FLATFOOT

J. CONNOLLY · 2022 · Case ID: A22003793

MIXED

Summary

The veteran, who served in the Army from May 2003 to November 2008, appeals the denial of an increased rating for service-connected plantar fasciitis and arthritis. The veteran sought a 50 percent rating for her bilateral foot condition, asserting it began during service and worsened over time. The Board reviewed the evidence, including VA examinations from 2009, 2014, 2016, and 2018, as well as private treatment records and buddy statements. The VA examinations noted some tenderness and hyperpronation but often found normal range of motion and no functional loss. However, the Board found that the veteran's consistent lay statements of severe pain, difficulty with weight-bearing, and the objective findings of tenderness and hyperpronation, particularly in the August 2018 VA examination, supported a rating more closely approximating the criteria for pronounced bilateral flatfoot. The Board applied the benefit of the doubt doctrine, granting a 50 percent rating effective August 7, 2014, which was the maximum rating available under the applicable diagnostic code (5299-5276) for pronounced bilateral flatfoot. For the period prior to August 7, 2014, the Board found the evidence supported only the existing 10 percent rating, as the symptoms did not approximate a severe disability.

Rationale

Symptoms prior to August 7, 2014, did not approximate severe bilateral flatfoot.; Pain on manipulation and use, and minimal edema noted, but not severe disability.; 10 percent rating under DC 5276 reflects moderate bilateral pes planus.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

181105-781

Full Decision Text

Citation Nr: A22003793
Decision Date: 03/07/22 Archive Date: 03/07/22

DOCKET NO. 181105-781
DATE: March 7, 2022

ORDER

Prior to August 7, 2014, entitlement to an initial rating higher than 10 percent for service-connected plantar fasciitis and arthritis is denied.

As of August 7, 2014, entitlement to a rating of 50 percent, but no higher, for service-connected plantar fasciitis and arthritis is granted.

FINDINGS OF FACT

1. Prior to August 7, 2014, the Veteran's plantar fasciitis and arthritis was manifested by symptomology most nearly approximating moderate flatfoot, without more sever symptomatology more nearly approximating severe or pronounced flatfoot.

2. As of August 7, 2014, the Veteran's plantar fasciitis and arthritis is manifested by symptomatology most nearly approximating pronounced flatfoot, without loss of use of the feet.

CONCLUSIONS OF LAW

1. Prior to August 7, 2014, the criteria for entitlement to an initial rating higher than 10 percent for plantar fasciitis and arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276.

2. As of August 7, 2014, the criteria for entitlement to a rating of 50 percent, but no higher, for plantar fasciitis and arthritis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from May 2003 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

By way of history, a rating decision was issued under the legacy system in November 2017, effectuating the grant of service connection for plantar fasciitis and arthritis by a November 2017 Board decision and granting a 10 percent evaluation effective November 16, 2008. In April 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The Veteran's decision to opt-in to RAMP resulted in a September 2018 rating decision, which denied an initial plantar fasciitis and arthritis rating higher than 10 percent. After receiving additional evidence, the RO issued a November 2018 rating decision, which increased the evaluation of plantar fasciitis and arthritis, to 50 percent effective August 22, 2018. In March 2019, the Veteran appealed this decision under the AMA, electing the Hearing lane. The Veteran testified in a Board hearing on November 2019. A transcript of the hearing is of record. As such, the Board will consider the evidence of record as of the November 2018 rating decision, as well as evidence received at the hearing or within the 90-day period following the hearing. 38 C.F.R. § 20.302(a).

Entitlement to increased ratings for plantar fasciitis and arthritis

The Veteran asserts that she is entitled to an increased rating for service-connected plantar fasciitis and arthritis. Specifically, she asserts that she is entitled to a 50 percent rating since her active duty service. See February 2, 2018 NOD and November 21, 2019 Hearing Transcript.

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
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, supra; 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.

For the appeal period stemming from the December 16, 2008, date of service connection, the Veteran's plantar fasciitis and arthritis has been evaluated as 10 percent disabling prior August 22, 2018, and 50 percent disabling thereafter pursuant to Diagnostic Code 5299-5276. In this regard, when a disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. § 4.20. Plantar fasciitis is not listed under VA's rating schedule; however, it has been rated under Diagnostic Code 5276 as its symptomatology is analogous to flatfoot.

Diagnostic Code 5276 addresses acquired flatfoot and provides that 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.

Under Diagnostic Code 5284, a 10 percent rating is provided for a moderate foot injury. A 20 percent rating is provided for a moderately severe foot injury, and a 30 percent rating is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. These ratings are unilateral.

According to MERRIAM WEBSTER, "Moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. "Pronounced" means "strongly marked." See www.merriam-webster.com/dictionary/pronounced.

Additionally, effective as of as of February 7, 2021, VA amended the Rating Schedule to include plantar fasciitis. Specifically, as of such date, plantar fasciitis is rated pursuant to Diagnostic Code 5269, which provides for a 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) reports 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. See Schedule for Rating Disabilities: Musculoskeletal System and
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) reports 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). The Board first notes that this code for plantar fasciitis provides for a maximum 30 percent rating; thus, a higher rating is not warranted under that diagnostic code for the period from February 7, 2021 since a 50 percent rating has already been assigned under Diagnostic Code 5299-5276.

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

Turning to the evidence, in January 2009, the Veteran was afforded a VA examination. She complained of a history of pain in the metatarsophalangeal (MP) joints of both great toes since December 2005, which she attributed to the boots and other shoe wear issued in the military. She reported no history of surgery or bunionectomy, and denied joint infection, hospitalization, or other functional impairment. She described the pain in both great toes as a constant, dull ache without radiation. She reported her pain severity as a 7/10, which was exacerbated with prolonged standing and relieved with rest or Ibuprofen. On examination, the Veteran had normal dorsiflexion and plantar flexion bilaterally. No additional loss of range of motion was noted after repetitive motion. There was no evidence of abnormal weightbearing, pes planus, deformity, tenderness, calcaneal tendonitis, calcaneal tendon misalignment, pes cavus, varus deformity pain with dorsiflexion of the toes, pain of the metatarsal heads, hammer toes, interdigital neuroma, hallux valgus, hallux rigidus, pain with standing or walking, or use of corrective shoe wear. The Veteran was also able to stand and ambulate without difficulty. X-rays of the feet were normal. October 2009 x-rays were also normal.

In November 2009, the Veteran underwent a bone scan of the feet which showed increased tracer uptake in the bilateral tarsus and ankles (right greater than left) and right first MTP, probably secondary to degenerative joint disease (DJD). A gallium-67-citrate scan of the feet showed slightly increased gallium uptake (less intense than bone scan abnormality) in the bilateral tarsus and right ankle areas, not compatible with osteomyelitis but probably compatible with mild DJD.

In January 2010, the Veteran complained of bilateral foot pain for at least two years. She reported pain with prolonged standing and walking. She treated her pain with Ibuprofen, rest, and elevation. On examination, pain along the medial arch, first MP joints bilaterally, and tibiotalar joint bilaterally was noted. Range of motion was within normal limits. The Veteran was assessed with plantar fasciitis bilaterally. She was recommended to use custom inserts and shoes. X-rays of the feet were normal.

In May 2010, the Veteran was assessed with plantar fasci
arsus and right ankle areas, not compatible with osteomyelitis but probably compatible with mild DJD.

In May 2010, the Veteran was assessed with plantar fasciitis bilaterally, gastro-soleal tightness, and metatarsalgia. The treating podiatrist prescribed custom inserts and Mobic. The podiatrist also recommended shoes, as well as gastro-soleal stretching and strengthening.

In June 2010, the Veteran complained of tightness in both arches of the feet and metatarsal pain. She was instructed in HEP for gastrocnemius/soleus stretching, strengthening, and icing.

In January 2011, the Veteran complained of pain in both feet for the previous five years. She reported her condition had worsened. Her pain was achy in nature and was aggravated with running, jumping, and prolonged standing. She reported 7/10 pain on the left and 6/10 pain on the right. She also reported she was previously diagnosed with Lisfranc's fracture dislocation. On examination, the Veteran had normal muscle strength. Tenderness to palpation was noted of the extensor hallucis longus (EHL) tendon at the level of the MP joint up to the first met-cun joint. Pain to palpation of the intrinsic muscles in the first interspace was noted, as well as minimal edema and pain with joint compression, bilaterally, left greater than right. Range of motion of the first MP joint was normal. No pain was noted at the Lisfranc's joint. The Veteran was diagnosed with achilles bursitis or tendinitis, unspecified myalgia and myositis, difficulty in walking, ankle and foot, and pain in limb. She was prescribed Medrol and dispensed surgical shoes.

In a February 2011 letter, the Veteran indicated that her feet symptoms prevented her from doing stressful activities.

In August 2014, the Veteran complained of chronic bilateral foot pain which had onset on active duty. She reported pain on dorsum and soles of both feet, worse with weightbearing. She reported no relief with custom shoe inserts and no response to NSAIDs. On examination, no deformity of the feet was noted. Tenderness was present dorsally and on the plantar surface of both feet from toes, ankles, pain dorsally with resisted dorsiflexion of the toes, and no edema. The Veteran was diagnosed in pertinent part with foot pain. She was recommended to receive custom molded orthotics to decrease stress caused by hyperpronation and pain. She was also recommended to undergo corticosteroid injection to decrease inflammation and pain.

Later that month, the Veteran presented to a private foot clinic and complaining of sharp and shooting pain on the top of her feet and in the arches. Pain was made worse by standing and walking. After extended ambulation, she reported pain for one to two days. She reported the onset of pain as seven years ago when she was in the Army. She reported no relief with Ibuprofen and over-the-counter arch supports. On examination, muscle strength and tone were normal. Muscles showed positive pain on palpation bilateral dorsal, medial midfoot at tibialis anterior tendon attachment, positive pain on palpation of the bilateral plantar arch at the flexor hallucis longus (FHL) tendons. Hyperpronation of the bilateral subtalar (ST) joint was also noted. The Veteran was diagnosed with chronic pain of bilateral feet exacerbated with ambulation, rule-out tibialis anterior tendonitis and plantar fasciitis/FHL tendonitis.

In September 2014, the Veteran reported 7/10 bilateral foot pain into the ankle area, which was aggravated by exercise and walking one to two miles. She reported the pain lasted about three days after exercise. In addition to previous recommendations for corticosteroid injection and custom molded orthotics, the Veteran was prescribed Mobic to decrease pain and inflammation. She was also instructed to change her gait in order to decrease stress to her tibialis anterior tendons.

In letters dated in September 2014, the Veteran reported that she had been suffering from chronic bilateral foot pain and discomfort since 2004.

An August 2016 VA foot conditions disability
anterior tendonitis and plantar fasciitis/FHL tendonitis.

In letters dated in September 2014, the Veteran reported that she had been suffering from chronic bilateral foot pain and discomfort since 2004.

An August 2016 VA foot conditions disability benefits questionnaire (DBQ) did not diagnose the Veteran with any foot condition. The Veteran reported arthritis of the feet that began while in the military. She reported that her foot pain had worsened and was continuous. The examiner indicated there was no pain on physical examination and no functional loss. The Veteran was sent for a podiatry consultation. The Veteran underwent an x-ray which showed normal and symmetric appearance of the feet.

In September 2016, the Veteran presented in pertinent part with complaints of bilateral foot pain since active duty. She reported insoles provided no relief. On examination, reflexes were 2/4 but symmetric and toes were down-going bilaterally. Strength was also 5/5/and symmetric.

In October 2016, the Veteran presented with complaints of bilateral foot and midfoot pain for several years. The Veteran reported that she had underwent physical therapy with range of motion exercises, as well as used oral and topical anti-inflammatories, including meloxicam, Ibuprofen, diclofenac and, compounded pain creams. She also has received corticosteroid injections to the heel, which aggravated her pain an amplified it to the point where she had extreme difficulty placing the foot, even on the ground. She denied any eliciting injuries or traumas. The Veteran was diagnosed with plantar fasciitis versus fibromyalgia versus RSD. She was recommended to begin TAL and plantar fascial stretching exercises bilaterally. A consultation for over-the-counter inserts and custom orthotics was initiated. She was also prescribed a topical lidocaine, topical diclofenac gel, and an oral anti-inflammatory.

In October 2016, the Veteran submitted evidence that she was on permanent profile due to arthritis of the right foot dated December 9, 2005.

In February 2017, the Veteran testified that her bilateral foot disorder began while she was in the service and resulted in a permanent profile for right foot arthritis in December 2005, which was officially signed in January 2006. She stated that she suffered pain and trouble with prolonged standing, going up and down stairs, and running. Furthermore, she stated that any amount of pressure on her feet resulted in extreme pain. The Veteran indicated that her condition was worse in her right foot, but that such symptoms were present in both feet and continued to the present. She testified that she was diagnosed with DJD in 2009, within one year of her discharge from service and that in 2010 she was diagnosed with plantar fasciitis. The Veteran stated that she underwent physical therapy for her feet and received custom-made shoes as well as cortisone shots. Finally, the Veteran testified that while the August 2016 VA examiner stated that her feet were normal, her previous x-rays as well as those done subsequently, had shown DJD as well as other bilateral foot conditions, and that the x-rays conducted in August 2016 did not consist of weightbearing x-rays.

In February 2018, April 2018, and August 2018, the Veteran submitted buddy statements indicating that she experienced severe pain and swelling of the feet, as well as incapacitating episodes due to her feet.

In a letter dated in February 2018, the Veteran indicated difficulty completing household chores and performing personal hygiene due to excruciating feet pain. She also complained of daily feet pain, that was constant and relieved by nothing. She described her pain as sharp, throbbing, and aching.

In April 2018, the Veteran presented to a private foot clinic with complaints of chronic severe pain (8/10). She described her pain as sharp and aching on the bottoms of both feet, arches, and heels. She stated the pain had been getting worse since it started 10 years prior. She reported she had used Motrin, cortisone shots, over-the-counter arch supports, elevation, massage, and custom molded orthotics. She reported the pain was worse in the morning. She also reported aching pain in both big toe joints. On examination, the Veteran had decreased ankle dorsiflexion, hyperpronation of the ST joint with standing, and tight Achilles' tendon bilaterally. Positive pain on palpation of both medial calcaneal tubercle with pain up into the plantar arch, along the plantar fascia was noted. Positive pain on palpation bilateral first MP joints with decreased dorsiflexion range of motion was also noted. She was prescribed custom molded orthotics, Medrol Dosepak, and a night splint to decrease pain.

In May 2018, the Veteran presented to a private foot clinic with complaints of painful arches/heels, right 4/10 and left 7/10. She described the pain as aching and worse with standing/walking. She reported onset of over 10 years ago. She also reported that the night splint and prescription were helping, but she had not received her custom molded orthotics from the VA. The Veteran was diagnosed with painful bilateral plantar fasciitis and bilateral hallux valgus. The Veteran was prescribed Voltaren and Mobic. Later that month, the Veteran was prescribed physical therapy, to include Iontophoresis and electric stimulation.

In June 2018, the Veteran was instructed to take her custom molded orthotics back to the VAMC to adjust and decrease the arches, as she complained that they hurt her arches and felt "too high."

In July 2018, the Veteran reported that she had been wearing her newly adjusted custom molded orthotics from the VA, but they did not seem to be helping yet. She reported some relief from physical therapy twice a week. She also reported using a stretching boot a few times a week.

At a July 2018 VA physical therapy consultation, the Veteran reported using custom inserts for just two months with no relief, as well as gel, stretching, and medication without improvement. She denied surgeries to the bilateral feet but indicated bilateral cortisone shots about six months prior that only helped for a week. On examination, dorsiflexion was -42 degrees and -50 degrees of the left and right extremity, respectively. Plantar flexion was 54 degrees bilaterally. The Veteran was assessed with decreased active range of motion of the bilateral ankles and decreased strength, as well as increased pain. The Veteran was instructed to continue to follow up with physical therapy once a week until September 5.

At an August 2018 VA examination, the Veteran was diagnosed with flat foot (pes planus) and plantar fasciitis. The Veteran reported constant pain in both feet and extremely tender arches. She described her pain as ranging from sharp to throbbing to unrelenting and aching throughout the day. She described flare-ups in the morning upon waking and walking, and after walking or prolonged standing. Flare-ups caused her feet to swell and made touching them "unbearable." She reported it was extremely difficult to complete household chores or perform personal hygiene because she could not put pressure on her feet for more than 10 to 15 minutes at a time and sometimes pain was so excruciating that she could not get out of bed. The examiner noted no pain or swelling on use of the feet, but noted pain on manipulation of the feet. The Veteran used arch supports, but she remained symptomatic. She had extreme tenderness of plantar surfaces on both feet that did not improve with orthopedic shoes or appliances. She had decreased longitudinal arch height of both feet on weightbearing. No marked deformity or pronation was noted. Pain was noted but it did not contribute to functional loss. No functional loss was noted with repeated use or during flare-ups. The Veteran was noted to regularly use a cane. An x-ray t showed normal and symmetric appearance of the feet.

During the November 2019 hearing, the Veteran reported swelling and extreme tenderness on active duty. She reported that during active duty she occasionally walked on the sides of her feet due to pronation and used a cane. She testified that she was prescribed customary orthotics which provided no relief, and she ended up on a permanent profile due to her foot pain while in service. She testified that she met the criteria the
arch height of both feet on weightbearing. No marked deformity or pronation was noted. Pain was noted but it did not contribute to functional loss. No functional loss was noted with repeated use or during flare-ups. The Veteran was noted to regularly use a cane. An x-ray t showed normal and symmetric appearance of the feet.

During the November 2019 hearing, the Veteran reported swelling and extreme tenderness on active duty. She reported that during active duty she occasionally walked on the sides of her feet due to pronation and used a cane. She testified that she was prescribed customary orthotics which provided no relief, and she ended up on a permanent profile due to her foot pain while in service. She testified that she met the criteria the for a 50 percent rating under Diagnostic Code 5276 since service and the reason there is no medical documentation of her symptoms from 2008 to 2010 is because she was waiting to see a podiatrist.

After careful review of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's plantar fasciitis and arthritis more nearly approximated the criteria for a 50 percent rating, but no higher, from August 7, 2014.

First, although the Veteran's medical records do not indicate that her treating clinicians or VA examiners explicitly characterized her plantar fasciitis and arthritis as "pronounced" at any time from August 7, 2014, the Board finds that such a finding is warranted as shown by the other lay and medical evidence. With regard to the Veteran's own lay statements, she regularly reported experiencing pain in both of her feet when standing or walking for any length of time. Since August 7, 2014, she has variously characterized the pain as "constant," "sharp," and "severe."

A finding of pronounced disability is further supported by the objective medical findings of record. The August 2014 treatment note noted "tenderness dorsally and plantar surface both feet," which substantiates the Veteran's lay descriptions of accentuated pain on use and manipulation. The Veteran was also found to have pain dorsally with resisted dorsiflexion of the toes, which cause the Veteran further pain and discomfort, especially when walking. She was also found to have hyperpronation, as she was recommended to use custom molded orthotics, despite evidence that her condition was not improved by orthopedic shoes or appliances. Although the Veteran is not shown to have marked inward displacement and severe spasm of the tendo achillis on manipulation, the Board finds that overall her symptoms are most consistent with the highest 50 percent rating.

In sum, the Board finds that for the rating period from August 7, 2014, the evidence shows that the Veteran's plantar fasciitis and arthritis predominantly manifested by symptoms of pronounced disability, including severe tenderness of the plantar surfaces, accentuated bilateral foot pain on manipulation and use, hyperpronation, functional impairment including difficulty walking and standing, and symptoms not improved by orthopedic shoes or appliances. As such, the Board finds that the Veteran's overall disability picture due to bilateral plantar fasciitis and arthritis more nearly approximated the criteria for a 50 percent rating from August 7, 2014. This is the maximum rating under this code. As noted, this rating is higher that the maximum rating under the new diagnostic code for plantar fasciitis which is 30 percent (and only available as of the effective date of that code).

Prior to August 7, 2014, the Veteran's plantar fasciitis and arthritis manifested as bilateral foot pain that was exacerbated by prolonged weight-bearing, arch pain and tightness, metatarsal pain, and minimal edema. The Veteran's current 10 percent rating reflects symptoms equal to moderate bilateral pes planus characterized by weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. A higher rating under this diagnostic code would require symptoms equal to severe pes planus in one or both feet, such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. See id. Though pain on manipulation and use, as well as minimal edema was noted prior to August 7, 2014, the presence of these symptoms does not approximate a severe disability in degree. As the Veteran's bilateral foot disability is characterized by pain that increases with use, it most nearly approximates the criteria for the current 10 percent rating under Diagnostic Code 5276. Therefore, a rating higher than the current 10 percent is not warranted prior to August
this diagnostic code would require symptoms equal to severe pes planus in one or both feet, such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. See id. Though pain on manipulation and use, as well as minimal edema was noted prior to August 7, 2014, the presence of these symptoms does not approximate a severe disability in degree. As the Veteran's bilateral foot disability is characterized by pain that increases with use, it most nearly approximates the criteria for the current 10 percent rating under Diagnostic Code 5276. Therefore, a rating higher than the current 10 percent is not warranted prior to August 7, 2014. As noted, the new rating code for plantar fasciitis may not be considered prior to the effective date of that code.

As noted above, the award of a 50 percent rating under Diagnostic Code 5276 is the maximum rating available under this diagnostic code. In that regard, there is no rating higher than 50 percent expressly set forth in the rating criteria for a bilateral foot disability. The Veteran has not argued, nor does the record suggest, that this rating does not adequately contemplate her symptoms; she has provided no further argument as to the rating since its recent increase. 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that entitlement to a rating in excess of 50 percent for bilateral plantar fasciitis since August 7, 2014 under Diagnostic Code 5276 is not warranted.

The Board notes that as referenced above, effective as of February 7, 2021, the recently enacted new rating criteria for plantar fasciitis (Diagnostic Code 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 Diagnostic Code 5269 is 30 percent, and the Board has awarded a 50 percent rating for the period in which this rating criteria became effective, the application of this regulation would not result in the award of an increased rating.

In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5277 (weak foot), 5278 (claw foot), 5281 (hallux rigidus), 5282 (hammer toe), and 5283 (malunion or nonunion of the tarsal or metatarsal bones) do not apply. There was no indication that the Veteran had Morton's neuroma and no pes cavus was noted. No malunion or nonunion of tarsal or metatarsal bones were noted.

The Veteran has been diagnosed with metatarsalgia, which could be rated under Diagnostic Code 5279 (anterior metatarsalgia), but Diagnostic Code 5279 offers a maximum rating of 10 percent. Furthermore, as the Veteran's symptomology of a foot disability, such as foot pain is already considered by the Veteran's 10 percent evaluation, a separate rating for the same symptoms under a different Diagnostic Code is not warranted. 38 C.F.R. § 4.14.

The Veteran has also been diagnosed with hallux valgus, which is rated under Diagnostic Code 5280. A maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe; or unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. However, the diagnostic code is inapplicable as there is no evidence of equivalence to amputation of the great toe or any surgery or operation of the foot valgus.

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The only code that potentially provides for higher ratings is Diagnostic Code 5284 which provides ratings based on each foot separately (so a potential combined rating higher than 50 percent) based on residuals of foot injuries. However, no foot injuries were noted, and the Veteran's service-connected disability, by her own account, is not based on a foot injury. Further, the Veteran clearly has a bilateral foot condition, plantar fasciitis, such that the rating under Diagnostic Code 5276 contemplating bilateral foot disability is more appropriate than unilateral ratings for each foot. Moreover, Diagnostic Code 5284, at its maximum, provides for a 30 percent rating for each foot which combines to 50 percent per 38 C.F.R. § 4.25, a 50 percent rating combined is also the maximum available unless the Veteran has loss of use of the foot which would warrant a higher rating of 40 percent, which the Veteran does not have.
, no foot injuries were noted, and the Veteran's service-connected disability, by her own account, is not based on a foot injury. Further, the Veteran clearly has a bilateral foot condition, plantar fasciitis, such that the rating under Diagnostic Code 5276 contemplating bilateral foot disability is more appropriate than unilateral ratings for each foot. Moreover, Diagnostic Code 5284, at its maximum, provides for a 30 percent rating for each foot which combines to 50 percent per 38 C.F.R. § 4.25, a 50 percent rating combined is also the maximum available unless the Veteran has loss of use of the foot which would warrant a higher rating of 40 percent, which the Veteran does not have. Thus, the Board finds that Diagnostic Code 5284 does not provide for a higher rating.

Accordingly, the Board has applied the benefit of the doubt doctrine, which results in the award of a partial higher rating of 50 percent from August 7, 2014. However, the evidence is against a rating in excess of 10 percent for bilateral plantar fasciitis prior to that date, or in excess of 50 percent from that date. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

J. CONNOLLY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.N., 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.

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