Citation Nr: 1341455 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-43 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to May 22, 2013, and a rating in excess of 20 percent as of May 22, 2013, for right foot plantar fasciitis. 2. Entitlement to a rating in excess of 10 percent prior to May 22, 2013, and a rating in excess of 20 percent as of May 22, 2013, for left foot plantar fasciitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from April 2002 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Milwaukee, Wisconsin in April 2012. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in April 2013, at which time it was remanded for additional development. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDING OF FACT The Veteran's right and left plantar fasciitis have been manifested by moderately-severe symptoms for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but not higher, for right foot plantar fasciitis have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5284 (2013). 2. The criteria for a rating of 20 percent, but not higher, for left foot plantar fasciitis have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that prior to the initial adjudication of the claim, the Veteran was mailed a letter in April 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2008 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. The Board also finds the Veteran has been provided adequate assistance in response to his claim. The Veteran's service medical records are of record, VA Medical Center treatment notes have been obtained, and the Veteran has been provided appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board finds that the duties to notify and assist have been met and will address the merits of the claim. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). 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 (2013). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2013). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2013). When evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (2013). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). There is no specific diagnostic code used to rate plantar fasciitis. Currently, the Veteran's right and left foot plantar fasciitis are rated as separate disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which provides the criteria for rating foot injuries. The Board finds that this is the most appropriate diagnostic code to properly account for the Veteran's various symptoms of plantar fasciitis. Under Diagnostic Code 5284, a 10 percent disability rating is warranted for moderate foot injury; a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). At a January 2008 VA examination, the Veteran reported that he was employed as an assembly mechanic and worked an eight hour day, during which he stood for approximately six hours. The Veteran reported that he missed at least one full day of work per week as a result of foot and back pain or doctor appointments for his feet and back. The Veteran reported that he was followed by a podiatrist for his foot pain and that he used both inserts and special boots and performed special exercises for treatment of his plantar fasciitis. He reported that he had not had much success in alleviating his symptoms with any of his treatment options. He reported that when he walked, it felt as though the bottom of his feet were bruised. He reported that he experienced daily pain which commenced after approximately 90 minutes of weight bearing activity. He reported that the pain could reach a 10 out of 10 in intensity despite the special boots and inserts that he wore. The Veteran reported that once the pain escalated, it was not relieved with sitting or rest and that he used both Ibuprofen and Percocet for treatment of his foot pain. He indicated that he had tried other over-the-counter remedies with little success. He reported that he did not ice his feet when he had pain, but that he performed the podiatrist recommended stretches as he could do them anywhere. Upon physical examination, the Veteran was noted to have reported foot pain that was a 1 out of 10 in intensity. The Veteran had a strong and steady gate without shoes. His arches were intact and he denied foot pain while walking barefoot. There was right forefoot pain with toe walking and left heel pain with heel walking. There was left foot pain upon squatting (foot flexed with pressure to forefoot). There was callous formation on the medical aspect of both great toes, right worse than the left. There were no other calluses, corns, or toe deformities noted. There was tenderness of the arch and plantar heel with pressure to those areas on both feet, but there was no withdrawal or grimace. There was no deviation of either Achilles tendon and there was no tenderness of either Achilles. The examiner confirmed the diagnosis of right and left plantar fasciitis and also diagnosed abnormal pronation. The examiner noted that the Veteran experienced increased pain with heavy, physical work requiring weight bearing and noted that the Veteran's ability to continue heavy labor work was likely not feasible. At a July 2008 VA examination, the Veteran reported that he had foot pain "pretty much all of the time" and that he especially noticed his foot pain when standing and walking. The Veteran reported that he even experienced foot pain at times when he was at rest. The Veteran reported that his daily pain was a 3 out of 10 in intensity and was burning in nature. He denied weakness, stiffness, swelling, redness, fatigability, and lack of endurance. The Veteran reported that he took Tramadol and Ibuprofen for treatment with little relief. He reported that he sometimes used stretches to make his feet feel better. The Veteran reported daily flare-ups that were precipitated by standing or walking and that the flare-ups could last the entire day. He reported that his foot pain during a flare-up was a 10 out of 10 in intensity. The Veteran denied using crutches, braces, or a cane. He reported that he wore corrective shoes that provided some relief. He reported that he was unable to work as a result of his foot disabilities, but also noted that he was currently going to college. He reported that his feet hurt while sitting in class, that he had to take frequent breaks while mowing his lawn, and that he sometimes had to switch feet while driving due to pain when pushing the pedals. He reported that he was limited in his ability to perform household chores, especially during a flare-up. The Veteran reported that he was able to stand for 5 to 20 minutes and walk for 2 to 20 minutes before his feet hurt. Upon physical examination, the Veteran was noted to have a normal gait with a fairly rapid pace. The Veteran's feet were not completely flat, but his arch was moderately low. There was abnormal pronation, left greater than the right, but overall, the abnormal pronation was fairly mild in nature. There was tenderness upon palpation of the feet from the balls to the arches, most on the anterior aspect of the heels. The Veteran did not wince or draw back in any way either with palpation or any of the activities he was asked to perform. The Veteran's great toes and feet all had 5/5 strength with resistance and full range of motion. When asked to weight bear on his right foot, he was able to do so without visible discomfort, but reported that the foot started to burn after approximately 15 to 30 seconds. The Veteran reported that the burning was in the ball of his foot and a little in the arch of the foot. He did not appear to be visibly uncomfortable. The Veteran was able to hop from foot to foot, run in place, and squat with ease and reported that his feet did not start to hurt until he stopped each activity. There were calluses to the medial aspects of the bilateral interphalangeal joints of the great toes. There was no tissue breakdown or unusual shoe wear. There was no hallux valgus. The examiner diagnosed left foot plantar fasciitis and right foot degenerative joint disease. The examiner noted that right foot plantar fasciitis was not present. At a February 2010 VA examination, the Veteran reported that he had been trying out different types of orthotics to alleviate his pain, without much luck. He reported that the orthotics provided relief for only two to eight weeks at a time before the orthotics lost their effect. The Veteran reported that his pain was located on the plantar side of each foot, mainly at the mid-arch section and the metatarsal heads. The Veteran reported that his baseline consisted of pain that was a 4 to 6 out of 10 in intensity, but that he experienced painful flare-ups caused by standing for long periods and walking. He reported that the pain during a flare-up was a 9 out of 10 in intensity and lasted approximately two hours at a time. He reported that the pain was burning, hot, and throbbing in nature. The Veteran reported that he did not experience significant foot pain upon waking, but that his pain increased in severity as the day progressed and he spent more time weight bearing. He denied using any sort of assistive device. Upon physical examination, the Veteran was able to take his shoes and socks off without any problems. There were no physical changes to the feet upon visual examination and there was no swelling noted. Pulses were equal on both sides. Active range of motion measurements were dorsiflexion to 0 degrees on the right and to -4 degrees on the left; plantar flexion to 74 degrees on the right and to 60 degrees on the left; and both inversion and eversion were full on the right and the left. Passive dorsiflexion was to 6 degrees on the right and to 3 degrees on the left. The Veteran did not feel pain during the examination, but did feel calf tightening. The Veteran was able to do one footed plantar flexion with his full weight, with 10 repetitions on each side, without much difficulty. The Veteran's gait was normal and there was no abnormal wear in his shoes. Neurological examination was intact with reflexes 2+, bilateral and equal. The examiner diagnosed bilateral plantar fasciitis with atypical symptoms and noted that the symptoms appeared to have continued over time without significant changes. At a May 2013 VA examination, the Veteran reported that his bilateral, daily foot pain had increased in severity. He reported that his foot pain was worse when he started the day, improved a bit during the middle of the day, but then worsened again toward the end of the day. The Veteran reported that he was able to walk for 15 to 20 minutes at a time and able to stand on a ladder for only 1 to 2 minutes at a time. He reported that he had not achieved any relief in his foot pain through acupuncture and that he achieved slight alleviation of foot pain by wearing daily inserts. Other than the shoe inserts, the Veteran denied the use of other assistive devices. The Veteran was found to have a moderate amount of tenderness to the plantar surfaces of both feet. The examiner noted that the Veteran's symptoms of his bilateral foot disabilities were moderately severe. The Veteran did not have symptoms of Morton's neuroma, hammertoe, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The Veteran was noted to have bilateral foot arthritis and heel spurs that were the result of his active service, to include the use of military boots weighed down with gear and running and jumping. There was no evidence of weak foot. The examiner confirmed the diagnosis of bilateral plantar fasciitis. The examiner noted that the Veteran's foot disabilities impacted his ability to work because he needed a position that allowed position change and that at his current job as an engineer, he was required to walk on the floor and then get back to his workstation where he could sit down to alleviate his foot pain. The examiner estimated that 75 percent of the Veteran's foot pain was a result of his plantar fasciitis, 20 percent of his foot pain was a result of his foot arthritis, and the remaining 5 percent of his pain resulted from his bilateral heel spurs. However, the examiner noted that all of the Veteran's foot disabilities were related to his active service. A review of the record shows that the Veteran has received periodic treatment at the VA Medical Center for various disabilities, to include foot pain. A review of those records shows that the Veteran has routinely complained of foot pain in the bottom of his feet that was worse with prolonged standing or walking, wearing shoe inserts, mild to moderate pain on palpitation along the arch of both feet, and pain while walking. The Veteran has been reported to use a variety of over-the-counter medications for treatment of his pain, with little to no relief. The Veteran has also undergone both physical therapy and acupuncture for pain. The Board finds that the Veteran is entitled to 20 percent ratings, but not higher, for plantar fasciitis in each foot for the entire period on appeal. The Board notes that the Veteran's symptoms of bilateral plantar fasciitis have more nearly approximated moderately severe than moderate. The Veteran has routinely complained of pain in both of his feet which makes it difficult to walk. He has also reported regular painful flare-ups that were a 9 to 10 out of 10 in intensity. Additionally, the Veteran has regularly been found to have tenderness to palpation of both feet. Furthermore, the Veteran's bilateral plantar fasciitis has affected his employment, as he has difficulty walking or standing for long periods. Additionally, the Veteran has used orthotics for many years for treatment with little lasting relief. The most recent VA examiner characterized the level of foot disability as moderately severe, based upon findings similar to those in previous examinations. Therefore, the Board finds that the Veteran's symptoms are indicative of a moderately severe foot disability, warranting a 20 percent rating for each foot for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013). The Board notes that the additional functional limitation the Veteran experiences due to pain during flare-ups is accounted for in finding that 20 percent ratings are appropriate. 38 C.F.R. § 4.40, 4.45 (2013). There is no other evidence showing that the Veteran has more limitation of function than that found at his VA examinations and in the VA Medical Center treatment records, to include during his reported painful flare-ups. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 20 percent for the functional impairment of the Veteran's bilateral plantar fasciitis. Consideration has been given to assigning a higher disability rating for either foot. However, the evidence of record does not show the Veteran to have a severe foot disability in either foot at any point during the period on appeal. The Veteran's regular foot pain is somewhat mild in nature and only reaches its worst during flare-ups and with extended use. Additionally, the Veteran does not require the use of assistive devices for ambulation, other than inserts, and the Veteran has reported that he does achieve some temporary relief from his foot pain by using orthotics. Therefore, the Board finds that a disability rating in excess of 20 percent for either foot is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013). Consideration has been given to assigning a disability rating under a different diagnostic code. However, the other diagnostic codes pertaining to the feet contemplate very specific foot disabilities with very specific symptoms. There is no evidence of record indicating that the Veteran has had symptoms consistent with flat foot, weak foot, pes cavus, metarsalgia, hallux valgus, hallux rigidous, hammertoe, or malunion or nonunion of the tarsal. Therefore, the Veteran is appropriately rated based on the criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5284, used to evaluate other foot injuries. Consideration has been given to assigning a staged rating. However, at no time during the period in question has the disability of either foot been shown to warrant a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of the disability are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating, to include the increase granted herein. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned beyond the currently assigned rating. While there is some limitation of work functions due to the bilateral foot disability, the evidence does not show marked interference with employment generally. Therefore, the Board finds that referral for extra-schedular consideration is not warranted. ORDER Entitlement to a 20 percent rating, but not higher, for the entire period on appeal for right foot plantar fasciitis is granted. Entitlement to a 20 percent rating, but not higher, for the entire period on appeal for left foot plantar fasciitis is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs