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VA Disability for Foot Conditions

VA Disability for Foot Conditions
  1. Common foot conditions related to military service
  2. Elements of VA Service Connection
  3. Viewer Question: Do balance and stability issues count as loss of use?
  4. C&P Exams for foot conditions (VA exams for service connection or for an increased rating)
  5. What other types of evidence could you use to support a VA claim for a foot condition
  6. What VA means by “functional loss”
  7. Secondary service connection for a foot disability
  8. Viewer Question: If you indicate an injury on your exit examination, but never got treatment, is that enough to start a claim for a foot or ankle condition?
  9. What if you had a foot condition before starting your service?
  10. VA ratings for foot disabilities
  11. VA claims for foot conditions in the new Appeals Modernization system (AMA)
  12. The Bilateral Factor in VA disability claims
  13. Special Monthly Compensation (SMC) for Loss of Use
  14. Total Disability due to Individual Unemployability (TDIU) / VA Unemployability for foot conditions
  15. Common VA mistakes when adjudicating foot condition claims & Things to remember when submitting your claim or appeal

READ the blog post here: 

Video Transcript:

Christian McTarnaghan: Good afternoon and welcome to another edition of Facebook Live from Chisholm Chisholm and Kilpatrick. My name is Christian McTarnaghan. Today, I’m joined with Alyse Galoski and Jenna Zellmer. We are all attorneys here at CCK. Today, we’re going to talk about foot conditions. Let’s start at the basic level. Alyse, do you want to talk about some common foot conditions that veterans might get from their times in service?

Alyse Galoski: Sure. There is really a wide array of different foot conditions that you can get. Some really common examples are pes planus, also known as flat feet; plantar fasciitis, which involves your heel; you could actually have loss of use; or also even just arthritis.

Christian: Jenna, do you want to, just in a very 10,000-foot way, explain what loss of use is? It might be pretty self-explanatory, but loss of use does get just a little bit more complicated in VA world.

Jenna Zellmer: Yes.

Christian: As some things do.

Jenna: Yes. There are actually two different kinds. You can actually have lost your foot anatomically. For example, if you were involved in IED explosion or something like that and you had to have your foot amputated, you can actually have lost your foot and you can get a certain amount of money for that. It’s obviously service-connected if it happened in combat. But the other way, which is a little bit more nuanced that I think, a lot of times, VA has trouble rating and kind of figuring this out, and veterans obviously are also very confused about it, is loss of use, which means that even though you didn’t actually have your foot amputated, it’s the equivalent of having your foot amputated and having the same amount of function as you would if you had a prosthetic. If your foot is basically useless, if you need assistive devices and it would be essentially the same amount of use if you had a fake foot, then you can have a certain amount of money from VA, assuming VA makes that finding for you and determines that it’s related to service. There’s a lot of kind of hoops that you have to jump through before you get to that stage, but it is possible to get loss of use.

Christian: Yes. You might just assume that it’s for completely losing your foot, which of course it is, but there’s also another way under VA law that have sort of like an equivalency to losing your foot. We just wanted to know that.

Jenna: Yes. I think it’s important. That’s something that it’s really helpful if you reach out to your VSO or if you have a private attorney, you can kind of talk about the issues that you’re facing with your foot and they can kind of give you some advice on whether or not it’s useful to get a rating based on loss of use.

Christian: Those are a few, sort of, common foot disabilities, foot disorders, foot conditions. But we’re sort of jumping the gun a little bit here because before you sort of get into the world of VA law, VA compensation, VA disability, you need to be service-connected for those disabilities. Jenna, do you want to sort of maybe talk about the first couple of steps of service connection?

Jenna: Yes. We actually have a whole Facebook Live that kind of goes into more depth on the elements of service connection, but just as a refresher…

Christian: We’re going to be brief here.

Jenna: Yes. As a refresher, before you can get compensation from VA, you have to prove that your disability is related to service. You, generally, have to have a current disability. Whether or not that’s a diagnosed disability or a broader definition of what a disability is is still kind of up in the air. There are some arguments that you can make about that. I think, maybe…

Christian: Like symptoms, right?

Jenna: Exactly.

Christian: Yes.

Jenna: Symptoms that result in nonfunctional impairment, we would argue that that’s enough, even if you go to a doctor and say that the doctor doesn’t find an actual diagnosis. The second step is that you have to have an in-service event or injury. Like I mentioned, an IED blast is an example of that but you can also just have something minor. If you are in service and you go to the doctor and you complain of foot pain, that’s enough to demonstrate that something happened to you in service, though a wide array of that. Even if you don’t have treatment notes for that, if you have lay statements that kind of demonstrate that something happened to you in service, that’s enough. Then, the third element is a nexus between that event or risk in your current disability. I think that kind of gets into what we’re going to talk about in a second, which is VA exams. That’s kind of the broad view of how you can first get the first element of service connection before you get into the ratings.

Christian: Just before we move to our first question, it can be something serious, but it also can be something, like there’s a lot of PT that happens, obviously, when you’re in the service, so overuse running, if you have sort of a foot problem that begins in service, that’s the type of thing. It doesn’t always have to be some sort of explosion or something like that. It can be something that just leads to foot pain and then a later disability.

Jenna: Yes. Lexa has a question.

Christian: We have a question from Lexa. We’re going to jump right into it. Does loss of use count, such as balance or instability issues? If so, what kind of medical documentation would be needed to back that up? I think the question is: Can balance or instability be considered loss of use and what sort of the best maybe medical evidence to use to help get a rating for that? What do you guys think?

Alyse: I’m not sure that instability would be quite enough to qualify for loss of use.

Jenna: But balance could potentially.

Alyse: Maybe balance.

Christian: Sure.

Jenna: I think…

Christian: Maybe they are, like, sort of the same thing like being not stable while walking.

Alyse: Yes.

Jenna: There is some language in, I don’t know if it’s the regulation or if it’s case law interpreting the regulation, but there is something that says if you have things that affect, like, your propulsion.

Christian: Propulsion, yes.

Jenna: Balance and propulsion.

Christian: Yes.

Jenna: Like your ability to balance on your foot and then, like, go forward. It’s possible that that might, those are kind of examples of something that would tend to demonstrate towards loss of use. I think like you said, instability is a little bit on the cusp. I think it just kind of depends on the specific facts of your case.

Christian: Yes.  And I think that…

Alyse: Yes. Loss of use is a pretty high bar.

Jenna: Yes.

Christian: You pointed this out earlier, Jenna, the equally well-served by a prosthetic device. That’s going to have to be a really severe disability. Although very minor disabilities can be service-connected, when you’re starting to get into loss of use, you’re really talking about very severe disabilities. Then, in terms of medical evidence, having medical evidence can be helpful. If you have a doctor that’s willing to write a statement that talks about how your foot disability affects your ability to walk and things like that or a lay statement even. Those are potentially types of evidence in cases like that that we might be able to use.

Alyse: Even if it’s not high enough to warrant lose of use, it’s still is something that could be rated, even if it’s not quite that loss of use. Loss of use is actually rated at a 100%, so it might be just lower than a 100% rating.

Christian: Still, it could get a higher rating.

Alyse: Still, it could get a pretty high rating, yes.

Christian: Yes. The foot is a pretty complicated part of our bodies. There’s a lot of joints. There’s a lot of muscles in there.

Jenna: There’s a lot of bones.

Christian: Yes. There’s a lot of different foot disabilities you can have. Before we get into the C&P examinations, VA examinations, is it possible, just before we get into the specifics of it, to get rated for more than one-foot disability?

Jenna: Yes.

Alyse: Yes.

Jenna: You want to take it?

Alyse: No, you do it.

Jenna: We will actually be talking about this later when we get into rating, but…

Christian: Yes. Stay tuned for the more complicated answer to this question.

Jenna: The way the VA rates foot disabilities, there are 8 specific diagnostic codes. We will maybe talk about this a little bit later in terms of, like, what diagnostic code is and how do you get an increased rating. There are 8 specific codes that VA categorizes foot disabilities under. Then, there is a catch-all ninth code. It’s possible that if you have multiple foot diagnoses that fall under those different codes, you could get separate ratings or if you have one diagnosis that falls under a code and you have one that doesn’t fall under a code, it could possibly get one listed specific code and one of the catch-all codes. I think we’ve touched on separate ratings on one of the other Facebook Lives.

Christian: Yes.

Jenna: If you have different symptoms, you can get separate ratings. It’s hard because the foot you think of is, like, one big thing. Like everything that’s just going to affect your ability to walk. There are, actually, Alyse mentioned earlier, there’s flat feet, but then plantar fasciitis focuses a little bit more on the heel.

Christian: Yes.

Jenna: You can get different ratings based on what part of the foot. Maybe it’s the toe versus the heel.

Alyse: Yes.

Jenna: Things like that.

Alyse: Or bunions.

Jenna: Yes.

Alyse: Something like that.

Christian: Yes.

Alyse: Yes.

Christian: Yes. A lot of it causes pain.

Jenna: Right.

Christian: That’s sort of where it gets a little tricky. We’ll get into that more later. Let’s assume that a veteran is, I guess, maybe, we don’t have to assume this. Let’s talk about C&P examinations. Both, maybe, Jenna, do you want to maybe talk about for purposes of service connection and, Alyse, you maybe want to talk about for purposes of ratings?

Alyse: Sure.

Jenna: Sure. I mentioned that service connection, the third element of that is a nexus between your current disability and your in-service symptoms. Most of the time, that element of service connection requires medical evidence. VA is, more often than not, going to order a VA examination as long as there are some suggestion that your current disability is related to service. There is, like I mentioned, we have a Facebook Live about VA exams and so they go through, kind of, when VA’s duty to get an exam is triggered. It’s a pretty low threshold.

Christian: Not everyone has to get an exam.

Jenna: Exactly.

Christian: But if there’s that small indication that it’s related to service, you should get one.

Jenna: If you have a diagnosis or disability and then you have evidence of in-service condition and there’s some suggestion that those two are related, then VA is usually going to order you to go through an examination. You should always go to your exam.

Christian: Absolutely.

Jenna: A VA examiner in that situation is going to be focusing mostly on your current symptoms and what happened to you in-service. They’re going to issue an opinion based on whether they believe, in their medical expertise, whether or not the two are related. If they issue a favorable decision, or a favorable opinion, excuse me, VA will hopefully grant you service-connection.

Christian: They should.

Jenna: If they issue you an unfavorable opinion, that’s not necessarily the end of the world. You can always rebut that opinion. You should always ask for a copy of the exam. VA does have to give you a copy if you ask for it but they’re not going to give you a copy if you don’t ask for it. They don’t have any duty to kind of provide that for you without a request. If it’s a negative exam, you can always go to a private physician. You can get your treating doctor if you’re currently getting treatment outside of VA and then kind of try to rebut that. I guess, that we have a whole Facebook Live that goes, like, really deep into VA examinations and what, kind of, is most helpful for veterans.

Christian: Sure.

Jenna: Just from a broad-strokes point of view, that’s kind of what, in a initial service connection threshold, that’s what the examiner is going to focus on.

Christian: Yes.

Jenna: Versus ratings.

Alyse: Yes, once you actually are service-connected, or maybe even in the same exam, what they’re first going to do is they’re going to look at what type of foot condition you actually have and that’s going to tailor the rest of the exam. Any VA examination is really set up like forms that are already written. It’s not things that your doctor’s just writing out. It’s really checkboxes that they’re checking.

Christian: There are some narratives sections type .

Alyse: There are some narratives, but to be honest with you…

Christian: That was me typing.

Alyse: There’re some narratives, but they tend not to be too descriptive in them.

Christian: Fair.

Alyse: So just keep that in mind.

Christian: Yes.

Alyse: What they’re going to be looking at, just for example, if they find that you have flat feet, they’ll be looking at your pronation, which is basically how you walk. They’ll even be looking at whether your foot is tender at the touch. They might look if it’s swelling, how it looks physically, if there are callouses. All of those things are going to go into checkmarks and they’re going to look at what the severity is there. At that point, a board would look at that and determine what rating you are warranted based on what the examiner says. A couple of things to keep in mind with an examiner is you almost never will have actually have met that examiner before. It’s not your own examiner. Like Jenna said, it is very important to get those exams to make sure that they are an accurate representation of what actually happened in the exam and the full representation so that everything that you’ve said is actually there. If they’re not, then I would encourage you to write the VA with specific points that you have.

Christian: We’ve been talking about a lot of medical evidence and I think this segues nicely into what other types of evidence can you use to support your service connection claim? You already talked a little bit about maybe your treating physician or something like that. What about in terms of a rating?

Alyse: Lay evidence is always good. Lay evidence means both statements by yourself and also statements by people who have actually physically observed pain that you might be in. Maybe somebody that you lived with or somebody that you worked with. They can see that you’re limping or that you’re wincing in pain. Anything like that.

Christian: Or how long that’s been going on.

Jenna: Yes.

Alyse: How long that you can stand for certain amounts of time, those things. It doesn’t have to necessarily be something that’s strictly in the rating criteria. Jenna’s going to touch on this later when we talk about the ratings, but anything that you can put forward to show your functional loss is helpful evidence. Maybe you can only stand for 5 minutes before the pain basically is too much and you need to sit down or maybe you can only walk to the other side of the room and then you have to kind of take a break or even if it’s not that severe. That type of evidence is helpful.

Jenna: Yes. I think one point that I see sometimes when looking at veteran’s files is that they look at the rating criteria and try to tailor their statements around the rating criteria. For example, if the rating for specific, the criteria for a specific rating requires extreme tenderness of the plantar surfaces of the foot, which is the bottom of your foot, if it’s extremely tender, painful, they’ll just write in their statement, “I have extreme tenderness.”

Christian: “I have extreme tenderness.”

Alyse: Yes.

Christian: Yes. That might be true.

Jenna: That might be true.

Christian: Yes.

Jenna: It’s so much more helpful, I think for both VA and for us, who are appealing these decisions, to have you speak in your own words and kind of talk about it from a more practical standpoint, rather than trying to use VA’s descriptions of certain disabilities because a lot of times, if you’re going to use that, then VA’s going to look at the VA exams that also use that language and afford the exam more value because that person is a doctor. Like Alyse said, just really talk about your own experience in your own words and have anybody who you’re around who’s witnessed it to support that statement.

Alyse: Yes. I think that’s a really good point and it really does go to two different aspects of it. When you’re speaking in your own words, you’re going to sound more credible than when it looks like you’re just trying to tailor in to get a higher rating, even if it’s true.

Christian: Yes, absolutely.

Alyse: It’s just the way that it is. You need to make sure that you’re looking more credible. The other aspect of it, and Jenna was touching on this, is that you might not be confident to actually be saying that your condition matches these specific ratings because that’s not really a veteran’s job to do. A veteran’s just supposed to say in their own, that’s why it’s called a lay statement, what their experience is. You might not be able to say exactly the pronation of your foot because you’re not a doctor. That is why we get the medical exams.

Christian: Or the degree of pronation.

Jenna: Exactly.

Alyse: Yes. If you try and tailor your language too much into those rating criteria, they might find you either not confident or not credible.

Christian: Yes, that’s a good point. One thing we forgot to mention, before we move on, is don’t forget to note any assistive devices you might use for your foot condition. While you might not think that wearing, I don’t know, Dr. Scholl’s or some sort of prescribed orthotic might be important, but it can be. Although you might be getting them from VA, it never hurts to remind the examiner and VA when they’re rating because the health administration and the benefits administration, although all under the umbrella VA, are two different parts of the system that don’t always talk to each other as well as they might be able to. Don’t forget to mention that. One thing I wanted to note is, we talked about functional loss and we know what that is, we’ve all had hundreds of cases on it. Does one of you, or maybe both of you, want to just describe exactly what we mean when we’re saying functional loss?

Alyse: Yes. I kind of think of it as trying not to do a circular definition.

Christian: Use the word function.

Alyse: I think of it as like the result from your symptoms. A symptom of your foot is that it hurts but the result of that, the functional loss of that, is that you can only stand for five minutes.

Christian: I think it’s a great way to describe it.

Alyse: It’s a result of what your actual symptoms are. Maybe you have callouses all over your feet. That makes it so that you can’t quite walk properly.

Christian: Yes.

Alyse: The functional loss is the result.

Christian: Yes.

Jenna: That’s perfect. Yes.

Christian: That’s correct.

Jenna: I think it’s important to remember that all VA ratings are based on your impairment and earning capacity. In addition to kind of explaining what that functional loss is, it’s super helpful if you can relate that to how it affects your ability to work.

Christian: Yes.

Jenna: As Alyse said, if you can’t walk for more than 5 minutes or stand for more than 5 minutes and you have a job that requires that, you want to definitely make that known in your statements. If you have any accommodations from your employer because of that disability. Things like that.

Christian: Alright. We sort of been going all over the place a little bit. Where we started was having a foot condition in-service, having a current foot disability or diagnosis and then having some evidence to show that what happened to you in service is related to that current foot disability. There’s an entirely different way. That’s called direct service connection but there’s an entirely different way that veterans can be given compensation or service connection for foot disability and that’s secondary service connection. Let’s just start with what that is.

Alyse: Yes. Basically, secondary service connection, it’s like, as Christian said, it’s another avenue of service connection. It’s when you have an already service-connected condition that’s either aggravating or causing your non-service-connected condition.

Christian: Let’s just assume they’re your foot condition.

Alyse: Right. An example of that would be if you have, maybe if you have some type of knee condition that’s causing you to have a strange limp or strange gait and then it results in a foot condition.

Jenna: Because you’re putting pressure on your foot in an unnatural way.

Christian: A weird way.

Jenna: Yes.

Alyse: Yes. Or maybe it doesn’t even cause it, but it just aggravates your foot condition, makes it worse, makes it more painful. So long as that knee condition is already service-connected, you can actually get service-connected for your foot condition.

Christian: Yes.

Alyse: Again, you need to show the nexus. You need to get medical evidence to do that, but it’s an alternative way. Even though it’s not connected to your service, it’s connected to something that is connected to service.

Christian: Yes. What about the other way around, Jenna? I know we don’t want to go too far out of the scope of this presentation.

Jenna: Right.

Alyse: Yes.

Christian: But, like, if you have a foot disability, can that maybe cause another disability that you can get service connection for?

Jenna: It’s possible. You’d need to get a medical opinion.

Christian: Yes.

Jenna: I’m not a doctor.

Christian: Yes, fair enough.

Jenna: We have had cases where…

Christian: We’re reminded of that.

Alyse: Yes.

Jenna: We have had cases where, like we said, if you have a foot disability, it’s probably going to affect the way you can walk.

Alyse: Yes.

Jenna: If you are limping or can’t put your weight on one of your feet, that could cause some sort of internal issue in kind of the way that your spine is aligned. We’ve had veterans who have back disabilities due to their foot condition, knee disabilities, I think you mentioned that before, anything that kind of goes up from there. I think there is some medical controversy or dispute. I’m not really sure how well-accepted it is in the medical community. Some doctors say it can only go down versus up.

Christian: Sure.

Jenna: Or up versus down.

Alyse: Yes.

Jenna: It’s always important to get a medical opinion about that. It is possible to have a service-connected foot disability and then have something secondary to that service-connected foot disability.

Alyse: Yes. Another one we see, really with anything with pain, is a psychiatric condition that will be secondary.

Jenna: That’s a good one.

Alyse: If you’re in constant pain and you already have depression or it causes depression, that’s something that we do see quite often with, really, any condition that’s causing pain.

Christian: It doesn’t really need to be an orthopedic condition…

Alyse: Yes.

Jenna: No, that’s smart.

Christian: Or it doesn’t need to be a foot, knee…

Alyse: Yes.

Christian: Hip.

Alyse: Yes.

Alyse: Or if you’re on some type of pain medication for your foot condition and that pain medication causes a secondary disability.

Christian: Sure.

Alyse: Maybe an issue with…

Christian: A GI issue.

Alyse: A GI issue or an issue with your liver or something like that.

Jenna: It’s really a lot about that.

Alyse: Yes.

Jenna: Yes.

Christian: There’s no end to secondary service-connection.

Alyse: There’s not.

Christian: If there’s a link, of course.

Jenna: If there’s a link. Yes, exactly.

Christian: Between to serve Medical, most likely

Jenna: Yes.

Alyse: Yes.

Christian: Sometimes, like, between the service-connected disability and the non-service-connected disability. We’re going to take a pause here to answer a question from Sherwin. Thank you very much for the question. If you indicate an ankle sprain on your exit examination but it was never treated, is that valid evidence to start a claim for a foot or an ankle condition? It got worse over time.

Jenna: Yes.

Alyse: Yes.

Jenna: I have a question about whether or not, never got it treated. There’s a couple ways to interpret that. Did you not get it treated in service and then you just indicated on the exit exam or did you never get it treated after service but you still want to get it now? The answer to either of those options is yes. It’s just a hands-on–

Christian: That’s it. Yes.

Jenna: — kind of–

Alyse: The strength–

Jenna: Yes. Exactly. If you, under exit exam, reported that you had ankle strains in service but you never went to a service doctor, that’s fine. I mean that happens a lot. A lot of veterans don’t get treatment for things that they experience in service. It’s actually really good that you, at least, check mark it on the exit exam. A lot of times we don’t even have that. If that’s the case, that should be enough to meet the first element that happen in service.

Christian: Yes. Is it in-service incident?

Jenna: For the second element, whatever. I think I put them on the border but one of those three elements.

Christian: Sure.

Jenna: If it’s opposite, if you have it on your in-service treatment exit exam but then you never got treatment after service but it continued to worsen and then finally maybe 30 years later, you finally decided that it isn’t enough–

Christian: You had to go get it.

Jenna: Yes. It would had gotten to the point where you need a treatment. That’s still okay. I think a lot of times, VA relies on that lack of treatment that–

Christian: It’s true.

Jenna: — 30 years or whatever it is to say, “Oh, well, you clearly just don’t have anything and now you’re trying to claim something that just started.” We talked about lay statements. If you self-treated, if there was a reason why you never sought treatment, you can explain–

Christian: You got to tell the VA.

Jenna: — all that. You really want to tell your story. If you have a current ankle issue and you had an ankle exam on exit exam, you can mark it. That definitely should be enough to at least start the claim.

Christian: Yes. Absolutely.

Jenna: VA has to develop the evidence. You can develop the evidence. You can submit additional statements to support it. I mean if you have a disability and you think it’s related to service, you should file a claim. I think it’s the take away from that.

Christian: Absolutely. Yes. It’s certainly not legally precluded. It might be difficult–

Jenna: No.

Christian: — but under the law, that should be valid.

Jenna: Yes. Sometimes, VA examiners are allowing that, and they’re not supposed to do that.

Christian: That’s true.

Jenna: That’s Buchanan and Dalton. It’s all sorts of case law.

Christian: We always have case law names running around in our head. All right. That  example is when something’s noted in service like in the exit examination. What if you’re a veteran that had a foot condition prior to entry and then service made it worse. Are you out of luck or is there something that you can do in terms of trying to get service connection, Alyse?

Alyse: You can still get service connection. It is a higher bar. You actually have to show that your condition, instead of just being aggravated, was permanently, basically, worsened by your service. It’s a higher bar, but it is allowed. It’s under Section 1153. It’s in another avenue in service connection. You do have to focus on developing evidence that shows that the condition was not as bad before service as it is after service.

Jenna: I had a case where the veteran had plantar fasciitis that was diagnosed on his entrance exam. It was physically noted as asymptomatic which means it didn’t have any symptoms with a note that he had it. Then, when he was in service, he started to seek treatment for it. They clearly equipped from asymptomatic to symptomatic. VA gets this wrong a lot. They say, “Oh, well, there’s no evidence that it worsened,” and things like that. That was enough in that situation to at least say, “It looks like it permanently worsened.” It all depends on the facts.

Christian: Yes. Absolutely. We’ve been talking a lot about service connection. We’ve been sort of alluding to ratings. Why don’t we just jump right in to ratings? Jenna, do you want to talk a little about how VA rates foot disabilities?

Jenna: Sure. I mentioned before, there are eight diagnostic codes. If anybody is really interested in

Christian: Jenna knows this very well, ’cause she had a case on it.

Jenna: The regulation, all the VA Orthopedic Regulations are 4.71A. They’re all separated out by part of the body. There is a part of the spine. There is foot. There is leg. There is knee, etc. The foot diagnostic codes are 5276 through 5284. 5276 through 5283 are the eight specific ones. If you have a diagnosis that is labeled in those eight codes, you have to be rated under that code. VA will look at your diagnosis. They will compare your symptoms to that code and assign you a rating based on that.

Christian: Pes planus is an example of that one.

Jenna: Pes planus is the most common, I think but there are few other ones. There are those hammertoes and– I can’t even remember now.

Alyse: Claw foot.

Jenna: Claw foot.

Christian: Pes cavus.

Jenna: Oh, yes. Pes cavus. Lots of weird ones. Pes planus is definitely the biggest one. 5284 is this weird catch-all diagnostic code for other foot injuries. If you have a foot condition that is not listed in those eight codes, you can ask for a rating under 5284. Even if it’s not technically an injury that you incurred in service, if it’s just a foot pain or something like that, injury it kind of implies that you had to have specifically hurt your foot in service. If you have just treatment records that talk about foot pain without evidence of an injury, that’s enough to, at least, get a reading by analogy under 5284. Do we have a Facebook Live about Rating by Analogy? That’s a whole thing that we’re not going to get into. That just means that you can get a rating even though you don’t specifically meet that specific criteria.

Christian: It might be hardest in the context of feet but that’s a talk for another day.

Jenna: Essentially, the problem that happens a lot is that veterans have multiple diagnosis. You can have pes planus with plantar fasciitis.

Christian: Yes. Absolutely.

Jenna: It really kind of depends on how bad that is. Sometimes, if you have pes planus with plantar fasciitis, you might just get one rating under 5276 which is the rating for pes planus because some of the symptoms of plantar fasciitis overlap with the symptoms of pes planus. If they overlap, you can’t get separate ratings because that’s what VA calls pyramiding. You’d be basically be being compensated for the same symptom twice. If you have a specific rating for pes planus that’s pretty low maybe, maybe it’s only 10%, and you also have plantar fasciitis, you can also make the argument that you can get a separate rating under 5284 for the symptoms of your plantar fasciitis, because that low rating under pes planus is not going to encompass the symptoms of your plantar fasciitis. It really depends on what your rating is for the listed diagnostic code. I’m just using pes planus and plantar fasciitis, ’cause those are the most common ones, and they are the easiest to kind of wrap your ahead around. That’s probably the one that I think most of the other foot diagnostic codes are only like 10%. Plantar fasciitis can go up to 50%. It depends on how bad that– sorry. Did I say plantar fasciitis can go up to 50%? Pes planus can go up to 50%.

Christian: 5276.

Jenna: Plantar fasciitis, I think the 5284 goes up to 30, maybe 50. I can’t remember.

Christian: But then you can get two .

Jenna: But then you can get– yes. So–

Christian: Suffice it to say there’s lots of people that–

Jenna: — it’s complicated.

Christian: — are out there to be able to help you do sort of  things. Foot disabilities are hard.

Jenna: Yes. Just talk to your–

Christian: Trying to do our best.

Jenna: — service rep. Talk to your attorney. There’s a lot of case law on this, because it was kind of unclear for a long time whether or not you really had to have, if you were rated under 5276 for pes planus, did you have to really get that rating? Or maybe you could use this 5284 code, because it’s broader. The court has really made it clear that if you have a specific listed diagnosis–

Christian: Condition.

Jenna: — you have to get that diagnostic code. It’s the unlisted stuff that kind of gives you a little bit of wiggle room. It’s super important also, I think the biggest take away from this is when you get your exam or you get a private physician that diagnoses you with a bunch of different foot disabilities, you want to make sure that VA is adjudicating all of those.

Christian: It’s just not lumping them all as one.

Jenna: Exactly. Yes and making sure that they are agreeing that they’re all related to service and that they’re looking at each one of those diagnoses and making sure that they’re compensated.

Christian: You don’t want to like a hyphenated diagnostic code–

Jenna: Exactly.

Christian: — and a flip case if you really have more multiple diagnoses.

Jenna: If you do have a hyphenated diagnostic code, you can file a notice of disagreement. You can kind of ask for clarification on why they did that and submit additional evidence about kind of parsing out the symptoms and how they work. That is rating foot conditions.

Christian: You’ve mentioned the Notice of Disagreement. I just want to touch on one point. Notice of Disagreement or talking about the Legacy system there, or it’s the claim, the rating decision, the Notice of Disagreement, SSCVA9 Board. Is there anything different that you would have to do with an appeal under the Appeal’s Modernization Act, the AMA, as opposed to the Legacy system? Maybe we should just touch on that briefly our viewers and listeners.

Alyse: Yes. Just really generally–

Christian: Yes. We have a lot of information–

Alyse: We do.

Christian: — about AMA on our website.

Alyse: Yes. There is several different lanes that you can choose when you’re in AMA system but the supplemental claim lane and the board lane, they are going to be the only two that you’re going to actually be able to submit new evidence into. Just keep that in mind.

Christian: Perfect. Very succinct. I like it. All right. Let’s say you have pes planus in your left foot, Alyse, and pes planus in your right foot. Does anything change about the potential rating you can get in that situation?

Alyse: Well, if you have, yes.

Christian: Good answer.

Alyse: First of all, the first thing that comes to mind is that the actual diagnostic code you get a higher rating if you have bilateral pes planus.

Jenna: Yes. There are– let’s get on.

Alyse: Just keep that in mind.

Christian: 50 as opposed to a 30, I think.

Jenna: Something like that. Yes.

Alyse: It depends. Yes. It depends.

Christian: Sure.

Alyse: It could be– it’s a 20 versus a 10 or a 50 versus a 30. Keep that in mind. The other thing is there is something that we call the bilateral factor. VA math as it is is very confusing and complex. I’m sure we have a lot of resources on our website that explain that. What the bilateral factor is, is it essentially because you have two conditions that are compensable in both your lower extremities or could have been both of your upper extremities, you can get actually what’s an extra 10% onto your rating. What that means is it’s an extra 10% that gets added into the equation of the VA math. It doesn’t mean that if you have a 50% combined, you’re going to go to a 60%. It’s just if you have a separate condition that’s rated at 10%. It may or may not actually bring your combined rating up. What that is that’s called the bilateral factor. That’s VA recognizing that when you have a condition affecting both sides, they’re giving you a little bit of a bump for that.

Jenna: ‘Cause you can’t compensate it really for what the non-service connection condition inside. I think that makes sense.

Christian: We talked about foot-foot. Does it have to be foot-foot, Jenna? Or can it be a knee-foot?

Jenna: No. It can be a knee-foot as long it’s separate sides. The key, like Alyse said, is that it has to affect both your right and your left side. It also has to be the same half of your body. You can’t have a right arm and a left leg. You wouldn’t get the bilateral factor for that. If you have a right arm and a left arm–

Christian: You mean like half like upper torso–

Jenna: Exactly.

Christian: It’s not straight down the middle?

Jenna: Right.

Christian: Got it.

Jenna: If you have a left foot and a right knee, that would factor if you have a right wrist and a left shoulder. That would work anything– yes. You’re kind of–

Christian: But it can’t be a left hand and a right foot?

Jenna: No

Alyse: No.

Jenna: Exactly. Yes. You’re literally thinking about cutting the body into fourths.

Christian: Got it.

Jenna: At the waist and then straight down the middle. It has to be like that.

Christian: She draw a picture [laughter]. All right. We’ve talked a little bit about ratings. There’s this whole other area of VA law in compensation that you can sort of get into. We talked about this a little bit at the beginning if you have a loss of use. We talked about loss of use as being either the anatomical loss like you don’t have a foot anymore unfortunately or the severity equivalent thereof. You have trouble with walking, propulsion. It’s just as if you had a prosthetic foot. That’s called special monthly compensation. Let’s get into just a little bit more of the specifics. What rates– ’cause SMC is served down by different rates which is different money per month. What rates of SMC can you get for loss of use? What are they? How can our veterans sort of try to get those ratings?

Alyse: Sure. It’s going to depend on what you have the loss of use or how many, basically, extremities you have the loss of use in. ‘Cause we’re talking about feet, we’ll just keep the example to that. If you have loss of use in one foot, you have what’s called SMCK. I don’t have the numbers in front of me, ’cause it does change.

Jenna: I think it’s a couple of hundred maybe. It’s pretty low.

Alyse: Its not a lot.

Christian: Yes. That’s the lowest.

Alyse: If you have loss of use in both feet, that’s SMCL which is higher than SMCK. Keep in mind that if you do qualify for loss of use, that should already start you at a 100% based on the diagnostic code. The SMC special monthly compensation is just a little bit extra money on top of that. That doesn’t mean if you’re losing use in one foot, you only get $100 a month. It’s just an extra bump on top. If you have other special monthly compensations for other reasons, maybe you do have aid and a need for aid and attendants, whatever it maybe, then it starts to add up and bump you up even higher and higher.

Jenna: It’s super complicated.

Alyse: It is.

Christian: It does. This goes back to what Jenna and Alyse were talking about before. It would benefit a veteran to write into VA to say, “I can’t walk almost at all. Someone needs to help me out everyday to do X, Y, and Z.” Saying, “I deserve SMCK.” I mean it’s going to be– maybe you can have that in if you really want to somewhere but what’s really important is how it affects your ability to walk, your propulsion, whether you can take care of yourself, so on and so forth. That sort of relates back to one of the points that you guys made earlier. Let’s say your foot condition isn’t as severe as what we’re just talking about, but it prevents you from working, Jenna. Is there anything that veterans can do in that instance?

Jenna: Yes. Entitlement to TDIU which is Total Disability Due to Individual Unemployability, I think that’s a topic that we’ve hit on a lot. I’m sure we’ll provide some links and you can look at our website. We have a lot of information about TDIU. Just to hit the basics is if you don’t have a 100% rating for your disabilities, your combined disabilities, but you are unable to work due to them, VA will pay you at a 100% rating anyway. They’re essentially recognizing that because your service-connected disabilities prevent you from working and the rating code, the rating schedule, is based on your impairment and earning capacity, if you can’t work, then you should be getting 100% rating. If you aren’t working or– this is probably getting a little bit into the weeds. Sometimes, if you are working but aren’t making enough for or working on a various specific environment where you’re being productive, you can ask VA to award you entitlement to TDIU. I think we just keep pitting on this. You really want to explain–

Christian: Yes. I understand.

Jenna: — why your service conditions prevent you from working. It doesn’t just have to be your foot in this situation. Obviously, we’re focusing on the foot disabilities. If you have sort of, say your feet plus service connected or anything else and they all combine to prevent you from working, you can talk about that. If you are submitting a claim for an increased rating for your foot or for any other disability and you, as part of that claim, you asserted that you can’t work, VA has to kind of take that into consideration and start developing a record and start figuring out whether or not they can accord you entitlement to TDIU. I think sometimes, veterans aren’t fully aware of everything that VA offers. VA understands that most of the time or at least they’re supposed to and kind of have words that trigger VA’s duty to do things. As long as you’re being fully descriptive of kind of the way that your disabilities impact you, VA should hopefully pick up on that. That’s why we have these things so that you, guys, you know about this sort of thing.

Christian: Sure. Absolutely.

Jenna: Basically, yes. VA calls it substantially gainful employment. If your disability doesn’t allow you to perform substantially gainful employment, then you could get 100% rating.

Christian: We’ve also been talking about this sort of throughout the whole presentation. Maybe just to put extra emphasis on it, Alyse, you want to maybe share one common mistake that you might see in your practice that VA makes when rating foot disabilities?

Alyse: Yes. I mean the most common, honestly, is the clamping of, frankly, flat foot and plantar fasciitis. You see it often. They only rate you under 5276. They don’t give you that or even consider that an extra rating under 5284.

Christian: Which is pes planus.

Alyse: Correct. Yes. It’s basically a failure to fully compensate all of your symptoms. You see that a kind of across the board in all different realms. It definitely takes place in the feet, because the rating criteria is strange. Sometimes, they’ll see, “Oh, they have pes planus under 5276. Let’s just rate them there” and then they’ll stop. They don’t have a full scope of all of your symptoms that are service connected being rated. I know there one that I’ve seen actually pretty often is somebody may have a lot of different service-connected disabilities that they were diagnosed with but then one VA goes to get a NEXUS exam. They only get an opinion on a select few of those diagnoses or maybe just one. When you, as a veteran, claim a foot condition very broadly, say foot condition, and you have multiple diagnoses, it’s on VA to really be getting a full work up of all of the feet condition that you have. They shouldn’t be picking and choosing which one they assumed you meant. That’s a duty to assist there on VA.

Christian: Anything new you’d like to add, Jenna?

Jenna: No. I mean I think Alyse kind of hit both the separate ratings and the wrong diagnostic codes. The only thing I think this goes along with it is if you, for some reason, you have both foot disability, you have a bilateral foot disability, VA sometimes will only give you service-connection for one foot for example. That’s something that I think happens a lot. Maybe it’s unclear in service whether or not you’ve hurt both feet or one foot or a doctor just says that you have pes planus but doesn’t go into detail about whether or not it’s on one foot or both feet. That’s kind of where I see some issues. I think that happens a lot, because veterans are then confused because they think it should be the same with any kind of bilateral issue like knees. They claim both knees and they only get service-connection for one.

Christian: Sure. Yes.

Jenna: I see that a lot.

Christian: All right. Before we wrap up, are there any sort of last thoughts that you have that you think that veterans should remember when sort of working on their claims, working on their appeals? We’ll start with you, Jenna.

Jenna: I think it just goes back to be as specific as possible about the impairment that you suffer from all the diagnoses that you have. Make sure that if you are going to a treating physician whether or not it’s VA or a private physician, try to get them to be as specific as possible and really go into kind of what they have observed as your treating physician, ’cause that’s going to a long way.

Alyse: I think mine would be you should go to your VA exams even though they are not always the best exams and you might feel frustrated with the system. If you don’t go, you really can– they don’t even have to– they can just stop if you don’t go to your exam. They’ll say the duty to assist is a two-way street. We see it all the time. Go to your exam. If it’s not thorough enough, then you can handle after. If you don’t show up to your exam, there’s nothing you can do about it if they decide to stop pursuing your claims and start all over.

Christian: Yes. My last thought would be just don’t give up. This takes a really long time. It can feel really defeating but there’s ways to appeal decisions that you don’t like. There’s ways to get more evidence in support of your claim. Just keep fighting because it doesn’t always happen the first time. I guess that would be my–

Alyse: Usually, it doesn’t, honest– to be unfortunately.

Christian: That’s true. Fair enough. Well, thank you very much everyone for joining us on this edition of Facebook Live about Feet Conditions. Thanks again.