Citation Nr: 1330335 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 06-06 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 2003 to May 2004. These matters are before the Board of Veterans' Appeals on appeal from a September 2004 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for right foot plantar fasciitis, rated 0 percent, effective May 8, 2004. In January 2009, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In May 2009 and again in September 2010 the matter of the rating for right foot plantar fasciitis was remanded for further development. In September 2010 the Board also found that under Rice v. Shinseki, 22 Vet. App. 447 (2009) an inferred claim for TDIU was raised by the record and remanded that matter for further development. An interim (November 2012) rating decision increased the rating for right foot plantar fasciitis to 10 percent, also effective May 8, 2004. As the Veteran did not express satisfaction with that award, and the rating is less than the maximum available under schedular criteria, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. At no time since the award of service connection is the Veteran's right foot plantar fasciitis shown to have been manifested by symptoms or impairment that may reasonably be characterized as more than moderate foot injury. 2. The Veteran's service-connected disabilities, lumbosacral strain rated 40 percent, asthma rated 30 percent, left knee tendonitis rated 10 percent, right knee patellofemoral syndrome rated 10 percent, and right foot plantar fasciitis rated 10 percent, are rated 70 percent combined; they are not shown to be of such nature and severity as to preclude her from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for right foot plantar fasciitis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.71a, Diagnostic Code (Code) 5284 (2013). 2. The schedular requirements for a TDIU rating are met; however, a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefit, VA is required to notify the claimant 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; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). As the September 2004 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award of service-connection for right foot plantar fasciitis, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2006 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; and November 2007, April 2008, and July 2008 supplemental SOCs (SSOCs) readjudicated the matter and the Veteran and her representative had opportunity to respond. The matter was further readjudicated in June 2010 and November 2012 SSOCs after the Board remand ordered development was completed, (and the Veteran and her representative had opportunity to respond). 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. She has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). At the hearing before the undersigned in January 2009 the Veteran and his representative expressed awareness of what is needed to substantiate the claim for a compensable rating (as the disability was then rated 0 percent), i.e., evidence that the disability is symptomatic/disabling. The undersigned suggested to the Veteran that she submit records from a school nurse's office showing she received treatment for the foot disability; she was also advised that the Board (VA) would assist in this matter by seeking such records. The hearing did not address the TDIU issue. The claim for a TDIU rating flows from the downstream issue of an increase sought in the initial rating assigned with the award of service-connection. See Dingess, 19 Vet. App. at 491. Full notice of what is needed to substantiate a TDIU claim was provided in a September 2010 letter. The Veteran has had opportunity to submit evidence and argument in support of such claim. The Veteran's pertinent treatment records have been secured. She was afforded VA examinations in September 2004, April 2010, and February 2012 (with a May 2012 addendum). The Board finds that the examinations are adequate for rating purposes as the examiners (other than in September 2004) reviewed the record, noted the history of the disability, and conducted a thorough examination, with notation of all clinical findings necessary for proper consideration of this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In May 2009, the RO provided the Veteran a VA For 21-4142 (Authorization and Consent to Release Information) to complete so that it could secure copies of June/July 2008 treatment records from the "Nurse's Office at school." She did not respond, and therefore further development for such records could not proceed. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, 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). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 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 more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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; see DeLuca v. Brown, 8 Vet. App. 202 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. As this appeal is from the initial rating assigned with the grant of service connection, the possibility of staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the RO has not assigned staged ratings; the Board finds that the record does not reflect any distinct period of time when the criteria for a higher than 10 percent rating for right foot plantar fasciitis were met. Consequently, "staged ratings" are not warranted. Right Foot Plantar Fasciitis The Veteran's plantar fasciitis of the right foot is currently rated 10 percent under Code 5284, which provides for a 10 percent rating for moderate foot injuries, a 20 percent rating for moderately severe foot injuries, and a 30 percent rating for severe foot injuries. 38 C.F.R. § 4.71a, Code 5284. On September 2004 VA examination, the Veteran described having pain in the heel of the right foot that extended anteriorly. She stated that she had no restrictions due to her right foot disability. Examination revealed right foot tenderness at the base of the heel with pain on pressure. There was no shift of the weight-bearing line, and there were no callosities. There was full range of motion of the right ankle and no Achilles tenderness. The diagnostic impression was plantar fasciitis of the right foot with no evidence of fatigability or incoordination. At the January 2009 Travel Board hearing the Veteran testified she had monthly exacerbations of pain and swelling in her right foot that last approximately three weeks. Such exacerbations would slow her down, (she walked slowly, as if her feet hurt). She stated that she experiences the most pain in the morning. She stated that she goes to school for nursing and does not know whether she will be able to work as a nurse because it requires being on your feet. On April 2010 VA examination, she reported that she had right foot complaints in service that was treated with an orthotic; and she had not used any inserts in the right shoe since service. She reported right foot pain (intermittently) in the plantar surface of the metatarsals and where the metatarsals/tarsals join the heel. She wore a "brand new" pair of walking-type shoes to the examination. There were no inserts, braces or any other assistive or corrective devices used. The examiner noted that the Veteran was not employed and therefore there was no effect of the right foot condition on her occupation. In terms of activities of daily living, she did not run because it caused increased pain in the right foot. Walking more than 30 minutes also caused increased right foot pain. She stated that she tries to avoid activities that cause flare-ups of right foot pain. On physical examination, there was no evidence of pes planus, and no evidence of hallux valgus. There was tenderness on palpation of the plantar surface of the right foot in the proximal arch area where the arch joins the heel. Pressure on the area caused pain. There was no painful motion with moving the right foot. There was no edema, weakness, or instability of the feet. There was no functional limitation on standing for short periods of time, although there was limitation for walking more than a half hour. There was no evidence of any abnormal callus formation. There was no skin breakdown and her new shoes showed no abnormal shoe wear. The diagnosis was chronic right foot strain. On February 2012 VA examination the diagnosis was metatarsalgia and plantar fasciitis, tarsal tunnel syndrome. The Veteran reported pain on palpation bilaterally of all metatarsal heads, all intermetatarsal spaces, bilateral plantar fascia, and sinus tarsi. She reported that she was unable to wear heels or boots without pain. She stated that the pain had "plateaued" at this point. She did not run or jump, and if she walked too much she experienced pain. She stated that she has shooting pain in the ankle that goes up the leg randomly. It was noted that she does not have hammer toes, hallux valgus, or hallux rigidus, but does have claw foot (pes cavus) with no effect on the toes. There was definite tenderness under the metatarsal heads. There were also mild 5th metatarsal head plantar calluses. Her feet were inverted slightly throughout the gait cycle and she walked on the lateral borders of her feet. She did not have dorsiflexion at the ankle, or marked varus deformity due to pes cavus. There was no malunion or nonunion of the tarsal or metatarsal bones. There were no other foot injuries. She did not have bilateral weak foot. There were no scars related to any condition or to the treatment of any condition of the right foot. The examiner also noted bilateral forefoot pain on all metatarsal heads, bilateral interspace pain 1, 2, 3, 4 and pain at the 5th toe metatarsal callous. There was tenderness along the insertion of the tendo Achilles, especially medially. Her gait showed an inverted heel strike, with pronation to maximum, but the heel remained vertical. Her gait was normal angle and base. Her foot had the appearance of normal to high arch foot type. It was further noted that the Veteran had exaggerated responses to gentle palpation of almost all parts of her feet bilaterally. She had a positive Tinel sign (possible tarsal tunnel syndrome), which can be related to plantar fasciitis. She used no assistive devices. There was no functional impairment shown of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. X-rays of the right foot showed no acute or healing fracture, or other focal osseous abnormality. Joint spaces were well-maintained, without significant degenerative changes. There was mild pes cavus. Visualized soft tissues were unremarkable. The impression was mild pes cavus, otherwise normal right foot series. Regarding the Veteran's right foot disability and her ability to work, she stated that "the walking is really the issue." She reported she experiences extreme pain (9/10) in her feet after walking for one half hour. She can stand approximately 20 minutes to one half hour and afterwards has throbbing in the ball and heel of her feet that feel like they are about to fall asleep. Any longer than 20 minutes, the pain starts to "climb up" from the ankle to the leg. She stated that she walks on the outsides of her feet and is developing calluses (worse on the right). The examiner noted that the Veteran's occupation is "fulltime mother". She had worked at a pizza shop in 2005 and was a student until 2009. She has an associate's degree. The examiner opined that the Veteran's service-connected disability of plantar fasciitis right foot would have no impact on sedentary gainful employment. The Veteran stated that her right foot pain had essentially "plateaued" at this point and she was currently no more disabled than she was on previous evaluation in April 2010. At that time it was noted that there was no limitation on standing for short periods of time or walking for half an hour. Prolonged standing and weight-bearing activity was noted to be limited by other musculoskeletal problems (back and knee) beyond podiatric scope of evaluation. On longitudinal review of the record the Board finds that at no time during the appeal period is the Veteran's right plantar fasciitis shown to have been manifested by symptoms productive of more than moderate right foot disability(which warrants a 10 percent rating under Code 5284). The record reflects that she experiences pain, tenderness to palpation (notably, the examiner noted she had "exaggerated" responses to gentle palpation of almost all parts of her feet), and mild 5th metatarsal head plantar callouses. There was no evidence of weakness, edema, or instability. She had no functional limitation on standing for short periods of time. Although, on February 2012 examination, her gait had an inverted heel strike, with pronation to maximum, the heel remained vertical and her gait was of normal angle and base. Based on the above findings, the Veteran's right foot plantar fasciitis disability picture is not one consistent with more than moderate foot injury. Consequently, a rating in excess of 10 percent under Code 5284 is not warranted. The 2012 VA examiner noted (as is shown on x-ray) that the Veteran has mild pes cavus. To warrant a higher (20 percent) rating for pes cavus or claw foot (rated under Code 5278) the unilateral claw foot must demonstrate all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia and marked tenderness under metatarsal heads. See Code 5278. The evidence fails to show that a rating in excess of 10 percent under Code 5278 is warranted. While the evidence shows the Veteran has shortened plantar fascia (one of the symptoms for a 20 percent rating), and tenderness under metatarsal heads, it does not show all toes of the right foot tending to dorsiflexion and limitation of dorsiflexion of the ankle to right angle, which are required to warrant the higher (20 percent) rating (as the criteria are stated in the conjunctive). Thus a rating in excess of 10 percent under Code 5278 is not warranted. As for other Codes for rating foot disability (which provide for a rating in excess of 10 percent), the evidence does not show flatfoot (to warrant rating under Code 5276). It also does not show malunion or nonunion of tarsal or metatarsal bones; so as to warrant rating under Code 5283. The Board has also considered whether referral for extraschedular consideration is warranted. 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, thus, 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 schedular 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 the Veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's service-connected right foot disability and its associated impairment to the rating schedule, the Board finds that the degree of disability shown throughout the appeal period under consideration is wholly encompassed by the schedular criteria, and consequently those criteria are not inadequate. Significantly, the Veteran does not point to findings that suggest disability greater than moderate foot injury. Referral of the claim for extraschedular consideration is not warranted. TDIU The matter of a TDIU rating was raised here in the context of the Veteran's claim for increase for right foot plantar fasciitis and allegations of unemployability due to her service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience, by reason of her service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service connected disabilities include: lumbosacral strain rated 40 percent, asthma s rated 30 percent, left knee tendonitis rated 10 percent, right knee patellofemoral syndrome rated 10 percent, and right foot plantar fasciitis rated 10 percent. The combined rating is 70 percent. Therefore, she meets the above-cited schedular requirements for a TDIU rating in 38 C.F.R. § 4.16(a). The analysis turns to "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A February 15, 2012 VA general medical (pension) examination lists the Veteran's disabilities of lumbosacral strain, asthma, left knee tendonitis and right knee patellofemoral syndrome (all of which are service-connected). The examiner noted that, based upon present evaluation, the Veteran's lumbosacral strain disability had not and would not render her unable to secure and maintain substantially gainful employment. She had a normal examination with excellent fluidity of movement and her x-rays were normal. It was noted that a diagnosis of lower back strain was no longer evident; and the disability would be assessed as acute and transitory. In addition, the examiner opined that the Veteran's asthma, left knee tendonitis and right knee patellofemoral syndrome would not (based upon present evaluation) render her unable to secure and maintain substantially gainful employment. She had normal back and right knee evaluations and x-rays of the back and both knees were normal. The examiner noted that the Veteran has been raising her two children (ages 6 and 3) and last worked in 2005 at a pizza establishment and was a student until 2009. The examiner further noted that it appeared the Veteran was fully capable of both physical and sedentary gainful employment, without any restrictions. On February 23, 2012 VA (foot) examination, the examiner noted that the Veteran's current occupation was that of a "fulltime mother". She last worked in 2005 at a pizza shop and was a student until 2009. The examiner opined that the Veteran's service-connected disability of right foot plantar fasciitis would have no impact on sedentary gainful employment. Her right foot plantar fasciitis would limit gainful employment of a physical nature to those jobs with limited standing and walking for less than one half hour. She noted that the Veteran had no limitation on standing for short periods of time or walking for a half hour. Prolonged standing and weight bearing activity were limited. As noted, to establish entitlement to a TDIU rating the Veteran must show that due to the service-connected disabilities alone she is unable to engage in any substantially gainful employment consistent with her education and experience. The medical evidence in the record suggests that her service-connected disabilities do not preclude her from engaging in gainful employment of a sedentary nature. The fact that the Veteran is unemployed does not support the conclusion that she is unemployable due to her service-connected disabilities. The fact that she did not maintain her last employment and became a "fulltime mother" also does not establish that she is unemployable. While it may well be that the Veteran, as has been indicated, is unable to engage in activities that require walking for longer than a half hour, prolonged standing and weight bearing due to various service-connected disabilities (low back, knees and right foot), there is nothing in the record that shows or suggests that she is not fully capable of employment that does not require walking and/or standing or weight bearing for long periods of time. She has not provided evidence or persuasive argument to the contrary. In summary, the overall evidence does not show that the Veteran's service-connected disabilities (lumbosacral strain, asthma, bilateral knees, and right foot plantar fasciitis), are of such nature and severity as to prevent her participation in substantially gainful employment consistent with her education and experience. Hence, the Board finds that the preponderance of the evidence is against the claim for a TDIU rating. The benefit of the doubt doctrine does not apply; the appeal must be denied. ORDER A rating in excess of 10 percent for right foot plantar fasciitis disability is denied. A TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs