Citation Nr: 18141497 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-30 491 DATE: October 10, 2018 ORDER Entitlement to an increased rating for bilateral plantar fasciitis with heel spurs, currently evaluated as 50 percent disabling is denied. Entitlement to an effective date prior to January 10, 2012 for the award of a 50 percent rating for bilateral plantar fasciitis with heel spurs is denied. FINDINGS OF FACT 1. The Veteran’s bilateral foot disability results in pain and swelling, as well as decreased tolerance to standing, walking, or carrying heavy objects. 2. Following an unappealed November 1994 rating decision which granted 10 percent ratings for the Veteran’s left and right foot heel spurs, the Veteran did not submit a claim for an increased rating until January 10, 2012. It was not ascertainable that entitlement to an increased rating arose in the year prior to January 10, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for bilateral plantar fasciitis with heel spurs have not been met. 38 U.S.C. 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017). 2. The criteria have not been met for an effective date prior to January 10, 2012, for the grant of a 50 percent rating for bilateral plantar fasciitis with heel spurs. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to May 1994. Increased Rating 1. Entitlement to an increased rating for bilateral plantar fasciitis with heel spurs, currently evaluated as 50 percent disabling. The Veteran submitted his claim for increased ratings for his service-connected foot disabilities in January 2012. The January 2016 rating decision on appeal denied the Veteran ratings in excess of 10 percent for his left and right foot disabilities and the Veteran appealed. A September 2016 rating decision combined the Veteran’s separate ratings for his foot disabilities into a combined evaluation and increased his rating to 50 percent. The Board must now consider whether the Veteran is entitled to a rating in excess of 50 percent. In April 2012 the Veteran reported pain over the bottom of both heels, especially when he first got up in the morning or after prolonged sitting. The pain eased up somewhat with walking. It was worsened with prolonged weightbearing. He denied weakness, stiffness, swelling, heat, redness, drainage, instability and abnormal motion. He denied flare-ups. The Veteran reported that he was able to do his job despite his foot complaints. Examination revealed pain over the plantar aspect of both heels, but no Achilles pain and no pain otherwise in his feet. He had mild bilateral pes planus. There were no abnormalities of the joints of the feet. On VA examination in April 2016, the diagnoses were bilateral plantar fasciitis and heel spurs. The Veteran was noted to have pain on use of both feet. He did not have pain on manipulation of either foot. There was indication of swelling on use. He did not have characteristic calluses. He had extreme tenderness of the plantar surfaces of both feet. The examiner noted that the Veteran had pain on weightbearing, swelling, disturbance of locomotion, interference with standing and lack of endurance. She stated that the Veteran ‘s plantar fasciitis and heel spurs altered the Veteran’s gait with avoiding heel contract with the ground. She noted that he had increased pain with walking or carrying heavy objects. The examiner noted that the Veteran had flare-ups which caused decreased tolerance to standing, walking, or carrying heavy objects. The Veteran reported that during flare-ups he was not able to do all of the physical labor involved with his job. The Veteran had not used any arch supports or orthotics. In this case, the Veteran’s service-connected bilateral plantar fasciitis with heel spurs is rated by analogy under Diagnostic Code 5276, which contemplates acquired flat foot (pes planus). 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 tendon Achilles on manipulation which is not improved by orthopedic shoes or appliances. The Veteran’s 50 percent rating for plantar fasciitis under Diagnostic Code 5276, constitutes the maximum scheduler rating under that Diagnostic Code. A schedular rating in excess of 50 percent for bilateral foot disability is not available under any other Diagnostic Code for the feet as that is the highest scheduler rating available. 38 C.F.R. § 4.71a. The Board has considered the application of other various provisions, including 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Shinseki, 573 1366 (Fed. Cir. 2009). In this matter, a referral for extraschedular consideration is not warranted because the issue is not reasonably raised by the record. The Veteran has not asserted entitlement to an extraschedular rating, and the evidence does not indicate anything extraordinary about his bilateral plantar fasciitis with heel spurs. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an effective date prior to January 10, 2012 for the award of a 50 percent rating for bilateral plantar fasciitis with heel spurs. A November 1994 rating decision granted the Veteran service connection and separate 10 percent ratings for heel spurs of both feet. The Veteran’s claim for an increased rating for his service-connected foot disabilities was received on January 10, 2012. In a September 2016 rating decision, the Veteran was granted an increased rating of 50 percent, effective from January 10, 2012. The Veteran asserts that his claim dates back to May of 1994. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2) The Veteran’s original claim for service connection for bone spurs was received in June 1994. A November 1994 rating decision granted the Veteran service connection and 10 percent ratings for heel spurs of each foot. The Veteran did not appeal that decision. Subsequent to that decision no correspondence or other communication was received from the Veteran until January 10, 2012. On January 10, 2012, VA received the Veteran’s claim for an increased rating. Accordingly, January 10, 2012 is the date of the Veteran’s claim for an increased rating. The Board has reviewed the medical evidence dated in the year prior to January 10, 2012. Although a December 2011 x-ray report notes that the Veteran had bilateral foot pain, it is not factually ascertainable the that Veteran met the criteria for a higher rating in the year prior to January 10, 2012. Consequently, there is no basis for assignment of a compensable rating effective any earlier than January 10, 2012. 38 C.F.R. § 3.400(o). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel