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Proper route to get additional coding on schedule of ratings


ASU_0331

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So I am getting juggled a bit between VSO since my awesome last one retired so would appreciate the proper route to take.

I was just rated at at 50% Pes Planus with Plantar Fasciitis under 5276.  This was a supplemental claim for only pes planus that was filed on 02/01/21 with a decision made on 03/12/21.  After speaking with a VSO, who read me the decision letter and raters notes, he said there is no doubt the 50% for pronounced pes planus was justified, but was not sure why they arbitrarily added plantar fasciitis to the decision.  I mentioned to the VSO that effective 02/04/21, a diagnostic code of 5269 - Plantar Fasciitis was added to the schedule of ratings - musculoskeletal system and if it was possible that they combined them under diagnostic code 5676, because that was how it was always done before and the rater did not read or know about the new diagnostic code.  He said that could be the reason.

Just to note, I was diagnosed at the VA with bilateral pes planus in 2017 and given insoles.  I was again seen by the VA for foot pain and bilateral pes planus was again affirmed in 2018 with a different set of insoles.  This last January I again went in with foot pain where pes planus was again affirmed, had another set of insoles cast, and was diagnosed for the first time with bilateral plantar fasciitis and given steroid injections in each foot.

Ultimately I am looking to get the plantar fasciitis rated separately from the pes planus under the new diagnostic code of 5269, which due to the severity and being bilateral would be at 30%.  In fact, my VSO had already submitted an intent to file for bilateral plantar fasciitis, arthritis of both great toes, patellar tendinosis of both knees, arthritis of both knees, and ITB syndrome as being secondary to the pes planus once it was service-connected.  The history of my pes planus dates back to my final physical and I have been receiving treatment for it since 2017 in the form of insoles when it was originally diagnosed with the VA.  It was only this last year that I was diagnosed with plantar fasciitis as a result of the pes planus.

So what route do I take on this supplemental claim?  I feel like a High level Review won't allow me to submit the VA medical records showing that I have been treated unsuccessfully for pes planus since 2017.  Is that something I can bring up in the phone conversation with the reviewer to get the plantar fasciitis rated separately under 5269?  I am not submitting any new evidence so to speak, but literally VA medical records that were already in the system for years.  The other question is, does the new diagnostic rating for plantar fasciitis even apply to me?  I filed on 02/01/21 and the new rating schedule went into effect on 02/04/21.

I want to fight this decision because I am already rated at 70% with CAD, DMII, and Tinnitus.  Getting the plantar fasciitis rated separately would be the difference between an 86% rating rounding up to 90% and 92% rounding down to 90%.  This does not include the issues secondary to the pes planus like the arthritis and tendinosis that are under my current intent to file.           

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"Can I get VA disability for both flat feet and plantar fasciitis?

No, both of them together won’t be able to get a rating, but the VA is required to give you the highest rating whenever two disabilities exclude each other."

I copied the above from a legal site on the innerweb.  I also think you can only be rated for one, or get the highest of the two ratings.  So if you have a 30 and a 50, they will only give you the fifty.

They are both the same part of the foot, and one causes the other, etc.

However, the regulation has changed and a new rating has been added, but I think that is for Veterans like me who have plantar, but not flat feet.  In the past, there was not a direct rating for us.

What you are trying to do is new (because of the regulation) and therefore ground breaking.  I don't think you will find precedence.  All I find are rated as one.  

Get a lawyer and go for it, 

Hamslice

 

 

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So decision letter came in today and things are looking pretty damn good from my point of view.  Gonna abridge non relevant parts to save time  

From my decision letter;

“We have assigned a 50 percent evaluation for your bilateral pes planus based on:

Marked pronation (L/R)

Symptoms NOT improved by orthopedic shoe or appliance (L/R)

Additional symptom(s) include:

Characteristic callosities (L/R)

Indication of swelling on use (L/R)

Objective evidence of marked deformity (L/R)

Pain on manipulation of feet (L/R)

Pain on manipulation of feet, accentuated (L/R)

Pain on use of feet (L/R)

Pain on use of feet, accentuated (L/R)

Weight-bearing line over or medial to great toe (L/R)

This is the highest scheduler evaluation allowed under the law for flatfoot, acquired. (38 CFR 4.57, 38 CFR 4.71a)”

Not a single thing mentioned regarding my plantar fasciitis diagnosis or current steroid injection treatment.  Now the pain on use/manipulation/accentuated may be viewed as possible pyramiding for both conditions, but there are additional symptoms/manifestations of plantar fasciitis that are not covered under the 5276 for pes planus, but are covered under the 5269 plantar fasciitis rating. 
 

Right now my strategy going forward will be to file for compensation on my current intent to file for issues secondary to the now service-connected pes planus. This includes plantar fasciitis, arthritis of big toes and both knees, ITB syndrome, and patellar tendinosis.  If they deny the plantar fasciitis, but grant the others, I can appeal at that time while still getting a percentage bump and additional bilateral factor bump. 

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