Citation Nr: 1319546 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-03 684 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to an initial compensable rating for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to June 2008. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the RO. FINDING OF FACT The Veteran's plantar fasciitis is manifested by complaints of pain and objective findings of pain to palpation at the insertion of the plantar fascia, bilaterally. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but not higher, for bilateral plantar fasciitis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In January 2009, the RO VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA also informed him, generally, of the manner in which VA assigned disability ratings and the associated effective dates. VA set forth the factors it considered in assigning disability ratings, including the nature and symptoms of the condition, the severity and duration of his symptoms, and the impact of his service-connected disability on his activities associated with employment and daily life. In any event, in cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, notice under section 5103(a) is no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. Although the January 2009 notice was provided subsequent to the July 2008 rating decision, the claim was readjudicated in a September 2012 supplemental statement of the case. The issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records, as well as records reflecting his VA treatment from March 2009 through June 2012. In March 2008, April 2010, and September 2012, VA examined the Veteran, in part, to determine the nature and etiology of his bilateral plantar fasciitis. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical condition, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Veteran contends that the initial noncompensable rating for his bilateral plantar fasciitis does not adequately reflect the level of impairment caused by that disorder. Therefore, he maintains that an increased rating is warranted. After carefully considering the claim in light of the record and the applicable law, the Board agrees in part and will grant the claim to the extent indicated. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Currently, there is no diagnostic code applicable, specifically, to rating plantar fasciitis. Accordingly, the Veteran's plantar fasciitis will be rated by analogy to a closely related disease or injury, pes planus. 38 C.F.R. § 4.20 (2012). Pes planus is rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5276. A noncompensable rating is warranted for mild impairment, that is, where symptoms are relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate impairment, manifested by the 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. A 20 percent rating is warranted for severe unilateral impairment, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent evaluation is warranted when those manifestations are present, bilaterally. 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. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case) separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. During his March 2008 service retirement examination, it was noted that the Veteran had a history of plantar fasciitis which was expected to improve, when he was no longer on his feet. On physical examination, his feet were found to be normal. X-rays of the right foot revealed ossification of the distal tibiofibular syndesmosis consistent with a remote injury. Those of the left foot revealed mild enthesopathy of the distal Achilles insertion of the calcaneous. Post-service medical records, such as a March 2009 VA treatment record and the reports of the March 2008 and April 2010 VA examinations, show that the Veteran's plantar fasciitis was manifested primarily by complaints of bilateral needle-like pain in his heels, particularly when arising after prolonged sitting. He also complained of tightness in his arches; painful flare-ups approximately every 3 days, lasting about 20 minutes; stiffness; and fatigability. His posture and gait were reportedly normal, and he did not require any assistive device for ambulation. He stated that he had used shoe inserts years earlier, but not recently and that he was not receiving treatment for plantar fasciitis. There was no objective evidence of weakness, stiffness, swelling, heat, redness, incoordination, or fatigability, nor was there objective evidence of painful motion, edema, instability, or tenderness to palpation. On further examination, the Veteran demonstrated no callosities, breakdown, or unusual shoe wear pattern indicative of abnormal weightbearing, and he demonstrated no skin or vascular changes. Squatting, supination, pronation, and rising on his toes and heels were all accomplished normally. His sensation and deep tendon reflexes were normal, and there was no evidence of muscle atrophy of disuse. Although the Veteran demonstrated Grade 1 to 1.5 pes planus, there was no malalignment of the Achilles tendon, forefoot, or midfoot. Following the VA examinations, the examiners concurred that the Veteran plantar fasciitis was productive of no more than minimal or mild impairment. In addition, it was noted that he was employed full time and that he was also a student but that his plantar fasciitis had not caused him to lose any time from work during the previous 12 months. In February and March 2012, the Veteran began to receive treatment from the VA Podiatry Service. The complaints and manifestations of his bilateral plantar fasciitis were essentially those voiced during his March 2008 and April 2010 VA examinations. There was pain to palpation to insertion of bilateral plantar fascia, bilaterally. He was given a night splint and inserts. In April 2012, the Veteran complained that his plantar fasciitis had been bothering him and stated that he may need to have a cortisone injection in his right foot. In May 2012, he reported that the right foot was very sore and tender and that he had been wearing his orthotic. There was pain to palpation at the insertion of the right plantar fascia. He received a steroid injection into the right plantar fascia. In June 2012, the Veteran stated that the pain had improved since the injection. During a September 2012 VA examination, the Veteran's primary complaint continued to be pain in both heels, when he stood after prolonged sitting. X-rays revealed a small bony prominence adjacent to the medial aspect of the distal appearance of the great toe, bilaterally, and calcification at or near the level of the Achilles tendon insertion, also bilaterally. The Veteran had no pain to palpation of either foot, and there was no evidence of neurologic deficits. His sensation and motor processes were grossly intact. His pedal pulses were normal, and the color of his skin and nail beds was good. He continued to where shoe inserts. He ambulated without any assistive device, such as a cane, crutches, or walker. The VA examiner stated that the Veteran did not have any functional impairment of either foot which would be equally well-served by an amputation with prosthesis. The Veteran has consistently complained of pain on use of his feet since 2008. More recent examination in 2012 has shown pain to palpation at the insertion of the plantar fascia, bilaterally. In view of this, the Board finds that the criteria for the assignment of a 10 percent rating under DC 5276 have been more nearly approximated. 38 C.F.R. § 4.7. The Board has considered the possibility of a still higher rating for the Veteran's right plantar fasciitis. However, the preponderance of the evidence is against a finding that the Veteran's foot disorder is severe. There is no objective evidence of marked deformity (pronation, abduction, etc.). The VA examiner in April 2010 noted that there was no pronation; Achilles alignment was normal on weight bearing and non-weight bearing. There was no midfoot malalignment. While the Veteran has complained of pain on use of his feet, there was no indication of accentuated pain on manipulation and use. In addition, examination has been negative for any indication of swelling on use and/or characteristic callosities throughout the appellate period. Therefore, the criteria for a 20 (unilateral) or 30 (bilateral) percent rating under DC 5276 are not met or approximated. In arriving at the foregoing decisions, the Board has considered the criteria set forth in other diagnostic codes for rating foot disabilities. However, the evidence of record does not support their application. 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), Diagnostic Code 5282 (hammer toes), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). In April 2010 and September 2012, the VA examiners noted that there was no evidence of claw foot, pes cavus, hammertoes, Morton's neuroma, metatarsalgia, hallux rigidus, or hallux valgus. Therefore, those diagnostic codes will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the choice of diagnostic code should be upheld if it is supported by explanation and evidence). While Diagnostic Code 5284 is applicable to rating other foot injuries, it does not provide a higher rating for the manifestations of either the Veteran's left or right foot during any period of time since service connection became effective July 1, 2008. Under DC 5284, a 20 percent rating is assigned for a moderately severe foot injury and a 30 percent rating is assigned for a severe foot injury. VA examiners have described the Veteran's plantar fasciitis as minimal with no functional impairment and as mild. Recent VA treatment records dated in June 2012 also show that the Veteran reported that his pain decreased with injections and inserts. Physical examination of the feet has been essentially negative, with the exception of pain to palpation at the insertion of the plantar fascia, bilaterally. Therefore, the criteria for a higher rating under DC 5284 is not warranted. The Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected bilateral plantar fasciitis. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The analgous criteria for rating plantar fasciitis contemplates the symptoms of the Veteran's service-connected plantar fasciitis: pain on palpation, deformity, swelling, callosities, and the need for a built up shoe or arch support. 38 C.F.R. §§ 4.71a, Diagnostic Code 5276. In short, the Veteran does not have symptoms associated with his bilateral plantar fasciitis that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is therefore against a finding that the Veteran's bilateral plantar fasciitis presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) . ORDER Entitlement to an initial 10 percent rating for bilateral plantar fasciitis is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs