Citation Nr: 1319653 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-15 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 10 percent disabling for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2012, the Board, in pertinent part, denied an increased rating for bilateral plantar fasciitis. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). VA's General Counsel and the Veteran, through his attorney, filed a Joint Motion for Partial Remand (JMR) regarding the issue listed above. By Order dated in January 2013, the Court granted the JMR, and the issue was remanded to the Board for action consistent with the JMR. As noted in the JRM, the issues of service connection for a right hand disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disability were remanded by the Board in September 2012. Those issues remain in remand status and are not currently before the Board. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. As discussed in the September 2012 Board decision, an issue regarding service connection for a dental disorder has been raised by the Veteran in a May 2012 statement received by VA. As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. As such, the issue is referred to the AOJ for appropriate action. FINDING OF FACT For the entire rating period, bilateral plantar fasciitis has been manifested by pain, tenderness, and increased pain with use, but does not approximate a moderately severe foot injury. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for separate 10 percent ratings for plantar fasciitis of the right and left feet have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5276, 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A July 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Substantially compliant notice was also sent in July 2008, and the claim was last readjudicated in a December 2011 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA and private treatment reports, have been secured. The RO arranged for VA QTC examinations in November 2007 and August 2011. These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has 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 has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. In April 2013, the Veteran indicated that he did not have anything else to submit. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) 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 the 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Plantar Fasciitis Rating Analysis Service connection for bilateral plantar fasciitis was granted in an October 2003 rating decision that assigned a 10 percent evaluation, effective May 8, 2003. In April 2008, the RO continued the 10 percent evaluation, which gave rise to this appeal. The RO has rated the Veteran's bilateral plantar fasciitis under the hyphenated Diagnostic Code 5299-5276 of 38 C.F.R. § 4.71a. When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. Id. Diagnostic Code 5299 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a. 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 5276 refers to pes planus. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate impairment, either unilateral or bilateral, involving weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet. Severe impairment, which is indicated by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, warrants a 20 percent rating for unilateral disability, and a 30 percent rating for bilateral disability. Pronounced disability, indicated by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, warrants a 30 percent rating for unilateral disability, and a 50 percent rating for bilateral disability. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. 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. After a review of all the evidence, lay and medical, and in addressing the arguments made by the parties of the JMR, the Board finds that, for the entire appeal period, the Veteran's bilateral plantar fasciitis has been manifested by pain, tenderness in the bilateral feet with increased pain with use, which more nearly approximates the criteria for separate 10 percent disability ratings under Diagnostic Code 5284. See 38 C.F.R. § 4.71a. While the RO assigned a 10 percent disability rating for bilateral plantar fasciitis under Diagnostic Code 5276, the Board finds that because the evidence of record shows that the Veteran's plantar fasciitis is manifested by symptoms of pain and tenderness in both feet, ratings under Diagnostic Code 5284 are more appropriate in this case and a separate rating is warranted for each foot. The relevant evidence for this claim consists of private and VA treatment records dated since December 2005, VA QTC examinations dated in November 2007 and August 2011, and the Veteran's lay statements noted in the medical records and reports. The private and VA treatment records dated after December 2005 note the Veteran's complaints of pain and limitation in his feet, but do not include detailed information relevant to the rating analysis under the applicable rating criteria. Such evidence is located in the two VA QTC examination reports. The November 2007 VA QTC examiner noted the Veteran's complaints of constant pain from his arch to his toes bilaterally, weakness, stiffness, swelling, and fatigue. She also noted the Veteran's claims to difficulty walking and standing due to his foot pain. On physical examination, there were no signs of abnormal weight bearing, and normal posture and gait. The examiner noted full and normal range of motion in the ankle of 20 degrees dorsiflexion and 45 degrees plantar flexion, and noted no additional limitation caused by pain. There was no evidence of malunion of joints or bones in the feet or ankle areas, and no evidence of pain, tenderness, weakness, edema, atrophy, or disturbed circulation. Active range of motion in the metatarsophalangeal joint of each great toe was noted. The examiner also indicated pes planus and slight tenderness on palpation on the plantar surface of each foot. The examiner noted no structural deformity besides the pes planus. For each foot, there was no valgus, no forefoot/midfoot malalignment, no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation, or eversion of the whole foot. The examiner noted good alignment in each Achilles tendon. On either foot, there were no signs of dropped forefoot or marked varus deformity. Dorsiflexion of the toes did not produce pain, and palpation of the metatarsal heads did not produce tenderness. Further, the examiner indicated no hammertoes, Morton's Metatarsalgia, hallux valgus, or hallus rigidus. X-ray evidence showed a small posterior plantar calcaneal spur on the right foot, but an otherwise normal right foot, and a left foot that was within normal limits. The August 2011 VA QTC examiner noted the Veteran's complaints of constant bilateral foot pain with weakness, stiffness, and fatigue. The examiner noted an antalgic gait due to knee and hip pain, but noted normal posture, and no evidence of abnormal weight bearing. Examination of the feet and toes revealed no tenderness on palpation, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation. The examiner noted active motion in the metatarsophalangeal joint in both great toes. On non-weight bearing testing and weight bearing testing, the alignment of the Achilles tendon on each foot was normal. There was no pes planus, pes cavus, hammertoes, hallux valgus, hallux rigidus, or Morton's Metatarsalgia. The examiner indicated that the Veteran used no support for his shoes. A nontender bunion on the right 1st toe was also noted. X-ray examination revealed degenerative joint disease in the Veteran's right, first metatarsophalangeal, and a normal result for the left foot. In lay statements made particularly during both VA QTC examinations, the Veteran described symptoms of pain and tenderness in the bilateral feet, and increased pain upon use. The Veteran is competent to describe his observable foot symptoms and the Board finds that the Veteran's statements are credible. The Board has considered reported symptoms of pain and tenderness and functional limitations due to such, the Veteran's treatment, and findings from the VA QTC examinations with regard to plantar fasciitis in the bilateral feet in evaluating the his bilateral foot disability. Based on a review of all of the evidence of record, lay and medical, the Board finds that bilateral plantar fasciitis is manifested by pain and tenderness in the bilateral feet with increased pain with use. The Board emphasizes that when evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to pain. See DeLuca, 8 Vet. App. at 206-7. Painful joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Resolving reasonable doubt in the Veteran's favor, for the entire rating period, the Board finds that separate 10 percent ratings are warranted under Diagnostic Code 5284 for planter fasciitis in each foot. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board finds that the criteria for a 20 percent rating under Diagnostic Code 5284 have not been met or more nearly approximated for any portion of the rating period. Even with consideration of pain on use, the Veteran's bilateral plantar fasciitis does not more nearly approximate moderately severe residuals of a foot injury at any time during the period on appeal. The Veteran did not have evidence of painful motion of the feet, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. An antalgic gait was noted by the August 2011 VA QTC examiner; however, this was due to knee and hip pain. Otherwise, the Veteran demonstrated normal posture and no evidence of abnormal weight bearing. For these reasons, the Board finds that the weight of the evidence, lay and medical, demonstrates that the Veteran's disability picture more nearly approximates the Diagnostic Code 5284 criteria described for a 10 percent evaluation for plantar fasciitis, and does not more nearly approximate the criteria for a higher 20 percent rating for either foot. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board has considered whether separate or higher ratings are warranted under Diagnostic Code 5276 (acquired flat foot or pes planus). While the Veteran was initially evaluated under Diagnostic Code 5276, only the December 2007 QTC VA examination indicated the presence of pes planus. The August 2011 examiner clearly noted that pes planus was not present. Further, neither of the VA QTC examinations reflect marked deformity in either foot, pain on manipulation of the feet, swelling, or characteristic callosities as described for a higher rating under Diagnostic Code 5276. In short, while the December 2007 QTC VA examination report noted that there was pes planus present, the more recent August 2011 QTC VA examination shows that the Veteran did not have pes planus present. The Board notes that pain with use has already been considered in assigning the Veteran's 10 percent evaluation for each foot under Diagnostic Code 5284; thus, a separate rating based on foot pain would constitute pyramiding. For these reasons, the Board finds that the Veteran's plantar fasciitis does not more nearly approximate a higher 20 percent evaluation under Diagnostic Code 5276. 38 C.F.R. §§ 4.3, 4.7, 4.71a. As discussed above, the overall severity of the Veteran's service-connected bilateral foot disability is no more than moderate in degree. The Veteran had active range of motion in the feet without pain, bilaterally, during December 2007 and August 2011 QTC VA examinations. The Veteran did not have evidence of painful motion in the feet, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability in the feet. For these reasons, the Board finds that the Veteran's bilateral foot disability is no more than moderate in degree and a rating in excess of 10 percent for each foot would not be alternately assignable under Diagnostic Codes 8525, 8625, or 8725 based on paralysis, neuritis, and neuralgia of the posterior tibial nerve. The Board also finds no basis to alternately consider the criteria of Diagnostic Code 5277 (bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness), Diagnostic Code 5278 (acquired claw foot or pes cavus), Diagnostic Code 5279 (anterior metatarsalgia or Morton's disease), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (unilateral hallux rigidus), Diagnostic Code 5282 (hammer toe), or Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). QTC VA examinations show that the Veteran does not have evidence of bilateral week foot, claw foot, pes cavus, Morton's metatarsalgia, hallux valgus, hallux rigidus, or hammertoe, and x-rays do not reflect malunion or nonunion of the tarsal or metatarsal bones. While the August 2011 VA QTC examination noted a finding of some limitation of motion of the ankles, service connection is not in effect for an ankle disability and the finding is not pertinent to the service-connected bilateral plantar fasciitis, as the service-connected disability involves only the feet and not the ankle. For these reasons, the Board finds that the Veteran's bilateral foot disability is no more than moderate in degree. As such, separate 10 percent evaluations, but no higher, for bilateral plantar fasciitis (10 percent disabling for each foot) is warranted; however, ratings in excess of 10 percent for each foot would not be alternately assignable under any other applicable diagnostic code discussed above (but see discussion of the application of 38 C.F.R. § 4.71a, Diagnostic Code 5271 in the Remand section below). Indeed, after careful review of all the evidence of record, lay and medical, the Board does not find that the ratings assigned (10 percent disabling for each foot) should be increased for any other separate period based on the facts found during the appeal period. As such, increased evaluations in excess of 10 percent disabling for the right foot and left foot plantar fasciitis is not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. (CONTINUED ON NEXT PAGE) Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. 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. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 a Veteran's disability picture and that picture has attendant thereto related factors such 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 the Veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's bilateral foot disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code 5284, specifically provide for disability ratings based on moderate to severe foot injuries, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59 (2012); see also DeLuca at 202. In this case, considering the lay and medical evidence, bilateral plantar fasciitis has been manifested by pain, tenderness, and increased pain with use; these symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above and in the Remand section below. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). Additionally, the Board has considered the Veteran's functional limitations to prolonged standing and walking, and associated limitations to occupational and daily activities due to his foot pain. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). "Generally, 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 (2012). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's foot pain on his occupation and daily life. In the absence of exceptional factors associated with bilateral plantar fasciitis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Separate 10 percent disability ratings for plantar fasciitis of the right foot and the left foot are granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs