Citation Nr: 18151955 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-32 078 DATE: November 20, 2018 ORDER An initial rating in excess of 10 percent for bilateral plantar fasciitis, prior to April 15, 2016, is denied. A rating in excess of 30 percent for bilateral plantar fasciitis, from April 15, 2016, is denied. An initial 10 percent rating for right patellar tendonitis prior to April 15, 2016 is granted. A rating in excess of 10 percent for right patellar tendonitis from April 15, 2016, is denied. REFERRED In February 2015, the appellant raised contentions to the effect that service connection was warranted for headaches and a psychiatric disorder. The matters have not been developed or adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ). Therefore, the Board has no jurisdiction over those claims, and they will not be considered below. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101. They are referred to the Agency of AOJ for appropriate action. It is noted that effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on the specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes, but post-dates the claims REFERRED here. REMANDED Entitlement to service connection for left knee disability is remanded. FINDINGS OF FACT 1. For the period from February 6, 2013 through April 14, 2016, the appellant’s bilateral plantar fasciitis did not more nearly reflect severe symptoms. 2. Since April 15, 2016, the appellant’s bilateral plantar fasciitis has not more nearly by manifested by pronounced symptoms. 3. For the period from February 6, 2013 through April 14, 2016, the appellant’s right patellar tendonitis was manifested primarily by manifested by pain on motion and swelling after repetitive use which interfered with sitting, standing, and weight-bearing 4. Since April 15, 2016, the appellant’s right knee disability has not been more nearly manifested right knee flexion limited to 30 degrees or worse; or extension limited to 10 degrees or worse. CONCLUSIONS OF LAW 1. From February 16, 2013 through April 14, 2016, the criteria for a rating in in excess of 10 percent for bilateral plantar fasciitis were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5276. 2. Since April 15, 2016, the criteria for a rating in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5276. 3. From February 16, 2013 through April 14, 2016, the criteria for a 10 percent rating, and no more, for right patellar tendonitis were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 4. Since April 15, 2016, the criteria for a rating in excess of 10 percent for right patellar tendonitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from June 2005 to May 2009. The Increased Rating Claims The appellant seeks increased ratings for her service-connected bilateral plantar fasciitis and right patellar tendonitis. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Bilateral Plantar Fasciitis The Veteran contends that higher ratings are warranted for plantar fasciitis. The Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent prior to April 15, 2016 and in excess of 30 percent from April 15, 2016 for her bilateral foot disability. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher rating either before or after April 15, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5276. The VA Rating Schedule does not contain rating criteria specifically for plantar fasciitis. Therefore, it is rated as pes planus - a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. A 10 percent rating is warranted when plantar fasciitis is productive of moderate impairment, that is, when the weight-bearing line is over or medial to great toe, when there is inward bowing of the tendo achillis, and when there is pain on manipulation and use of the feet. A 30 percent rating is warranted for severe bilateral impairment, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral impairment, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. In evaluating any disability on the basis of limitation of motion, VA considers the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The appellant is competent to report that her bilateral foot pain has increased in severity and that she has further exacerbations of that pain during flare-ups. Layno v. Brown, 6 Vet. App. 465 (1994). However, the preponderance of the competent, credible evidence of record is against her claim for an increased rating. From the time service connection became effective February 6, 2013 through April 14, 2015, the evidence shows that the appellant took over-the-counter medication for pain but was otherwise negative for any reports of treatment for bilateral plantar fasciitis. During an April 2014 VA examination, it was noted that the appellant’s complaints of pain contributed to functional loss, e.g., pain on motion and while standing. However, there was no objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation, or indications of swelling on use or characteristic callosities. In addition, the examiner opined that the plantar fasciitis did not impact her ability to perform any occupational task. Indeed, there was no evidence that the plantar fasciitis was productive of any more than moderate impairment. Therefore, for the period from February 6, 2013 (when service connection became effective) through April 14, 2016, the appellant did not meet or more nearly approximate the criteria for a rating in excess of 10 percent for bilateral plantar fasciitis. Accordingly, an increased rating was not warranted. Since April 15, 2016, the evidence has remained negative for any clinical treatment for bilateral plantar fasciitis. During the April 2016 VA examination, the appellant described the pain as a pulsing pain in the center of the feet, as well as tingling, and numbness in toes. The appellant also reported exacerbations of these symptoms during flare-ups. She stated that she was unable to stand for more than ten minutes at a time and that working out could be very painful. On examination, the appellant had pain on use and manipulation of the feet; and despite the use of arch supports, she remained symptomatic. However, the preponderance of the evidence was against a finding that her bilateral plantar fasciitis was productive of any more than severe impairment. Indeed, she did not demonstrate extreme tenderness of the plantar surfaces of either foot or marked inward displacement and severe spasm of either Achilles tendon or on manipulation of either foot. Although her bilateral foot pain contributed to functional loss, she did not have weakness, fatigability, or incoordination that significantly limited her functional ability during flare-ups or when either foot was used repeatedly over a period of time. In addition, the VA examiner opined that the appellant’s bilateral plantar fasciitis would not impact her ability to perform any occupational task. On balance, such evidence is against a finding that the appellant’s bilateral plantar fasciitis is productive of any more than severe impairment. Accordingly, the appellant does not meet or more nearly approximate the criteria for a rating in excess of 30 percent since April 15, 2016. The Board accepts that the Veteran is competent to report on her observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that the disability warrants a higher evaluation than assigned, there is no higher schedular evaluation available to her under the Rating Schedule other than assigned here, as explained and discussed above. In sum, a rating in excess of 10 percent for prior to April 15, 2016 and in excess of 30 percent from April 15, 2016 for bilateral plantar fasciitis is denied. There is no basis to further stage the rating. There is no doubt to resolve. 38 U.S.C. § 5107(b). The Right Knee The appellant contends that since service connection became effective, her right knee disability has been very painful and has limited her to certain jobs and activities. She states that she is unable to walk for prolonged periods of time and maintains that increased ratings are warranted. The Board concludes that, while the evidence supports an initial 10 percent rating for right patellar tendonitis prior to April 15, 2016, the preponderance of the evidence is against a rating in excess of 10 percent from April 15, 2016 for right knee disability. Neither the lay nor medical evidence more nearly reflect the criteria for a rating in excess of 10 percent during the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5256-63. The appellant’s right knee disability is rated primarily on the basis of limitation of motion. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5260 and 5261. A noncompensable rating is warranted when flexion is limited to 60 degrees or when extension is limited to 5 degrees. A 10 percent rating is warranted when flexion is limited to 45 degrees or when extension is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. In addition, it is VA’s intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. During the appellant’s April 2014 VA examination, it was noted her right knee disability was manifested by pain on motion and swelling after repetitive use. The examiner found that those manifestations interfered with sitting, standing, and weight-bearing. Such manifestations met or more nearly reflected the criteria for a 10 percent rating under 38 C.F.R. § 4.59. At the very least, there is an approximate balance of evidence both for and against the claim that right knee disability limited the appellant due to pain. Under such circumstances, all reasonable doubt is resolved in favor of the appellant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Accordingly, an initial 10 percent rating for right patellar tendonitis is warranted, effective February 6, 2013. To that extent, the appeal is allowed. However, the preponderance of the evidence is against a higher evaluation. Despite the functional limitations due to pain, there was no objective evidence of any associated limitation of motion. The appellant was able to extend and to flex the knee fully from zero degrees to 140 degrees. In addition, there was no evidence of additional symptoms such as deformity, heat, redness, weakness, or instability. Therefore, a 10 percent rating, and no more was warranted for the period from February 6, 2013 (when service connection became effective) through April 14, 2016. Since April 14, 2016, the appellant has continued to report functional loss due to right knee pain. During an April 2016 VA examination, however, the appellant continued to demonstrate a normal range of right knee motion at 0 to 140 degrees. Moreover, her right knee strength remained full without any evidence of atrophy, or history of recurrent dislocation or subluxation. In addition, the VA examiner concurred the appellant’s service-connected right knee disability resulted in no functional impact on the appellant’s ability to perform any occupational task. In fact, those findings were the same as those for her nonservice-connected left knee. Accordingly, for the period since April 15, 2016, the Board finds that the appellant’s right knee disability continues to meet or more nearly approximate the schedular criteria for a 10 percent disability rating. On April 2016 VA examination, the appellant reported flare ups of the right knee, described as radiating pain or throbbing under the kneecap along with swelling and popping sounds. The Board has specifically considered the report of flare-ups, but observes that the Veteran has not reported (nor does the record show) any additional loss of motion or other symptoms associated with flare-ups that would warrant an evaluation greater than assigned. See Sharp v. Shulkin, 29 Vet. App 26 (2017). In this case, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher rating than now assigned. Such evidence demonstrates right knee range of motion with normal limits on both flexion and extension, and no atrophy or instability, or other indicia of functional loss. The appellant’s right knee disability does more nearly reflect the criteria for a higher or separate rating under any potentially applicable schedular criteria in the absence of findings for ankylosis; subluxation or lateral instability; frequent episodes of locking, pain, and joint effusion; symptomatic, removal of cartilage; extension limited to 10 degrees or worse; impairment of tibia/fibula; or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Code 5256-63. The Board accepts that the Veteran is competent to report on her observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that the disability warrants a higher evaluation than assigned, there is no higher schedular evaluation available to her under the Rating Schedule other than assigned here, as explained and discussed above   REASONS FOR REMAND 1. Left Knee Disability. The appellant also seeks service connection for left knee disablity. She notes that her service treatment records show evidence of left knee disability in September 2005 and June 2007. The report of the appellant’s service separation examination has not been associated with the VA claims file. Following an April 2016 VA examination, the examiner opined that it was less likely than not that the appellant’s left knee tendonitis was related to any injury, event, or illness in service. However, that opinion is of no probative value as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458 (1993). While the examiner stated only documents pertaining to the right knee were located, the service medical records do show that in September 2005 and June 2007, the appellant complained of bilateral knee pain and abnormalities in each knee. In light of the foregoing, the matter is REMANDED for the following action: 1. Obtain the report of the appellant’s service separation examination for inclusion with the VA claims file. 2. When the actions in part 1 have been completed, return the case to the physician who performed the April 2016 VA examination of the appellant’s knees. Request that he perform an additional review of the appellant’s VA claims file and render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the appellant’s left knee tendonitis is related to service. If the examiner is unable to render an opinion without resort to speculation, he must state why that is so, e.g., the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the examiner who performed the April 2016 VA examination is unavailable, forward the case to a similarly qualified physician for a review of the record and an opinion. If the physician is unable to render an opinion without performing an additional examination, such an examination must be scheduled. 3. When the actions in parts 1 and 2 have been accomplished, perform any additional indicated action. Then, readjudicate the issue of entitlement to service connection for left knee disability. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The appellant need take no action unless she is notified to do so. However, she is advised that she has the right to submit any additional evidence and/or argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Beach, Harold A.