Citation Nr: 0816948 Decision Date: 05/22/08 Archive Date: 06/04/08 DOCKET NO. 02-20 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable disability rating for plantar fasciitis of the right foot. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and her spouse ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from July 1993 to March 2000. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for plantar fasciitis of the right foot, and assigned a 0 percent, noncompensable disability rating for that disability. In August 2006, the Board remanded the case to the RO for additional action. The RO has addressed the remand instructions, and has returned the case to the Board for adjudication. FINDINGS OF FACT From the July 30, 2001, effective date for service connection, plantar fasciitis of the veteran's right foot has been manifested by pain on manipulation and use of the foot; those symptoms are not relieved by orthotics. CONCLUSION OF LAW From July 30, 2001, plantar fasciitis the veteran's right foot has met the criteria for a 10 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5276, 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Rating for Plantar Fasciitis of the Right Foot The veteran has appealed the 0 percent, noncompensable rating that the RO assigned for her service-connected plantar fasciitis of the right foot. VA assigns disability ratings based on the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. An evaluation of the level of disability present also includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on the functional abilities. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the veteran appealed the initial disability rating that the RO assigned. The Board will consider the evidence for the entire period since July 30, 2001, the effective date of the grant of service connection for plantar fasciitis of the right foot, and will consider whether staged ratings are warranted. The RO has evaluated the plantar fasciitis under 38 C.F.R. § 4.71a, Diagnostic Code 5276, as analogous to acquired flatfoot. That code provides the following rating criteria: Pronounced; 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 Bilateral ...................................... ............ 50 percent Unilateral ...................................... .......... 30 percent Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral ...................................... ............ 30 percent Unilateral ...................................... .......... 20 percent Moderate; 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 ......................................... ............................. 10 percent Mild; symptoms relieved by built-up shoe or arch support ............................................... 0 percent The rating schedule also provides 38 C.F.R. § 4.71a, Diagnostic Code 5284, for foot injuries other than those addressed under other diagnostic codes. Under that code, foot injuries are rated at 40 percent for actual loss of use of the foot, 30 percent if injury is severe, 20 percent if moderately severe, and 10 percent if moderate. Plantar fasciitis is not the only service-connected disability of the veteran's right lower extremity. Service connection is also established for right leg compartment syndrome and right leg fasciotomy. The RO has assigned a 10 percent rating for that disability. Medical records from the later years of the veteran's service reflect ongoing treatment for the right leg and ankle disorder, and for right foot pain. The veteran underwent right leg compartment release surgery in November 1998 and right leg fasciotomy in April 1999. In September 1999, she reported that the orthotic that she used caused pain in her right foot. A physical therapist recommended adjustment of the orthotic. In July 2000, the veteran had an orthopedic consultation for increasing cramps and pain in her right leg. The orthopedist found that her right foot was normal on examination. In July 2001, the veteran submitted a claim for service connection for plantar fasciitis of the right foot. She reported that she had experienced that disorder during service, and had received orthotics and physical therapy. She stated that she had recently developed recurring problems with her right foot, and was seeking treatment, including an orthotic. In a December 2001 statement, the veteran reported having plantar fasciitis in both feet since service. She stated that she had pain in her feet with standing and walking. In June 2002, the veteran had a hearing at the RO before a Decision Review Officer. She reported that she had chronic pain in her right heel. She indicated that she had used orthotics, and needed to get new ones, but that she continued to have pain in her right foot. The veteran had a VA examination of her feet in December 2002. She reported having daily pain in her right foot, aggravated by prolonged standing or walking a quarter of a mile. She stated that she used an orthotic, but it did not help. The examiner noted tenderness in the plantar surface of the right foot, with no swelling. The examiner's assessment was right foot plantar fasciitis. In February 2003, the veteran had a VA podiatry consultation for pain in her right foot. She stated that orthotics had helped in the past. The examiner noted pain with palpation at the arch. A steroid injection was made to treat the pain, and two types of orthotics were prescribed. On follow-up in March 2003, the veteran reported that the injection had provided some relief for about two weeks, but that the pain had returned. In March 2003 and May 2003, the examiner noted ongoing pain in the right arch. In an August 2004 substantive appeal, the veteran reported that orthotics and steroid injections had not helped the pain due to plantar fasciitis in her right foot. She stated that the pain was aggravated by any weight bearing. On VA examination of the veteran's feet in November 2004, the veteran reported constant pain in her right foot. She stated that the pain limited her endurance for walking to about 300 feet. She indicated that she took nonprescription pain medication that reduced, but did not eliminate, the pain. She related that she had intermittent swelling in that foot. She reported that she used orthotics, but that the right foot pain persisted. She indicated that the right foot pain in caused her difficulty in her work as a dentist, which required considerable standing, and limited her leisure activities. The examiner observed that the veteran had a normal gait, without a limp. On motion of the right foot, the veteran reported pain in the sole and in the middle of the arch. There was no limitation of motion of the foot. The veteran was able to walk five or six steps on her heels without grimacing; although she reported pain in the middle of her right foot with that action. The plantar surface of the right foot did not have callous formation. Right foot x-rays show possible mild early degenerative changes in the first metatarsophalangeal joint, without other abnormalities. In April 2006, the veteran informed the RO that she had more information to provide to support her claim for a higher rating for plantar fasciitis. She stated that she had continuing problems with that disorder, and needed to see a doctor for more treatment. She indicated that she would send records of treatment that she received. In August 2006, the Board remanded the veteran's case on the issue of the plantar fasciitis rating, for the RO to obtain the treatment records that the veteran had identified. In March 2008, the veteran wrote that she had not scheduled further treatment by a podiatrist, as she learned that the available treatment was orthotics, which she already had. She indicated that she continued to have problems with plantar fasciitis despite using orthotics and buying new athletic shoes about every three months. She indicated that plantar fasciitis changed her lifestyle because the plantar fasciitis and nerve damage in her right leg made her unable to walk long distances. The veteran submitted two articles that described plantar fasciitis. There is evidence of the veteran's right foot pain during and since service. Right foot plantar fasciitis has been diagnosed. The veteran has received and used orthotics to treat the plantar fasciitis; but she has consistently indicated that the orthotics did not relieve the pain. As the right foot pain is not relieved by orthotics, her disability due to plantar fasciitis is more consistent with the criteria under Diagnostic Code 5276 for a 10 percent rating than those for a 0 percent rating. Treatment and examination records have not shown that the veteran's right foot has swelling, callosities, or pain on manipulation and use that was accentuated such as to warrant a 20 percent rating under Diagnostic Code 5276. The medical records have not shown the right foot disability to rise to the level of moderately severe, as would warrant a 20 percent rating under Diagnostic Code 5284. For the period since the July 2001 effective date for service connection, then, the record supports a 10 percent rating for the right foot plantar fasciitis. VA may consider an extraschedular rating in cases that are exceptional, such that the standards of the rating schedule appear to be inadequate to evaluate a disability. 38 C.F.R. § 3.321(b)(1) (2007). Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. The Board does not have the authority to assign, in the first instance, higher ratings on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, 9 Vet. App. 377 (1996). In this case, the manifestations and effects of the veteran's right foot plantar fasciitis do not necessitate referral of the rating of that disability to designated VA officials for consideration of an extraschedular rating. The veteran has not had frequent hospitalizations for that disability. The veteran indicates that right foot pain causes difficulty, and requires adjustments, in her work as a dentist; but she has not indicated that the effects of the right foot disability rise to the level of marked interference with her employment. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in her possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Although the appellant received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that she was provided a meaningful opportunity to participate effectively in the processing of his claim such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The veteran was notified that service connection for plantar fasciitis of the right foot was awarded with an effective date of July 30, 2001, the date of her claim, and that a 0 percent rating was assigned. She was provided notice how to appeal that decision, and she did so. In July 2004, she was provided a statement of the case that advised her of the applicable law and criteria required for a higher rating. She has demonstrated her actual knowledge of what was required to substantiate a higher rating in her argument included on her August 2004 substantive appeal. Although she was not provided pre-adjudicatory notice that she would be assigned an effective date in accordance with the facts found as required by Dingess, she was assigned the date of the claim as an effective date, the earliest permitted by law. 38 U.S.C.A. § 5110(a). Moreover, the record shows that the veteran was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded her physical examinations, obtained medical opinions as to the severity of her right foot plantar fasciitis, and afforded her the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements; and the veteran is not prejudiced by a decision on the claim at this time. ORDER From the July 30, 2001, effective date for service connection, a 10 percent disability rating for plantar fasciitis of the right foot is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs