Citation Nr: 1806771 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-01 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating in excess of 30 percent for bilateral pes planus with plantar fasciitis on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1997 to December 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran initially requested RO and Board hearings, he later cancelled the RO hearing in February 2008 and the Board hearing in June 2008. See 38 C.F.R. § 20.704 (2017). Historically, in May 2010, the Board remanded the increased rating claims for service-connected bilateral pes planus with plantar fasciitis for additional development. In August 2012, the Board denied the increased rating claims on schedular and extraschedular bases, and denied the claim for TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a December 2012 Joint Motion for Remand (JMR), the Court vacated the Board's August 2012 decision and remanded the claims back to the Board. The Board, in June 2013 denied the increased rating claim on a schedular basis, but determined that the claim should be referred to the Director of Compensation & Pension Service for extraschedular consideration and also remanded the TDIU claim. In November 2013, the Veteran appealed the Board's June 2013 decision to the Court, arguing only as to the denial of the increased rating claim on a schedular basis - specifically, in a November 2013 Appellate Brief, it was argued that the Board committed prejudicial error when it determined that the Board was precluded from additionally rating the Veteran's bilateral pes planus with plantar fasciitis (currently rated under DC 5276) under DC 5284, and, furthermore, failed to discuss all aspects of the Veteran's bilateral foot symptomatology. In a July 2014 Memorandum Decision, the Court affirmed the Board's June 2013 decision. The Veteran moved for reconsideration of the Court's affirmance, and the Court denied that motion in July 2014. The Veteran did not appeal this decision to the Federal Circuit. This case has been before the Board several times, and its history has been summarized in previous Board decisions. More recently, in July 2017, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development to include obtaining outstanding records. For the reasons discussed below, the Board finds that there has been substantial compliance with the development sought as part of the July 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in the July 2017 decision, the Board found that the issue of entitlement to an increased disability rating greater than 30 percent for bilateral pes planus with plantar fasciitis on a schedular basis was raised by the record in the June 2017 Appellate Brief, where the Veteran's representative argues for, inter alia, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5276, based on 38 C.F.R. § 4.7. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Given that this issue was referred to the AOJ for appropriate action, that matter is being processed. Thus it is not ripe for appellate review and will not be considered by the Board at this time. The case has now returned before the Board, and the questions of increased rating based on an extraschedular basis is up for appellate review. FINDING OF FACT The scheduler evaluation for the service-connected bilateral pes planus with plantar fasciitis is not inadequate; the scheduler diagnostic criteria reasonably contemplate the severity and symptomatology of the Veteran's disability; the bilateral pes planus with plantar fasciitis is not characterized by an exceptional or unusual disability picture. CONCLUSION OF LAW An increased rating in excess of 30 percent for bilateral pes planus with plantar fasciitis, on an extraschedular basis, is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321 (2017), Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran in December 2006 and May 2016. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file as are records associated with his claim for disability benefits from the Social Security Administration (SSA). VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of these claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Extraschedular Consideration for Increased Rating The Veteran asserts his bilateral pes planus with plantar fasciitis on an extra schedular basis is warranted. He believes that the symptomatology associated with his service-connected disability presents a greater degree of impairment than the currently assigned evaluation would indicate. He reports continuing to experience daily symptoms of marked pronation and extreme tenderness of plantar surfaces of the feet. He has pain on use of the feet; pain on manipulation and use accentuated. In the most appellant's brief dated in January 2018, the Veteran's representative further asserts that he has marked interference with employment and daily interference with his activities due to his service-connected disabilities. Therefore, the disability picture is worse than currently rated. The Veteran's bilateral pes planus with plantar fasciitis is currently evaluated as 30 percent rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276, which addresses the foot. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The scheduler criteria for a 30 percent rating are objective evidence that supports bilateral severe pes planus with marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The scheduler criteria for a 50 percent are objective evidence that supports bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achilles on manipulation, which is not improved by orthopedic shoes or appliances. Id. The schedule also provides that in determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. The criterion for an extraschedular award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321 (b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the Board has reviewed the June 2014 Remand, in which the Board remanded the case for extraschedular consideration by the Director of C&P Service. With regard to the reason that the case was being referred to the Director of C&P Service, that Remand explained only as follows: The Board also finds that, although the Veteran is not entitled to a higher scheduler rating for this disability (as outlined above), the diagnostic criteria do not describe adequately the current severity and symptomatology of this disability. Critically, the evidence demonstrates other related factors such as marked interference with employment due to the Veteran's service-connected bilateral pes planus with plantar fasciitis. He contended in the December 2012 JMR that he had lost 5 weeks of work between October and November 2011 because of his service-connected bilateral pes planus with plantar fasciitis. The record evidence supports these assertions. Although, this Remand explanation provided a conclusory statement that the diagnostic criteria do not describe adequately the current severity and symptomatology of this disability, it did not state how the scheduler criteria were inadequate. Rather, it is clear that the referral was made on the basis of the assertions regarding the second Thun element. The second element is not to be reached if the first is not shown to have been met. In a letter associated with the Veteran's claims file in February 2017, the Director, concluded an extraschedular rating was not warranted. Thereafter, pursuant the Board's July 2017 Remand, the Board noted jurisdiction to review de novo the Director's determinations regarding entitlement to extraschedular ratings. See Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). However, determined remand was warranted for further development of the claim to include obtaining the Veteran's records, dating from December 2013 to the present, from the SSA. Specifically, the Board noted that the record shows that the Veteran, who missed approximately five weeks of work in 2011 due to his foot disabilities as noted on Back to Work Slip Statement of Treatment, dated in October and November 2011, filed for Social Security disability insurance benefits in December 2011. VA accordingly obtained and associated with the claims file the relevant Social Security Records, which show that in December 2013, the Veteran was denied disability insurance benefits based on a finding that he was not disabled under the Social Security Act. However, in a recent May 2016 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran checked "YES" to certain questions, indicating that his service-connected disabilities, including his "feet," prevented him from securing or following any substantially gainful occupation, and that as of May 2017, he was either receiving or expecting to receive disability retirement benefits. A review of the record showed that VA had not requested the Veteran's Social Security disability benefit records from the SSA since December 2013. In this regard, outstanding SSA records were obtained on remand and indicate that the Veteran is not in receipt of SSA benefits. As discussed below, after a review of the evidence of record, the Board finds, the most probative evidence does not support the conclusion that the criteria for entitlement to an increased rating for bilateral foot disability, in excess of 30 percent, on an extrachedular basis is warranted. Pertinent evidence of record includes VA treatment records to include VA examination reports, private treatment records and records from the SSA. The Veteran was afforded VA examinations in January 2007, August 2010 (with a February 2011 addendum opinion), and July 2014 to determine the severity of bilateral pes planus disability with plantar fasciitis. The resulting examination reports and addendum opinion indicate the practitioner's reviewed the Veteran's claims file in conjunction with the examination. The January 2007 VA examination report indicates that the Veteran's pes planus was manifested by subjective complaints of pain, which results in the Veteran being unable to stand or walk for prolonged period without pain. X-rays of the bilateral feet identified bilateral pes planus and minimal physical abnormalities. The Veteran reported that he used medication occasionally and orthotics to treat his pain, which provided relief to some degree. The Veteran was able to demonstrate dorsiflexion of the right ankle to 25 degrees and plantar flexion to 30 degrees; and of the toes to 25 degrees. There was no pain on motion. The tendo Achilles was tender to palpation, with a 10 degree medial deviation with evidence of weight bearing on the right lateral tennis shoe of minimal degree. Examination of the left ankle revealed dorsiflexion to 30 degrees and plantarflexion to 40 degrees, and of the toes to 30 degrees. The tendo Achilles was tender to palpation. The examination report indicates no painful motion, weakness, fatigability, or incoordination. The examiner also concluded there was no additional limitation of function with repetitive movement or with flare-up. The Veteran reported current employment in the garden department at Home Depot where he is required to walk one mile five times a week. The Veteran reported his condition aggravates his job performance in that he is only able to stand for one hour or walk half a mile due to pain. The August 2010 VA examination report indicates the Veteran's claims file was not available for review. The resulting examination report indicates the Veteran's pes planus was manifested by subjective complaints of pain, difficulty walking and discolored toenails. He reported flare-ups described as spontaneous and alleviated with exercise that occurred 1 to 3 times a month for duration of 1 to 2 weeks. He reported during a flare-up he limits walking. He also reported limitation with standing beyond 15 to 30 minutes and the ability to walk beyond a few yards. Examination revealed tenderness to palpation of the hind foot and plantar surface (bilateral), instability while walking, and abnormal weight-bearing noting callosities. There was mild pronation with no pain on manipulation of the bilateral foot. There was no muscle atrophy or foot deformity. There were no symptoms of swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance. X-rays of the left foot suggested previous bunion surgery. The practitioner noted degenerative joint disease of the right foot. The practitioner concluded that flat foot and plantar fasciitis manifested with pain around medial and lateral aspects of the bilateral ankle with tenderness of bilateral plantar surfaces; and, mild to moderate pronation and inward displacement. The Veteran reported employment for the past 2 to 5 years as a housekeeper and having missed less than one week of work during the last 12 months due to foot pain. The examiner concluded that the Veteran's foot disability caused decreased mobility impacting his occupational ability. In a February 2011 addendum opinion, the August 2010 VA examiner indicated that he reviewed the Veteran's claims file and there were no changes to the August 2010 diagnoses. The July 2014 VA foot examination report indicates that the Veteran's bilateral pes planus and plantar fasciitis was manifested by complaints of constant, sharp pain, and functional limitations such as the inability to run or walk more than 100 yards. The Veteran reported that he used orthotics on both feet to include arch supports but remains symptomatic. He reported developing a callous on the left heel, which was removed. He denied flare-ups. Examination revealed pain on manipulation of the feet. There was extreme tenderness of plantar surfaces of both feet and decreased longitudinal arch height of both feet on weight-bearing. The weight-bearing line was noted to fall over or medial to the great toe on both feet. There was marked pronation of both feet not improved by orthotics and inward bowing of the Achilles tendon affecting the right foot. There was no objective evidence of swelling or characteristic calluses. The examiner concluded that the severity of bilateral pes planus and bilateral plantar fasciitis caused moderate impairment to include pain on movement and pain on weight-bearing, however finding that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or with repeated use of the feet over a period of time. The examiner concluded that the Veteran's foot disability impacted his ability to perform any type of occupational task noting the Veteran explained he is unable to walk more than 100 yards at a given time due to bilateral foot symptoms. In so finding, the practitioner noted that due to the Veteran's current mental state he was not an accurate historian although he was trying very hard to cooperate. In July 2014 the Veteran was afforded a VA general medical examination. The resulting disability benefits questionnaire (DBQ) notes the examiner documented the Veteran's reports of the inability to walk more than 100 yards at a given time due to bilateral foot symptoms and back symptoms. The examiner concluded that as indicated on the DBQ's associated with the general medical examination, out of all the Veteran's conditions, it appears that his mental health disability is what is keeping him from being able to work. Specifically, the practitioner opined that while the Veteran does have some musculoskeletal issues, it is difficult to evaluate because of his: Overwhelming issue with communication and recall given his mental state. It was very obvious he did not want to be there, and he was very uncomfortable the entire time. He appeared to be trying hard to not get up and leave, but overall he had great trouble answering basic questions about his health, and specifics were simply not available. Out of all his conditions it appears that his mental health (seen today as very slow response to questions, very poor recall, anxiety, low cooperation, and irritability) is what is keeping him from being able to work. Of note, as of April 1, 2014, the Veteran was assigned a 100 percent total schedular rating for service-connected PTSD with depressive disorder and chronic sleep impairment. During the appellate term, private treatment records, VA treatment records and examination reports to include records obtained from the SSA note the Veteran sought treatment for his service-connected foot disability manifested with pain and moderate physical abnormalities such as impairment to include pain on movement and pain on weight-bearing causing decreased motion. As well as the inability to stand or walk for prolonged periods and instability while walking as noted on the August 2010 VA examination report. X-rays of both feet identified bilateral pes planus and minimal physical abnormalities In this case, the Board finds that the scheduler evaluation assigned for this disorder is not inadequate. As noted above, the evidence does not reflect that the Veteran's foot disability have caused symptoms that are not contemplated in the criteria for rating disabilities of the feet. Here, the Veteran's symptoms from his service-connected bilateral foot disability include pain on manipulation and use accentuated, marked pronation, and extreme tenderness of plantar surfaces of the feet, the criteria of which is found by the Board to specifically contemplate the symptoms and level of disability that the Veteran has been found to have. As to fatigability and inability to stand or walk for extended times or distances, these symptoms are also contemplated by the scheduler criteria, given § 4.40 and § 4.45. For these reasons the Board concludes that the preponderance of the evidence is against assigning an extraschedular rating greater than 30 percent for any period of the appellate term for bilateral pes planus with plantar fasciitis. Hence, the appeal must be denied. There is no reasonable doubt to be resolved in this case. ORDER Entitlement to an increased rating in excess of 30 percent for bilateral pes planus with plantar fasciitis on an extraschedular basis, is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs