Citation Nr: 0812711 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-03 438A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for plantar fasciitis of the right foot, currently evaluated at 20 percent disabling. 2. Entitlement to an increased rating for plantar fasciitis of the left foot, currently evaluated at 20 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from July 1998 to December 1998 and from January 2002 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the VA Regional Office (RO) in Oakland, California which found service connection for bilateral plantar fasciitis with a noncompensable evaluation. The veteran filed a timely notice of disagreement and in January 2005 the RO evaluated the veteran's plantar fasciitis as 10 percent disabling on the right and 10 percent disabling on the left, effective March 15, 2002, the day after the veteran's separation from service. In November 2005 the RO issued an additional Supplemental Statement of the Case in which it affirmed the bilateral 10 percent evaluation. However, in March 2007 the RO issued an additional Rating Decision in which it evaluated the veteran's plantar fasciitis at 20 percent on the right and 20 percent on the left, effective from March 15, 2002. Accordingly, the issues are as stated on the title page. On the veteran's substantive appeal in February 2005, she indicated that she did not want a Board hearing. In March 2006 the veteran's representative mistakenly reported that the veteran had requested a hearing. In February 2008 the veteran's representative filed a second Form 646 and requested that the matter be certified to the Board for appellate review. FINDINGS OF FACT 1. The veteran's right foot plantar fasciitis disability does not manifest as severe. 2. The veteran's left foot plantar fasciitis disability does not manifest as severe. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 20 percent for plantar fasciitis, right foot, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5284 (2007). 2. The criteria for an evaluation in excess of 20 percent for plantar fasciitis, left foot, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in November 2002 and December 2006. The RO provided the requisite notification regarding the disability evaluation or the effective date that could be assigned if service connection were granted in October 2006 and December 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges a recent decision from the United States Court of Appeals for Veterans Claims (Court) that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that to substantiate a claim the claimant must provide, or ask the VA 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. 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 VA must provide at lease general notice of that requirement to the claimant. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of her increased rating claim. In this regard, the veteran is represented by a State Veterans' Service Organization recognized by the VA, and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, after the veteran and her representative were provided copies of the Statement of the Case. In response, the veteran's representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case), or it's equivalent, in which the representative referenced that the veteran would be entitled to a higher evaluation if her foot injury symptoms were found to be severe. The Statement of the Case, contained a list of all evidence considered, a summary of adjudicative actions, all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. In the Board's opinion all of the above demonstrates actual knowledge on the part of the veteran and her representative of the information to be included in the more detailed notice contemplated by the Court. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and her representative have been kept informed of the RO's actions in this case by way of the Statement of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claims. The veteran and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of her appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. A review of service medical records indicates that the veteran was treated for bilateral foot pain in August and September 1998 while in basic training. The veteran was noted to have an antalgic gait and was diagnosed with bilateral plantar fasciitis. A general VA examination was conducted in May 2003. By history, the veteran reported being a member of the band, drill team, and running track in high school without foot problems. The veteran stated the problems began in August 1998 after a series of long marches while in basic training. She described the pain as sharp, searing, burning type pain with pulsation. The veteran reported that her symptoms were somewhat better after service, but that she still gets sharp, intermittent pain in the arch areas with a pulling sensation. Over the counter orthotics seem to improve her pain. Functionally, it was noted that the veteran cannot wear high heels, hike, or run, and avoids high impact activities. She stated that standing is limited to half an hour. On physical examination, the veteran demonstrated normal arches and reflexes of the feet, with very mild ankle pronation. The examiner re-stated the veteran's previous diagnosis of bilateral plantar fasciitis, and went on to state that the DeLuca factor for the feet was 20 percent functional impairment due to pain or flare up of pain with excess fatigability of the feet, with no weakened movement or incoordination. A VA examination was conducted in November 2004. At that time the veteran reported a dull constant pain in her feet. The veteran also reported sharp pains on ambulation, with weakness and fatigue. Gait was said to be normal, with no evidence of edema, weakness, instability, or tenderness. The veteran attended a podiatry consult at the VA hospital in February 2005. The physician indicated that the veteran displayed "very loose, hypermobile first rays bilateral, with at least 3.5cm excursion when loading feet,...upon loading forefeet dorsally, the arch integrity is almost completely obliterated." The physician's assessment was hypermobility of joint/ligament and inadequate control of pronation. An additional VA examination was conducted in January 2007. The veteran reported severe and stabbing bilateral foot pain, precipitated by use of stairs, prolonged walking, or dancing. Additionally, the veteran reported weakness, stiffness, swelling, instability, fatigue, and lack of endurance. The veteran stated that she was undergoing vocational rehabilitation to find a job that allowed her to sit frequently and was using a handicapped placard so as to be able to park near her college classes. Flare ups in pain were said to occur daily. Physical examination of the veteran's feet did not demonstrate painful motion, weakness, or instability. No functional limitations with standing or walking were noted. Also, there was no evidence of abnormal weight bearing such as callosity or breakdown or unusual shoe wear pattern. The examiner noted a mild valgus deformity of the Achilles tendon of approximately four degrees bilaterally with weight bearing. Also noted was a decrease in the arch bilaterally with weight bearing, and pain on manipulation of the feet. The examiner's diagnosis was bilateral foot pain. The veteran essentially contends that the current evaluation assigned for her bilateral plantar fasciitis disability does not accurately reflect the severity of that disability. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board is also required to consider whether the veteran may be entitled to a staged rating. Therefore, in this claim, the Board has assessed the level of disability over time to determine whether the level of impairment warrants different disability ratings at different times over the life of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5284, moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Based upon a review of the above, the Board finds that the evidence in this matter does not support a total evaluation in excess of twenty percent for bilateral plantar fasciitis. A thorough review of the medical evidence appears to indicate that the veteran's disability is more accurately described as 'moderately severe' pursuant to Diagnostic Code 5284. Medical records indicate that the veteran can walk without assistance, is able to drive and attend college, and that her symptoms are alleviated in part by the use of orthotic inserts. Physical examination of the veteran's feet at her January 2007 did not demonstrate painful motion, weakness, or instability, and no functional limitations with standing or walking were noted. Based upon these factors, an evaluation of 30 percent for 'severe' foot injury under Diagnostic Code 5284 is not warranted. ORDER An increased rating for plantar fasciitis of the right foot, currently evaluated at 20 percent disabling, is denied. An increased rating for plantar fasciitis of the left foot, currently evaluated at 20 percent disabling, is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs