Citation Nr: 1327148 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-46 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable evaluation for left foot plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active military service from May 2003 to June 2008, and had subsequent reserve service. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Additional evidence was received since the August 2009 Statement of the Case. However, the Veteran's representative waived initial RO consideration of that evidence. FINDING OF FACT The Veteran's left foot plantar fasciitis is manifested by symptoms that more nearly approximate moderate disability. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but not higher, for left foot plantar fasciitis have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 34.7, 4.71a, Diagnostic Codes 5099-5020, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the record includes the Veteran's service treatment records, private treatment records, VA treatment records, and VA examination reports. The Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. In sum, VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A June 2008 rating decision granted service connection for left foot plantar fasciitis, assigning a noncompensable disability evaluation effective June 10, 2008 under Diagnostic Code 5099-5020. 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. 38 C.F.R. § 4.27. Diagnostic Code 5020, for synovitis, refers in turn to the criteria for limitation of motion of the affected part, as degenerative arthritis (Diagnostic Code 5003). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The 10 and 20 percent ratings assigned in the absence of limitation of motion cannot be applied to Diagnostic Codes 5013 through 5024. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (2). The Board finds that Diagnostic Code 5284 provides more appropriate and favorable criteria for evaluating the Veteran's left foot plantar fasciitis. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). Under Diagnostic Code 5020/5003, the maximum evaluation assignable requires x-ray evidence of arthritis which is not shown here, or evaluating the joint based on limitation of motion under appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, there are no specific diagnostic codes evaluating limitation of motion of the plantar surface of the foot. Conversely, Diagnostic Code 5284, with its more general criteria, permits an evaluation based on all symptomatology related to the Veteran's plantar fasciitis. Diagnostic Code 5284 provides that 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. The Veteran underwent a VA examination in March 2008. He reported being prescribed splints for his left foot and also orthotic inserts. He stated that the condition waxes and wanes. He reported pain usually in the morning. He denied any impact on occupation or activities of daily living. He stated that walking and standing were affected after long periods of time. He reported that the symptoms were constant and he did not have flare-ups. Upon physical examination, there were no corns or calluses. The Veteran's feet were not edematous and not particularly flat. The Achilles tendon was normally aligned without pain on manipulation. There was no painful or restricted motion. There was no abnormal weight bearing, weakness or instability. The left foot was painful in the arch distribution. The examiner diagnosed left plantar fasciitis. In a September 2008 statement, the Veteran reported that even during periods of relief, there was always a mild continuous discomfort. He stated that periods of pain and flare-up were not only continuous, but also lasted for an extended period of time, normally six months or more. He reported that the condition affected his physical mobility. He stated that the disability manifested by limitation of motion, restriction of activity, and functional impairment. He reported that the disability affected his daily activities, occupation and associated tasks and activities. Private treatment records dated in November 2008 from a podiatrist reflect the Veteran reporting pain along the plantar fascia of the left foot from the heel all the way to proximal metatarsals. The Veteran was given biomechanical orthotics. In a December 2008 statement, the Veteran reported that activities such as work, volunteering, shopping, social gatherings, parties, exercising, sports, running, household activities, cleaning, walking the dog, or any of the numerous activities that required him to use his feet, stand for any period of time, walk, or run were adversely affected by this condition. He reported that he was immobilized during periods of severe pain and flare-up. The Veteran underwent another VA examination in June 2009. He reported pain in the left foot on many days, which was variable in severity. He stated that he wore inserts with some benefit. He reported that he had to curtail his standing, participation in social events, and that he had poor balance on the foot. He stated that he experienced flare-ups which were activity related and characterized by limitation of walking. He reported that he could stand one hour at a time and that he could walk a mile on level ground under normal circumstances. Upon physical examination, there were no corns, calluses or edema. There was a mild degree of pes planus on standing more on the right than the left. The Achilles tendons were nontender and in normal alignment. There was no pain on motion, restriction of motion, abnormal weightbearing, weakness or instability. The Veteran could stand on tiptoe repeatedly. He was tender over the anterior aspect of the heel and in the medial aspects of the arch. The examiner diagnosed plantar fasciitis and mild pes planus of the left foot. In October 2009, the Veteran reported that the left foot plantar fasciitis is always prevalent and disabling, with continuous discomfort that worsens with normal activities. He stated that activities such as work, volunteering, shopping, social gatherings, parties, exercising, sporting events, running, household activities, cleaning, walking the dog, or other activities that require the use of his feet are adversely affected by this condition. He stated that during periods of severe pain and flare-up he is essentially immobilized, and cannot stand, walk, run, exercise or do anything on his feet without severe pain. The Veteran underwent another VA examination in October 2012. He reported taking medication, as well as wearing orthotics in his shoe and a night splint every night. He denied swelling, heat, redness, and lack of endurance. He reported pain, fatigability, weakness, and other symptoms (all while standing and walking). He denied flare-ups of joint disease. He reported that he was able to stand up to one hour and was able to walk one to three miles. Upon physical examination, there was no evidence of swelling, instability, weakness, or other abnormal weightbearing. There was evidence of painful motion and tenderness. There was pain and tenderness felt on palpations in the inner aspect of plantar fibromatosis. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was no muscle atrophy of the foot. The examiner diagnosed chronic left foot fibromatosis. The effects on usual occupational activities are unable to walk more than one hour at a time, unable to lift more than 20 pounds at a time, and unable to run more than half a mile at a time. The disability had no effects on feeding, bathing, dressing, toileting and grooming; mild effects on chores, shopping, traveling and driving; and moderate effects on exercise, sports and recreation. A November 2012 Medical Evaluation Board finding showed that the Veteran had occasional left foot pain at the level of one to seven out of ten, which came on unpredictably without additional injury while running, walking, weight lifting or carrying an excess load of weight. Upon review of the record, the Board finds that an evaluation of 10 percent, but no higher, has been more nearly approximated during the course of the appeal. After considering the medical findings and lay contentions, the Board finds the evidence reveals a disability picture which more nearly approximates moderate impairment. The Veteran's plantar fasciitis of the left foot has caused pain and tenderness. Moreover, the Veteran's left foot disability necessitated the use of orthotics, and reportedly has affected his mobility, and at times, impacted his weight bearing and balance. Therefore, resolving reasonable doubt in the Veteran's favor and in light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds an initial disability rating of 10 percent is warranted for moderate foot impairment under Diagnostic Code 5284. The Board finds, however, that a higher rating is not warranted. In the March 2008 VA examination he denied any impact on his occupation or activities of daily living, and reported that symptoms were constant and that he did not suffer from flare-ups. In June 2009 he stated the pain was variable and present on many days, but that he wore inserts with some benefits. He stated his flare-ups were activity related. He further stated he could walk a mile on level ground and could stand one hour at a time. On the October 2012 examination, he reported being able to stand up to one hour at a time, walk one to three miles, lift up to 20 pounds at a time, and could run up to half a mile at a time. Moreover, the October 2012 examiner noted that the disability had no effects on feeding, bathing, dressing, toileting and grooming; mild effects on chores, shopping, traveling and driving; and moderate effects on exercise, sports and recreation. The November 2012 reserve medical board report noted that since service connection had been established his left foot has been stable, with occasional pain ranging from 1-7/10 that is unpredictable and comes on with excess activity. The Board finds such evidence supports a finding consistent with a moderate level of disability. Such conclusion is consistent with the examiner's interpretation of the functional effects as moderate, as well as the Veteran's report of being able to walk for a mile and stand for an hour. While the Veteran has alleged severe pain and flare-ups at times, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left foot plantar fasciitis. Accordingly, the Board finds that the preponderance of the evidence supports a 10 percent rating for this disability, but is against a higher rating. As noted above, the June 2009 VA examiner diagnosed mild pes planus of the left foot. The Veteran is not service connected for pes planus, and regardless, such disability was noted to be mild by the examiner and would not warrant a rating in excess of the 10 percent evaluation being assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability for evaluating the service-connected disability is to be avoided). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. As noted above, Diagnostic Code 5284 contemplates all symptomatology associated with the service-connected foot disability, and the Board has considered functional impairment objectively shown and subjectively reported. The Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. As a final matter, the Board notes that the Veteran is not presently employed. However, the Veteran advised a VA examiner during an October 2012 examination the he was not employed due to being a full time graduate student. The Veteran has not alleged during the course of the appeal that he is unable to work as a result of his left foot disability, nor does the evidence suggest such. Accordingly, no further action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is required. ORDER A 10 percent disability rating for left foot plantar fasciitis is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs