Citation Nr: 18140373 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-20 861 DATE: October 3, 2018 ORDER Entitlement to a 30 percent rating, but no higher, prior to August 1, 2017, for bilateral pes planus and plantar fasciitis, is granted. Entitlement to a rating in excess of 30 percent, since August 1, 2017, for bilateral pes planus and plantar fasciitis, is dismissed. FINDINGS OF FACT 1. In January 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issue of entitlement to a rating in excess of 30 percent for bilateral pes planus and plantar fasciitis, since August 1, 2017. 2. Prior to August 1, 2017, the Veteran’s bilateral pes planus and plantar fasciitis was manifested by bilateral foot pain on use and manipulation that was accentuated, bilateral foot stiffness, fatigability, incoordination, pain on weight-bearing, lack of endurance, and flare ups of foot symptoms that limited his ability to walk, run, and perform activities; the Veteran’s foot symptoms were not significantly improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, as to the issue of entitlement to a rating in excess of 30 percent for bilateral pes planus and plantar fasciitis, since August 1, 2017, are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for a 30 percent rating, but no higher, prior to August 1, 2017, for bilateral pes planus and plantar fasciitis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2006 to July 2007, December 2008 to November 2009, May 2011 to April 2012, and June 2013 to July 2014. These matters come before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on his May 2016 substantive appeal (VA Form 9). He withdrew his Board hearing request in April 2018 (see April 2018 “Report of General Information” form (VA Form 27-0820). The Veteran also requested a hearing before a Decision Review Officer (DRO) in May 2016, but an informal conference with a DRO was conducted in June 2017 in lieu of a formal hearing. A report of the conference is associated with his claims file. In a January 2018 decision, a DRO granted an increased (30 percent) rating for bilateral pes planus and plantar fasciitis, from August 1, 2017. The Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for migraine headaches and irritable bowel syndrome. The DRO granted service connection for these disabilities by way of the January 2018 decision, and thereby resolved the appeal as to these issues. I. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran’s representative submitted a signed statement in January 2018 (VA Form 21-4138) in which it was indicated that the Veteran wished to “drop” the issue pertaining to the “evaluation of bilateral pes planus and plantar fasciitis evaluated at 30 percent disabling effective August 1, 2017” because the Veteran was “satisfied with a 30 percent rating” (as awarded in the January 2018 decision). Hence, the Veteran “drop[ped] this issue on appeal.” This statement constitutes a valid withdrawal of the appeal, with respect to the issue of entitlement to an increased rating for bilateral pes planus and plantar fasciitis, since August 1, 2017. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant”). The United States Court of Appeals for the Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O’Rourke, 891 F.3d 1009, fn. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). As the Veteran has withdrawn the appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue on appeal, and the appeal is dismissed. II. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a rating in excess of 10 percent, prior to August 1, 2017, for bilateral pes planus and plantar fasciitis The Veteran contends that an increased rating is warranted for his service-connected bilateral pes planus and plantar fasciitis during the claim period prior to August 1, 2017. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran’s bilateral pes planus and plantar fasciitis met or approximated the criteria for a 30 percent rating, but no higher, during the entire claim period prior to August 1, 2017. The Veteran’s bilateral pes planus and plantar fasciitis is rated under 38 C.F.R. § 4.71a, DC 5276. Under DC 5276, a 10 percent rating is warranted for unilateral or bilateral moderate pes planus disability, with weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet. As for a severe pes planus disability, the rating criteria contemplates objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use with characteristic callosities, with a 20 percent rating assigned for a unilateral disability and a 30 percent rating assigned for a bilateral disability. Lastly, 30 and 50 percent ratings may be assigned for unilateral and bilateral pes planus, respectively, that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation that is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. In this case, the Veteran’s claim for an increased rating for his service-connected bilateral foot disability was received on July 24, 2014, following his July 17, 2014 separation from active service. He was afforded a VA foot examination in March 2014, prior to his separation from service. The March 2014 examination report reflects that he experienced bilateral foot pain which was accentuated on use and manipulation of the feet. There was no indication of swelling on use, the Veteran did not have characteristic calluses, his symptoms were relieved by arch supports (or built up shoes or orthotics), and he did not experience extreme tenderness of plantar surface of one or both feet. There was decreased longitudinal arch height on weight-bearing, but there was no objective evidence of marked deformity of a foot or marked pronation of a foot, the weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight bearing line, there was no inward bowing of the Achilles’ tendon, there was no marked inward displacement and severe spasm of the Achilles’ tendon on manipulation, there were no scars associated with the Veteran’s foot disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. The Veteran was diagnosed as having bilateral pes planus. This disability interfered with his ability to work in that it possibly interfered with running activities. In an April 2015 statement (VA Form 21-4138), the Veteran reported that he experienced chronic foot pain on a daily basis that he attempted to alleviate with custom orthotics. He had to stretch his feet every morning to relieve the pain and he could “hardly walk” until his feet were stretched. He also used a prescription boot which he alternated from foot to foot on a nightly basis in order to alleviate pain in the morning. The only VA foot examination conducted subsequent to the Veteran’s July 2014 increased rating claim was conducted on August 1, 2017. He reported during that examination that he experienced pain and stiffness on the bottom of both feet first thing in the morning, which improved after 10 to 15 minutes of warming up and stretching. There was also plantar pain with standing or walking for too long throughout the day. The Veteran used to run five to ten miles five to six days per week, but he was limited to three miles two to three days per week due to his foot pain. He had been prescribed custom orthotics since 2009 which alleviated, but did not eliminate, his plantar pain. Flare ups of symptoms impacted the function of his feet in terms of pain and stiffness on the bottom of both feet in the morning and plantar pain with standing and walking too long and running two to three miles. Also, there was functional loss/impairment of the feet in that he had to take time in the morning to stretch and warm up his feet, he sat down and took breaks during the day, and was limited in his ability to run. Moreover, there was bilateral foot pain which was accentuated on use and manipulation of the feet. There was no indication of swelling on use and the Veteran did not have characteristic calluses. His symptoms were relieved by orthotics, but he nonetheless remained symptomatic. He did not experience extreme tenderness of plantar surfaces of one or both feet. There was decreased longitudinal arch height on weight-bearing of both feet, but there was no objective evidence of marked deformity of a foot or marked pronation of a foot, the weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight bearing line, there was no inward bowing of the Achilles’ tendon, and there was no marked inward displacement and severe spasm of the Achilles’ tendon on manipulation. There was moderate plantar fasciitis of both feet which resulted in plantar surface pain with prolonged weightbearing and morning plantar pain and stiffness, but the Veteran’s foot disability did not chronically compromise weight bearing. Additionally, there was bilateral foot pain on examination and the pain contributed to functional loss. There was also fatigability, incoordination, pain on weight-bearing, and lack of endurance associated with both feet. Plantar pain significantly limited functional ability of the feet during flare ups and/or when the feet were used repeatedly over time in that there was pain after running two to three miles and with prolonged standing and walking. There was no functional loss during flare ups or when the feet were used repeatedly over time. There were no scars associated with the Veteran’s foot disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. Diagnoses of bilateral pes planus and plantar fasciitis were provided. These disabilities interfered with the Veteran’s ability to work in that they interfered with long distance running, prolonged walking/standing, jumping, and other similar physical activities. In the January 2018 statement, the Veteran’s representative reported that the symptoms of the Veteran’s bilateral foot disability which supported the award of a 30 percent rating in the January 2018 DRO decision “were present prior to August 1, 2017.” In the January 2018 decision, the DRO awarded a 30 percent rating under DC 5276 for the Veteran’s service-connected bilateral pes planus and plantar fasciitis on the basis of symptoms and functional impairments reported and observed during the June 2017 informal conference and the August 2017 VA examination. For instance, the Veteran reported during the June 2017 informal conference that his feet were painful and stiff in the morning, that he was instructed not to walk barefoot, that he continued to experience foot pain despite the use of orthotics, and that foot pain limited his ability to run and lift heavy weights. Also, the August 2017 examination revealed that the Veteran experienced pain with use and manipulation of the feet, that the pain was accentuated on use and manipulation, and that orthotics did not eliminate foot symptoms. Moreover, the Board points out that the August 2017 examination report indicates that the Veteran had to take time in the morning to stretch and warm up his feet, that he had to sit down and take breaks during the day due to his foot symptoms, that he experienced flare ups of foot symptoms, and that there was fatigability, incoordination, pain on weight-bearing, and lack of endurance associated with both feet. In light of these symptoms, the extent of the limitations caused by foot symptoms, the fact that the August 2017 examination is the only examination that was conducted subsequent to the Veteran’s July 2014 increased rating claim, the January 2018 statement from the Veteran’s representative (which indicated that the symptoms of the Veteran’s bilateral foot disability which supported the award of a 30 percent rating “were present prior to August 1, 2017”), and resolving reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s service-connected bilateral pes planus and plantar fasciitis more closely approximated the criteria for a 30 percent rating under DC 5276 for the entire claim period prior to August 1, 2017. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5276. Despite the fact that the 30 percent rating was assigned based on symptoms presented during the August 2017 VA examination, an effective date should not be assigned mechanically based on the date of an examination reflecting a certain degree of disability. Rather, all of the facts should be examined to determine the date that a veteran’s disability first manifested to a certain degree of severity. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In light of the medical evidence of record and the Veteran’s reported history, the Board finds that a 30 percent rating for bilateral pes planus and plantar fasciitis is warranted under DC 5276 during the entire claim period prior to August 1, 2017. A rating in excess of 30 percent for bilateral pes planus and plantar fasciitis is not warranted at any time during the claim period prior to August 1, 2017. Specifically, the Veteran did not experience marked pronation of either foot, extreme tenderness of the plantar surface of either foot, or marked inward displacement and severe spasm of the tendo achilles on manipulation of either foot. In addition, the evidence does not reflect that the Veteran experienced any claw foot and a rating higher than 30 percent is not provided under any diagnostic code pertaining to the feet other than those pertaining to pes planus and claw foot (i.e., DCs 5276 and 5278). Hence, the Board finds that a 30 percent rating, but no higher, for bilateral pes planus and plantar fasciitis is warranted prior to August 1, 2017. The Board further finds that, in conjunction with the claim for an increased rating for bilateral pes planus and plantar fasciitis, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel