Citation Nr: 18157156 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 15-14 777A DATE: December 12, 2018 ORDER For the entire appeal period, a 30 percent rating, but no higher, for bilateral plantar fasciitis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral plantar fasciitis manifested in symptoms and functional effects that more nearly approximated the criteria corresponding to severe flat foot for the entire appeal period. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a 30 percent rating, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1989 to November 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 rating decision, the RO awarded an increased 30 percent rating for bilateral plantar fasciitis effective December 11, 2017. As this was less than the maximum benefit allowed under VA law and regulations, the claim for increase remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an increased rating for bilateral plantar fasciitis, rated 10 percent prior to December 11, 2017 and 30 percent thereafter. The Veteran seeks an increased rating for bilateral plantar fasciitis, rated 10 percent prior to December 11, 2017 and 30 percent thereafter. The appeal period before the Board begins on December 28, 2010, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the reasons that follow, the Board finds that a 30 percent rating is warranted for the entire appeal period. The Veteran’s bilateral plantar fasciitis is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276, as analogous to flat foot. Conditions not specifically listed in the rating schedule may be rated by analogy under the DC for a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. It will be permissible to rate under a closely rated disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. 38 C.F.R. § 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes the Veteran’s bilateral foot disability has been evaluated during the appeal period in four separate VA examinations. Those examination reports provided diagnoses of plantar fasciitis, pes planus (flat foot), hallux valgus, and metatarsalgia. While the Veteran is only service-connected for plantar fasciitis, the RO has evaluated his disability in accordance with the symptomology and functional effects described in the examination reports, generally without regard to the particular diagnosis they were ascribed to. E.g., December 2017 rating decision (rating plantar fasciitis on symptoms of marked pronation, pain on use and pain accentuated on use, and weight-bearing line over medial or great toe, all listed under the pes planus section of the most recent examination report). Plantar fasciitis results from swelling or inflammation of the plantar fascia, the thick tissue on the bottom of the foot. See Plantar fasciitis, https://medlineplus.gov/ency/article/007021.htm (last accessed 12/7/2018). Generally, it manifests in pain and pain on use and makes ambulation more difficult. Id. Pes planus occurs in a similar anatomical location with a more expansive set of symptoms and functional effects, though still inclusive of those manifesting from plantar fasciitis. Accordingly, the Board finds the location, symptoms, and functional effects of plantar fasciitis appear to be somewhat similar to those of pes planus; thus, DC 5276 for pes planus is an appropriate analogous DC. While the rating schedule contains separate DCs for pes planus, metatarsalgia, and hallux valgus, assignment of separate ratings under those DCs is prohibited because their symptoms of pain and pain on use overlap in a way that would violate the rule against pyramiding. 38 C.F.R. § 4.14; 38 C.F.R. § 4.71a, DCs 5276, 5279, 5280. The rating schedule also includes DCs for weak foot (DC 5277), claw foot (DC 5278), hallux rigidus (DC 5281), hammer toe (DC 5282), malunion or nonunion of the tarsal or metatarsal bones (DC 5283), and other foot injuries (DC 5284). The Veteran has not been diagnosed with, and service-connected for, any of these conditions. Moreover, the symptoms of his condition and these other conditions are not closely related. The symptoms of weak foot include muscular atrophy, disturbance of circulation, and weakness. These are not closely similar to the Veteran’s condition; thus, an analogous evaluation under DC 5277 is not appropriate. Claw foot results in marked contraction of the plantar fascia resulting in dropped forefoot, all toes hammer toe, very painful callosities, marked varus deformity. While plantar fasciitis also stems from disability of the plantar fascia, the symptoms and functional effects of claw foot are much more extreme than those relating to plantar fasciitis. Accordingly, an analogous rating under DC 5278 is also not appropriate. Hallux rigidus is rated pursuant to the criteria for hallux valgus, the symptomology of which, as discussed above, overlap with that of DC 5276 for pes planus; DC 5276 would also provide for a higher rating. Accordingly, an analogous rating under DC 5281 is not appropriate. The symptoms of hammer toe and malunion or nonunion of the tarsal or metatarsal bones are not related to those of plantar fasciitis; thus, an analogous rating under DCs 5282 or 5283 is not warranted. Lastly, the Veteran’s plantar fasciitis did not stem from a foot injury and the symptoms and functional effects pursuant to which it has been rated relate to disabilities found in the rating schedule. The predominant symptoms of his disability have been those relating to pes planus. Accordingly, the Board finds that the Veteran’s disability is most closely related to the pes planus and it is not closely related to another foot injury, such that an analogous rating under DC 5284 would be appropriate. See Yancy v. McDonald, 27 Vet. App. 484 (2016). In sum, the Veteran’s plantar fasciitis is most appropriately evaluated under DC 5276. The Board will proceed to evaluate the disability under that DC. Under DC 5276, a 10 percent rating is warranted for moderate flat foot; weight-bearing over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted where the bilateral condition is severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is warranted where the bilateral condition is pronounced; 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. While some of the symptoms listed in the rating criteria are conjunctive - e.g., “pain on manipulation and use accentuated” - the rating criteria themselves are not. In other words, a veteran does not need to demonstrate all of the symptoms under a particular rating to be assigned that evaluation. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (discussing how some DCs, such as DC 7903 for hypothyroidism, are not conjunctive); Dyess v. Derwinski, 1 Vet. App. 448 (1991). Where a disability manifests in some criteria from a lower evaluation and some criteria for a higher evaluation, the Board should address 38 C.F.R. §§ 4.7 and 4.21 and explain which evaluation the disability more nearly approximates. The Veteran underwent a VA examination in October 2012. A diagnosis of bilateral pes planus was provided. The report identified symptoms of pain on use, pain accentuated on use, swelling on use, characteristic callosities, decreased longitudinal arch height on weight-bearing, and weight-bearing line falls over or medial to the great toe. All symptoms were present bilaterally. The examination report indicated that the Veteran’s symptoms are relieved by arch support. Other pertinent findings were that there were no arches bilaterally. There was hallux valgus on the left foot, calluses on the middle of the soles bilaterally, and onychomycosis on the right 4th toe only. It was noted the Veteran constantly uses arch supports in his shoes. Radiographic imaging was also performed. Bilaterally, the articular surfaces and joint spaces were relatively preserved. There was pes planus and hallus valgus. Soft tissues were unremarkable. On the right there was also relative foreshortening of the third metatarsal of uncertain etiology. Regarding functional impact, the examiner wrote that the Veteran currently works as an instructor at air traffic controller school at Fort Rucker. He stands for about four hours per day with his current schedule. He reports that his feet swell and that he treats them with ice and elevation in the evenings. Two Foot Miscellaneous (other than Flatfoot/Pes Planus) Disability Benefits Questionnaires (DBQs) were completed in August 2013. One DBQ was completed by VA Dr. J. A-D. Diagnoses of metatarsalgia and plantar fasciitis were provided. There was no history of Morton’s disease, bilateral metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or weak foot. The Veteran was noted to constantly use custom-molded orthotics for plantar fasciitis. Regarding functional impact at work, the examiner wrote that the arches and balls of the Veteran’s feet become painful and swollen after standing for periods greater than 45 minutes. In the remarks subsection, the examiner noted pain on palpation of the plantar medial tubercle right greater than left. The second DBQ was completed by VA Dr. A.P. Diagnoses of hallux valgus and pes planus were provided. There was no history of hammer toe, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, or week foot. There was a history of bilateral hallux valgus with mild or moderate symptoms. The Veteran also required regular use of shoe inserts for both feet. Regarding functional impact on work, the examiner wrote that the Veteran is an instructor at air traffic controller school and has to stand at work. He gets pain and swelling of both feet. He had to be excused for 4 weeks in one year as he could not do platform instructions. In the remarks subsection, the examiner wrote the Veteran does not have tenderness of plantar fascia. In a May 2015 VA Form 9, the Veteran wrote that his feet swell and he has pain in his arches after prolonged use (standing, walking, and running). He characterized the swelling and pain as severe. The Veteran underwent a VA examination in December 2017. Diagnoses of pes planus and plantar fasciitis were provided. The Veteran reported burning and aching pain of the feet with prolonged standing and walking. He reported flare-ups occur 3 to 4 times per month onset by prolonged standing and walking. Under the pes planus subsection, the examiner indicated there was pain on bilateral use of feet, pain accentuated on use bilaterally, but no pain on manipulation. The Veteran did not have characteristic callosities. The Veteran used arch supports but remained symptomatic. There was no extreme tenderness of plantar surface. There was decreased longitudinal arch height of both feet on weight bearing. There was objective evidence of marked pronation bilaterally. On both feet, the weight-bearing line fell over or medial to the great toe. There was no inward bowing of the achilles or marked inward displacement and severe spasm of the achilles on manipulation. On examination, there was bilateral pain that resulted in less movement than normal and other: prolonged walking and standing. There was no evidence of pain on passive range of motion testing or on non-weight bearing. There was only pain with weight bearing and active use. There was no functional loss on flares or when foot is used repeatedly over time. The functional impact on work was described a yes, on prolonged walking and standing. Based on consideration of all evidence of record, the Board finds the Veteran’s disability more nearly approximates the rating criteria corresponding to a 30 percent rating for severe bilateral flat foot for the entire appeal period. 38 C.F.R. §§ 4.2, 4.7, 4.21, 4.71a, DC 5276. Prior to December 11, 2017, the Veteran’s disability manifested with decreased longitudinal arch height and was treated by custom-molded orthotic shoe inserts. The Veteran’s disability manifested with symptoms of pain on use and weight-bearing line over or medial to the great toe; these symptoms are listed under the criteria corresponding to a 10 percent rating. There was pain in the arches and balls of his feet. The disability also manifested in symptoms of swelling on use and characteristic callosities; these symptoms were listed under the criteria corresponding to a 30 percent rating. The Board notes that pain was accentuated on use but there was not pain on manipulation; thus, the conjunctive symptom of pain on manipulation and accentuated on use was not found. The functional impact of the Veteran’s disability was pain and swelling after prolonged use or standing. The Veteran described these symptoms as severe and noted that he had to ice and elevate his feet after work. There was no associated limitation of motion. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the forgoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s plantar fasciitis more nearly approximates the criteria corresponding to severe flat foot and a 30 percent rating prior to December 11, 2017. The Veteran’s symptomology manifested in two symptoms listed as indicating severe flat foot, as well as pain accentuated on use. Also, the Veteran’s description of functional loss indicated the pain and swelling occurred frequently. Based on the presence of those higher symptoms and frequent pain and swelling, the disability more nearly approximates the criteria corresponding to a 30 percent rating. A higher 50 percent rating is not warranted for this portion of the appeal period because the Veteran’s disability did not manifest in any of the symptoms indicative of, or which could equate to, pronounced flat foot during this portion of the appeal period. There is no doubt to be resolved in that regard. From December 11, 2017, the Veteran’s disability manifested in similar symptoms as in the prior period. During this period, however, there were no characteristic callosities but there was marked pronation and not improved by orthotic appliances. Regarding improvement via orthotic appliance, the Board recognizes that the Veteran has used custom-molded inserts throughout the entire appeal period. Reading the record as a whole, it is apparent that the Veteran does not experience pain or swelling when off his feet or not using his feet for an extended period of time. These symptoms appear only after prolonged standing or walking. While the Board acknowledges that his orthotic appliance does not provide complete relief, his pain and swelling are not constant and he is able to ambulate and stand for shorter periods without problem. Accordingly, the Board views the lack of improvement via orthotic appliance to be relatively less severe of a symptom. The functional impact of the Veteran’s disability was pain, swelling, burning, and aching after prolonged use or standing. The Veteran described these symptoms as severe and noted that he had to ice and elevate his feet after work. There was no associated limitation of motion. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 202. The Veteran’s symptomology largely falls within the criteria corresponding to a 30 percent rating or lower. The symptoms of marked pronation and not improved by orthopedic appliances are criteria corresponding to a higher 50 percent rating; however, the Board has found the latter symptom to be of less severity. It is also noted that the rating criteria list marked pronation as indicative of both severe flat foot and pronounced flat foot, corresponding to 30 and 50 percent ratings, respectively. Given this overlap and the lesser severity of the effects of orthotics, the Board does not find a higher 50 percent rating is warranted. The functional loss produced by the disability also does not warrant a higher rating because while the pain, swelling, burning, and aching occur frequently, they are not associated with limitation of motion, only manifest with prolonged use or standing, and are not otherwise present when such activity is not pursued. Accordingly, a higher 50 percent rating is not warranted. The Board has also considered § 4.59 because of pain on use; however, it would not provide for a higher rating because the Veteran’s disability is already rated at 30 percent for the entire appeal period. The Board has considered the use of staged ratings. To that end, the symptoms of marked pronation and not relieved by orthotic appliances both were first noted on the December 2017 VA examination and correspond to a higher 50 percent rating. As explained above, the Board found that, even considering these symptoms, the Veteran’s disability did not more nearly approximate the criteria corresponding to pronounced flat foot and a 50 percent rating. A higher 50 percent rating has not been warranted at any point during the appeal period. Instead, the Board found that the Veteran’s disability more nearly approximates the criteria corresponding to a 30 percent rating for the entire appeal period, thereby eliminating the previously staged rating. Accordingly, the use of staged ratings was not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In sum, the Veteran’s plantar fasciitis more nearly approximates the criteria corresponding to a 30 percent rating, but no higher, under DC 5276 for the entire appeal period. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel