; no indication of swelling on use; no characteristic calluses; symptoms that are relieved by arch supports or orthotics; and extreme tenderness of the plantar surface that is improved by orthopedic shoes or appliances. Bilaterally, the Veteran has decreased longitudinal arch height on weight-bearing, no marked pronation of the foot, and no "inward" bowing of the Achilles tendon. The Veteran does not have objective evidence of marked deformity of the foot, but weight-bearing line does fall over or medial to the great toe. There is no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and he does not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran does use an assistive device regularly in the form of arch support. The examination report states that the Veteran's flatfoot condition impacts his ability to work causing functional limitation due to weakness, chronic pain, and limitation of motion. A June 2014 private medical record showed that the Veteran had bilateral foot pain for years and had been using inserts which he reported were not working. A February 2015 Department of Defense (DOD) Medical Record showed that his right foot had tenderness on palpation of the plantar aspect of the heel with no swelling. A May 2015 DOD Medical Record showed that his feet were pronated, and treatment later that month showed tenderness with the use of sound assisted soft tissue mobilization on the plantar fascia. An August 2015 DOD Medical Record showed bilateral tenderness on palpation of plantar aponeurosis, no swelling, and no deformity. A record in the same month showed that his "foot pain presents as more than plantar fasciitis. PT not assisting. He is very stiff at mm and is stretching, but manual care is not assisting." A November 2015 DOD Medical Record showed tenderness in both feet. In November 2015, he underwent extracorporeal shock wave therapy (ESWT) for bilateral plantar fasciitis. Six days after the surgery, he reported that he was still experiencing some pain, he had mild tenderness at his plantar heels, and he was still using orthotics and a night splint. He had pain with walking, when rising in the morning, and after prolonged sitting. A November 2019 DOD Medical Record showed that he was positive for bilateral feet mid arch tenderness and pain on palpitation and range of motion; no swelling or edema was noted. The Veteran submitted a letter in January 2020 where he stated that his issues with his plantar fasciitis continue despite his November 2015 ESWT. He stated that he was currently in physical therapy for his bilateral foot disability, that he has severe pain, and that his orthotics do not work well. A December 2019 Private Medical Treatment Record showed that he was very sensitive in his feet but able to complete all activities. A January 2020 Private Medical Treatment Record showed that he had pain in his feet while driving. A February 2020 physical therapy note showed that he deferred most standing and balance activities due to increased pain, and that he was very tender in his bilateral plantar fascia; he reported that he slipped and fell hurting his feet the previous night and rated his pain an 8/10 in the arches of his bilateral feet. The Veteran was afforded a January 2020 Flatfoot (Pes Planus) Disability Benefits Questionnaire that provides that he has diagnoses of bilateral pes planus, plantar fasciitis, and hindfoot valgus. The Veteran reported pain in his feet, described as aches and tugging pain in both feet. He reported daily flare-ups in both feet that occur daily, are severe, and last one hour; he stated that they are precipitated by prolonged walking and physical assertion, and that they are alleviated by resting, using an ice pack, tennis ball rubbing, and taking ibuprofen. He reported functional loss, described as inability to stand or walk for a prolonged period. In terms of signs of symptoms of the Veteran's flatfoot condition, the examination report states that he has pain on the use of feet that is not accentuated on use. The Veteran has pain on manipulation of the feet that is not accentuated on manipulation, does not have swelling on use, does not have characteristic calluses, his symptoms are not relieved by arch supports, and he does not have extreme tenderness of plantar surface of one or both feet. The examination report states that the Veteran has decreased longitudinal arch height on weight-bearing, does not have objective evidence of marked deformity of the foot, and there is no marked pronation of the foot. The Veteran's weight-bearing line does not fall over or medial to the great toe, there is not a lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and he does not have "inward" bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles tendon. His hindfoot valgus is in both feet and is severe. The Veteran uses an assistive device in the form of inserts, mid-foot bands, and taping. The examination report states that the Veteran's flatfoot conditions impact his ability to work as he is unable to stand for more than 10 minutes or walk for more than a block without pain. The evidence contained in the Veteran's claims folder shows that his bilateral foot disability has been manifested by some findings associated with a 50 percent disability rating, including extreme tenderness of the plantar surface, marked pronation of the foot, and symptoms not improved by orthopedic shoes or appliances. Marked inward displacement and severe spasm of the tendo achillis on manipulation were not shown. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under certain circumstances, a higher rating can be assigned for disabilities of the musculoskeletal system under 38 C.F.R. § 4.40 and § 4.45 for functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca, 8 Vet. App. 202. These provisions, however, should only be considered in conjunction with diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The criteria for rating pes planus is not predicated on limitation of motion. Regardless, in light of the foregoing evidence showing that the Veteran's bilateral pes planus with plantar fasciitis and hindfoot valgus is manifested by extreme tenderness of the plantar surface and marked pronation of the foot, with symptoms not improved by orthopedic shoes or appliances, the Board finds that his bilateral foot disability more closely approximates the criteria for a 50 percent evaluation. 38 C.F.R. § 4.7. This is the highest rating available under DC 5276. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.