Citation Nr: 1307650 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-24 458A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating greater than 10 percent for service-connected bilateral plantar fasciitis. 2. Entitlement to service connection for bilateral pes planus, to include as secondary to service-connected bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty in the U.S. Army from July 1999 to July 2002. The appeal comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2011, the Veteran presented testimony at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims folder. The Board remanded this case in September 2011 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for Morton's disease was raised in a September 2011 statement by the Veteran, but has not been adjudicated by the RO. The Board notes that this issue was clarified by the RO after a request in the prior Board remand. The RO noted in the 2012 supplemental statement of the case that the current service-connected plantar fasciitis was evaluated under the diagnostic code for Morton's disease, but that the disorder was not actually service-connected. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate action. The Board is remanding the service connection issue for bilateral pes planus to the Appeals Management Center (AMC), in Washington, DC for the issuance of a Statement of the Case (SOC). VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's bilateral plantar fasciitis exhibits symptoms productive of no more than moderately severe impairment due to pain, tenderness, difficulty standing or walking for extended periods of time, and other factors of functional loss. CONCLUSIONS OF LAW 1. The criteria are met for a separate, higher 20 percent disability rating, but no greater, for the Veteran's RIGHT foot plantar fasciitis disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.63, 4.71a, Diagnostic Code 5284 (2012). 2. The criteria are met for a separate, higher 20 percent disability rating, but no greater, for the Veteran's LEFT foot plantar fasciitis disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.63, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's Duty to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in February 2005, December 2006, April 2009, June 2010, and September 2011. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the December 2006 and April 2009 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the April 2009 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). The RO did not provide the Veteran with all VCAA notice prior to the June 2005 adverse determination on appeal. But VA does not have to vitiate a decision and start the whole adjudicatory process anew, as if a decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the timing error was cured. After providing additional VCAA notice on multiple occasions, the RO readjudicated the claim in SSOCs, to include the most recent April 2012 SSOC. Thus, the timing defect in the notice has been rectified. See Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) and VA treatment records, as well as provided him with several VA medical examinations to rate the current severity of his plantar fasciitis. The last VA examination was in March 2009. However, the record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a) (2012); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. In the present case, the Board is granting higher 20 percent ratings for both the right and left foot to account for worsening of the plantar fasciitis disability. Moreover, more contemporaneous VA treatment records dated through 2011 and hearing testimony dated in April 2011 do not reveal additional worsening above the separate 20 percent ratings being granted here. Therefore, a new VA examination to rate the severity of his plantar fasciitis disability is not warranted. The RO/AMC substantially complied with the Board's September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998; see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand, the RO/AMC sent the Veteran a corrective VCAA letter, secured additional VA treatment records, and addressed in the April 2012 SSOC why it was not assigning a separate 10 percent evaluation for Morton's disease. With regard to the April 2011 videoconference hearing, in Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing must fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, No. 11-1253 (U.S. Vet. App. October 16, 2012). At the April 2011 hearing, the undersigned Acting Veterans Law Judge and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim. There was a detailed discussion regarding the Veteran's symptomatology and a discussion of whether the Veteran was service-connected for Morton's disease or pes planus. The Veteran discussed the levels of disability ratings. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. In short, the videoconference hearing was legally sufficient. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If a Veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; See 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran filed an increased rating claim in September 2004. The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board must consider whether there have been times when his bilateral plantar fasciitis disability has been more severe than at others, and rate it accordingly. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, September 2003) until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis The Veteran's bilateral plantar fasciitis is currently evaluated as 10 percent disabling under Diagnostic Code 5284, other foot injury. 38 C.F.R. § 4.71a (2012). The rating criteria do not have a specific diagnostic code for this disability. The disorder is, therefore, rated as analogous to "other foot injuries" because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to this disorder. See 38 C.F.R. § 4.20. The Veteran contends that his service-connected bilateral plantar fasciitis is more severe than is contemplated by the currently assigned 10 percent rating. Under Diagnostic Code 5284, a 10 percent evaluation is provided for a moderate foot injury. A 20 percent evaluation is provided for a moderately severe foot injury. A 30 percent evaluation is provided for a severe foot injury. A maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. The words moderate, moderately severe, and severe are not defined. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is equitable and just. 38 C.F.R. § 4.6. Loss of use of a foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Examples that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop. 38 C.F.R. § 4.63. Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98 (Aug. 14, 1998). Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. Upon review of the evidence, the overall disability picture reflects that separate 20 percent ratings, but no higher, are warranted for the Veteran's right and left foot. 38 C.F.R. § 4.7. First, separate ratings for each foot are warranted as the diagnostic code does not expressly limit particular evaluations to unilateral or bilateral findings, in contrast to the diagnostic codes for flatfoot, wekafoot, claw foot, metatarsalgia. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5282. VA treatment records, VA examinations, representative statements, and the Veteran's personal statements and testimony, document bilateral plantar fasciitis that is moderately severe in nature. Second, the evidence of record, resolving all reasonable doubt in favor of the Veteran is overall indicative of higher 20 percent ratings under Diagnostic Code 5284 for the right and left foot: Historically, a pre-discharge April 2002 VA examination diagnosed the Veteran with bilateral plantar fasciitis. A December 2003 VA podiatry note documented heel pain since the Veteran's military service. He has tried heel cups. He was diagnosed with heel pain secondary to plantar fasciitis. He was prescribed new insoles, ice massage, shoe modification and rest, with possible injections if no improvement. At the April 2004 VA examination, the Veteran complained of bilateral foot pain, weakness, stiffness, swelling, and fatigue on standing and walking, with pain and weakness even at rest. He was diagnosed with pes planus. He had moderate forefoot and midfoot malalignment. He had slight tenderness with palpation of the plantar surface of both feet. At the March 2005 VA examination, the Veteran complained of pain in his both feet at rest, standing, or walking. He also complained of stiffness, swelling, and fatigue. His pain was described as constant, worse with movement. His gait was abnormal in that he moved slowly. Objective examination revealed painful motion of toes and feet and marked and extreme tenderness of the plantar aspect of the feet bilaterally. He had limited function for standing and walking due to pain. The examiner diagnosed bilateral plantar fasciitis and pes planus. VA physical therapy notes dated from August 2005 to December 2005 record bilateral foot pain with relief by stretching, ice, and pain medication. The Veteran was instructed in plantar fasciitis exercises. He was set up on a program for improved mobility and pain control. He was also treated with a TENS unit. Decreased pain was noted. A March 2009 VA examiner noted the Veteran's complaints of pain in the arch of both feet six days a week, lasting for each time for two days. The pain was described as crushing and aching. It is relieved by rest and etodolac medication with a muscle rub. Additional cracking symptoms were reported. At rest the Veteran has pain, but no weakness, stiffness, swelling, or fatigue. While standing or walking he has pain, stiffness, and swelling, but no weakness and no fatigue. He treats the condition with medication, stretching exercises, physical therapy, and ice packs. He credibly reports limitation of many physical activities. Upon objective examination, the Veteran's gait was normal, and he had no abnormal signs of weigh bearing, and no assistive devices for ambulation. Examination of the right foot and left foot showed painful but full range of motion with tenderness. After repetitive use, he has pain, fatigue, weakness, weakness, lack of endurance, incoordination, and pain, but there was no additional limitation in degree. Slight tenderness upon palpation of the plantar surface of both feet was observed. The examiner diagnosed bilateral plantar fasciitis and hallux valgus. March 2009 VA QTC X-rays revealed soft tissue swelling due to plantar fasciitis of both feet. At the April 2011 videoconference hearing, the Veteran reported bilateral foot swelling, numbness, and pain when walking or standing. He treats his foot pain with physical therapy, oral medications, a prescription cream, special shoes, and steroid injections. The Veteran asserted he should also be given a separate evaluation for Morton's disease for both feet. A June 2011 VA podiatry note stated that the Veteran exhibits bilateral foot pain. He was diagnosed with bilateral plantar fasciitis and pes planus. Icing of both feet was recommended. The Veteran has submitted September 2011 medical treatise evidence identifying the symptomatology of plantar fasciitis as irritation and swelling of the thick tissue on the bottom of the feet. A February 2013 Appellant's Post-Remand Brief identifies symptomatology of painful and tender feet with decreased functional capacity. Upon review of the above medical and lay evidence of record, and the provisions of 38 C.F.R. §§ 4.40 and 4.45 and the Deluca case, providing the evidence supports 20 percent ratings for the right and left foot under Diagnostic Code 5284. See VAOPGCPREC 9-98 (Aug. 14, 1998). The Veteran's bilateral foot symptoms are moderately severe in nature. The Veteran provided competent and credible testimony of constant heel and foot pain at rest and with standing and walking. In 2009, the Veteran reported the pain was crushing and aching. The 2004 VA examiner noted moderate foot malalignment and slight tenderness. The 2005 VA examiner noted an abnormal gait, painful motion, and marked and extreme tenderness of the feet. There was limited function for standing and walking. The 2009 VA examiner noted a normal gait with no sigtns of abnormal weightbearing; but there was pain, fatigue, weakness, lack of endurance, and incoordination upon repetitive use. On balance, the Veteran's feet pain cause limitation on daily activities and other functional loss such as fatigue, weakness, lack of endurance, and incoordination. In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010) (noting that 38 U.S.C.A. 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should 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) (emphasis added); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability"). In the present case, the Board has considered the Veteran lay statements as competent and credible in granting separate 20 percents ratings for the left and right foot. However, the evidence of record does not warrant higher 30 or 40 percent ratings for either foot. 38 C.F.R. § 4.7. That is, neither a severe level of disability nor loss of use of either foot is shown by the medical and lay evidence of record. See Diagnostic Code 5284. The post-service evidence demonstrates that evaluation in excess of 20 percent are not warranted under Diagnostic Code. A December 2003 VA podiatry record noted no edema or calluses. At the April 2004 VA examination, no devices were need for ambulation. For the feet, upon objective examination, there was no edema, no weakness, no atrophy, no dropped forefoot, normal dorsiflexion of the toes and ankles, no limitation in standing or walking, normal neurological examination, and normal circulation. At the March 2005 VA examination, an abnormal gait was noted. For the feet, upon objective examination, there were no signs of abnormal weightbearing and no assistive devices needed to ambulate. VA physical therapy notes dated from August 2005 to December 2005 documented an independent gait and decreased pain after therapy. A March 2009 VA examiner, upon objective examination, noted that the Veteran's gait was normal, and he had no abnormal signs of weightbearing, no callosities, and no assistive devices for ambulation. There was no edema, no disturbed circulation, no weakness, no atrophy, no heat, no redness, no instability, and no shoe support. Examination of the right foot and left foot showed painful but full range of motion with tenderness. Only slight tenderness upon palpation of the plantar surface of both feet was observed. At rest, the Veteran reported no weakness, no stiffness, no swelling, and no fatigue. While standing or walking, he has no weakness, no fatigue. The provisions of 38 C.F.R. §§ 4.40, 4.45 and the Deluca case have been considered, but do not provide a basis for assigning a rating greater than 20 percent under Diagnostic Code 5284 when considering limitation of motion. See VAOPGCPREC 9-98 (Aug. 14, 1998). The Veteran's bilateral foot symptoms are not severe in nature. With regard to loss of use, medical and lay evidence of record does not show that the Veteran has actually lost the use of either the right or left foot. He is clearly able to walk and stand with limitations. The evidence demonstrates he has more function in the feet than would be served with an amputation stump. See 38 C.F.R. § 4.63. There is no evidence of ankylosis from this disability, shortening of the right or left extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Id. A maximum 40 percent rating therefore cannot be awarded on this basis. Moreover, other diagnostic codes for foot disabilities that provide for alternative ratings are not more appropriate because the evidence of record does not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (metatarsalgia or Morton's disease), Diagnostic Code 5281 (hallux rigidus), and Diagnostic Code 5282 (hammer toes). VA examiners in 2004, 2005, and 2009, repeatedly noted that there was no claw foot, pes cavus, hammertoes, Morton's metatarsalgia, hallux rigidus, and hallux valgus. Therefore, these diagnostic codes will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). In addition, although the Veteran has been diagnosed with pes planus (Diagnostic Code 5276), hallux valgus (Diagnostic Code 5280), and malunion or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283), as of yet no probative medical evidence of record demonstrates that these conditions are service-connected or associated with the Veteran's service-connected disabilities. In the April 2012 SSOC, the RO specifically emphasized that there was no medical diagnosis of record for Morton's disease, such that no separate evaluation for this disorder had been granted, despite some initial confusion on this matter. The issue of service connection for pes planus is being remanded per the discussion below. Therefore, in the instant decision, the Board will continue to evaluate the bilateral foot disability under Diagnostic Code 5284, since it provides the potential for the most favorable rating. The Board also notes that evaluations in excess of 20 percent are not warranted under Diagnostic Code 5271 for marked limited motion of the right and left ankle. 38 C.F.R. § 4.71a. Accordingly, resolving any doubt in the Veteran's favor, the evidence of record warrants separate, increased 20 percent ratings, but no greater, for the Veteran's right and left foot plantar fasciitis under Diagnostic Code 5284. 38 C.F.R. § 4.3. This increase is for the entire time period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). Since the rating criteria reasonably describe the claimant's disability level and symptomatology for his bilateral plantar fasciitis, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The Board has considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) in determining the Veteran's separate 20 percent ratings. The evidence fails to show anything unique or unusual about the Veteran's bilateral plantar fasciitis disability that would render the schedular criteria inadequate. In any event, the Board finds no evidence that the Veteran's bilateral plantar fasciitis disability markedly interferes with his ability to work, meaning above and beyond that contemplated by his schedular ratings. As noted above, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran works as an elementary school teacher. At the March 2005 VA examination, he reported missing only three days in the last year due to his bilateral plantar fasciitis disability. At the April 2011 hearing, he reported sometimes asking for days off due to pain from prolonged standing from his bilateral plantar fasciitis disability. However, separate 20 percent ratings are adequate to compensate for his minimal loss of working time as the result of his bilateral plantar fasciitis. In short, overall the evidence of record fails to demonstrate marked interference with employment from the bilateral plantar fasciitis disability. 38 C.F.R. § 3.321(b)(1). Finally, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations due to his service-connected bilateral plantar fasciitis disability, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. 38 C.F.R. § 3.321(b)(1); VAOPGCPREC 6-96. His treatment has been solely on an outpatient basis. See March 2009 VA examination report. ORDER An increased 20 percent rating for RIGHT foot plantar fasciitis is granted, subject to the laws and regulations governing the payment of VA compensation. An increased 20 percent rating for LEFT foot plantar fasciitis is granted, subject to the laws and regulations governing the payment of VA compensation. REMAND In a December 2006 rating decision, the RO increased the evaluation for prostate cancer to 100 percent. In January 2007, the Veteran filed a notice of disagreement alleging that he was entitled to permanent 100 percent disability evaluation. The RO did not issue an SOC. Accordingly, remand of this issue is required. With regard to bilateral pes planus, the RO issued rating decisions dated in May 2007 and April 2008 denying the Veteran's claim for service connection for bilateral pes planus. The Veteran then submitted a July 2008 letter requesting that the RO reconsider the denial of this claim. To date, however, the RO has not issued a SOC in response to the Veteran's Notice of Disagreement (NOD). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a NOD. 38 C.F.R. § 20.201 (2012). While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Id. An appellant must file a NOD with a determination by the RO within one year from the date that the mailed notice of the determination. 38 C.F.R. § 20.302(a) (2012). When a notice of disagreement has been filed, the RO must issue an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue an SOC). In the present case, liberally construed, the July 2008 letter constitutes a timely NOD on the issue of entitlement to service connection for bilateral pes planus. The filing of an NOD places a claim in appellate status. Therefore, the failure to issue an SOC in such a circumstance renders a claim procedurally defective and necessitates a remand. Accordingly, the service connection issue for bilateral pes planus is REMANDED to the RO for the following action: The RO should provide the Veteran with a SOC addressing the issue of service connection for bilateral pes planus, to include on a secondary basis. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely Substantive Appeal (VA Form 9) in response thereto. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC unless he perfects his appeal of service connection for bilateral pes planus. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs