Citation Nr: 1323434 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-13 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected plantar fasciitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By that rating action, the RO, in part, granted service connection for chronic plantar fasciitis; an initial 10 percent evaluation assigned effective January 10, 2007--the date the RO received the Veteran's initial claim for compensation for this disability. The Veteran appealed the RO's determination to the Board. Because the Veteran disagreed with the initial rating assigned following the award of service connection for his plantar fasciitis, the Board has characterized this claim in light of the United States Court of Appeals for Veterans Claims decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In September 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This matter was most recently before the Board in July 2012. At that time, the Board remanded the claim to the RO for additional development. Specifically, to schedule the Veteran for a VA examination to determine the current severity of his plantar fasciitis. VA examined the Veteran in August 2012. A copy of this examination report has been associated with the claims file. The matter has returned to the Board for further appellate review. Finally, the Board notes that by a July 2012 rating action, the RO granted service connection for bilateral pes planus; a 10 percent disability rating was assigned. The Veteran did not appeal this rating action. Thus, the Board's analysis of the claim for an initial disability rating in excess of 10 percent for bilateral plantar fasciitis does not include consideration of the service-connected bilateral pes planus. For reasons discussed below, the rating code allows for separate ratings for weak foot and pes planus. Thus, the Board finds that there is no prejudice to the Veteran by determining that the plantar fasciitis is not intertwined with his pes planus. In view of the foregoing, the Board finds that it does not have appellate jurisdiction over the Veteran's pes planus at this juncture. FINDINGS OF FACT 1. Throughout the entire appeal period, the service-connected plantar fasciitis has been manifested by subjective complaints of painful feet and clinical evidence of weak foot and tender plantar fascia, bilaterally, that has required treatment with steroid injections. 2. For the period from July 22, 2010 to August 15, 2012, the clinical evidence of record showed that the Veteran had left foot scars that were tender to palpation and keloidal. 3. For the period from August 15, 2012 to the present, the clinical evidence of record shows that the Veteran's left foot scars were non-tender, stable and were not greater than 39 square centimeters (6 square inches). CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for plantar fasciitis of both feet have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5277 (2012). 2. For the period from July 22, 2010 to August 15, 2012, the criteria for a separate rating of 10 percent, and no more, for left foot scars have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2007). 3. For the period from August 15, 2012 to the present, the criteria for a separate 10 percent rating for left foot scars have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). I. Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case if the disagreement concerning the downstream issue is not resolved. Since the RO issued a statement of the case in June 2008 addressing the downstream initial rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). The Board also notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009), the Court clarified VA's notice obligations in increased rating claims. As the claim for an initial rating in excess of 10 percent for the service-connected plantar fasciitis stems from the grant of initial compensation benefits, as opposed to an increased rating claim, Vazquez- Flores is inapplicable to this claim. Id. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, and VA and private treatment records with the claims file. No outstanding evidence has been identified. In fact, the Veteran indicated in a written statement, received by VA in January 2013, that he did not have any additional evidence to submit in support of his appeal. The Veteran was afforded VA examinations in connection with the claims, most recently in August 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Recently, pursuant to the Board's July 2012 remand directives, VA examined the Veteran in August 2012 to determine the current severity of the service-connected plantar fasciitis. A copy of the August 2012 VA examination report has been associated with the claims file. The Board finds the August 2012 VA examination report to have been thorough and adequate upon which to base a decision. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's plantar fasciitis under the applicable rating criteria. The Board finds that there has been substantial compliance with its July 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Further, the Veteran was provided an opportunity to set forth his contentions at a September 2009 Travel Board hearing at the Detroit, Michigan RO before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ identified the issue on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only was the issue "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claim based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Laws and Regulations Increased Rating-general criteria Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When the appeal arises from an initial rating, such as here, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). Orthopedic criteria-general Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervations, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. III. Merits Analysis The Veteran seeks an initial rating in excess of 10 percent for his service-connected bilateral plantar fasciitis. By the appealed September 2007 rating action, the RO granted service connection for plantar fasciitis; an initial 10 percent disability rating was assigned, effective January 10, 2007--the date the RO received the Veteran's initial claim for compensation for this disability. The RO based its award of service connection, in part, on the Veteran's service treatment records reflecting that he had received treatment for plantar fasciitis. In addition, the RO also indicated that the Veteran had received post-service medical treatment for this disability. For example, a February 2007 report, prepared by Dr. S. Z., reflects that the Veteran had received steroid injections in both feet as treatment for his plantar fasciitis in June 2006. Dr. S. Z. also indicated that future treatment for the Veteran's plantar fasciitis might include repeated injections, heel inserts and orthopedic evaluations. (See February 2007, prepared by S. Z., M. D.). Other evidence that was of record at the time of the RO's September 2007 rating action included an August 2007 VA orthopedic examination report. This report reflects that the Veteran's plantar fascia was tender bilaterally. The examining physician entered a diagnosis of mild flatfoot condition, bilaterally, with chronic plantar fasciitis. The VA examiner opined that there was no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance on repetitive use of the joints, nor was there any impairment of daily occupational activities due, in part, to the Veteran's plantar fasciitis. (See August 2007 VA orthopedic examination report). In view of the above-cited clinical findings, the RO assigned a 10 percent disability rating to the service-connected bilateral plantar fasciitis under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5279. Hyphenated Diagnostic Codes are used when a rating for a particular disability under one Diagnostic Code is based upon rating under another Diagnostic Code. See 38 C.F.R. § 4.27. The four digits before the hyphen is the Diagnostic Code for the disability. Id. 99 indicates that the Veteran's disability is not listed in the Schedule for Rating Disabilities, while 52 indicates that it is related most closely to the listed musculoskeletal disabilities. See 38 C.F.R. §§ 4.20, 4.27. The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous. 38 C.F.R. § 4.27. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). VA examined the Veteran in August 2012 (see August 2012 Other than Flat Foot VA examination report) to determine the current severity of his bilateral plantar fasciitis. After a physical evaluation of the Veteran's feet, the examining clinician entered a diagnosis of plantar fasciitis. In response to the question as to whether the Veteran had Morton's disease/metatarsalgia, the VA examiner indicated "no." The VA examiner found the Veteran to have e had a weak foot, bilaterally, that was manifested by pain in both feet due to his plantar fasciitis. Id. In view of the foregoing, the Board finds that the Veteran's bilateral plantar fasciitis is more appropriately rated under Diagnostic Code 5277, the Diagnostic Code used to evaluate weak foot, bilateral. Butts, supra. Under Diagnostic Code 5277, a minimum (as well as maximum) 10 percent rating is warranted for a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. 38 C.F.R. § 4.71a, Diagnostic Code 5277. As Diagnostic Code 5277 allows separate ratings for symptomatic conditions that are secondary to constitutional conditions, the Board finds that evaluation of the Veteran's plantar fasciitis under this code would not be duplicative of his pes planus symptoms and would not constitute improper pyramiding under 38 C.F.R. § 4.14. The Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the service-connected bilateral plantar fasciitis. As the 10 percent disability rating is the maximum under Diagnostic Code 5277, the Board has considered other potentially applicable rating criteria for evaluating the service-connected plantar fasciitis, but finds that no higher rating is assignable. As noted above, because there is no evidence of Morton's disease/metatarsalgia of the Veteran's feet and as Diagnostic Code 5279, the Diagnostic Code used to evaluate this disability, carries a maximum 10 percent rating, it is not for application. In addition, VA examination reports, dated in August 2007, July 2010 and August 2012, VA treatment records, dated from December 2008 to August 2012, February 2007 and September 2009 reports, prepared by S. K., M. D., Z. H., M. D., and Exclusive Internal Medicine and Pediatrics, dated from June 2006 to September 2009, do not contain any evidence of claw foot (pes cavus) or malunion or nonunion of the tarsal or metatarsal bones. Thus, higher disability ratings under Diagnostic Code 5278 or Diagnostic 5283, respectively, is not appropriate. Moreover, while, the Veteran's plantar fasciitis could, conceivably, be rated as a residual of foot injury under Diagnostic Code 5284, the above-cited VA and private treatment and examination reports do not demonstrate a level of disability that is consistent with moderately severe foot disability, the level of disability warranting the next higher, 20 percent rating under that diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The above-cited VA and private evidence collectively shows that the service-connected plantar fasciitis is manifested by tender plantar fascia, bilaterally, and painful feet that have required treatment with steroid injections, and possible heel inserts. There also is no suggestion of any loss of use of the either foot (so as to warrant a maximum, 40 percent rating for foot disability). See 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2012). Moreover, none of the disabilities under consideration is shown to involve any other factor(s) warranting evaluation under any other provision(s) of VA's rating schedule. The Board points out that the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca provide no basis for assigning a higher rating for any of the foot disabilities under consideration. Despite the Veteran's complaints of foot pain and tenderness of the plantar fascia, bilaterally, that affect his ability to stand and walk for prolonged periods of time, the 10 percent rating assigned for his disability adequately compensates him for the extent of such impairment. As noted, one of the Veteran's primary complaints is foot pain, there is no evidence of functional loss in the feet associated with fatigue, weakness, lack of endurance, or incoordination. In this regard, VA examiners in August 2007 and July 2010 specifically concluded that there was no additional limiation of motion due to pain, fatigue, weakness or lack of endurance on repetitive use of any of the joints, which included, in part, the Veteran's feet. Thus, the Board finds that a higher rating for the service-connected bilateral plantar fasciitis is not warranted under the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Scar Criteria The Board has considered the applicability of separate ratings in addition to the present rating. It was noted that the Veteran had scars of the left foot that were secondary to the service-connected plantar fasciitis. (See August 2012 VA feet (other than pes planus) examination report)). The Board may consider whether a separate rating is warranted under the skin code for scars. The Board acknowledges that the Veteran may be entitled to ratings under scar codes, as long as there is no overlapping of symptoms. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service-connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). In this case, and as will be explained in more detail below, the Veteran meets the schedular criteria for a separate rating for left foot scarring for the period from July 22, 2010 to August 15, 2012. While the claim was on appeal, the applicable rating criteria for skin disorders, 38 C.F.R. § 4.118, was revised, effective October 23, 2008. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the liberalizing change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7- 2003. However, as set forth in the Federal Register, the most recently revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. 73 Fed. Reg. 54,710 (Sept. 23, 2008). Because the Veteran's claim was received prior to October 23, 2008, i.e., in January 2007, the revised criteria after October 23, 2008 are not for application in this case without request for review by the Veteran, but in no case will an award using the revised criteria be effective prior to October 2008. A scar not involving the head, face, or neck, such as here, can be rated under Diagnostic Codes 7801, 7802, 7803, 7804, and/or 7805. 38 C.F.R. § 4.118. Under Diagnostic Code 7801, scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when they cover an area or areas exceeding 6 square inches. Note (1) Scars in widely separated areas, as on two or more extremities or on anterior or posterior surfaces of extremities or trunk, will be separately rated and continued in accordance with § 4.25 of this part. Note (2) A deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802 a 10 percent rating is warranted for a scar, other than on the head, face, or neck, that is superficial and does not caused limited motion and exceeds an area of 144 square inches. (929 sq. cm.) or greater. Note (1) Scars in widely separated areas, as on two or more extremities or on anterior or posterior surfaces of extremities or trunk, will be separately rated and continued in accordance with § 4.25 of this part. Note (2) A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7803, a 10 percent rating is warranted for a scar that is superficial and unstable. Note (1) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804 a 10 percent rating is warranted for a scar that is painful on examination. Note (1) A superficial scar is one not associated with underlying soft tissue damage. Note (2) A deep scar is one associated with underlying soft tissue damage. The Board finds that a separate 10 percent rating for tender left foot scars pursuant to Diagnostic Code 7804 for the period from July 22, 2010 to August 15, 2012 is warranted. When examined by VA on July 22, 2010, the examiner noted that the Veteran had scars of the left foot that were keloidal and tender on examination. (See VA orthopedic examination report, dated July 22, 2010). Conversely, when examined by VA on August 15, 2012, the VA examiner indicated that the Veteran had left foot scars that were non-tender, were not greater than 39 square centimeters and stable. (See August 2012 VA foot (other than pes planus) examination report). Thus, as there is medical evidence showing the Veteran's left foot scars to be tender (painful) on examination on VA examination on July 22, 2010, but non-tender on examination on August 15, 2012, the Board finds that the evidence warrants a 10 percent rating for each left foot scar for the period from July 22, 2010 to August 15, 2012 pursuant to Diagnostic Code 7804, which should be combined pursuant to the combined rating table of 38 C.F.R. § 4.25. As the left foot scars were found to have been non-tender at the August 2012 examination, a separate 10 percent rating for left foot scars under Diagnostic Code 7804 is not warranted for the period from August 15, 2012 to the present. There is also no evidence of record indicating that the Veteran's left foot scars are deep and cause limited motion, have an area or areas of at least 6 square inches (39 sq. cm.); or an area or areas of 144 square inches (929 sq. cm.); or, are unstable. Therefore, the Veteran's left foot scars do not warrant an initial compensable rating under Diagnostic Codes 7801-7803 at anytime during the appeal period. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7803 (2007). The Board notes that Diagnostic Code 7805 addresses scars and indicates they can be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. In this case, there is no evidence that the left foot scars produce any limitation of motion of the left foot. Thus, a separate 10 percent rating for left foot scars under Diagnostic Code 7805 is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). IV. Fenderson Considerations For all the foregoing reasons, the Board finds that there is no basis for staged ratings for the service-connected bilateral plantar fasciitis. Fenderson, supra. Rather, the above-cited foot symptomatology associated with the service-connected plantar fasciitis is essentially consistent throughout the appeal period and is fully contemplated by the assigned 10 percent disability rating. V. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record reflects that throughout the appeal, the Veteran has remained employed. (See VA examination reports, dated in August 2007 and July 2010, and September 2009 report, prepared by Exclusive Internal Medicine and Pediatrics, PC). Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. VI. Extraschedular Consideration In evaluating the Veteran's claim for an initial rating in excess of 10 percent for the service-connected plantar fasciitis, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the 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 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected plantar fasciitis is inadequate. A comparison between the level of severity and symptomatology of this disability, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe the Veteran's plantar fasciitis, as discussed in the preceding analysis. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that, aside from an October 2009 surgery on his left foot, the Veteran has required any other hospitalizations for his left foot. There is no persuasive evidence in the record to indicate that this disability would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. In this regard, an August 2007 VA examiner concludes that the Veteran's orthopedic disabilities, which included, in part, his plantar fasciitis, had caused minimal impairment on his daily occupational activities. (See August 2007 VA orthopedic examination report). Although VA examiners in July 2010 and August 2010, concluded that the Veteran's orthopedic disabilities, which included, in part, his plantar fasciitis had caused moderate impairment of daily occupational activities and limited his ability to stand and walk for prolonged periods of time, this type of impairment is contemplated in the assigned 10 percent rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2012) specifically sets out that "[g]generally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected bilateral plantar fasciitis has resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An initial disability rating in excess of 10 percent for service-connected bilateral plantar fasciitis is denied. For the period from July 22, 2010 to August 15, 2012, a separate rating for 10 percent, and no more, for left foot scars, is granted, subject to the laws and regulations governing monetary benefits. For the period from August 15, 2012 to the present, a separate rating for 10 percent, for left foot scars, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs