Citation Nr: 18145281 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 18-29 194 DATE: October 26, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis is denied. REMANDED Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right leg shin splints is remanded. Entitlement to service connection for left leg shin splints is remanded. FINDING OF FACT A preponderance of the evidence shows that the Veteran’s bilateral plantar fasciitis more closely approximated severe acquired flat feet but did not more nearly approximate pronounced acquired flat feet. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.71a, DC 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2004 to December 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June and November 2017 rating decisions. The June 2017 rating decision denied service connection for right and left shin splints and a left knee condition. The November 2017 rating decision granted service connection for bilateral plantar fasciitis and awarded an initial 30 percent rating, effective from October 6, 2017. Although the Veteran filed notice of disagreements with the June 2017 denials of posttraumatic stress disorder and tinea pedis, as well as the November 2017 denials of anxiety and depressive disorders, these claims were granted in a February 2018 rating decision. As this represents a full grant of the benefits sought, these issues are no longer on appeal. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue as is the case for sinusitis, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for an initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is in receipt of an initial 30 percent rating for bilateral plantar fasciitis under DC 5276 as pes planus. For severe symptomatology, objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities is rated 20 percent for one foot and 30 percent for both feet. Finally, for pronounced symptomatology shown 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, a rating of 30 percent for one foot or 50 percent for both feet is assigned. The Veteran was afforded a VA examination in November 2017. Pain on use of both feet was noted, as well as pain on manipulation. There was also swelling on use and characteristic callouses on both feet. Orthotics or other shoe modifications were needed. There was extreme tenderness of the plantar surface of both feet. There was decreased longitudinal arch height on weight-bearing, but no marked deformity or marked pronation. There was no marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. VA clinical records indicate use of shoe inserts. His treatment included stretching exercises. Here, the criteria for a rating higher than 30 percent have not been more closely approximated. A rating in excess of 30 percent requires pronounced symptomatology shown 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. To that end, the November 2017 VA examination report did show extreme tenderness of the plantar surfaces, one of the symptoms consistent with a 50 percent rating. However, the other symptoms were not shown. There was no evidence of marked deformity or marked pronation, nor was there any marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. Given that only one of the symptoms listed under the 50 percent criteria has been shown on a single examination, the Board finds that the criteria for a 50 percent rating has not been more closely approximated. Indeed, there is no evidence of any marked pronation or deformity. In sum, the Board concludes that an initial rating in excess of 30 percent for bilateral plantar fasciitis have not been met. In considering the appropriate disability rating for the Veteran’s disabilities, the Board has considered the Veteran’s statements that her disability is worse than the rating she currently receives. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her disabilities according to the appropriate diagnostic codes. That is an adjudicative determination. The Veteran’s statements have not indicated any symptoms that reflect that the disability picture more nearly approximates the criteria for a higher rating. The Veteran’s complaint that the pain in her feet causes difficulty walking are symptoms that are contemplated by the rating criteria for pes planus. The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this 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).” For the foregoing reasons, the preponderance of the evidence reflects that an initial rating higher than 30 percent is not warranted for bilateral plantar fasciitis, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Therefore, entitlement to an initial higher rating for the Veteran’s bilateral plantar fasciitis is not warranted. As a final point, the Board notes that as a result of Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered a component of a claim for a higher rating when it is raised by the record or asserted by the Veteran. Here, the Board notes that the Veteran has not asserted that she is unemployable due to her service-connected bilateral plantar fasciitis disabilities. Under these circumstances, the Board finds that a TDIU claim has not reasonably been raised in conjunction with the current claim for higher rating, and need not be addressed. REASONS FOR REMAND The Veteran asserts that her bilateral shin splints and left knee condition are a result of her service. She indicated that she received treatment for these conditions in service and that the RO’s denials are based on incomplete medical records. It appears only partial records have been obtained. A May 2017 VA memo indicates service treatment records (STR) are unavailable, however, shortly thereafter, some STRs were obtained, but entrance and separation examinations, as well as records from certain time frames of her service, are not associated with the record. Thus, in light of the above, the AOJ should attempt obtain these missing records or provide a formal finding of unavailability with regard to the remaining STRs. The AOJ should also attempt to obtain military personnel records, to include morning reports. Here, the Veteran specifically asserts that she was treated for bilateral shin splints and a left knee condition, however, as noted above, only some of the STRs have been associated with the record. In addition, the Veteran has claimed that her current bilateral shin splints and left knee conditions have continued since service. Thus, the Board finds a remand is warranted for a VA examination to address whether the Veteran’s has current bilateral shin and left knee disabilities, to include pain resulting in functional impairment of earning capacity pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), as well as the etiology of these disabilities, if found. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the matters are being remanded, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Contact the Joint Services Records Research Center (JSRRC) or other appropriate custodian to search for the remainder of the Veteran’s service treatment records, as well as military personnel records, to include morning reports. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If records are unavailable, a formal finding of unavailability should be associated with the record. 2. Schedule the Veteran for a VA examination from an appropriate VA physician to address the etiology of the Veteran’s claimed left knee disability. The physician should review the electronic records contained in the electronic claims file, including a copy of this remand. After reviewing the relevant evidence of record, the physician should identify all current left knee disabilities, provide an opinion as to whether it had its onset during service or was otherwise causally or etiologically related to service, to specifically include the Veteran’s reported in-service complaints. A complete rationale should accompany any opinion provided. In addressing the above, the clinician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, and should not be based solely on the lack of documentation of sufficient disability or complaints in the STRs or post-service. 3. Schedule the Veteran for a VA examination from an appropriate VA physician to address the etiology of the Veteran’s claimed bilateral shin splints. The physician should review the electronic records contained in the electronic claims file, including a copy of this remand. After examining the Veteran and reviewing the relevant evidence of record, the physician should identify all current bilateral shin disabilities, and provide an opinion as to whether it had its onset during service or was otherwise causally or etiologically related to service, to specifically include the Veteran’s reported in-service complaints. A complete rationale should accompany any opinion provided. (Continued on the next page)   In addressing the above, the clinician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, and should not be based solely on the lack of documentation of sufficient disability or complaints in the STRs or post-service. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell