Citation Nr: 1415346 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 12-15 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for service-connected left foot plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from April 2004 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran withdrew his appeal for a higher rating for migraines; thus, this matter will not be discussed. In August 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, throughout the appeal period, left foot plantar fasciitis has been productive of pain on use. CONCLUSION OF LAW For the entire initial rating period, the criteria for a rating of 10 percent, but no greater, have been met for left foot plantar fasciitis. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 U.S.C.A. § 4 .71a, Diagnostic Code 5276 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Here, prior to the initial rating decision in this matter, a March 2010 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of her claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The Veteran has appealed the initial rating assigned for left foot plantar fasciitis. The RO did not provide the Veteran with additional notice regarding the claim for a higher initial rating. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Therefore, the Board concludes that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting the veteran in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records, VA medical records and pertinent private treatment records have been obtained and associated with the claims file. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). VA provided the Veteran with examinations in April 2010 and October 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2010 and October 2012 examinations obtained in this case are adequate as they were predicated on a review of the claims file, contained a description of the history of the disability at issue, and provided detailed findings regarding the severity of the disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying the severity of the Veteran's symptoms as well as the impact of her disability on her occupation. The VLJ also sought to identify any pertinent evidence not currently associated with the claims file. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Initial Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability ratings to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Board has reviewed all of the evidence in the claims file, 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Initial Rating for Left Foot Plantar Fasciitis A September 2010 rating decision granted service connection for left foot plantar fasciitis and assigned a non-compensable (0 percent) rating from September 21, 2010, the day after the Veteran's discharge from active duty. The rating schedule does not contain a specific rating code for plantar fasciitis. The RO has evaluated the Veteran's left foot plantar fasciitis under Diagnostic Code 5020, which pertains to synovitis. The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002. 38 C.F.R. § 4.71a. Disabilities of the feet are governed by the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. Diagnostic Code 5276 provides that a 10 percent rating is assignable for moderate acquired flatfoot with weight-bearing line over or medial to the great toe; inward bowing of the tendo achillis, pain on manipulation and use of the feet, whether bilateral or unilateral. A 20 percent rating is assignable for severe bilateral acquired flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is assignable for bilateral acquired flatfoot which is pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). Impairment from other foot injuries is evaluated under 38 C.F.R. § 4.71a, DC 5284. A 10 percent rating is warranted for moderate disability. A 20 percent rating is warranted for moderately severe disability. A 30 percent rating is warranted for severe disability. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284 (2013). The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. The Veteran had active service from April 2004 to September 2010. Service treatment records reflect treatment or plantar fasciitis. A Medical Evaluation Board report dated in March 2010 reflects that the Veteran reported foot pain. The report noted that foot pain started in 2006 or 2007 and had continued to be a problem. The Veteran reported that she had pain in both feet whenever stress was placed on them, whether walking, marching or running. The Veteran reported that she had custom orthotic footwear, which helped a little. The examining physician noted that the Veteran had been seen by physical therapy and orthopedic surgery for her condition and was diagnosed with plantar fasciitis. The Veteran had a VA examination in April 2010. The Veteran reported plantar fasciitis, which started as pain while walking, running and marching. She reported that the pain persisted but improved since she stopped running. The Veteran reported that she saw a podiatrist for inserts and had physical therapy. The examiner noted that the Veteran did not have flare-ups of foot disease. Upon physical examination of the left foot, there was evidence of flatfoot. There were no abnormal findings. The examiner noted that the weight-bearing line was over or medial to the great toe. The examiner indicated that there was no pain on manipulation of the foot. The Veteran had a VA examination in October 2012. The Veteran reported pain with prolonged standing. The VA examiner noted that the Veteran clearly had moderate pes planus deformity. She did not have Morton's neuroma or metatarsalgia. The examiner indicated that she did not have hammertoe, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or bilateral weak foot. The examiner noted that the Veteran did have orthotics but was not wearing orthotics, as she felt they did not improve her symptoms. The VA examiner indicated that the Veteran underwent an x-ray of the bilateral feet in July 2012. The impression was no evidence of any soft tissue, bony or joint abnormality. With respect to plantar fasciitis, the Veteran experienced increased pain in the morning as well as with prolonged standing or performing strenuous exercise involving her feet. She had a mild amount of tenderness along the plantar fascia, increased along the heel. There was no erythema or swelling. She had full range of motion and moderate pes planus deformity as described. The VA examiner noted that the condition did not affect her ability to perform her occupation, as she is a full-time student. The Veteran testified at a videoconference hearing in August 2013. She testified that she is a full-time student and has to walk a long way from her car to her classes. She testified that she sometimes has to stop walking and take a break because of foot pain. The Veteran testified that she has been treated with heel injections and has discussed foot surgery with her physician. The evidence of record reflects that the Veteran's left foot disability is manifested by foot pain, particularly with walking and standing. Although the VA examinations do not reflect findings of pain on manipulation of the foot, the examination reports and the Veteran's statements indicate that the Veteran has pain with use of the left foot. The Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's left foot plantar fasciitis, pursuant to Diagnostic Code 5276. The evidence of record does not show findings to support a rating in excess of 10 percent under Diagnostic Code 5276, as severe disability is not shown. There is no evidence of marked deformity, indications of swelling on use, or characteristic callosities. The Board has considered whether a rating in excess of 10 percent is assignable under other diagnostic codes pertaining to the foot. The Veteran has not been diagnosed with pes cavus; therefore, a rating under DC 5278 is not appropriate. In addition, the Board finds that ratings under Diagnostic Code 5279 (Morton's disease), and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones) are not appropriate, as the objective findings of record do not show a diagnosis of Morton's disease or malunion or nonunion of the tarsal or metatarsal bones. The Board has also considered Diagnostic Code 5284, which pertains to other foot injuries. An initial rating in excess of 10 percent is not warranted under Diagnostic Code 5284, as there is no evidence that the Veteran's left foot plantar fasciitis is moderately severe in degree. In this regard, the October 2012 VA examination indicated that the Veteran's left foot disability was manifested by mild tenderness of the plantar fascia and full range of motion of the foot. Given these findings, a higher initial rating in excess of 10 percent under Diagnostic Code 5284 is not warranted. Accordingly, for the reasons set forth above, the Board finds that the evidence supports an initial 10 percent rating for the Veteran's left foot plantar fasciitis throughout the initial rating period, pursuant to Diagnostic Code 5276. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria adequate to rate the Veteran's left foot plantar fasciitis. The schedular criteria assess the overall severity of the symptomatology associated with the Veteran's disability. Because the schedular rating criteria are adequate to rate the Veteran's left foot disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An initial 10 percent rating is granted for left foot plantar fasciitis, subject to regulations governing the payment of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs