Citation Nr: 18141193 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 08-11 682 DATE: October 9, 2018 ORDER Entitlement to an increased disability rating for bilateral plantar fasciitis, currently evaluated as 10 percent disabling prior to June 12, 2017, and 50 percent disabling from June 12, 2017 is denied. FINDINGS OF FACT 1. Prior to June 12, 2017, the Veteran’s service-connected bilateral plantar fasciitis, was no worse than moderate. 2. From June 12, 2017, the Veteran’s bilateral plantar fasciitis, has been manifested by extreme tenderness of the plantar surfaces and pain on use not improved with orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating greater than 10 percent disabling, for bilateral plantar fasciitis, prior to June 12, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). 2. The criteria for an increased disability rating greater than 50 percent disabling, for bilateral plantar fasciitis, from June 12, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to November 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran’s claims file is currently under the jurisdiction of the Montgomery, Alabama RO. This case was previously remanded by the Board in August 2011, July 2016, and April 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In February 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In an October 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s bilateral plantar fasciitis to 10 percent disabling prior to June 12, 2017, and 50 percent disabling from June 12, 2017. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993).   Entitlement to an Increased Rating for Bilateral Plantar Fasciitis Increased Rating – General Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required 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,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Analysis The Veteran seeks a higher rating for his service-connected bilateral plantar fasciitis. The Veteran’s service-connected bilateral plantar fasciitis is rated as 10 percent disabling from February 21, 2006, through June 11, 2017, and 50 percent disabling from June 12, 2017, under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran’s increased rating claim was received on February 21, 2006. Therefore, the relevant rating period is from February 22, 2005, one year prior to receipt of the claim, through the present. See, 38 C.F.R. § 3.400 (o) (2). Under Diagnostic Code 5276, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis when symptoms are moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendon achillis, and pain on manipulation and use of the feet. When the plantar fasciitis is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 20 percent rating is warranted for unilateral involvement, and a 30 percent rating is warranted for bilateral involvement. When the plantar fasciitis is pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, a 30 percent rating is warranted for unilateral involvement, and a 50 percent rating is warranted for bilateral involvement. Turning to the relevant evidence of record, an August 2005 private treatment record reflects that the Veteran suffers from bilateral plantar fasciitis with pain to the ball area of both feet. A September 2006 private treatment record reflects that the Veteran complained of bilateral throbbing pain all day long and that pain is worsened with prolonged standing and wearing certain shoes. The Veteran reported that wearing insoles does not decrease pain. Upon examination, the Veteran demonstrated tenderness on palpation of the plantar aponeurosis, bilaterally. There was no swelling of the plantar aspect. The private examiner described the Veteran’s bilateral plantar fasciitis as severe and stated that the Veteran has been offered surgery by a former podiatrist. In the June 2007 Notice of Disagreement, the Veteran stated that he has daily, constant pain at rest rated as a four out of ten. He further stated that he can no longer walk or run due to the extreme pain or swelling feet and that he walks with a limp at times and must rest every 30 minutes. The Veteran was provided a VA examination in July 2013. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran has palpable tenderness of the plantar fascial regions of both feet. The VA examiner also noted that the Veteran did not have hammer toe, hallux valgus, hallux rigidus or pes cavus. Additionally, the Veteran did not display malunion or nonunion of tarsal or metatarsal bones. At the July 2013 VA examination, the Veteran was provided x-rays of the bilateral feet. The x-rays did not show fracture, dislocation or other acute abnormality. Additionally, there was no significant degenerative changes and the soft tissue appeared normal. An October 2013 private examination reflects that the Veteran stated his bilateral foot pain was localized and sharp. He stated that the pain is worse first thing in the morning, upon weight bearing, when wearing shoes and with prolonged standing. A February 2015 private treatment record reflects that the Veteran was provided arch supports. A January 2017 medical record reflects that the Veteran was provided a radiograph of the bilateral feet. The examination found no displaced fracture, subluxation or dislocation. Additionally, there was no joint effusion or significant soft tissue edema. The Veteran was provided a VA foot conditions examination in June 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that it feels like his feet are asleep all the time. He further stated that he wears air casts daily that provides little relief and that he has difficulty with prolonged walking and standing. Upon examination, the VA examiner noted that the Veteran has pain in both feet; there was no indication of swelling or characteristic callouses. The VA examiner further noted that the Veteran has extreme tenderness of plantar surfaces in both feet. There was no marked deformity or marked pronation. Additionally, the VA examiner noted that the Veteran does not have any foot injuries or other conditions other than bilateral plantar fasciitis. The Veteran was provided a VA addendum opinion in January 2018. The VA examiner reviewed the record and conducted a phone interview. The Veteran reported having pain in the heels extending into his arches. After reviewing the record and interviewing the Veteran, the VA examiner diagnosed the Veteran with bilateral plantar fasciitis with no other calcaneal disabilities. A review of the record does not reveal that higher evaluations are warranted for the Veteran’s service-connected plantar fasciitis, bilateral feet. Prior to June 12, 2017, the Veteran’s bilateral plantar fasciitis was rated as 10 percent disabling. The August 2005 and September 2006 private examiners noted that the Veteran had bilateral foot pain. However, the private examiners further noted that the Veteran did not demonstrate swelling of the plantar aspect. Additionally, there was no objective evidence of marked deformity or characteristic callosities. Furthermore, the Veteran was provided an x-ray at the July 2013 VA examination. The x-ray did not reveal fractures, dislocations, or other acute abnormality. The Board acknowledges that the September 2006 examiner described the Veteran’s bilateral plantar fasciitis as severe. However, upon examination, there was no objective evidence of marked deformity, indication of swelling or characteristic callosities. As such, the objective medical evidence of record does not demonstrate that the Veteran’s bilateral plantar fasciitis was severe, prior to June 12, 2017. Additionally, there is no evidence of record, medical or lay, dated prior to the June 12, 2017, which reflects extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or that the Veteran’s symptoms were not improved by orthopedic shoes or appliances. In the absence of any evidence demonstrating that the Veteran met the rating criteria for a 50 percent evaluation prior to June 12, 2017, 2015, a 50 percent rating is also not warranted. Accordingly, the Veteran’s bilateral plantar fasciitis does not meet the criteria for an increased rating under Diagnostic Code 5276 prior to June 12, 2017. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has also considered whether an increased rating greater than 10 percent prior to June 12, 2017, is warranted under other diagnostic codes pertaining to the foot. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, as the evidence does not reflect diagnoses of weak foot, claw foot, anterior metatarsalgia, hallux rigidus, hammer toe, malunion of the tarsal or metatarsal bones, or other foot injuries, an increased evaluation is not warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, 5283, 5284 (2017). Additionally, an increased rating greater than 50 percent is not warranted for the Veteran’s bilateral plantar fasciitis from June 12, 2017. In that regard, the award of a 50 percent evaluation for plantar fasciitis constitutes the maximum schedular evaluation available for bilateral plantar fasciitis under the pertinent diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered entitlement to an increased rating greater than 50 percent under other diagnostic criteria for the feet; however, a rating greater than 50 percent is not warranted for any disability of the foot. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, 5283, 5284 (2017). The evidence does not establish functional loss not contemplated by the rating assigned by this decision. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). In that regard, the September 2006 private examiner and July 2013 and June 2017 VA examiners did not report additional limitation of range of motion of either foot from pain, fatigue, weakness, lack of endurance, incoordination, repetitive use, or during flare-ups. Furthermore, the effects of painful motion and other factors are not for consideration because plantar fasciitis does not encompass motion of a joint. See 38 C.F.R. §§ 4.40, 4.59; see also DeLuca, 8 Vet. App. at 205-206. Moreover, pain on use or pain on manipulation is explicitly considered by the rating criteria in this case and the record reflects the Veteran experienced such. There is no evidence to suggest that the Veteran’s bilateral plantar fasciitis causes additional functional loss not contemplated in the currently assigned ratings at any point during the appeal period. The Board therefore finds that the criteria for a rating in excess of 10 percent, prior to June 12, 2017, and in excess of 50 percent, from June 12, 2017, for the Veteran’s service-connected bilateral plantar fasciitis have not been met at any time during the rating period. Accordingly, there is no basis for additional staged ratings of the Veteran’s bilateral plantar fasciitis pursuant to Fenderson, 12 Vet. App. at 126-27, and higher ratings must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. 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). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel