Citation Nr: 18147060 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-02 318 DATE: November 2, 2018 ORDER Entitlement to a 10 percent rating for right foot plantar fasciitis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s service-connected right foot plantar fasciitis disability is shown to be manifested by pain on movement, pain on weight bearing, disturbance of locomotion, and interference with standing; there is no evidence of weight-bearing line over or medial to great toe, or inward bowing of the tendo achilles; symptoms are relieved with orthotics. CONCLUSION OF LAW A 10 percent rating is warranted for the Veteran’s right foot planta fasciitis. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1989 to July 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision. A compensable rating for right foot plantar fasciitis is granted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. There is no specific diagnostic code for plantar fasciitis; based on anatomical location the disability is rated by analogy to the criteria for pes planus, in Code 5276. Under Code 5276, a 0 percent rating is warranted for mild symptoms; a 10 percent rating is warranted for moderate symptoms (whether unilateral or bilateral), with the weight-bearing line over or medial to the great toe, inward bowing of the achilles tendon, and pain on manipulation and use of the feet; a 30 percent rating when symptoms are bilateral and severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities; and a 50 percent when symptoms are bilateral and pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the achilles tendon manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A February 2010, treatment record notes complaints of pain on palpation of the medial calcaneal tubercle with visible swelling at the anterior medial heel area. The diagnosis was plantar fasciitis. The Veteran was prescribed insoles and a night splint, and received an injection. On April 2014 VA foot examination, the diagnosis was residuals of fracture to the base of the right fifth metatarsal. No Morton’s neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus, claw foot, malunion of tarsal or metatarsal bones were shown. On April 2014 pes planus examination, the diagnosis was plantar fasciitis of the right foot and bilateral pes planus. Signs and symptoms included pain (accentuated on use). There was no pain on manipulation of the feet, no indication of swelling on use. No characteristic calluses, nor extreme tenderness. Symptoms were noted as relieved by arch supports or orthotics. There was no evidence of marked deformity of the foot, and the weight bearing line did not fall over nor medial to the great toe. No inward bowing of the achilles tendon was shown. On July 2016 VA foot conditions examination, the diagnoses were bilateral pes planus, and right foot plantar fasciitis. The Veteran reported sharp pain of the foot, and reported flare-ups with very sharp pain. He reported that he could not put pressure on the foot, and that it caused him to limp. There is pain on the use of the right foot, and pain on manipulation of the right foot. No swelling on use was shown. It was noted that arch support use relieved symptoms. There was no evidence of marked deformity, no marked pronation of the foot, and the weight-bearing line does not fall over or medial to the great toe. No inward bowing of the achilles tendon was shown. No Morton’s neuroma, metatarsalgia, or hammer toes were shown. Contributing factors to functional loss and limitation of motion were pain on movement, pain on weight-bearing, disturbance of locomotion, and interference with standing. There was mild tenderness to palpation on the medial longitudinal arch of the right foot. Tenderness on palpation was noted in a February 2010 treatment record and the July 2016 examination, and the latter examination also right foot pain with weight-bearing. Noting that the rating is by analogy (as the weight bearing line is not shown to be over the medial to great toe, and no inward bowing of the tendo achilles is shown), the Board finds that such manifestations, considering the guidelines in 38 C.F.R. § 4.59, place the evidence for and against whether a 10 percent rating is warranted for the right foot plantar fasciitis at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 4.3) the Board finds that a 10 percent rating is warranted for the right foot plantar fasciitis. REASONS FOR REMAND Service connection for sleep apnea is remanded. The Board finds that further development of the record is necessary to comply with the duty to assist. The current record reflects that the Veteran was diagnosed with sleep apnea in March 2013. On April 2014 VA examination the examiner noted the Veteran’s diagnosis of sleep apnea, but opined that it was less likely than not that sleep apnea was related to service due to a lack of chronicity or continuity of care from service to diagnosis in 2013. However, in January 2016 the Veteran submitted several lay/buddy statements that directly address the question of chronicity in service, and continuity since service. Accordingly, a new medical opinion that addresses the buddy/lay statements provided by the Veteran is necessary. The matter is REMANDED for the following: The AOJ should arrange for the Veteran’s record to be forwarded to a pulmonologist for review and an advisory medical opinion regarding the etiology of his OSA. Upon review of the record (to specifically include the lay/buddy statements provided by the Veteran in January 2016), the consulting provider should respond to the following: (a.) Please identify the likely etiology for the Veteran’s sleep apnea. Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (due to disease, injury, or event, or had its onset, therein)? Please review the lay and buddy statements provided by the Veteran addressing his sleep and daytime drowsiness during service as well as his sleep following service. (b.) If sleep apnea is found to be unrelated to the Veteran’s service, please identify the etiology for the disability considered more likely. The examiner should include rationale for all opinions. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel