judge_norm: MICHAEL J SKALTSOUNIS

condition: cancer

text:
Citation Nr: 24002000
Decision Date: 01/11/24	Archive Date: 01/11/24

DOCKET NO. 20-00 062A
DATE: January 11, 2024

ORDER

Entitlement to service connection for penile cancer is granted.

FINDING OF FACT

The Veteran's penile cancer is related to active service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for penile cancer are met.  38 U.S.C. �� 1112, 1131, 1137, 5107; 38 C.F.R. �� 3.102,3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from July 1966 to June 1967, including service in Korea.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2021, the Veteran testified at a hearing before the undersigned Veteran's Law Judge.  A transcript of the hearing has been associated with the file.

This matter was previously before the Board in October 2021 at which time it was remanded for further development, including a new examination and medical opinion.

This matter was again before the Board in October 2022 at which time the Board conceded that the Veteran was exposed to herbicide agents during active service in Korea while stationed near the demilitarized zone.  The Board remanded the Veteran's claim for service connection for penile cancer on a direct basis and as secondary to service-connected prostate cancer for addendum medical opinions.

This matter was again before the Board in March 2023 at which time the Board remanded for addendum opinions.

1. Entitlement to service connection for penile cancer to include as due to herbicide agent exposure and as secondary to service-connected prostate cancer

Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303.

Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38C.F.R. �3.303(d).

Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995).

When the positive and negative evidence regarding any issue material to the determination of a matter is in approximate balance, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks entitlement to service connection for penile cancer.

Penile cancer was diagnosed in February 2016.  Penile cancer is not one of the diseases for which service connection will be presumed under 38 C.F.R. � 3.309 (e).  Therefore, although herbicide exposure is established, presumptive service connection is not available for this disability.  Nonetheless, the Veteran may be entitled to service connection for penile cancer as directly related to service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Service connection may also be warranted on a secondary basis to service-connected disabilities.

The Board notes that the Veteran is competent to report symptoms and treatment.  However, he is not competent to on the etiology of this disability, which is a complex medical question beyond the knowledge of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In October 2021, the Board remanded the Veteran's claim for a VA examination and medical opinion, noting that while an October 2018 VA examination for prostate cancer noted the diagnosis of penile cancer, it did not include any evaluation related to his penile cancer disability claim.  No medical opinion as to etiology was submitted.

Pursuant to the October 2021 remand decision, the Veteran was afforded a VA examination in July 2022.  The examiner noted a diagnosis of penile cancer in 2016 at which time a lesion on his glans penis was biopsied.  He underwent surgical resection for the penile cancer in 2017.  The examiner noted a history of recurrent urinary tract infections with E. Coli.  A urologist did a cystoscope that revealed obstruction.  The examiner opined that it is less likely than not that this Veteran's penile cancer was caused by administration of penicillin injections for urethritis during active duty service.  The Veteran was treated for gonorrhea urethritis twice in February 1967.  Afterwards the Veteran had no other urethritis complaints or symptoms.  The rationale was that according to the American Cancer Society, penile cancers are not caused by gonorrhea nor its treatment including penicillin.  [Cancer.org Causes and risk factors for penile cancer written by their medical content board June 18, 2018].  The examiner opined that is less likely than not that the Veteran's penile cancer was caused by active duty service.  The rationale was that the Veteran was most likely exposed to an herbicide agent, but the medical literature is silent on herbicide agent as a potential cause or a risk factor for penile cancer.  [Cancer.org Causes and risk factors for penile cancer written by their medical content board June 18, 2018].

In October 2022, the Board granted service connection for prostate cancer and remanded the issues of entitlement to service connection for penile cancer on a direct and on a secondary basis to prostate cancer for medical opinions.

Pursuant to the Board's October 2022 remand decision, addendum medical opinions were submitted in January 2023.  The VA examiner opined that the Veteran's penile cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The rationale was that it is less likely than not that the Veteran's penile cancer was caused by active-duty service to include herbicide agent exposure and in-service human papilloma virus/venereal warts.  The Veteran served in active duty from 04/1968 to 08/1971 where he was a guard walking around the perimeter of the DMZ in Korea.  The DOD listed this area that an herbicide agent was used.  Therefore, this veteran was most likely exposed to this agent.  The medical literature is silent on herbicide agent as a potential cause or a risk factor for penile cancer.  [Cancer.org.  Causes and risk factors for penile cancer written by their medical content board June 18, 2018].  Moreover, it is less likely than not that the Veteran's penile cancer was caused by in-service human papilloma virus/venereal warts.  After careful review of the Veteran's C-file, the examiner stated - I see no record of in-service human papilloma virus/venereal warts diagnosed during his active-duty service or, during his re-enlistment to the Army reserves in 4/1972 when he was discharged from active duty.  In fact, the earliest record of venereal warts (condyloma accuminata) was by a urologist on 3/16/2017 "well beyond the Veteran's active-duty service."  The Veteran was diagnosed with penile cancer in 2016 presumably from human papilloma virus (HPV)/venereal warts.  Therefore, a nexus cannot be established.  The examiner opined that the Veteran's penile cancer is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected prostate cancer.  The rationale was that it is less likely than not that the Veteran's penile cancer disability was caused by his service-connected prostate cancer.  According to the American Cancer Society, the exact cause of most penile cancers is not known.  Risk factors include human papilloma virus, being uncircumcised, phimosis, AIDS, smoking and age.  Prostate cancer does not cause penile cancer.  The examiner found that a baseline cannot be established due to the fact that the Veteran's penile cancer was not aggravated by his service-connected prostate cancer.  At the same time, while the Veteran was being worked-up for an elevated PSA that turned out to be from prostate cancer, a lesion on his glans penis was surgically removed.  The pathology came back as penile cancer.  Regardless of an established baseline, the examiner found that the Veteran's penile cancer was not aggravated beyond its natural progression by his prostate cancer.  The rationale was that there is no connection between the Veteran's prostate cancer diagnosis and or treatments in the near simultaneous diagnosis of penile cancer.  The Veteran's penile cancer was surgically removed and cured without any recurrence.  The medical literature is silent for prostate cancer or its treatment causing or aggravating penile cancer.  Therefore, it is less likely than not that the Veteran's penile cancer disability was caused or aggravated by service-connected prostate cancer.  The Veteran's penile cancer was not aggravated beyond its natural progression by an in-service injury or event.

In March 2023, the Board found that the VA examiner's opinion that that due to the earliest record of venereal warts in 2017 was "well beyond the Veteran's active-duty service" is inadequate to show that it is less likely than not that his penile cancer is due to his symptoms during service.  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).  The Board noted that February 1967 service treatment records document that the Veteran experienced symptoms of dysuria, urethral discharge, and pain, which symptoms were diagnosed as prostatitis, gonorrhea urethritis, and pubic lice.  The Board noted that there is no indication in the record that blood, urine, anal, or oral swab test that can detect HPV in men.  Therefore, while this is evidence, it would not be dispositive to note the lack of diagnosis in service treatment records.  Nor is the passage of time dispositive.  The Board noted that the Veteran's penile cancer was diagnosed approximately when his prostate cancer was diagnosed; however, there is no indication in the medical record when he contracted HPV.  The February1967 service treatment records show gram stain for urethra discharge with high WBCS and epithelial cells.  HPV itself isn't cancer but it can cause changes in the body that lead to cancer, as was conceded by the January 2023 examiner when it was concluded that the Veteran's penile cancer in 2016 was presumably from his HPV.  A November 2016 urologist record also notes recurrent prostate infections or chronic prostatitis.  The Veteran reported penile warts at an April 2017 urologist appointment.  He was diagnosed with a 1 cm ulcerated lesion at dorsal corona noted as concerning for possible squamous cell cancer in April 2017.  Based on the evidence, the Board found that the VA examiner's opinion was inadequate to show that it is less likely than not that his penile cancer is due to his symptoms during service.  The Board therefore remanded for an addendum medical opinion addressing whether the Veteran's symptoms during service are related to his later diagnosed HPV and resulting penile cancer.

Pursuant to the Board's March 2023 decision, a VA examiner submitted addendum medical opinions in April 2023.  The examiner opined that it is less likely than not that the Veteran's diagnosis of penile cancer is related to in-service symptoms later diagnosed as human papilloma virus and resulting in penile cancer.  The rationale was that during the Veteran's active duty service, he was diagnosed with gonorrhea urethritis and treated with penicillin in February 1967.  After treatment the symptoms resolved.  There is no history of recurrence on his discharge exam.  The symptoms are not consistent with a diagnosis of human papilloma virus.  There was no evidence of genital warts which are caused by human papilloma virus during this time.  There is no history or evidence of human papilloma virus or penile cancer diagnosed during his active duty service.  The examiner also opined that it is less likely than not that the Veteran' service-connected prostate cancer is a secondary cause of the Veteran's penile cancer.  There is no correlation in the medical literature that prostate cancer or its treatment such as brachytherapy causes penile cancer.  The examiner also opined that it is less likely than not that the Veteran's penile cancer was aggravated beyond its natural causes by prostate cancer or its treatment.  There is no correlation in the medical literature to cause this.

After reviewing all of the evidence of record, including the Veteran's service treatment records, VA examination and opinions, with cited medical literature, the Board finds that the evidence is in approximate balance, and does not persuasively weigh against a finding of service connection for penile cancer.  Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021).  First, there is evidence of a current disability.  The competent medical evidence of record demonstrates that the Veteran was diagnosed with condyloma accuminata (venereal warts caused by HPV) in 2016.  The Veteran's penile cancer was diagnosed in 2017, approximately when his prostate cancer was diagnosed.  However, there is no indication in the medical record as to when in time he contracted HPV.  The medical opinions of record do not adequately address this issue and it may be that any answer would be speculative.  However, the Board finds that the examiner's opinion that, "It is less likely than not that the Veteran's diagnosis of penile cancer is related to in-service symptoms later diagnosed as human papilloma virus and resulting in penile cancer" - suggests that the symptoms experienced by the Veteran during service were later diagnosed as human papilloma virus and that such diagnosis resulted in penile cancer.  The Board notes that the January 2023 VA examiner also concluded that the Veteran's penile cancer was presumably from human papilloma virus, which is not the same as finding it is due to the venereal warts discovered in 2016.  In other words, a finding that the Veteran's penile cancer was likely caused by HPV is not the same as a finding that it was likely caused by the venereal warts diagnosed in 2016.  "A person may have HPV for many years before it causes health problems."  https://www.cdc.gov/std/hpv/stdfact-hpv-and-men.htm.  The Board finds that remanding for another medical opinion would likely not result in any greater clarification as to whether the Veteran contracted HPV during service or at some time after service.  Soyini v. Derwinski, 1 Vet. App. 540 (1991).  Further, the VA examiners agreed that HPV caused venereal warts and likely caused penile cancer.  There was no test for HPV when the Veteran's symptoms were diagnosed as prostatitis, gonorrhea urethritis, and pubic lice in 1967.  The fact that no venereal warts were noted at that time is not dispositive of a finding of HPV.  Finding that the evidence does not persuasively show that the Veteran did not contract HPV during service and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for his penile cancer is warranted.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Debra B. McLoughlin, 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.


series: legacy

judge_norm: G WILLIAM RIGGS

judge_role: Veterans Law Judge

disposition: denied

text:
Citation Nr: 24003000
Decision Date: 01/19/24	Archive Date: 01/19/24

DOCKET NO. 19-04 176
DATE: January 19, 2024

ORDER

Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis prior to September 6, 2023, is denied.

Entitlement to a disability rating in excess of 50 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis from September 6, 2023, is denied.

FINDINGS OF FACT

1. The Veteran's bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis does not produce 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; or marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity prior to September 6, 2023.

2. From September 6, 2023, the Veteran is rated at the schedular maximum for his service-connected bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis prior to September 6, 2023, have not been met.  38 U.S.C. � 1155; 38 C.F.R. �� 4.1, 4.71a, Diagnostic Code 5276, Diagnostic Code 5278 Diagnostic Code 5279.

2. The criteria for entitlement to a disability rating in excess of 50 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis from September 6, 2023, have not been met.  38 U.S.C. � 1155; 38 C.F.R. �� 4.1, 4.71a, Diagnostic Code 5275, Diagnostic Code 5276, Diagnostic Code 5278 Diagnostic Code 5279.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from July 1991 until his honorable discharge in July 1995.  Subsequently, the Veteran served in the United States Marine Corps Reserve from July 1995 until his honorable discharge in August 1998.  The Veteran also served in the United States Army Reserve from July 2000 until his honorable discharge in July 2004, with an active-duty deployment from April 2003 until his honorable discharge in September 2003.  Finally, the Veteran served on active duty in the United States Army Reserve from July 2004 until his honorable retirement in March 2017.  During the Veteran's service, he was awarded numerous awards, including but not limited to the Bronze Star Medal.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Regional Office of the United States Department of Veterans Affairs (VA).

In August 2019 and March 2023, the Board remanded the case to the Regional Office for further development.  Specifically, the most recent Board remand directed the Regional Office to (1) identify any private provider(s) that have provided medical care for the Veteran's bilateral foot disabilities and attempt to obtain the relevant private treatment records; (2) schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral foot disabilities.

The Board notes that as of the most recent March 2023 Board remand, the issue on appeal was entitlement to an initial disability rating in excess of 10 percent for his service-connected foot disabilities.  Subsequently, the Regional Office granted the Veteran's claims to an initial 30 percent disability rating prior to September 6, 2023 and 50 percent thereafter.

The case has been returned to the Board to evaluate if the Veteran is entitled to a higher disability rating than the currently assigned disability ratings of 30 percent prior to September 6, 2023, and 50 percent thereafter.

Finally, the Board notes that for the entire period on appeal, from the date following the Veteran's retirement to present, the Veteran has been rated at an overall 100 percent disability rating, with no single disability rated at a 100 percent disability rating.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. � 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. �� 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. � 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. � 5110 (a); 38 C.F.R. � 3.400.

Under 38 U.S.C. � 5110(a), the effective date of an increase in a Veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. � 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  Thus, "the plain language of [section] 5110(b)(2)...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim."

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. � 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. � 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. � 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. � 101 (30); 38 C.F.R. � 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. � 101 (30); 38 C.F.R. � 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. � 3.155.

Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. � 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. � 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

1. Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis prior to September 6, 2023 is denied.

2. Entitlement to a disability rating in excess of 50 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis from September 6, 2023 is denied.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his bilateral foot disabilities.

For the period on appeal prior to September 6, 2023, the Veteran is rated under Diagnostic Code 5278-5276.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen.  38 C.F.R. � 4.27.  In the present case, the Veteran is rated under Diagnostic Code 5278 for pes cavus on the basis of Diagnostic Code 5276 for flatfoot for his bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis.  38 C.F.R. � 4.27.

For the period on appeal from September 6, 2023, the Veteran is rated under Diagnostic Code 5276.

Under Diagnostic Code 5276, a noncompensable disability rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support.  A 10 percent disability rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral.  A 20 percent disability rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent disability rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent disability rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  A maximum 50 percent disability rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. � 4.71a, Diagnostic Code 5276.

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, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. � 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

Under Diagnostic Code 5278, a noncompensable rating is warranted for slight acquired claw foot.  A 10 percent disability rating is warranted for unilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads.  A 10 percent disability rating is also warranted for bilateral acquired claw foot great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads.  A 20 percent rating is warranted for unilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  A 30 percent disability rating is warranted for bilateral acquired claw foot all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  A 30 percent disability rating is also warranted for unilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity.  A maximum 50 percent disability rating is warranted for bilateral acquired claw foot marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity.  38 C.F.R. � 4.71a, Diagnostic Code 5278.

According to MERRIAM WEBSTER, "slight" means "small of its kind or in amount".  See www.merriam-webster.com/dictionary/slight. "Marked" means "having a distinctive or emphasized character".  See www.merriam-webster.com/dictionary/marked.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. � 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. � 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the factors listed in � 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. � 4.71a; a separate or higher rating under � 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of � 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the � 4.71a criteria.").

Under 38 C.F.R. � 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. � 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. � 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Prior to September 6, 2023

The Veteran was afforded a VA examination in March 2017.  The March 2017 VA examiner diagnosed the Veteran with bilateral plantar fasciitis that produces pain and flare-ups limit driving or standing for long period(s).  Furthermore, the March 2017 VA examiner noted that there is no diagnosis of left pes cavus because there is no pathology to render a diagnosis.

The Veteran was afforded a VA examination in December 2020.  The December 2020 VA examiner diagnosed the Veteran with bilateral plantar fasciitis, bilateral degenerative arthritis, and bilateral pes cavus.  The December 2020 VA examiner noted that the Veteran was also diagnosed with bilateral sesamoiditis in 2005, during his active duty.

Therefore, the question for the Board is if the Veteran's bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis produced 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; or marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis prior to September 6, 2023.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain.  However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that of his symptoms would not result in symptoms more nearly 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; or marked contraction of plantar fascia, with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity.

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule.  Id.

The Board has also considered splitting the Veteran's disabilities into separate compensable disability ratings under Diagnostic Codes 5276, 5278, and 5279.  However, providing the appropriate ratings for each of the disabilities would not result in an overall increased disability rating and may also constitute additional challenges in rating separate disabilities without the pyramiding of symptoms.

In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis.  As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. � 5107(b); 38 C.F.R. �� 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

From September 6, 2023

As the Veteran already has the maximum schedular disability rating from September 6, 2023, the appeal is denied.

As noted above, the Board has also considered splitting the Veteran's disabilities into separate compensable disability ratings under Diagnostic Codes 5275, 5276, 5278, and 5279.  However, providing the appropriate disability ratings for each of the disabilities would not result in an overall increased disability rating and may also constitute additional challenges in rating separate disabilities without the pyramiding of symptoms.

In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 50 percent for bilateral plantar fasciitis with pes planus, pes cavus, and osteoarthritis of the first metatarsophalangeal joints with sesamoiditis.  As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. � 5107(b); 38 C.F.R. �� 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

G. William Riggs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Deemer, 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.