Citation Nr: 18142269 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-42 089 DATE: October 15, 2018 ORDER The correction in rating for plantar fasciitis from 30 percent disabling on each foot to a single combined 30 for the period since April 1, 2015, was proper. Entitlement to a rating of 50 percent disabling, but no more, from April 1, 2015 to the present for bilateral plantar fasciitis is granted. FINDINGS OF FACT 1. In an April 2013 rating decision, the RO proposed to reduce the Veteran’s plantar fasciitis disability from 30 percent on each foot to 10 percent on each foot. 2. In a January 15, 2015 rating decision, the RO implemented the proposed reduction of the Veteran’s plantar fasciitis disability from 30 percent on each foot to 30 percent combined, effective April 1, 2015. 3. Throughout the course of the appeal, the Veteran’s bilateral plantar fasciitis has more closely approximated the rating criteria for a 50 percent evaluation. CONCLUSION OF LAW The correction in rating for plantar fasciitis from 30 percent on each foot to 30 percent combined was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.71a, Diagnostic Codes (DC) 5276, 5279. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from April 1986 to April 1989. RATING REDUCTION Where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). After completing the predetermination procedures, VA must send the veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2). In addition, although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. 1. Whether the reduction in disability rating from 30 percent for each foot to a single combined 30 percent for plantar fasciitis was proper. In the present case, the Veteran contends that the reduction was improper because he has had surgeries every two to three years since the 2000’s, as evidenced by his convalescent ratings. He further states that there is no indication that his foot disabilities are cured as he receives constant care for his feet at the Seattle VAMC facility. In an April 12, 2013 rating decision, the RO proposed to reduce the Veteran’s ratings for his plantar fasciitis from 30 percent on each foot to 10 percent on each foot. The Veteran was notified of the proposed action, the reasons and basis therefore, and was given the required 60 days to present additional evidence and to request a hearing. While the proposed reduction was still in process, the Veteran filed a new claim for increased ratings for his plantar fasciitis of the left and right foot in May 2014. In a January 2015 rating decision, the RO granted a 30 percent disability rating for his left foot effective May 1, 2011 to April 1, 2015 and a 30 percent disability rating for right foot effective August 1, 2014 to April 1, 2015. However, in that same decision, the RO combined the Veteran’s 30 percent rating for each foot to a single 30 percent rating for bilateral plantar fasciitis effective April 1, 2015. The Veteran submitted a March 11, 2015 Notice of Disagreement in which he disputed the reduction. At that time, the Veteran’s 30 percent ratings for each foot had been in effect for a total of 13 years, with several 100 percent ratings during that period. Therefore, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are applicable. While the procedural history of the Veteran’s appeal is complicated, and he has a number of periods during the appeal where he was 100 percent disabled, the Board first notes that the proposed reduction actually never occurred. Namely, while the RO did propose to reduce his 30 percent ratings to 10 percent, the January 2015 Rating Decision established that a 30 percent rating was warranted for each foot prior to April 1, 2015. Rather, the actual reduction that took place here was when the RO determined to consolidate the Veteran’s separate 30 percent ratings, which were assigned under DCs 5279 (addressing metatarsalgia) and 5284 (addressing non-specific foot injuries), and consolidating them under DC 5276 (addressing flatfoot). This change in diagnostic code led to the Veteran’s overall rating to be reduced from 90 percent to 80 percent. In the Board’s view, the change in diagnostic code, which resulted in the lower overall rating, was not a reduction contemplated by 38 C.F.R. § 3.105(e) or by Brown, as the selection of the appropriate diagnostic code is a legal question, rather than a question of law. See Butts v. Brown, 5 Vet. App. 532 (1993) (Steinberg, J., concurring). With this in mind, the Board determines that the prior assignment of separate 30 percent ratings under DCs 5279 and 5284 was incorrect. Specifically, the evidence of record does not indicate that the Veteran has ever experienced metatarsalgia, as is contemplated by DC 5279. As for whether DC 5284 is "more appropriate" than DC 5276, the Court of Appeals for Veterans Claims (Court) has noted that a more specific statute should be "given precedence over a more general one." See Zimick v. West, 11 Vet. App. 45, 51 (1998); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the disorder being considered is plantar fasciitis, and DC 5276 is deemed by the Board to be the most appropriate code. Notably, this diagnostic code pertains specifically to the disability at issue, and also provides specific guidance as to how symptoms of plantar fasciitis are to be evaluated. On the other hand, DC 5284 pertains only to "foot injuries, other" which the Board finds to be less specific and more general. Indeed, a reasonable reading of the relevant diagnostic codes suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other diagnostic codes, which is not the case here. Therefore, because DC 5276 takes into account the specific symptoms of plantar fasciitis, consideration of other diagnostic codes (particularly DC 5284) for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20. As such, rather than a rating reduction, the RO has made a legal determination that the assignment of a rating under DC 5284 was incorrect, and that DC 5276 was the more appropriate diagnostic code. For the reasons stated above, the Board agrees, and that the assignment of a single 30 percent rating under DC 5276 was appropriate. In any event, the Board finds that there is no prejudice to the Veteran, as it also determines that a combined 50 percent disability rating for his bilateral plantar fasciitis from April 1, 2015 to present. Specifically, at his March 1, 2016 VA examination, the examiner found extreme tenderness of the Veteran’s plantar surfaces as well as marked deformity. The Board finds that the Veteran’s May 2014 and November 2015 surgeries for his bilateral plantar fasciitis in combination with his March 2016 VA examination findings establish that his condition more closely approximates the higher rating of 50 percent. Therefore, an evaluation of 50 percent for the Veteran’s bilateral plantar fasciitis is warranted. The Board notes that this is the highest schedular rating available for this disability and the symptoms are contemplated in the rating schedule. Therefore, no higher evaluation is warranted.   In conclusion, the Board finds that the Veteran’s bilateral plantar fasciitis warrants a 50 percent rating, but no more, from April 1, 2015 to the present. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel