Citation Nr: 18144987 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 09-03 225 DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis, prior to May 10, 2013, is denied. Entitlement to a rating in excess of 10 percent for left foot plantar fasciitis, prior to May 10, 2013, is denied. Entitlement to a compensable rating for bilateral pes planus, prior to May 10, 2013, is denied. Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis, beginning May 10, 2013, is denied. REMANDED Entitlement to a compensable rating for adjustment disorder with anxious and depressed mood is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 10, 2013, the Veteran’s bilateral foot disability was primarily manifested by pain and mild pes planus. 2. Beginning May 10, 2013, the Veteran’s bilateral foot disability is not manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation; the disability is improved to a certain extent by orthopedic appliances. CONCLUSIONS OF LAW 1. Prior to May 10, 2013, the criteria for a rating in excess of 10 percent for right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284 (2017). 2. Prior to May 10, 2013, the criteria for a rating in excess of 10 percent for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284 (2017). 3. Prior to May 10, 2013, the criteria for a compensable rating for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). 4. Beginning May 10, 2013, the criteria for a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2005 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified in a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In April 2013, the Board remanded the claims for further development. In an August 2018 letter, the Veteran was notified that the VLJ who conducted his hearing was no longer employed at the Board. The letter stated that, pursuant to 38 U.S.C. § 7107 (c) and 38 C.F.R. § 20.707, the law required that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal, and as that person was no longer available, the Veteran’s appeal would be assigned to another VLJ for a decision. The letter notified the Veteran and her representative of the right to request another optional Board hearing, and indicated that if she did not respond within 30 days, the Board would assume that she did not want another hearing and proceed accordingly. The Board notes that while several letters mailed to the Veteran have been returned as undeliverable, the August 2018 letter regarding her right to a new Board hearing has not. Additionally, a copy of the August 2018 letter was sent to the Veteran’s representative. As such, there is no evidence that the Veteran did not receive a copy of the August 2018 hearing letter. The Veteran did not respond to this letter and, as such, the Board will proceed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran’s favor. 38 C.F.R. § 4.3 (2017). Bilateral Pes Planus with Plantar Fasciitis The Veteran asserts that her service-connected bilateral pes planus with plantar fasciitis warrants a higher rating than that which is currently assigned. In a January 2007 rating decision, the RO granted service connection for left foot plantar fasciitis and right foot plantar fasciitis and assigned each foot a 10 percent evaluation under Diagnostic Code 5299-5284 effective June 28, 2006. The rating was based on “tenderness to palpation, which is considered to be objective evidence of pain.” The RO also granted service connection for bilateral flat feet and assigned a noncompensable evaluation under Diagnostic Code 5276 effective June 28, 2006. The rating was based on VA examination results that noted mild pes planus, no report of pain on manipulation of either foot, normal gait, normal weight bearing, and normal walking/distance tolerance. It was noted that the Veteran was receiving foam orthotics for this condition and currently not receiving treatment for this condition. In a March 2017 rating decision, the RO recharacterized the service connected bilateral foot disability as bilateral flat feet with plantar fasciitis. The RO noted that the disability was currently 10 percent disabling and increased the disability rating to 30 percent under Diagnostic Code 5276 effective May 10, 2013. The rating was based on pain on manipulation of the feet, accentuated, and pain on use of the feet, accentuated. At the outset, the Board notes that the Veteran’s symptoms for bilateral pes planus and plantar fasciitis overlap and so to assign separate compensable ratings would constitute pyramiding. 38 C.F.R. § 4.14. Pursuant to Diagnostic Code 5284, moderate residuals of a foot injury warrant a 10 percent evaluation; moderately severe residuals warrant a 20 percent evaluation; and severe residuals warrant a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Pursuant to Diagnostic Code 5276, for a bilateral disability, a 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A maximum 50 percent rating is assigned for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A "severe" disability under DC 5276 is not equivalent to a "severe" disability under DC 5284. See generally Prokarym v. McDonald, 27 Vet. App. 307, 311 (2015). The Veteran was afforded a VA examination in September 2006, at which time diagnoses of bilateral plantar fasciitis and bilateral pes planus were noted. The Veteran reported pain affecting the course of the plantar fascia and the soles of both feet, which was unimproved by prescription Motrin. The Veteran also obtained foam orthotics and reported some symptomatic relief. Upon examination, it was noted that the Veteran exhibited normal longitudinal arches to mild pes planus with longitudinal arches preserved and no pain upon manipulation of either foot. The Veteran was tender to palpation in the course of the plantar fascia medial band and soles of both feet. The Veteran also had swelling of the left 5th toe, which the examiner attributed to a history of stubbing trauma sustained the previous night. The Veteran presented with a normal gait, normal weight bearing, normal walking, and normal distance tolerance. The Veteran did not require assistive devices. The examiner further noted that there was no painful motion, weakness, or instability. Ranges of motion were not impaired with attention to either foot. An October 2006 examination note reveals that the Veteran was prescribed over-the-counter foot inserts for plantar fasciitis. The Veteran reported a normal gait and she did not use any assistive devices. The Veteran also reported that she exercised by walking two miles two to three times per week. In a June 2009 progress note, the Veteran stated that she used cushioned insoles in the past and that her current insoles did not fit. In a July 2012 treatment note, the Veteran reported that she was taking medication for her plantar fasciitis and shin splints. In February 2013, the Veteran testified that her feet were progressively worse. Specifically, the Veteran reported that she cannot stand for periods in excess of 15 minutes and cannot walk for periods exceeding 20 to 30 minutes, and that her legs give out when she walks or stands for prolonged periods of time. The Veteran also reported that she uses a cane on a daily basis and uses shoe inserts. The Veteran was afforded a VA examination in May 2013 to assess the severity of her condition. In the May 2013 VA examination, the examiner noted the previous diagnoses of bilateral pes planus and bilateral plantar fasciitis. The Veteran reported that she cannot stand for longer than 30 minutes at a time due to foot pain. The Veteran also stated that treatment included medication and shoe inserts. She claimed that the inserts “don’t help too much.” The foot pain was constant and got worse with standing long periods. The examiner noted that, at the time of the examination, the Veteran was using crutches to walk due to pain. The examiner, however, noted that the Veteran did not use assistive devices on a frequent basis. The examiner noted that the Veteran had decreased bilateral longitudinal arch height on weight bearing, but there was no objective evidence of marked deformity, marked pronation, or inward displacement; the weight-bearing line did not fall over or was medial to the great toe. There was no swelling on use, calluses, or tenderness of the plantar surface noted of either foot. The Veteran had pain accentuated on use, and pain on manipulation of the feet. There was no indication of swelling on use and no characteristic calluses. Her symptoms were not relieved with arch supports. There was no extreme tenderness of the plantar surface. The Veteran’s pes planus impacted her ability to work to the extent that she is unable to stand long periods of time. In September 2014, the Veteran reported chronic feet pain from plantar fasciitis. Period Prior to May 10, 2013 Based on the evidence of record, the Board finds that the Veteran did not meet the criteria for higher evaluations. Although the Veteran was noted to have pain and some weakness, the treatment notes and VA examination reports of record do not show any marked deformity (pronation, abduction, etc.) or characteristic callosities. The September 2006 VA examiner specifically found that there were no characteristic calluses and that there was no evidence of marked deformity of either foot, or marked pronation. The VA examiner described the Veteran’s pes planus as mild. The Veteran is competent to report on symptoms and sincere in her belief that she is entitled to a higher rating. Her lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the foot impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. As such, the Board finds that the criteria for a higher disability rating have not been met. Period Beginning May 10, 2013 The Board further finds that, for the period beginning May 10, 2013, a rating in excess of 30 percent is not warranted. In this regard, there is no medical evidence of pronounced bilateral pes planus, extreme tenderness of plantar surfaces of the feet or marked inward displacement and severe spasm of the tendo achilles on manipulation, the criteria associated with a 50 percent rating. Moreover, while the Veteran is not completely satisfied with her inserts, this is not the same as no improvement by use of orthotics. Additionally, the VA examination continued to reveal that the Veteran does not even have marked deformity of the feet, indication of swelling on use, and characteristic callosities, the criteria associated with the currently assigned 30 percent rating. The Veteran was also treated in September 2014, following the VA examination, for foot pain, and her condition was not considered “extreme” at that time. Thus, the Veteran does not show most or all the criteria for a 30 percent rating much less a 50 percent rating. For these reasons, the Board finds that the Veteran’s complaints of pain and other reported functional impairment due to her bilateral foot symptoms is fully compensated by the 30 percent rating under Diagnostic Code 5276, and does not approach the level of impairment associated with separate ratings of 20 percent for each foot were the Board to reassign the disability to Diagnostic Code 5284. In so finding, the Board again notes the Veteran’s lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the foot impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. As such, the Board finds that the criteria for a higher disability rating have not been met. REASONS FOR REMAND 1. Entitlement to a compensable rating for adjustment disorder with anxious and depressed mood is remanded. During the March 2013 hearing, the Veteran testified that she experienced panic attacks, decreased concentration and that she felt overwhelmed and had decreased concentration. Further, the Veteran testified that she heard voices, cut herself, and referenced suicidal ideation. Due to the testimony of possible worsening, as well as continued mental health treatment, the Veteran was afforded a VA examination in May 2013. During the May 2013 VA examination, the examiner provided a diagnosis of bipolar I disorder. The examiner also noted that the Veteran’s adjustment disorder with anxious and depressed mood was in remission, as also supported by a November 2006 treatment record. In an April 2015 VA mental health addendum opinion, the examiner clarified that the Veteran’s diagnosis of bipolar disorder was a separate and distinct diagnosis from adjustment disorder and that it has a significant genetic or biological basis that is not associated with stressor events. No VA examination was conducted. The Veteran’s VA treatment records dated through June 2017 reflect diagnoses of bipolar disorder and anxiety. In light of the foregoing, the Board finds that the Veteran should undergo another VA examination to ensure there is sufficient evidence to rate the claim for the entire appeal period. 2. Entitlement to TDIU is remanded. The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with her claim on appeal for a higher rating for an acquired psychiatric disability. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain VA treatment records dated from June 2017 to the present. 2. Schedule the Veteran for a VA psychiatric examination to determine the severity of her service-connected adjustment disorder with anxious and depressed mood. The claims folder must be made available to the examiner. The examiner is asked to do the following: a) To the extent possible, clearly distinguish between the symptoms (and related impairment) associated with the Veteran’s service-connected adjustment disorder with anxious and depressed mood and those due to any nonservice-connected bipolar disorder. In so doing, the examiner must reconcile the May 2013 VA examiner’s finding that the Veteran’s adjustment disorder with anxious and depressed mood was in remission with VA treatment records dated through June 2017 that reflect diagnoses of bipolar disorder and anxiety. The examiner should cite to the record (as deemed appropriate) in support of any division of symptoms. If certain symptomatology cannot be dissociated from one disorder or another, it should be specified. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel