Citation Nr: 1009909 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 07-32 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increase initial rating in excess of 10 percent for bilateral plantar fasciitis. ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2004 to April 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for bilateral plantar fasciitis with a 10 percent rating assigned, effective April 26, 2005. In a November 2008 statement, the Veteran requested to be provided with a hearing at the RO. In January 2009, the RO requested clarification from the Veteran regarding which type of hearing she wanted and instructed her that if a response was not received within 30 days, it would be assumed that she did not want a hearing. As no response from the Veteran was received, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2009). FINDING OF FACT The Veteran's plantar fasciitis was not manifested by severe objective evidence of marked deformity, accentuated pain on manipulation and use, indication of swelling on use, or characteristic callosities. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for bilateral plantar fasciitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. The RO twice requested private records identified by the Veteran in a November 2008 statement in accordance with 38 C.F.R. § 3.159(c)(1). No response was received. Additionally, the Veteran was provided a VA examination July 2005 for her claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran's service connected bilateral plantar fasciitis is evaluated under 38 C.F.R. § 4.71(a), Diagnostic Code 5276 (2009), which provides a 10 percent rating if the disorder is moderate, with the weight- bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating (20 percent if unilateral) is warranted if the disorder is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, DC 5276 (2009). In addition to the applicable schedular criteria, under 38 C.F.R. §§ 4.40 and 4.45, VA is required to consider whether an increased evaluation could be assigned on the basis of functional loss due to pain or weakness to the extent that any such symptoms are supported by adequate pathology. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Service treatment records show that the Veteran received treatment for and was diagnosed with, in relevant part, plantar fasciitis, tendonitis Achilles, and plantar fascial fibromatosis while on active duty. She was provided with rigid orthotics and given over-the-counter pain medication. The Veteran received a VA general medical examination in July 2005 where she reported a history of pes planus with plantar fasciitis and pain particularly in the midfoot and forefoot. The Veteran reported that she did not have significant flare-ups and stated that shoes with a strong arch supports were somewhat helpful. Upon examination she was noted with mild pes planus without any significant valgus deformity of the ankles, mild tenderness to palpation under the apex of the longitudinal arch bilaterally, and minimal tenderness under the transverse arches bilaterally. There was no pain on motion, no change with repetitive motion, no edema and no instability on the arches. Her gait was normal without any limitations noted. No callosities, breakdown, or any unusual shoe wear pattern were noted and the skin and vascular examinations were also normal. There was no finding of hammertoes, high arches, hallux valgus, valgus deformity of the Achilles tendon or hindfoot, or other deformities, and the Achilles tendon was normal both on weight bearing and passive motion. The Veteran was later noted with regular symptoms of plantar fasciitis in VA medical center (VAMC) treatment notes from January 2006 to May 2008. She was given rigid orthotics, stretching exercises and over-the-counter pain medication for treatment. In December 2008, the Veteran stated that she continued to have foot pain that she described as feeling like she was walking on nails. According to VA medical records, the Veteran was scheduled for appointments in April 2009, but failed to report. Attempts to contact the Veteran were unsuccessful. A rating of 30 percent is not warranted in this case for service connected plantar fasciitis as the evidence of record does not demonstrate severe symptomatology. There is no objective evidence of marked deformity or characteristic callosities. The July 2005 VA examiner noted that there was no pain or edema on manipulation or motion and the Veteran's foot condition did not change upon repetitive motion. Only minimal tenderness was reported on the longitudinal and transverse arches and there were no deformities or spasms of the Achilles tendon. Furthermore, the Veteran reported to the July 2005 VA examiner that stiff high arch supports somewhat relieved her foot pain. While the Veteran has asserted that her continued foot pain feels like she was walking on nails, this description is not necessarily indicative of severe symptomatology. As the evidence of record, including the July 2005 VA examination and recent VAMC treatment records, show complaints and treatment of only moderate symptoms, an increased rating is not warranted. The Board has considered all relevant diagnostic codes in evaluating the Veteran's claim. The Veteran's disability is not the result of an injury, hence rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for foot injuries is not appropriate. The Veteran has never been shown to have claw foot, hallux valgus, hallux rigidus, hammertoes, or malunion of the tarsal or metatarsal bones; therefore, rating under Diagnostic Codes 5278, 5280, 5281, 5282, and 5283 is not warranted. Therefore, the Veteran's foot condition is consistent with a 10 percent rating and an increased rating is not warranted. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's bilateral plantar fasciitis has manifested by mildly tender arches, pain relieved with ambulation, and the need for rigid orthotics. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. ORDER Entitlement to an increased initial rating in excess of 10 percent for plantar fasciitis is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs