Citation Nr: 0809125	
Decision Date: 03/18/08    Archive Date: 04/03/08

DOCKET NO.  04-13 892	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1. Entitlement to an evaluation in excess of 20 percent for 
plantar fasciitis of the right foot.

2. Entitlement to an evaluation in excess of 20 percent for 
plantar fasciitis of the left foot.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel



INTRODUCTION

The veteran had active duty service from September 1967 to 
September 1971.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2003 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA). 

These issues were previously before the Board in August 2007, 
and remanded for a VA podiatry examination. A VA podiatry 
examination, dated October 2007, is associated with the 
record. As such, the additional development has been 
completed, and the case is ready for appellate review.  


FINDINGS OF FACT

1. Plantar fasciitis of the veteran's right foot is not 
characterized as severe. 

2. Plantar fasciitis of the veteran's left foot is not 
characterized as severe. 
 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for 
plantar fasciitis of the right foot are not met. 38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. § 4.71(a) Diagnostic Code 5284 
(2007). 

2. The criteria for a rating in excess of 20 percent for 
plantar fasciitis of the left foot are not met. 38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. § 4.71(a) Diagnostic Code 5284 
(2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the claims, the Board is 
required to address the duty to notify and duty to assist 
imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 
3.159.

VA has a duty to notify a claimant and his representative, if 
any, of the information and evidence needed to substantiate a 
claim. This notification obligation was accomplished by way 
of letters from the RO to the veteran dated in August 2003 
and October 2007. These letters effectively satisfied the 
notification requirements of 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) by: (1) informing the veteran about the 
information and evidence not of record that was necessary to 
substantiate the claims; (2) informing the veteran about the 
information and evidence VA would seek to provide; (3) 
informing the veteran about the information and evidence he 
was expected to provide; and (4) requesting the veteran 
provide any evidence in his possession that pertains to his 
claims. Additionally, the October 2007 letter provided notice 
of how VA assigns disability ratings and effective dates and 
complies with the holding of Dingess v. Nicholson, 19 Vet. 
App. 473 (2006). Although the October 2007 letter was not 
timely received, the denial of the claims in the instant 
decision makes the timing error non-prejudicial.  

Also, for an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life. Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). 
Further, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant. 
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life. As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability. Vazquez-Flores, slip op. at 5-6. 

The Board finds that any notification errors regarding 
information and evidence necessary to substantiate an 
increased rating claim in accordance with Vazquez-Flores are 
non-prejudicial since the veteran had actual knowledge of the 
information that would be contained in the notice. Sanders v. 
Nicholson, 487 F.3d 881, 889 (Fed Cir. 2007); Vazquez, supra. 
In this case, an August 2003 letter from the RO to the 
veteran informed him that to substantiate an increased rating 
claim, the evidence must show that the disability increased 
in severity. The veteran also received notice of the rating 
criteria used to rate his disabilities in an October 2007  
Statement of the Case and was afforded an opportunity to 
respond before the RO readjudicated the claims in March 2004, 
May 2004, and December 2007 Supplemental Statements of the 
Case. Additionally, the August 2003 letter from the RO to the 
veteran invited him to submit evidence that showing how his 
disabilities have increased in severity. Thus, the veteran 
had actual knowledge of the notification requirements 
outlined in Vazquez and no prejudice inures to the veteran by 
proceeding to adjudicate his claims. Sanders, supra; Vazquez, 
supra.  

Second, VA has a duty to assist a veteran in obtaining 
evidence necessary to substantiate a claim. The service 
medical records and private medical records are associated 
with the claims file. Additionally, the veteran was afforded 
multiple VA examinations in connection with his claims. The 
veteran and his representative have not made the RO or the 
Board aware of any outstanding evidence that needs to be 
obtained in order to fairly decide his claims. As such, all 
relevant evidence necessary for an equitable disposition of 
the veteran's appeal has been obtained and the case is ready 
for appellate review.

Analysis

The veteran was service connected for plantar fasciitis in 
both feet in a February 2003 RO decision and assigned a 10 
percent rating for each foot. The RO later increased the 
rating to 20 percent in an October 2003 decision. Currently, 
the veteran contends his plantar fasciitis disabilities 
warrant a rating in excess of 20 percent. The Board finds 
that the preponderance of the evidence is against the 
veteran's claim, and the appeal will be denied.  

Disability evaluations are determined by the application of a 
schedule of ratings which is based upon an average impairment 
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 
Separate diagnostic codes identify the various disabilities. 
Where there is a reasonable doubt as to the degree of 
disability, such doubt will be resolved in favor of the 
claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the 
Board will consider the potential application of the various 
other provisions of 38 C.F.R., Parts 3 and 4, whether or not 
they were raised by the appellant, as well as the entire 
history of the veteran's disability in reaching its decision, 
as required by Schafrath v. Derwinski, 1 Vet. App. 589 
(1991).

Where there is a question as to which of two disability 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria required for that rating. Otherwise, the lower 
rating will be assigned. 38 C.F.R. § 4.7.

In the evaluation of service-connected disabilities the 
entire recorded history, including medical and industrial 
history, is considered so that a report of a rating 
examination, and the evidence as a whole, may yield a current 
rating which accurately reflects all elements of disability, 
including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 
4.2, 4.10, 4.41.

Because the veteran is challenging the initially assigned 
disability rating, it has been in continuous appellate status 
since the original assignment of service connection. The 
evidence to be considered includes all evidence proffered in 
support of the original claim. Fenderson v. West, 12 Vet. 
App. 119 (1999).  

The veteran's plantar fasciitis is currently rated as 20 
percent disabling for each foot under Diagnostic Code 5284, 
which rates impairment resulting from foot injuries. 38 
C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 
5284, a rating of 20 percent requires evidence of moderately 
severe residuals of a foot injury. A 30 percent rating 
requires evidence of severe residuals of a foot injury. 
Actual loss of use of the foot will be rated as 40 percent 
disabling.

The veteran underwent an October 2002 VA examination. At the 
examination, the veteran reported that he lost his job due to 
foot pain. During physical examination, the examiner noted 
that the veteran could not walk more than 15 feet before 
experiencing pain in his lower back and feet. The examiner 
diagnosed the veteran with bilateral hallux valgus. 

Private medical records, dated February 2002, show that the 
veteran was noted to have pes planus, pronation, bunions, and 
osteoarthritis of the right foot. Subsequently, December 2004 
private medical records reflect that the veteran had foot 
surgery to treat his right foot bunion and hammertoe. 

Most recently, the veteran underwent an October 2007 VA 
examination. During the examination, the veteran stated that 
could not stand for more than a few minutes and could not 
walk over a mile. After reviewing the reported effects of the 
veteran's foot conditions on his activities of daily living, 
the examiner decided that it would be speculation, due to the 
veteran's multiple foot conditions, to relate the limited 
daily activities of the veteran to his plantar fasciitis 
condition alone. The examiner concluded that it is less 
likely that the veteran's plantar fasciitis is analogous to a 
severe or moderately severe foot injury. 

The Board finds that the preponderance of the evidence is 
against the veteran's claim for a rating in excess of 20 
percent for his bilateral plantar fasciitis foot disability. 
The latest medical evidence does not show that the veteran's 
plantar fasciitis is of a severe nature to warrant a rating 
in excess of 20 percent. After reviewing the veteran's 
history, physically examining the veteran, and noting his 
reported limitations in his activities of daily living, the 
examiner concluded that the bilateral plantar fasciitis 
condition was not analogous to a severe foot injury. There is 
no other medical evidence to indicate that the veteran's 
bilateral plantar fasciitis disability is of a severe nature. 
Therefore, the claim for a rating in excess of 20 percent for 
plantar fasciitis is denied. 


ORDER

An evaluation in excess of 20 percent for plantar fasciitis 
of the right foot is denied.

An evaluation in excess of 20 percent for plantar fasciitis 
of the left foot is denied.





____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs