Citation Nr: 21006412 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-17 358 DATE: February 4, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis is denied. FINDING OF FACT For the entire appeal period, the Veteran’s bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis was not manifested by marked contraction of plantar fascia with dropped forefoot, or pronounced flatfoot with marked pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis have not been met. See 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276, 5278, 5279, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to March 1984. In August 2012, the Veteran and his spouse testified before a Veteran Law Judge (VLJ). The Veteran was notified in November 2020, that the VLJ who conducted the August 2012 hearing was no longer available to participate in the adjudication of his claim. He was offered the opportunity for a new hearing but did not respond to the clarification letter as to whether he wanted a hearing before another VLJ. As such, the Board of Veterans’ Appeals (Board) assumes that he does not want another Board hearing and may proceed with adjudication of the issue on appeal. This matter comes to the Board on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral plantar fasciitis and pes cavus with a 10 percent rating effective July 31, 2008 (date of claim). A June 2016 rating decision increased the rating to 30 percent back to the date of claim. There is a long procedural history regarding this claim that was reported in detail in the Board’s June 2017 decision. The procedural history up to that point in time remains accurate and will not be repeated here. In June 2017, the Board denied the Veteran’s claim for entitlement to an initial evaluation in excess of 30 percent for bilateral plantar fasciitis and pes cavus. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court granted the Joint Motion for Remand (JMR). The JMR called for the claim to be remanded because the Board failed to adequately discuss and analyze whether the symptomatology from the bilateral pes cavus and plantar fasciitis was distinct, requiring separate ratings. In August 2019, the Board remanded the above claim for a VA examination (VAX) to determine the nature and severity of his service-connected foot disabilities. For each diagnosis the examiner was asked to identify all symptoms due to the diagnosis and indicate whether the symptoms related to each diagnosis could be distinguished from one another. The Board also remanded the above claim to obtain any missing VA treatment notes and to invite the Veteran to identify any additional medical providers who treated him for his foot conditions. In January 2020, the Veteran was provided with a VAX that addressed whether the Veteran’s symptomatology from his foot disabilities could be differentiated. In November 2019, the Veteran was provided with a subsequent development letter that invited him to identify additional medical providers. However, the Veteran failed to respond to the letter. Thus, the Board finds that there has been substantial compliance with the previous Board remand and the appeal is ripe for adjudication. INCREASED RATING Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis is denied. II. Facts The Veteran seeks an initial rating in excess of 30 percent for his foot disabilities. In November 2008, the Veteran was afforded a neurological disorders and miscellaneous VAX that discussed his feet. He reported being self-employed as a scuba instructor. His right foot has pain and is more severe and symptomatic than his left foot. He asserts that his foot problems are related to his back. He has pain in both feet from a 0 to 10 with walking, standing, or sitting. To relieve the pain, he takes ibuprofen with minimal relief. He reports flare-ups daily that cause pain to a level 10 that will last 3 hours. He has shoe inserts and does not use a cane. He denies redness in the feet. He reports difficulty walking due to his symptoms. He has no difficulty dressing. His wife does the cooking, cleaning, and laundry. He hires someone to do any home maintenance or yard maintenance. He reports difficulty with loading 100 pounds of gear into the trailer, hobbies, and walking. Upon examination the Veteran has tenderness with palpation of the right lateral foot. No tenderness with palpation of the left foot. There was no redness or warmth in either foot. There was no edema or effusion in either foot. Strength with dorsiflexion and plantar flexion of both feet was 5/5. Achilles tendon reflexes were absent. He had no scars or gross deformities. He had slightly greater show ear on the left heel. Both arches were high. The achilles tendon was in good alignment with the left heel, but slightly varus with the right heel. He had no unusual corns or calluses. He was able to wiggle the toes of both feet freely. Bilateral foot x-rays were unremarkable. The diagnoses were bilateral plantar fasciitis and pes cavus foot bilaterally. The VA examiner determined that the Veteran’s foot condition was secondary to his service-connected lumbar disk disease. A letter dated February 2010, was received from Dr. T.M. Dr. T.M. believed that the Veteran should be rated at 30 percent based on a review of the symptoms associated with his bilateral plantar fasciitis and pes cavus. Upon examination all toes tended towards dorsiflexion. There was shortened plantar fascia and marked tenderness under metatarsal heads bilaterally. He was given new inserts for his shoes, but they do not help him. He has persistent callus formation along the lateral aspect of the foot and uses an abrasive brush in order to remove these callosities. He is a scuba instructor and asserts that his feet are severe enough that they prevented him from moving around much. Weight bearing was problematic for him. Getting out of bed was problematic for him in terms of foot pain. Task such as regulator rebuilds are tendinous and require much standing up in a hunched position which aggravate his feet. He has difficulty walking secondary to putting weight on his feet on hard surfaces. Weight bearing is problematic for him. In November 2010, the Veteran was afforded a peripheral nerves VAX for his unrelated radiculopathy that discussed his feet. He was found to have a foot condition with no significant foot intrinsic atrophy. There was no redness, swelling, or edema. Pain was noted on palpation of the plantar area bilaterally. There was no abnormal none or joint abnormality. There was no lack of endurance, easy fatigability, or weakness. No unusual shoe wear that would indicate abnormal weight bearing was noted. No hammertoes or clawfoot deformity was noted. There was no hallux vulgus deformity. There was active range of motion of 1st metatarsophalangeal joint of the great toe. In December 2013, the Veteran was afforded a VAX for foot conditions other than Pes Planus. Since his last VAX, he denied foot surgery and denied injections. He is prescribed orthotic shoes twice a year. He reported pain that is throbbing, numbing, and tingling with intermittent nerve shots up the legs. He reports using ibuprofen as needed. He teaches scuba diving at local pools and is currently teaching at a local women’s university. No assistive devices were reported. He still drives and reports being very active. He states he owns his own local scuba diving business with his wife and gives scuba lessons, sells and rents equipment and sells trips. He works from home and works 24/7. He services all the gear. He hires a person to pick up the 100-pound tanks due to foot pain and unrelated low back condition with radiculopathy. He reported traveling to Florida two weeks ago. He was able to ambulate with a slight antalgic gait with normal tandem walking, was able to walk on heels and toes bilaterally without difficulty. No shoe wear was noted. Shoe inserts were intact. He did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, or hallux rigidus. He has pes cavus and in that regard the effects are the following: All toes tending to dorsiflexion for both feet, definite tenderness under metatarsal heads for left foot, and marked varus deformity for both feet. He did not have malunion or nonunion of tarsal or metatarsal bones. There was no evidence of bilateral weak feet. His functioning was not so diminished that amputation with prosthesis would equally serve him. In December 2013, the Veteran was afforded a VAX for flatfoot (pes planus). Regarding bilateral plantar fasciitis, the Veteran denied any surgery or injections. He reported pain on use, pain accentuated on use, pain on manipulation, and pain accentuated on manipulation for both feet. There was no indication of swelling on use. He did not have characteristic calluses. His symptoms were not relieved by arch supports. He had extreme tenderness of plantar surface of the left foot. There was no decreased longitudinal arch height on weight-bearing. There was objective evidence of marked deformity of both feet. There was no marked pronation of the feet. The weight-bearing line does not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus, causing alteration of the weight bearing line. He does not have inward bowing of the achilles tendon. He does not have marked inward displacement and severe spasm of the achilles tendon on manipulation. In January 2020, the Veteran was afforded a VAX. The VA examiner determined that it would be impossible to identify all symptoms due to the multiple diagnoses. The symptoms of these diagnoses overlap and thus, are unable to be distinguished from one another. His new diagnoses of bilateral calcaneal spurs, metatarsalgia, and metatarsalgia right metatarsophalangeal degenerative foot arthritis are related to his service-connected diagnosis of pes cavus as cited by medical literature. His bilateral plantar fasciitis is also related to his service-connected pes cavus. The Veteran denied any injury, trauma, or surgery to his bilateral feet since his last VAX in 2013. He does physical therapy daily. No shoe wear was noted. His pain is described as freezing, throbbing with numbness, and tingling, but the VA examiner determined that his numbness and tingling symptoms are unrelated to his foot condition. He reported cold weather and climbing a boat ladder when scuba diving as a trigger for flares. He continues being an instructor for scuba diving and travels around the world teaching scuba diving to groups. He is independent with driving and activities of daily living with no assistive devices. He can grocery shop and do light housekeeping. He denied foot surgery. There was no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. There was no functional loss during flare-ups or when the foot is used repeatedly over a period of time. His functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. Regarding the Veteran’s pes planus, he reported pain on use of both feet. No pain on manipulation of the feet was reported. There was no indication of swelling on use. He did not have characteristic callouses. He reported using orthotics for both feet. Extreme tenderness of plantar surfaces on both feet was reported. Decreased longitudinal arch height of one or both feet on weight bear was not found. There was no objective evidence of marked deformity of one or both feet. There was no marked pronation of one or both feet. For one or both feet, he does not have weight-bearing line fall over or medial to the great toe. Lower extremity deformity other than pes planus, causing alternation of weight bearing line was not reported. He did not have inward bowing of the achilles tendon of one or both feet. He did not have marked inward displacement and severe spasms of the achilles tendon on manipulation of one or both feet. He did not have Morton’s neuroma, but did have metatarsalgia for both feet Regarding pes cavus, the VA examiner noted all toes tending to dorsiflexion for both feet. He had marked tenderness under metatarsal heads for both feet. He has shortened plantar fascia for both feet. He did not have dorsiflexion and varus deformity due to pes cavus. II. Law Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. See 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 11 (1999). The Court has also held that 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under Diagnostic Code 5278, a 30 percent rating is assigned for bilateral pes cavus where there is evidence of all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads in both feet. A 50 percent rating is assigned for bilateral pes cavus where there is evidence of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity in both feet. See 38 C.F.R. § 4.71a, Diagnostic Code 5278. The criteria under Diagnostic Code 5278 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). The most common symptom of plantar fasciitis is heel pain, which is rated by analogy to pes planus under Diagnostic Code 5276.M21-1, Part III.iv.A.3.o. Under Diagnostic Code 5276 for flatfoot, a 30 percent schedular rating is assigned for severe bilateral flatfoot; 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 schedular rating is assigned for pronounced bilateral flatfoot with 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. See 38 C.F.R. § 4.7a, Diagnostic Code 5276. Although the 50 percent rating for pronounced flat feet also references "marked pronation," the criteria go on to include extreme tenderness of the plantar surfaces, "marked inward displacement and severe spasm" of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Id. In other words, although the rating criteria are not clearly successive in nature, marked pronation alone is not sufficient to rise to the level of a 50 percent rating because it is also contemplated by the 30 percent rating. Cf. Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Further, some of the criteria for a rating of 50 percent under Diagnostic Code 5276 are in the conjunctive, using the word "and"; therefore, all such criteria must be present and 38 C.F.R. § 4.7 cannot circumvent the need to show all required criteria. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Under Diagnostic Code 5279, metatarsalgia, anterior, unilateral, or bilateral is rated at 10 percent. Under Diagnostic Code 5284, other foot injuries, is a more general Diagnostic Code under which a variety of foot injuries may be rated. The plain meaning of the word 'injury' limits the application of Diagnostic Code 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions. See Copeland v. McDonald, 27 Vet. App. 333 (2015); see also Yancy v. McDonald, 27 Vet. App. 484, 491 (2016). Evaluation of the same manifestations of a disability under different diagnoses, a process called "pyramiding", is to be avoided. 38 C.F.R. § 4.14. However, where the record reflects that the appellant has multiple problems due to a service-connected disability or disabilities, it is possible for an appellant to have "separate and distinct manifestations" permitting separate ratings. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. Similarly, when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). III. Analysis Currently, the Veteran’s bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis are rated under diagnostic code 5278. Based on a review of the record, the Board finds that an initial rating in excess of 30 percent for the Veteran’s bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis is not warranted. The preponderance of the evidence of record does not support an initial 50 percent rating under Diagnostic Code 5278 or Diagnostic Code 5276. A rating under Diagnostic Code 5279 does not purport to a rating higher than 30 percent. The Board has considered whether a higher rating would be warranted under Diagnostic Code 5284 for a foot injury, however a foot injury as prescribed under DC 5284 has not been shown. The Veteran’s disability is not an “injury” as contemplated under Diagnostic Code 5284. In the November 2008 VAX, the VA examiner determined that the Veteran’s foot condition was secondary to his service-connected lumbar disk disease. His x-rays were unremarkable, and no injury was found. In the December 2013 VAX, the VA examiner found that there was no acute fracture-dislocation and no remarkable degenerative changes. The VA examiner did not find that the Veteran had sustained an injury. In the January 2020 VAX, the VA examiner found an age unknown fracture deformity in the right foot. However, the Veteran denied any injury, trauma, or surgery to his bilateral feet since his last VAX in 2013. In a November 2010 Peripheral Nerves VAX the Veteran reported no injuries. The letter received from Dr. T.M. dated February 2010 did not indicate the Veteran suffered an injury. As noted above, in order to warrant a 50 percent rating under DC 5276, the evidence must demonstrate pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasms of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The November 2008 VAX, Dr. T.M.’s February 2010 evaluation, November 2010 VAX, December 2013 VAXs, and January 2020 VAX are devoid of any evidence of marked pronation or marked inward displacement and severe spasms of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. In fact, the December 2013 VAX and January 2020 VAX specifically indicated that the Veteran’s foot conditions were not manifested by marked pronation or marked inward displacement and severe spasms of the tendo achilles on manipulation. Again, all criteria must be met or approximated for an award of 50 percent rating under DC 5276. Middleton, supra. Thus, the Board finds that the preponderance of the evidence of record is against an initial disability rating of 50 percent for the service-connected bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis under DC 5276 for the prescribed period on appeal. As noted above, under DC 5278 a 50 percent rating is assigned where there is evidence of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity in both feet. The November 2008 VAX, Dr. T.M.’s February 2010 evaluation, November 2010 VAX, December 2013 VAXs, and January 2020 VAX are devoid of any evidence of marked contraction of plantar fascia with dropped forefoot. As indicated previously herein, the criteria under DC 5278 are conjunctive and must be met in order for an increased rating to be assigned. Melson, supra. Thus, the Board finds that the preponderance of the evidence of record is against an initial disability rating of 50 percent for the service-connected bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis under DC 5278 for the prescribed period on appeal. The maximum rating under diagnostic code 5279 for bilateral or unilateral metatarsalgia is 10 percent. This does not purport to a higher rating then the 30 percent currently assigned. While the Veteran has reported having pain, the rating under Diagnostic Code 5276, 5278, or 5279 in this case is not based on limitation of motion, but rather, the functional impairment resulting from the foot disability. Therefore, a higher rating is not warranted pursuant to DeLuca or 38 C.F.R. §§ 4.40, 4.45. Lay reports of symptoms and history associated with the Veteran’s foot conditions have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. However, the clinical evidence offering detailed, specific, objective determinations pertinent to the rating criteria and manifestations associated with the disabilities is found to be the most probative and credible evidence with regard to evaluating the pertinent symptoms for the Veteran's foot conditions on appeal. The Board has considered staged ratings and determined that staged ratings are not warranted. See Fenderson v. West, 12 Vet. App. 11 (1999). With specific regards to the Court’s previous JMRs, the Board notes that in the last Board remand, the VA examiner was explicitly directed to address the nature and symptomatology of each diagnosed disability of the bilateral feet. To this end, per the January 2020 medical opinion, the examiner explained that the symptomatology of the Veteran’s bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis are all overlapping and that it would be medical ‘impossible’ to separate and/or distinguish symptoms associated with each diagnosed disability. The examiner comprehensively addressed the actual medical mechanism in which affects each disability, and explicitly noted the interrelationship between the manifestations of a single disability and its relationship/effect on another. With specific regards to clawfoot and plantar fasciitis, the examiner explicitly noted how cavovarus deformity can manifest with exaggerated pressure on the plantar aponeurosis (sole side of the foot), and to include manifesting pain and depression in the metatarsal head and even calves. The Board is satisfied with the rationale and comprehensive explanation by the January 2020 VA examiner, and the ultimate findings that the interconnectivity (overlapping) of symptoms prevents any medically competent allocation of symptoms to each disability diagnosed. The Board points out that the January 2020 examination and report was completed upon a noted review of the Veteran’s complete claims file and medical history, to include an in personal examination of the Veteran. The Board, through the examiner notes and comprehensive report, find the examiner analysis and conclusion to be persuasive, as it shows consideration not only of the evidence but also consideration of the Veteran’s lay statements of subjective reports of symptoms. To this end, the Board also finds that such findings regarding overlapping symptoms are not incongruous with those findings of previous examinations. While the earlier examinations such as a December 2013 VA examinations afforded two separate examinations reports for both the Veteran’s plantar faciitis and clawfoot, the two separate examinations did not actually opine or provide any opinion that such individually identified symptoms in each examination did not overlap with the other. While the Board acknowledge the Veteran’s lay assertions that he feels separate and even disparate symptom from each disability, to explicitly include his clawfoot and his plantar faciitis (heel), the Board, again, must point that that such lay contention, without the proper medical education, training, and experience, cannot be assigned a high probative value, especially in light of the findings of a medical professional that comprehensively and definitively concluded that such symptomology of his various conditions overlap. Consequently, without separate and distinct symptomatology of the disorders, assigning a separate rating for plantar faciitis would amount to pyramiding. See 38 C.F.R. § 4.14. Therefore, the Board finds that the Veteran’s multiple foot disabilities must be rated under one diagnostic code. Based on the above, the Board finds that the claim for an initial rating in excess of 30 percent for bilateral plantar fasciitis, pes cavus, calcaneal spurs, and metatarsalgia with right metatarsophalangeal degenerative foot arthritis must be denied. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, Associate 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.