Citation Nr: 1804994 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for left foot plantar fasciitis with onychocryptosis prior to December 11, 2015. 2. Entitlement to an initial disability rating in excess of 10 percent for right foot plantar fasciitis, prior to December 11, 2015. REPRESENTATION Veteran represented by: Chuck R. Pardue, Attorney at Law ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the course of the appeal, in a February 2016 rating decision, the RO rated the Veteran's bilateral foot disability (initially rated separately) as a single disability and increased the rating to 50 percent disabling, effective December 11, 2015. The Board notes that the 50 percent rating currently assigned is the highest possible rating under DC 5276; however, the February 2016 rating decision did not constitute a full grant of benefits sought on appeal, as it only granted a 50 percent disability rating from December 11, 2015 and not from the date of the initial grant, October 15, 2010. While the 50 percent disability rating represents a full grant of the benefits sought for the period following December 11, 2015, the Veteran's claims for higher disability ratings prior to December 11, 2015 remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded the claims for further development in October 2015. These matters are now back before the Board. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, prior to December 11, 2015, his left foot plantar fasciitis with onychocryptosis has been manifested by moderately severe symptoms, to include pain, tenderness to palpation and touch, difficulty with prolonged walking or standing, and instability. 2. Resolving all reasonable doubt in the Veteran's favor, prior to December 11, 2015, his right foot plantar fasciitis has been manifested by moderately severe symptoms, to include pain, tenderness to palpation and touch, difficulty with prolonged walking or standing, and instability. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for left foot plantar fasciitis with onychocryptosis have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). 2. The criteria for a 20 percent disability rating for right foot plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable decisions herein as to the issues on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. II. Increased Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to December 11, 2015, the RO rated the Veteran's bilateral plantar fasciitis as foot injuries, other, under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under this diagnostic code, a 10 percent rating is warranted for moderate foot injuries; a 20 percent rating is warranted for moderately severe foot injuries, and a 30 percent rating is warranted for severe foot injuries. The note following these criteria indicates that disability with actual loss of use of the foot should be rated 40 percent disabling. 38 C.F.R. § 4.71a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. However, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record. One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. See 38 C.F.R. § 4.20 (2017) (providing for consideration of functions affected, anatomical localization, and symptomatology in assigning a diagnostic code). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Accordingly, as the Veteran had also been diagnosed with pes planus and metatarsalgia for the period prior to December 11, 2015, the Board will consider whether the Veteran's foot disabilities would be more accurately evaluated under Diagnostic Codes 5276 or 5279. DC 5276 provides ratings for acquired flat foot (pes planus). A 10 percent rating is warranted for mild bilateral acquired flatfoot manifested by symptoms relieved by built-up shoe or arch support. A 30 percent rating is warranted for severe bilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achilles on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a (2017). DC 5279 provides ratings for metatarsalgia. A 10 percent rating is warranted for anterior (Morton's disease), unilateral, or bilateral metatarsalgia. III. Background and Analysis The Veteran contends that the 10 percent disability ratings for his left foot plantar fasciitis with onychocryptosis and right foot plantar fasciitis do not accurately reflect the severity of his foot disabilities prior to December 11, 2015. As briefly noted above, in a July 2011 rating decision, the RO granted entitlement to service connection for left and right foot plantar fasciitis, and assigned 10 percent disability ratings for each foot effective October 15, 2010, pursuant to Diagnostic Code 5284. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran disagreed with the initial ratings assigned and in a July 2012 rating decision, the RO continued the Veteran's disability ratings at 10 percent for each foot. The Veteran certified his appeal to the Board and the Board remanded the claims in October 2015. In February 2016, the RO issued a rating decision evaluating the Veteran's bilateral foot condition (initially rated separately) as a single disability (bilateral pes planus with plantar fasciitis with metatarsalgia with toe nail removal) and increased the rating to 50 percent disabling, effective December 11, 2015, the date of the VA examination showing worsening, pursuant to Diagnostic Code 5276. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Reviewing the relevant evidence of record, a December 2010 diabetic foot examination revealed a normal foot inspection with all three parts of the foot normal, a normal foot sensory examination using monofilament, and normal foot pulses. On VA examination in December 2010, the Veteran reported that he had been diagnosed with flat feet since 1971. He reported localized constant aching pain and rated the pain 4 out of 10 (10 being the worst pain), which could increase to 8 to 10 out of 10 by the end of the day. The Veteran noted that the pain in his feet was exacerbated by physical activity, relieved by rest, and that he could function with medication during periods of pain. He experienced foot pain while at rest and while standing or walking, but did not experience any weakness, stiffness, swelling, or fatigue. The Veteran reported that arch supports provided some relief on occasion, as did Ibuprofen. He noted that his foot pain created limitations with prolonged standing, walking, and activities around the house. On examination, the VA examiner noted that the Veteran's feet revealed painful motion and tenderness, but no edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. He indicated that there was active motion in the metatarsophalangeal of the left and right toe. The examiner noted that palpation of the plantar surfaces of the feet revealed slight tenderness and there was normal alignment of the Achilles tendon on weight-bearing and non-weight-bearing on both feet. The examiner indicated that pes planus, pes cavus, Morton's metatarsalgia, hallux valgus and hallux rigidus were not present. He noted that the Veteran had limitations with standing and walking and could only stand for 15 to 30 minutes. The Veteran required arch supports, but not orthopedic shoes, corrective shoes, foot supports, build-up of shoes, or inserts. The examiner found that the Veteran's tenderness upon palpation of the bottom of the feet and his history of pain upon standing, after lying down, or sleeping was an indication of plantar fasciitis. Further, x-ray findings of the feet were within normal limits and did not confirm the presence of pes planus. The examiner diagnosed the Veteran with bilateral plantar fasciitis with onychocryptosis of the left great toenail with the effects of limited prolonged standing in the Veteran's occupation and daily activity. In a September 2011 podiatry consultation, the Veteran reported painful arches and that he had tried over-the-counter insoles but they did not help. He had not been prescribed any insoles through his primary care physician. The clinician noted strong pedal pulses, decreased arches on stance, intact sensation per vibratory testing, and bilateral dystrophic hallux toenails. The Veteran was diagnosed with symptomatic pes planus and bilateral onychomycosis. On VA examination in April 2012, the Veteran reported the progression of pain in the plantar arches of both feet and that he was now experiencing moderate continual pain that increased in severity with weight-bearing after 15 minutes. The Veteran noted that he wore arch supports, but had not been issued prescriptive shoes and did not require oral medications for his feet. He described a history of heel spurs since 2002 and had ingrown great toenails with full or partial removal on several occasions. On examination, the VA examiner found bilateral metatarsalgia, but that Morton's neuroma, hammer toes, hallux valgus and hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, arthritis, and bilateral weak foot were not present. He noted normal posture and gait assisted by the use of a cane. Inspection of the feet revealed evidence of great toenail removal and normal arches on non-weight-bearing and reduced arches on weight-bearing. The feet did not appear deformed and the Achilles-talus line was straight and just medial to hallux. The Veteran indicated there was mild discomfort on palpation over the plantar metatarsal heads, plantar medial arches, and plantar heel. Sensation in the forefoot was diminished, but the examiner noted a history of diabetes mellitus of more than a decade. The Veteran's toes and ankles exhibited grossly normal active range of motion and strength. His symptoms were not relieved by arch supports of built up orthotics. The examiner noted pain on use of both feet with pain on accentuated use, pain on manipulation of both feet but not accentuated on manipulation, no indication of swelling on use or calluses, and no extreme tenderness of the plantar surfaces of the feet. He further noted that the Veteran had decreased longitudinal arch height on weight-bearing, but no evidence of marked deformity, no marked pronation of the foot, no inward bowing of the Achilles tendon, no marked inward displacement and severe spasm of the Achilles tendon on manipulation, and the weight-bearing line did not fall over or medial to the great toe. X-rays revealed bilateral pes planus deformity, slightly more advanced on the left in weight-bearing lateral views. The examiner diagnosed the Veteran with bilateral pes planus, bilateral plantar fasciitis, bilateral metatarsalgia, and onychodystrophy. The Veteran's foot disabilities impacted his ability to work in that weight-bearing over 15 minutes caused pain and likely compromised work safety and concentration ability. In an April 2014 VA treatment record, the Veteran presented for follow-up for bilateral heel and arch pain. He reported that his pain was about the same and he had been wearing Spenco shoe inserts which were somewhat helping. The Veteran noted he was on his feet a lot for work and after long periods of activity, he would need to stop and rest his feet. Examination of the feet revealed palpable pedal pulses bilaterally and intact epicritic sensation bilaterally. The Veteran was assessed with plantar fasciitis, pes planus, and nail spicule. Orthofeet inserts were ordered for the Veteran and heel injections were discussed. In a February 2015 VA treatment record, the Veteran presented with complaints of left heel pain. He reported that the shoe inserts did not provide relief and the injections lasted two to three months. The Veteran wore casual shoes and was assisted by a cane. Examination of the feet revealed palpable pedal pulses bilaterally, epicritic sensation intact bilaterally, mild equinus deformity, digital contractures, and decreased arches in weight-bearing and non-weight-bearing. The Veteran was assessed with plantar fasciitis, pes planus, and a left Tailor's bunion. In an October 2015 VA treatment record, the Veteran reported that his blood sugars were out of control, which he believed was due to his heel injections. He also reported that his heels were worse and that he could no longer work as a realtor. The Veteran had tried two to three different types of arch supports and a night splint without improvement. Examination of the feet revealed palpable pedal pulses bilaterally, sensation intact to light touch bilaterally, and no ulcerations. His plantar central and plantar medial of both heels were tender to pressure, which the Veteran reported as a severe feeling of discomfort. The balls of both feet were tender to pressure as well, and he had been using gel metatarsal cushions without improvement. The Veteran was assessed with bilateral plantar fasciitis, suspect radiculopathy (due to diabetes), and painful gait. In a November 2015 private treatment record, the Veteran presented for evaluation of his plantar fasciitis and removal of nails on his bilateral big toes. He reported that he could walk better with shoes with inserts but he was unsteady on his bare feet and it was extremely painful. The Veteran noted that he worked as a realtor and had cut back on his walking due to his foot pain. He indicated that he was not currently on any medication and that he had stopped cortisone injections because it elevated his blood sugar levels. Examination of the feet revealed hypersensitive plantar aspect of both feet and it was tender to palpate heels, arch, and forefoot. No plantar callus was noted. When asked to stand barefoot, the Veteran reported that it was extremely painful and exhibited unstable gait. He had slightly diminished vibratory sensation in the bilateral toes and was able to dorsiflex and plantarflex both feet against resistance with some weakness and discomfort. The Veteran was assessed with plantar fascial fibromatosis, pain in the right foot, pain in the left foot, and difficulty walking, not elsewhere classified. The physician noted that the Veteran had symptoms consistent with plantar fasciitis but the overall sensitivity of the feet suggested neuritis/neuropathy involvement which was possibly due to a combination of his low back condition and his elevated blood sugar level. The physician also noted that concerning the Veteran's appeals with the Board concerning entitlement to increased ratings for plantar fasciitis of the right foot currently rated at 10 percent, and for plantar fasciitis with onychocryptosis of the left foot currently rated at 10 percent, he agreed with the disability associated with the Veteran's plantar fasciitis. The physician stated that there was no question that the condition was limiting, long-lasting, and its potential for improvement in the future was limited. With regard to the removal of the Veteran's bilateral great toenails in 2000 and 2012, the physician indicated that there was no associated impairment for each foot. In a December 2015 VA treatment record, the Veteran presented with bilateral chronic heel pain, which he rated 5 out of 10. He noted that he had received injections in the past that had helped; however, the injections increased his blood sugar levels and he no longer wanted the injections. On examination, dorsalis pedis and posterior tibial pulses were palpated and light touch sensation was intact. The subtalar joint had full range of motion with pronation and supination without pain or crepitus. The Veteran was assessed with bilateral plantar fasciitis. In a March 2016 statement submitted on behalf of the Veteran by Dr. C. K., the Chief of Podiatry at a VA medical center (VAMC) in Georgia, Dr. C. K. stated that the Veteran had been treated for heel and arch pain and had been diagnosed with plantar fasciitis since 2011. He noted that the Veteran had undergone many treatment modalities, which included various orthotics, night splints, cast immobilization, physical therapy, and cortisone injections. These treatments resulted in minimal improvement and the Veteran continued to suffer from plantar fasciitis. Based on a review of the evidence, the Board finds that prior to December 11, 2015, the Veteran's left foot plantar fasciitis with onychocryptosis and right foot plantar fasciitis were manifested by symptoms equivalent to moderately severe injuries of the bilateral feet. In this regard, the Veteran has credibly reported experiencing constant pain in his feet with problems walking and standing for prolonged periods of time. Although he reported some relief with orthotics, they have never fully remedied his foot pain. In the December 2010 VA examination, the examiner noted a history of pain upon standing, after lying down, and sleeping, and found painful motion and tenderness on examination of the feet. Then, in April 2012, the VA examiner noted that the Veteran experienced pain on use, pain on accentuated use, and pain on manipulation of the feet. Further, he indicated that the Veteran's symptoms were not alleviated by arch supports or built up orthotics. Both VA examiners noted that the Veteran's foot disabilities impacted his ability to work in that it limited prolonged standing. Specifically, the April 2012 examiner noted that weight-bearing over 15 minutes was painful for the Veteran and could compromise work safety. The November 2015 private treatment record indicated that barefoot, the Veteran suffered from extreme pain and unstable gait. Additionally, the March 2016 statement from Dr. C. K. indicated that the Veteran had experienced heel and arch pain since 2011 and that he had undergone numerous treatments with only minimal improvement. Based on the foregoing, the Board finds the criteria for moderately severe foot injuries are met and initial 20 percent disability ratings for the Veteran's left foot and right foot plantar fasciitis are warranted pursuant to DC 5284. The evidence does not, however, show that the Veteran's bilateral plantar fasciitis symptoms more nearly approximate the criteria for a rating in excess of 20 percent at any time during the appeal period. In this regard, the December 2010 VA examination did not reveal pes planus, pes cavus, Morton's metatarsalgia, hallux valgus or hallux rigidus. Further, there was no edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. The April 2014 examination did not reveal Morton's neuroma, hammer toes, hallux valgus and hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, arthritis, or bilateral weak foot. The Veteran's feet did not appear deformed and the Achilles-talus line was straight and just medial to hallux. The Board notes that during the pendency of the appeal, the Veteran had been diagnosed with bilateral pes planus and bilateral metatarsalgia. Accordingly, as mentioned above, the Board has considered the applicability of Diagnostic Codes 5276 (pes planus) and 5279 (metatarsalgia) but has determined that evaluation under a different diagnostic code would not afford the Veteran higher disability ratings for his bilateral foot disabilities. During the course of the appeal, there has been no evidence of weight-bearing line over medial to great toe or inward bowing of the tendo achillis. There has also been no objective evidence of a marked deformity (pronation, abduction, etc.), swelling on use, or characteristic callosities. Although the Veteran demonstrated pain on manipulation, there is no indication that he experienced pain accentuated on manipulation. The record reveals that the Veteran did not demonstrate marked pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation, which has not been improved by orthopedic shoes or appliances. The Veteran did exhibit hypersensitive plantar aspect of the bilateral feet in the November 2015 private treatment record; however, there is no other evidence of pronounced acquired flatfoot and the November 2015 physician failed to diagnosis him with such. In fact, the physician noted that the Veteran's sensitive feet suggested neuritis or neuropathy due to his low back condition or to his elevated blood sugar levels. Therefore, under Diagnostic Code 5276, the Veteran has exhibited moderate symptoms of acquired flatfoot and would be entitled to a 10 percent disability rating for each foot. Also, as the Veteran has been diagnosed with bilateral metatarsalgia, he would be entitled to a single 10 percent disability rating under Diagnostic Code 5279, the only rating available for metatarsalgia. As such, the Board finds that evaluation of the Veteran's foot disabilities under Diagnostic Codes 5276 or 5279 would not result in a higher disability rating. In sum, the Board finds that the evidence of record demonstrates that the Veteran's left foot plantar fasciitis with onychocryptosis and right foot plantar fasciitis was manifested by symptoms equivalent to moderately severe injuries of the bilateral feet for the period prior to December 11, 2015. Accordingly, resolving all reasonable doubt in favor of the Veteran, a 20 percent disability rating prior to December 11, 2015 is warranted for the Veteran's left foot plantar fasciitis with onychocryptosis and a 20 percent disability rating prior to December 11, 2015 is warranted for the Veteran's right foot plantar fasciitis. ORDER Entitlement to an initial disability rating of 20 percent for left foot plantar fasciitis with onychocryptosis prior to December 11, 2015, is granted subject to the laws and regulations governing monetary awards. Entitlement to an initial disability rating of 20 percent for right foot plantar fasciitis, prior to December 11, 2015, is granted subject to the laws and regulations governing monetary awards. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs