Citation Nr: 1602644 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 13-33 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active service from June 1978 to May 1981, June 1981 to June 1984, and October 1984 to December 1990. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially appealed the 10 percent rating that was assigned for right foot plantar fasciitis. However, during the pendency of the period on appeal, entitlement to service connection for plantar fasciitis of the left foot was granted in a July 2015 rating decision. The RO then continued the 10 percent rating that had already been granted, recharacterizing it as for bilateral plantar fasciitis. During the hearing before the undersigned, it was agreed that the issue now on appeal involved the rating assigned for the bilateral condition. Therefore, the RO is advised no further action is needed on the notice of disagreement the Veteran subsequently submitted in November 2015 with respect to the left foot rating; rather, again, it is now evaluated as a bilateral condition and has been subsumed in the issue he had already appealed. In September 2015, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Board notes the claims file includes additional evidence submitted to the RO prior to certification to the Board that was not considered by a supplemental statement of the case (SSOC). 38 C.F.R. § 19.37(a). However, during the hearing the Veteran and has representative waived the issue of issuance of a SSOC on the record. See hearing transcript pgs. 2-3. Therefore, the Board finds appellate adjudication may proceed without any prejudice to the Veteran. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service-connected bilateral plantar fasciitis resulted in moderately severe symptoms throughout the period on appeal. 2. The Veteran did not experience severe bilateral flatfoot with objective evidence of marked deformity, accentuated pain or indication of swelling on use, or characteristic callosities at any point during the period on appeal. CONCLUSION OF LAW The criteria for a rating not to exceed 20 percent for service-connected bilateral plantar fasciitis have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5276, 5284 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an increased rating for his service-connected bilateral plantar fasciitis. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran's bilateral plantar fasciitis has been assigned a 10 percent rating throughout the period on appeal under diagnostic code (DC) 5276, as analogous to flat foot. Under this DC, a 10 percent rating is warranted for bilateral moderate flat foot with weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A higher 20 percent rating is warranted for severe unilateral flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted if these severe symptoms are bilateral. 38 C.F.R. § 4.71a. Finally, because the schedular criteria does not provide a specific DC for plantar fasciitis, the Board will also consider whether a higher rating is warranted under DC 5284, for other injuries of the foot. Under this DC, a 10 percent rating is assigned for moderate foot injury, and a higher 20 percent rating is assigned for moderately severe foot injury. A maximum 30 percent rating is assigned for severe foot injuries, without loss of use of the foot. 38 C.F.R. § 4.71a. During his September 2015 hearing, the Veteran reported his bilateral foot disability caused sharp pain in his feet. He works as a cook for the VA, and stated the pain was worse at the end of a shift, which required him to be on his feet all day. As a result of his foot disability, he wore orthotic inserts daily, and had to frequently replace his shoes due to unusual wear and tear. See hearing transcript pages 4-7. The Veteran stated that he would be satisfied with a higher, 20 percent rating. See hearing transcript page 11. Review of the medical records reflects the Veteran experiences moderately severe symptoms due to his foot injury. Throughout the period on appeal, he has consistently reported experiencing sharp pain in his feet, especially during his shift at work. Medical records also reflect he was provided with new custom orthotics approximately once a year as his prior inserts would wear out and no longer provide relief. See e.g. VA treatment records dated March 2010, September 2011, July 2012, October 2013, and November 2014. He was also offered injections into his feet to treat the pain, but the Veteran reported he only received minimal pain relief for a short period of time. See e.g. VA treatment record from October 2012. Accordingly, these medical records support the Veteran's competent testimony during his hearing. Based on the foregoing, the Board finds entitlement to a higher 20 percent rating based on moderately severe foot injury is warranted under DC 5284. To this extent, the Veteran's appeal is granted. The evidence does not establish the Veteran met the criteria associated with a rating in excess of 20 percent under either DC 5276 or DC 5284. First, the evidence does not establish the Veteran experienced severe flatfoot with objective evidence of marked deformity, accentuated pain on use and manipulation, indication of swelling on use, and characteristic callosities. Instead, during his most recent June 2015 VA examination, the examiner specifically noted the Veteran did not experience accentuated pain on manipulation, swelling on use, marked deformity, or characteristic calluses. Therefore, the evidence does not establish the Veteran met the criteria associated with a higher, 30 percent rating under DC 5276. Additionally, the evidence does not establish the Veteran experienced a severe foot injury at any point during the period on appeal. By the Veteran's own testimony, although he experienced sharp pain in his feet upon standing, he was able to maintain his current employment which requires him to remain on his feet. Additionally, the Veteran's condition was managed with custom orthotic inserts, and did not require any additional assistive devices, such as use of a cane. Finally, in his most recent June 2015 VA examination, the examiner specifically opined the Veteran experienced symptoms of moderate, not severe, severity. Therefore, the evidence does not establish the Veteran experienced severe foot injury, the criteria associated with a higher rating under DC 5284. Therefore, entitlement to a rating in excess of 20 percent is not established. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). 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. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran'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"). See id. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's bilateral feet disability that would render the schedular criteria inadequate. The Veteran's main symptoms were of sharp pain requiring rest and the need for daily custom orthotics. These symptoms were specifically contemplated in the schedular rating, and served as the basis for the increased rating assigned. In this regard, and consistent with the reasoning presented above, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, in this case the Veteran continues to work full time as a cook for the VA. Therefore, Rice is inapplicable because there is no suggestion of unemployability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2010, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. In September 2015, the Veteran was provided with a hearing before the undersigned VLJ. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed disability, specifically regarding the current severity. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file, and specifically inquired as to outstanding medical records. No such pertinent evidence was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. 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), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to a rating not to exceed 20 percent for service-connected bilateral plantar fasciitis is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs