Citation Nr: 18143230 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 11-00 633 DATE: October 18, 2018 ORDER An increased rating more than 0 percent from December 21, 2010 to March 6, 2017 and more than 50 percent from March 7, 2017 and continuing thereafter for the Veteran’s service-connected bilateral plantar fasciitis with degenerative joint disease of both first metatarsal phalangeal joints and calcaneal spur right foot is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From December 21, 2010 to March 6, 2017, the Veteran’s service-connected bilateral plantar fasciitis manifested with pain on manipulation and use of both feet but the weight-bearing line did not fall over or medial to the great toe. 2. From March 7, 2017 and continuing thereafter, the Veteran’s service-connected bilateral plantar fasciitis was rated at the maximum schedular rating and a rating by analogy is not appropriate. CONCLUSIONS OF LAW 1. The criteria to establish a compensable rating for bilateral plantar fasciitis with degenerative joint disease of both first metatarsal phalangeal joints and calcaneal spur right foot from December 21, 2010 to March 6, 2017 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5276 (2017). 2. The criteria to establish an increased rating for bilateral plantar fasciitis with degenerative joint disease of both first metatarsal phalangeal joints and calcaneal spur right foot from March 7, 2017 and continuing thereafter have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1989 to March 2009, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Roanoke, Virginia Regional Office (RO). In July 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the Central Office in Washington, D.C. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In January 2017, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Bilateral plantar fasciitis with degenerative joint disease of both first metatarsal phalangeal joints and calcaneal spur right foot The Veteran has a noncompensable rating from April 1, 2009 to March 6, 2017 and a 50 percent rating from March 7, 2017 and continuing thereafter for his bilateral plantar fasciitis under DC 5276. The rating period on appeal begins on December 21, 2010, the date his increased rating claim was received. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, 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 (2017). Under DC 5276, a noncompensable rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276 (2017). A 10 percent rating is warranted for moderate flatfoot with the weight-bearing line being over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. Id. A 30 percent rating is warranted for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. Id. A 50 percent rating is warranted for pronounced bilateral flatfoot manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). In February 2011, the Veteran was afforded a VA examination. The Veteran reported experiencing pain in the arch of his feet one time per month lasting 6 hours. The pain was exacerbated by physical activity and relieved by medication. At rest, the Veteran does not experience pain, weakness, stiffness, swelling or fatigue. He reported experiencing pain upon standing and walking but no weakness, stiffness or swelling. A physical examination of the right foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy or disturbed circulation. There was active motion in the metatarsophalangeal joint of the right great toe. A physical examination of the left foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy or disturbed circulation. There was also active motion in the metatarsophalangeal joint of the left great toe. Palpitation of the plantar surface of both feet revealed moderate tenderness. Weight-bearing and non-weight bearing on the achilles tendon was normal bilaterally. The examiner noted that there was no pes planus, pes cavus, hammer toes, Morton’s metatarsalgia, hallux valgus or hallux rigidus. It was also noted that the Veteran’s standing and walking was not limited and he did not require any support with orthopedic shoes. In a September 2012 VA treatment record, the Veteran reported experiencing an inability to raise his right great toe and loss of strength in his right foot. He also reported experiencing numbness and a burning sensation in his right foot. He denied experiencing any symptoms in his left foot. The examiner indicated that the Veteran had little trouble walking on his right heel. It was noted that the Veteran could walk with a normal stride and had no trouble getting up from the chair and examination table. The Veteran had no drift, atrophy, fasciculations or weakness in his lower extremities. In March 2015, the Veteran was afforded another VA examination. It was noted that the Veteran did not report experiencing any pain, flare-ups or functional impairment of his feet. A physical examination revealed that the Veteran experienced bilateral foot pain that contributed to functional loss. The contributing factors were excess fatigability, pain on movement, pain on non-weight bearing, disturbance of locomotion, interference with sitting and interference with standing. The examiner indicated that the Veteran experienced pain on use of both feet. Pain was accentuated on manipulation of both feet. The Veteran had extreme tenderness on the plantar surfaces of both feet that was not improved by orthopedic shoes or appliances. There was no indication of swelling on use or characteristic callosities. The examiner also indicated that the Veteran did not have decreased longitudinal arch height of one or both feet on weight-bearing. There was no marked deformity of one or both feet and no marked pronation. The weight-bearing line did not fall over or medial to the great toe. There was also no lower extremity deformity other than pes planus that caused alteration of the weight-bearing line, no inward bowing of the achilles tendon, no marked inward displacement and no severe spasm of the achilles tendon on manipulation of one or both feet. The Veteran did not have Morton’s neuroma or metatarsalgia, hallux rigidus, acquired pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. There were no other pertinent physical findings. It was noted that the Veteran used orthopedic inserts on a regular basis. In his July 2016 Board hearing, the Veteran testified experiencing bilateral foot pain, swelling, and trouble walking and running. He also testified having calluses on the heels and front part of his feet and that he sometimes wears orthopedic shoes. In a January 2017 private treatment record, the Veteran reported experiencing bilateral foot pain that was precipitated by physical activity and prolonged standing and walking. It was noted that the Veteran had palpable prominence on the back of his left heel. There was no edema, ecchymosis or paresthesia. He was prescribed orthotics. A preponderance of the evidence is against a finding of a compensable rating from December 21, 2010 to March 6, 2017. The February 2011 VA examiner indicated that the Veteran’s weight-bearing line was normal. In addition, the September 2012 VA treatment record indicated that the Veteran experienced mild symptoms. Furthermore, the March 2015 VA examiner also indicated that the weight-bearing line did not fall over or medial to the great toe. Moreover, the July 2016 Board hearing transcript and January 2017 private treatment record also indicated that the Veteran experienced mild symptoms. Therefore, a compensable rating is not warranted and the claim is denied. DC 5276 specifically lists pes planus and a rating by analogy under any other DC is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that when a condition is specifically listed in the rating schedule, it may not be rated by analogy). As the Veteran is in receipt of the maximum schedular rating from March 7, 2017 and continuing thereafter, a higher rating is denied. REASONS FOR REMAND TDIU The March 2015 VA examiner opined that the Veteran’s service-connected bilateral plantar fasciitis impacts his ability to perform any type of occupational task – physical and sedentary – due to the Veteran experiencing pain, weakness and difficulty with prolonged standing, walking and running. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran’s current employability status is not clear from the record. The matter is therefore remanded for the following: 1. Ask the Veteran to provide information as to his employability status. The Veteran may submit any evidence, argument or other information to support his claim that his service-connected disorders render him unemployable. 2. Provide any further appropriate assistance and readjudicate the claim. If appropriate, furnish the Veteran a Supplemental Statement of the Case. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel