Citation Nr: 1337626 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-48 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for plantar fasciitis of the left foot. 2. Entitlement to an initial rating in excess of 20 percent for plantar fasciitis of the right foot. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty from January 1993 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for bilateral plantar fasciitis and assigned an initial 10 percent rating, effective April 5, 2007. In a November 2009 statement of the case (SOC), the RO re-characterized the Veteran's disability as plantar fasciitis affecting the left and right feet and assigned separate 10 percent disability ratings for each affected extremity, effective April 5, 2007. In February 2012, the Board remanded the claims on appeal in order to afford the Veteran her requested video-conference hearing. In June 2012, the Veteran testified before the undersigned Veterans Law Judge via video-conference. A transcript of the hearing is associated with the claims file. In February 2013, the Board remanded the case for additional development. While on remand, in April 2013, the agency of original jurisdiction (AOJ) granted an increased initial rating to 20 percent for each affected extremity, effective April 5, 2007. As the 20 percent ratings are less than the maximum available rating, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issues have been characterized as shown on the first page of this decision. In June 2013, the Board again remanded the instant matters to the AOJ for additional development and adjudication, to include whether separate ratings for neurological impairments of the feet were warranted. In July 2013, the AOJ granted service connection for right and left foot nerve impairment and awarded an initial 10 percent rating for each extremity, effective March 11, 2013. At such time, the AOJ notified the Veteran that such awards were inextricably intertwined with her claims for increased rating for her bilateral foot plantar fasciitis and, if she was satisfied with such award, she should provide a notice of satisfaction so as to discontinue her appeal. To date, the Veteran has not indicated that she is satisfied with the ratings assigned for her bilateral foot disabilities. As such, the Board will consider herein the propriety of the effective dates and initial ratings assigned for her bilateral foot nerve impairment. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board notes that, in addition to the VBMS, there is a separate electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeals with the exception of VA treatment records dated through February 2013, which were considered by the AOJ in the April 2013 supplemental SOC (SSOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left foot plantar fasciitis was manifested by pain and swelling without signs of a severe muscle disability, including X-ray evidence of foreign bodies, scarring, diminished muscle excitability, visible or measurable atrophy, adaptive contraction of an opposing group of muscles, atrophy or induration of muscle groups, loss of deep fascia or muscle substance or muscles that swell and harden abnormally in contraction. 2. For the entire appeal period, the Veteran's left foot nerve impairment associated with her left foot plantar fasciitis is manifested by complaints of numbness without a loss of reflexes, muscle atrophy, sensory disturbances or constant pain, approximating no more than mild incomplete paralysis of the external popliteal nerve. 3. For the entire appeal period, the Veteran's right foot plantar fasciitis was manifested by pain and swelling without signs of a severe muscle disability, including X-ray evidence of foreign bodies, an adhesive scar, diminished muscle excitability, visible or measurable atrophy, adaptive contraction of an opposing group of muscles, atrophy or induration of muscle groups, loss of deep fascia or muscle substance or muscles that swell and harden abnormally in contraction. 4. For the entire appeal period, the Veteran's right foot nerve impairment associated with her right foot plantar fasciitis is manifested by complaints of numbness without a loss of reflexes, muscle atrophy, sensory disturbances or constant pain, approximating no more than mild incomplete paralysis of the external popliteal nerve. 5. For the entire appeal period, the Veteran's bilateral plantar fasciitis does not result in pes planus, Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, clawfoot, malunion/nonunion of tarsal/metatarsal bones, or weakfoot. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for plantar fasciitis of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.55, 4.56, 4.73, Diagnostic Code 5310 (2012). 2. For the entire appeal period, the criteria for a separate 10 percent rating, but no higher, for nerve impairment associated with left foot plantar fasciitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.20, 4.27, 4.120, 4.123, 4.124a , Diagnostic Code 8521 (2012). 3. The criteria for an initial rating in excess of 20 percent for plantar fasciitis of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.55, 4.56, 4.73, Diagnostic Code 5310 (2012). 4. For the entire appeal period, the criteria for a separate 10 percent rating, but no higher, for nerve impairment associated with right foot plantar fasciitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.20, 4.27, 4.120, 4.123, 4.124a , Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. With respect to the propriety of the initially assigned ratings for the service-connected left and right foot plantar fasciitis, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, supra. In this case, the Veteran's claims for service connection for left and right foot plantar fasciitis were granted and initial ratings were assigned in the September 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and VA examination reports have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations, to include those conducted in August 2008 and March 2013 with an addendum in June 2013, to determine the nature and severity of her bilateral foot disability. Neither the Veteran nor her representative has alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected plantar fasciitis as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, neither the Veteran nor her representative has alleged that her disabilities have worsened in severity since the March 2013 VA examination. Rather, they argue that the evidence reveals that the Veteran's disabilities have been more severe than the currently assigned ratings for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for an increased rating and no further examinations are necessary. As indicated in the Introduction, the Board previously remanded this case in February 2012, February 2013, and June 2013. In February 2012, the Board remanded the claims on appeal in order to afford the Veteran her requested video-conference hearing. In June 2012, the Veteran testified before the undersigned Veterans Law Judge via video-conference. In February 2013, the case was remanded in order to provide the Veteran with an opportunity to identify any healthcare provider who treated her for her bilateral foot disability, to specifically include Dr. Daly and Adirondack Medical Associates, and, thereafter, to obtain any identified records, including VA treatment records, and afford her a VA examination so as to determine the current nature and severity of her bilateral foot disability, to include whether such involved neurological impairment. Thereafter, in a February 2013 letter, the Veteran was requested to identify any healthcare provider who treated her for her bilateral foot disability and provide an authorization for VA to obtain any private treatment records, to include Dr. Daly and Adirondack Medical Associates. While the Veteran did not respond to such letter and, thus, no additional private medical records were obtained, VA treatment records dated through February 2013 were associated with the record. Additionally, the Veteran was afforded a VA examination in March 2013. Finally, in June 2013, the case was remanded in order to obtain an opinion regarding whether the Veteran's bilateral foot disability resulted in neurological impairment and, if so, the nerve involved and degree impairment. Such addendum opinion was obtained in July 2013. Therefore, the Board finds that the AOJ has substantially complied with the February 2012, February 2013, and June 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in June 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2012 hearing, the undersigned Veterans Law Judge noted the issues on appeal. Also, information was solicited regarding the nature, frequency, and severity of symptomatology associated with her bilateral foot disability, to include the impact such has on her daily life and employability. Therefore, not only were the issues "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 the hearing discussion raised the possibility that there were outstanding treatment records available from private and VA facilities, as well as an indication that the Veteran's bilateral foot disability may have increased in severity since the last VA examination, and there was a question as to whether there was a neurological component to such disability, the Board remanded the case in February 2013 and June 2013 in order to obtain outstanding VA and private treatment records, afford her a VA examination, and obtain medical opinions regarding whether her bilateral foot disability results in neurological impairment. Under these circumstances, nothing gives rise to the possibility that evidence has been overlooked with regard to the Veteran's claims decided herein. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Analysis A. Relevant Statutes and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an initial rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C.A. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56. A "moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A "severe" muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of "severe" muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle;(c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. When evaluating damage to muscle groups, disability pictures are based on the cardinal signs and symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56. A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. For compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55. Muscle Group X involves movements of the forefoot and toes; propulsion thrust in walking and intrinsic muscles of the foot: plantar: (1) flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor or digiti minimi brevis; (9) dorsal and plantar interossei, as well as other important plantar structures: plantar aponeurosis, long plantar and calcaneonavicular ligament, tendons of posterior tibial, peroneus longus, and long flexors of the great and little toes. 38 C.F.R. § 4.73, 5310. Moderately severe muscle disability of the plantar muscles warrants a 20 percent rating, and severe muscle disability of the plantar muscles warrants a 30 percent rating. Id. Diagnostic Code 5310 also contemplates ratings for dorsal muscle disabilities. The muscles of the dorsal aspect of the foot consist of (1) the extensor hallucis brevis and (2) the extensor digitorium brevis. Other important dorsal structures include the cruciate, crural, deltoid, and other ligaments, as well as the tendons of long extensors of the toes and peronei muscles. Severe muscle disability of the dorsal muscles warrants a 20 percent rating. Id. Incomplete paralysis of the external popliteal nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 30 percent rating when severe. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Complete paralysis of the external popliteal nerve warrants an 40 percent rating where the foot drops and there is slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened, anesthesia covers entire dorsum of foot and toes. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Bilateral Plantar Fasciitis The Veteran is service-connected for bilateral plantar fasciitis with a 20 percent rating in each extremity, effective April 5, 2007, pursuant to Diagnostic Code 5310, and separate 10 percent ratings in each extremity for bilateral foot nerve impairment associated with plantar fasciitis, effective March 11, 2013, pursuant to Diagnostic Code 8521. The Veteran contends that the severity of her bilateral plantar fasciitis warrants a 30 percent rating in each extremity. She has reported that her feet are habitually inflamed, that she experiences "extreme" pain in her feet, that any standing was "unbearable," and that her symptoms were not relieved by medication. A November 2007 private podiatry treatment note indicated that there was mild edema and tenderness on the Veteran's lateral malleolus. No pain on palpation of the feet was noted. An August 2008 VA podiatry examination report reflected the Veteran's complaints of persistent ankle swelling that was only partially relieved with elevation, the application of heat or the application of cold. Other symptoms were reported to include pain, swelling, fatigability, weakness and the lack of endurance on the sole of her feet. There were no symptoms related to the ankle joints reported. Physical examination was negative, bilaterally, for painful motion, swelling, tenderness, instability, weakness, abnormal weight-bearing, hammertoes, hallux valgus, vascular foot abnormality, claw foot, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy or other foot deformity. Light touch and reflexes were noted to be normal. "Tonofilament" was found to be normal except that she did not "feel [the] little toes on either foot." A February 2010 VA treatment note indicated that there was minimal edema in the Veteran's left ankle and mild edema in her right ankle on examination. Minimal tenderness of the plantar heels and medial soles were also noted. A March 2010 VA treatment note reflected that the Veteran's right foot was slightly swollen on examination with a localized area of pain on palpation on the outer aspect of the right foot. An April 2010 VA treatment note indicated that there was pain along the Veteran's medial arch and along the plantar aspect of the center of the foot on examination. No signs of redness or swelling externally or signs of acute trauma were found. In stance, she was noted to pronate, especially on the left foot. An accompanying X-ray revealed no evidence of bony, joint or soft abnormalities. A June 2010 private podiatry treatment note indicated that there was minimal edema in the ankles as well as tenderness to palpation of the bilateral plantar surface anterior and calcaneal. A November 2011 VA treatment record reveals complaints of bilateral foot pain. In March 2012, the Veteran complained of pain in the right foot for a couple of days. It was noted that the outer aspect of the right foot was slightly swollen and a localized area of pain was noted during palpation on the outer aspect of the right foot. There was also an area of slight discoloration. Pain radiated to the ankle and a constant throbbing sensation was felt. Pedal pulse was present. At the Veteran's June 2012 Board hearing, she testified that her bilateral foot disability results in pain, inflammation, swelling, stiffness, and radiating pain up her legs. She further indicated that such disability negatively impacts her daily life and employability. The Veteran reported that she had previously worked as a correctional officer, which required being on her feet, but had moved to a secretary position so as to allow her to sit in 2007; however, such resulted in a reduction in pay. A February 2013 VA treatment record relevant to mental health treatment reflects complaints of frequent swelling of the right foot and lower leg and her feet hurt often. A March 2013 VA podiatry Disability Benefits Questionnaire (DBQ) report reflected the Veteran's complaints of foot pain on use and manipulation without swelling or calluses. She also reported pain at the dorsum of her feet. There was no decreased longitudinal arch height on weight-bearing, marked foot deformity, marked pronation of the foot, weight-bearing line that fell over or was medial to the great toe, lower extremity deformity, inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon found on physical examination. Examination was also negative for Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones or bilateral weak foot. The examiner determined that the Veteran's bilateral plantar fasciitis was "moderately severe" in severity. An accompanying X-ray did not reveal any traumatic arthritis. There was no also scarring found. A June 2013 VA neurological DBQ report indicated that the Veteran's plantar fasciitis involved the swelling of tissues on the bottom of her feet which logically compressed the dorsal digital nerve going to the little toes. The examiner found that the Veteran had mild incomplete paralysis of this nerve bilaterally. The Board finds that, for the entire appeal period, Veteran's right and left plantar fasciitis manifests as complaints of pain and inflammation with objective evidence of swelling that ranged in severity from minimal or slight to mild. To the extent that these disabilities resulted in the cardinal signs and symptoms of muscle disability, to include swelling, hypertrophy, loss of muscle strength, endurance, and/or coordinated movements, the currently assigned 20 percent rating for each extremity accounts for these symptoms. Moreover, there were no findings indicative of a severe muscle injury, to include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements compared with sound side indicate severe impairment of function. Signs of a severe muscle disability, including X-ray evidence of scattered foreign bodies, adhesive scarring, diminished muscle excitability, visible or measurable atrophy, adaptive contraction of an opposing group of muscles or induration or atrophy of entire muscle were not found on objective examination. Additionally, the Veteran has been awarded separate disability ratings for right and left nerve impairments. Therefore, absent more severe symptoms, the Board finds that the Veteran is not entitled to an initial rating in excess of 20 percent for either extremity. With regard to the impairment to the Veteran's external popliteal nerve, the record shows that it has manifested as numbness in both feet throughout the course of this appeal. Muscle atrophy was not found on objective examination and sensation examination found light touch to be normal. Reflexes were also found to be normal. The Board finds that the evidence described above, which shows that the Veteran's service-connected left and right foot nerve impairment disabilities are manifested by a sensory impairment more nearly approximates mild incomplete paralysis of the affected nerve as contemplated by Diagnostic Code 8521, which warrant separate, initial 10 percent ratings throughout the appeal period. A rating in excess of 10 percent is not warranted as muscle atrophy, sensory disturbances and constant pain were not found on objective examination. Moreover, the evidence reflects that the Veteran's symptoms have been wholly sensory, namely that she reported numbness and as such warrant a mild rating. In addition to the foregoing, the evidence does not show that the Veteran's neurologic impairments are manifested by muscle atrophy or any of the other symptomatology that more nearly approximates or is contemplated by the rating criteria for a severe or complete neurological disability under Diagnostic Code 8521 in either the right or left foot. Indeed, as noted, there is no evidence of foot drop, slight droop of first phalanges of all toes, an inability to dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, or anesthesia covers entire dorsum of foot and toes. In addition, the Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to the feet and ankles. The Veteran does not have flatfeet, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, a weakened foot or characteristic calluses as documented in the VA examination reports and clinical evidence; therefore, consideration of Diagnostic Codes 5277 through 5283 are not warranted. In addition, it cannot be said that either the right or left foot each more nearly approximated a severe foot injury so as to warrant separate 30 percent ratings. Rather, the clinical evidence suggested that there was pain and no more than mild edema in the Veteran's ankles. The August 2008 VA examination noted that the Veteran's ankle swelling was partially relieved by the use of elevation, the application of heat or the application of cold. She also reported being able to stand for 15 to 30 minutes during the August 2008 examination. Although the term "severe" is not defined, given the findings of pain and no more than mild edema, the Board finds that this description does not reflect an overall severe foot disability, especially in light of the fact that the Veteran described partial relief of her symptoms in August 2008. In addition, the Board has considered whether a separate rating is warranted under any other potentially applicable diagnostic code related to the feet and ankles. The Board also notes that it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings 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, supra. Such is not the case with the Veteran's left and right foot plantar fasciitis. As discussed above, the symptoms associated with the Veteran's disabilities-namely pain and swelling-are contemplated in the application of Diagnostic Code 5310. Any additional separate rating for a foot injury under Diagnostic Code 5284 would result in double compensation for the same symptomology in violation of anti-pyramiding provisions. See 38 U.S.C.A. § 1155, 38 C.F.R. § 4.14; see also Brady, 4 Vet. App. at 206. Moreover, as previously discussed, the Veteran does not have flatfeet, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, a weakened foot or characteristic calluses which could, potentially, support the award of a separate rating in this case. C. Other Considerations The Board has considered whether staged ratings under Fenderson, are appropriate for the Veteran's service-connected right and left foot plantar fasciitis; however, the Board finds that her symptomatology has been stable during the course of these appeals. Therefore, assigning staged ratings for such disabilities are not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right and left foot plantar fasciitis with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which each disability is rated and that there are no additional symptoms of her disabilities that are not addressed by the rating schedule. In this regard, the Veteran is in receipt of separate ratings in each foot so as to compensate her for symptoms associated with her muscle and neurological impairment. The separate ratings assigned fully address her symptomatology, including pain, inflammation, swelling, stiffness, and numbness in the toes. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). However, the Veteran reported has reported that she works full-time in a prison system. She does not allege, and the record does not show, that her service-connected disabilities have rendered her unemployable at any time during the course of the appeal. Additionally, although the Veteran has asserted that her service-connected disabilities have required her to transfer to a sedentary position, and consequently sustain a reduction in salary, she has not asserted that this new position was not gainful employment. Therefore, further consideration of a TDIU is not necessary. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher or separate ratings in excess of those already assigned herein, that doctrine is not further applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 20 percent for plantar fasciitis of the left foot is denied. For the entire appeal period, a separate 10 percent rating, but no higher, for nerve impairment associated with left foot plantar fasciitis is granted, subject to the statutes and regulations governing the payment of VA compensation. An initial rating in excess of 20 percent for plantar fasciitis of the right foot is denied. For the entire appeal period, a separate 10 percent rating, but no higher, for nerve impairment associated with right foot plantar fasciitis is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs