Citation Nr: 1754718 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 09-15 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis with metatarsalgia prior to May 12, 2017. 2. Entitlement to an initial rating in excess of 30 percent for left foot plantar fasciitis with metatarsalgia since May 12, 2017. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 2002 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over the appeal has since been transferred to the RO in Boston, Massachusetts. In February 2017, the Board remanded the appeal to the RO for additional development. This was accomplished, and the matter has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to February 27, 2015, the Veteran's service connected left foot plantar fasciitis with metatarsalgia was productive of moderate impairment. 2. From February 27, 2015 to May 11, 2017, the Veteran's service connected left foot plantar fasciitis with metatarsalgia was productive of severe impairment. 3. Since May 12, 2017, the Veteran's service connected left foot plantar fasciitis with metatarsalgia has been productive of pronounced impairment. CONCLUSIONS OF LAW 1. Prior to February 27, 2015, the criteria for entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis with metatarsalgia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5276 (2017). 2. From February 27, 2015 to May 11, 2017, the criteria for entitlement to an initial rating of 20 percent, but not more, has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5276 (2017). 3. Since May 12, 2017, the criteria for entitlement to an initial rating in excess of 30 percent for left foot plantar fasciitis with metatarsalgia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, and the medical evidence cited below. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Facts and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service connected disability on appeal. 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. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. The Veteran was initially awarded service connection for left plantar fasciitis with metatarsalgia by way of an October 2006 rating decision. A 10 percent initial rating was awarded, effective May 15, 2006, the day following her discharge from active service. In a letter received in an October 2007, the Veteran indicated she disagreed with the initial rating provided by the RO. Following a May 2017 VA examination, the RO increased the rating to 30 percent, effective the date of the examination. Relevant diagnostic codes (DC) under 38 C.F.R. § 4.71(a), include DC 5276 and 5284. Under Diagnostic Code 5276, severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities warrants a 20 percent rating for a unilateral condition or a 30 percent rating for a bilateral condition. With pronounced disability, characterized by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances, a 30 percent rating is warranted for a unilateral condition or a 50 percent rating is warranted for a bilateral condition. Diagnostic Code 5284 rates other foot injuries as 20 percent disabling if moderately severe or 30 percent disabling if severe. The note following DC 5284 indicates a 40 percent rating is warranted with actual loss of use of the foot. Diagnostic Code 5279 rates unilateral or bilateral metatarsalgia as 10 percent disabling. That is the highest rating under that code. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. In a July 2006 VA examination, the Veteran complained of residual pain and tenderness from an in service injury of the left foot. The examiner noted the Veteran wore orthotics in the left shoe and that the Veteran reports her left foot is tender to pressure laterally at the heel and over the mid metatarsal head. The examiner further noted that the Veteran "reports that the inserts in the left shoe afford her some relief of the tenderness of the sole of the left foot." See July 2006 VA Examination at page 2. The Veteran received VA treatment from 2006 through 2008 for her left foot disability. On November 5, 2006 and November 29, 2006, the Veteran was seen for left foot pain. In February 2007, the VA examiner noted the Veteran had mild hyperkeratosis of the left fifth toe and mild tenderness on palpation of the plantar fascia. In March 2007, the VA examiner noted the Veteran was using orthotics. The Veteran had follow up visits for her left foot disability in May, September and October of 2007. In December 2007, the Veteran reported her foot pain was controlled and that she suffered from occasional swelling. She also reported being pleased with the support of her orthotics. See Philadelphia VAMC Record at page 31. The Veteran's left foot was examined again by VA in June 2008. At that time the VA examiner noted the Veteran was not taking any pain medication for her left foot and that the Veteran was, however, using an orthotic in her left shoe. The Veteran stated that use of the orthotic helped her left foot condition. The Veteran's gait was noted as normal. There were no significant surgical scars or deformities noted. The examiner noted no pain on manipulation, inversion or eversion of the foot; along with no edema, muscle atrophy, tenderness, swelling, weakness or instability. There was no pain of the Achilles tendon and weightbearing and non-weightbearing of the Achilles tendon was noted as normal. At the time of the examination, the Veteran had recently quit her job as an administrative assistant. The Veteran reported that even though the job as an administrative assistant was a "desk job" it involved walking between departments and standing. She reported being unable to stand or walk for more than fifteen minutes without experiencing a flare-up in her left foot while at work. Despite her left foot disability, the Veteran reported she was able to perform her occupation as an administrative assistant without limitations. The examiner noted a small non tender callus on the lateral margin of the left big toe, also on the lateral margin of the little (fifth) toe and the small area in the margin of the left heel. Weightbearing and non-weightbearing alignment of the Achilles tendon was normal. "The patient experiences flare-ups of her left foot condition, with walking for more than fifteen minutes, standing for more than fifteen minutes, running for more than 100 feet, lifting objects in excess of fifty pounds and climbing more than one flight of stairs." See June 2008 VA Examination at page 4. The Veteran reported that flare-ups last twenty minutes and that she experiences them once a week. She reported the pain in the left foot during a flare-up is 8 out of 10. Alleviating factors for the flare-up involve resting and elevating her left foot for approximately 20 minutes. The Veteran reported having an additional 80 percent limitation of function of her daily activities during a flare-up. In November 2010, the Veteran reported that her left foot pain was currently at an acceptable level and that she was continuing the use of orthotics. See November 2010 Boston VAMC at page 30. The Veteran was examined by VA in February 2015. At that time, the VA examiner noted the Veteran experienced pain on weight bearing and range of motion of her left foot. The Veteran reported that flare-ups do not impact the function of her foot. The Veteran also reported no weakness, fatigability or incoordination of the left foot. However, the Veteran did experience pain on manipulation of her left foot, as well as pain accentuated on use. A small callous was noted at the site of a sea urchin spine removal of the left foot. No other scars, arthritis or deformities were noted on this examination. Most recently the Veteran was afforded a VA examination in May 2017. This examination showed the Veteran experienced left foot pain during all range of motion including passive and active range of motion testing. Pain and tenderness was also noted in the left foot with weightbearing and non-weightbearing testing. The Veteran reported flare-ups occurred with increased activity to her left foot. The examiner noted functional loss/impairment with weightbearing activities and range of motion. Swelling and accentuated pain on manipulation of the left foot were noted. The examiner noted the Veteran had marked pronation of her left foot. The Veteran reported tenderness of the plantar surface of her left foot and also reported her condition is not improved by the use of orthotics. An x-ray showed no acute fracture, joint spaces are preserved, anatomic alignment, unremarkable soft tissue and stable nonspecific nonaggressive appearing region of sclerosis within the second proximal phalanx. In sum, the Board finds that prior to February 27, 2015, the Veteran's service connected left foot disability is manifested by no worse than moderate symptoms. During this period, the Veteran's pain was described as controlled or acceptable, and was alleviated by her orthotics. Although in June 2008, the Veteran reported her pain level at an 8 out of 10 during flare-ups; these flare-ups occurred once per week, lasting no longer than twenty minutes, during her job as administrative assistant, which she stated she had quit a few days earlier. Furthermore, the June 2008 VA examiner found no objective evidence of pain on manipulation, swelling, characteristic callosities, or marked deformities. However, the Veteran's left foot disability is manifested by pain on manipulation and pain that is accentuated on use beginning February 27, 2015, as noted in the February 2015 VA examination. Beginning February 27, 2015, these symptoms most closely resemble a higher rating of 20 percent under Diagnostic Code 5276. The Veteran does not assert, nor does the evidence of record support a rating based on the existence of bilateral plantar fasciitis, as no symptoms have been reported in the right foot. Therefore, entitlement to a disability rating in excess of 10 percent prior to February 27, 2015, and in excess of 20 percent from February 27, 2015 to May 11, 2017, for the Veteran's left foot disability is not warranted. With regard to a rating in excess of 30 percent, since May 12, 2017, the Board notes that the Veteran is now in receipt of the maximum allowable for unilateral plantar fasciitis under DC 5276, and no higher rating is allowable under DC 5284. Since the period of May 12, 2017, the Veteran does not assert, nor does the evidence of record support a rating based on the existence of bilateral plantar fasciitis, as no symptoms have been reported in the right foot. Moreover, there is no indication of a loss of use of the foot. Therefore, entitlement to a disability rating in excess of 30 percent since May 12, 2017, for the Veteran's left foot plantar fasciitis disability is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis with metatarsalgia prior to February 27, 2015 is denied. Subject to the law and regulations governing the payment of monetary benefits, entitlement to an initial rating of 20 percent, but no more, from February 27, 2015 to May 11, 2017 is granted. Entitlement to an initial rating in excess of 30 percent for left foot plantar fasciitis with metatarsalgia since May 12, 2017 is denied. ____________________________________________ M. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs