Citation Nr: 18136103 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 10-42 234 DATE: September 18, 2018 ORDER Entitlement to an increased evaluation for bilateral plantar fasciitis, rated 10 percent prior to November 27, 2017, and 30 percent since is denied. REMANDED Entitlement to service connection for a thoracolumbar-sacral (TLS) disorder is remanded. FINDINGS OF FACT 1. Prior to November 27, 2017, the Veteran’s bilateral plantar fasciitis did not involve symptomatology of or comparable to severe manifestations with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. 2. Since November 2017, there is no indication of pronounced symptoms, with 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. CONCLUSION OF LAW The criteria for an increased evaluation for bilateral plantar fasciitis, rated 10 percent prior to November 27, 2017, and 30 percent since have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.20; 4.71a, Diagnostic Code 5276 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION In March 2017, the Board reopened the claim of service connection for a back disorder, then remanded the reopened claim along with that of increased rating for bilateral plantar fasciitis, for additional development. It was remanded again in October 2017. The case has since returned for appellate disposition. With regard to the increased rating claim, in an August 2018 Appellant’s Post-Remand Brief, the Veteran’s representative made a generic duty to assist challenge by stating that the Veteran “takes exception to and preserves for appeal all errors the VA Regional Office may have made…include[ing]… failure to discharge the duty to assist…[.]” However, the Veteran’s representative did to specify a way in which VA failed to satisfy its duty to assist. Neither the Veteran nor her representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an increased evaluation for bilateral plantar fasciitis, rated 10 percent prior to November 27, 2017, and 30 percent since then. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Veteran’s bilateral plantar fasciitis is being rated in accordance with the rating criteria for pes planus, given that a separate diagnostic code does not exist for plantar fasciitis specifically, and, that the two conditions have are sufficiently similar in scope and symptomatology. See 38 C.F.R. 4.20 (2018) (providing that unlisted conditions may be rated by analogy under a closely related disease or injury). Under Diagnostic Code 5276, mild pes planus, with symptoms relieved by built-up shoe or arch support, will correspond to a noncompensable rating. A 10 percent rating is assigned for moderate pes planus, with weight-bearing line over or medial to great toe. A 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral pes planus, with 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. The words “moderate,” “moderately severe,” and “severe” are not defined in Diagnostic Code 5276. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. (Here as well, the underlying Diagnostic Code provides considerable additional guidance, beyond conclusory estimated severity of condition.) The Board has reviewed the applicable evidence with the foregoing rating standard in mind, and finds that the criteria for a disability rating in excess of that already awarded are not fulfilled. The evidence is reviewed from the longitudinal and immediately ascertainable case history. In her June 2008 lay witness statement, the Veteran stated that she was awaiting an appointment with a neurologist to further evaluate the neuropathy in her right foot. The Veteran’s right foot according to her statement was much worse with fallen arches on both feet. According to the Veteran she was experiencing numbness and tingling in both of her feet, muscle spasms with her toes drawing up, constant radiating pain going up his shin, knee, hip and back pain. A February 2009 VA Medical Center (VAMC) podiatry consult indicates the Veteran had present neuropathy in the right foot. There were studies that had diagnosed neuropathy. The Veteran reported having had flat feet, pins and needle sensation. The assessment was pes planus, definitely bilateral; and polyneuropathy. At a June 2009 VA examination, the Veteran reported having had burning pain in both feet since being in the military. For treatment or alleviation of symptoms of plantar fasciitis and bilateral pes planus, the Veteran had been told to stretch each morning and told to wear orthotics daily. Despite this, she had ongoing pain symptoms. The course since onset was progressively worse. There was no history of foot related hospitalization or surgery, or history of trauma to the feet. There was tingling and burning pain at the balls of the feet, and along the plantar fascia tendon. Functional limitations on standing were able to stand for 15-30 minutes. Limitation on walking was ability to walk no more than one-quarter mile. The Veteran utilized an orthotic insert as an assistive device. Objectively there was no painful motion, swelling, instability, weakness, abnormal weight bearing. There was evidence of tenderness along the plantar fascia tendon. The Veteran did not have hammertoes, hallux valgus or rigidus, skin or vascular abnormality, pes cavus. She did not have malunion or nonunion of the tarsal or metatarsal bones. Achilles alignment was normal in non-weight and weight bearing modes. There was no forefoot or midfoot malalignment. There was no pronation. There was no muscle atrophy of the foot. There was no other foot deformity present. The overall diagnosis was bilateral plantar fasciitis. Generally speaking, VA outpatient treatment records thereafter do not show much greater level of impairment demonstrated. May 2013 podiatry consult indicated range of motion within normal limits to the ankle, and other foot joints. At a March 2016 VA examination of the feet, the Veteran had plantar fasciitis for which she had undergone as treatment measures the receipt of steroid injections, updated foot orthotics, foot stretches, and rolling feet on frozen water bottle. There was no report of pain, flare-ups, or functional loss affecting the feet. The Veteran had tried orthotics but remained symptomatic. There was not extreme tenderness of plantar surfaces on one or both feet. There was no decreased longitudinal arch height of one or both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet. There was no marked pronation, weight-bearing line out of place, inward bowing of the Achilles tendon. The Veteran regularly used foot orthotics. Further notated was that the Veteran had a sedentary job and her plantar fasciitis did not affect her at work. The July 2017 VA outpatient podiatry consult demonstrates that the Veteran did not have much alleviation of pain and other symptoms. There was now mentioned the diagnosis of probable onset of neuroma. There was an additional concern of right arch painful mass since April 2017. The Veteran describe custom molded orthotics which provided “some” relief of pain. From an orthopedic standpoint, the Veteran had the palpable fibrous mass present at the right medical arch with mild discoloration and bruising. The joints of the foot ranges of motion were within normal limits. Based on the foregoing, it is apparent that the criteria are not met to establish bases for increased rating. For the time period prior to November 27, 2017 whereas the Veteran clearly did have bilateral pes planus, there was no indication of suggestion of marked deformity (on pronation or abduction), pain on manipulation and use, swelling on use, or callouses. The criteria for the award of 30 percent therefore is not fulfilled. Turning to the applicable time period from November 2017 onwards, these criteria likewise were not met. The basic criteria for entitlement to the 50 percent rating would necessitate pronounced symptoms of the condition, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo achillis, not improved by orthotics. Clearly the Veteran’s overall foot condition worsened in scope and symptomatology as most recently shown, however, none of the prerequisite symptoms were demonstrated. The increase to 50 percent by objective evidentiary requirements is therefore not warranted. The Board has considered whether rating by analogy to a foot injury under Diagnostic Code 5284 is warranted. Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate injury. A 20 percent rating is warranted for a moderately severe injury. A 30 percent rating is warranted for a severe injury. A 40 percent rating is warranted with actual loss of use of the foot. 38 C.F.R. § 4.71a (2017). Prior to November 27, 2017, the Veteran’s bilateral pes planus is not more appropriately rated as separate 10 percent ratings for each foot as moderate injuries to the foot or as separate 20 percent ratings for moderately severe foot injuries under DC 5284. In a June 2008 statement, the Veteran reported pain, which is specifically addressed by DC 5276. She also described tingling and numbness, which are analogous to pain. At her June 2009 VA examination, she had tenderness but her ranges of motion were not painful. She could walk up to one quarter of a mile and sit or stand for 15-30 minutes. Significantly, at the June 2009 VA examination, the examiner noted that there were “no significant effects” from plantar fasciitis on the Veteran’s occupation. Additionally, there was only mild effects on chores, shopping, exercise, sports, recreation, and traveling. There were no effects on feeding, bathing, dressing, toileting, grooming, or driving. In addition to pain, she experienced tenderness, which is analogous to pain, which is contemplated under Diagnostic Code 5276. At her March 2016 VA examination, she denied foot pain and flare-ups. She also did not report functional loss. The examiner found no pain on use of the feet, manipulation of the feet, swelling, or callouses. The Veteran used orthotics, which are contemplated specifically by DC 5276. The examiner did not list any symptoms of plantar fasciitis not contemplated by or analogous to those listed in DC 5276. The criteria set forth in DC 5276 are more descriptive of the Veteran’s pain, numbness, tenderness, and use of orthotics. Additionally, the Veteran does not have limitation of motion of the feet, which in some circumstances, could be contemplated by DC 5284. DC 5284 is not more appropriate. At her November 27, 2017 VA examination she described pain, using orthotics, having injections, and performing stretches to alleviate her symptoms. Her functional impairment was in the form of pain on movement, pain on weight bearing, and interference with standing. There was no weakness, excess fatigability, incoordination, pain on non-weightbearing, swelling, deformity, atrophy, instability of station, disturbance of locomotion, interference with sitting, or lack of endurance. The examiner specifically found that the was not functional impairment of the feet such that no effective function remained other than that which would be equally well served by amputation with prosthesis. The record does not show, nor does the Veteran assert, that she has actual loss of use of either foot. Therefore, after November 27, 2017, a 40 percent rating is not warranted. Based upon rating requirements the evidence does not warrant increase for plantar fasciitis. The preponderance of the evidence is unfavorable, VA’s benefit-of-the-doubt doctrine does not apply, and the claim accordingly must be denied. 38 U.S.C. § 5107(b). 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar-sacral (TLS) disorder is remanded. The Board finds that an addendum opinion for the claimed condition is warranted. The November 2017 VA examiner addressed direct service connection. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. The VA examiner only addressed the causation prong of a secondary service connection claim with regard to the Veteran’s TLS condition. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, No. 16-1561, 2018 U.S. App. Vet. Claims LEXIS 890. As the aggravation prong was not addressed, an addendum opinion is needed. Additionally, the Veteran already is service-connected for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the neck and mid-back. An opinion as to whether the Veteran has another low back disorder that is distinguishable from the same. Additionally, an opinion is needed to determine whether the TLS condition, if separate, is secondarily manifested due to the upper back and cervical spine issues. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to the examiner who conducted the November 2017 back examination. If that examiner is no longer available, provide the claims file to a qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. The VA examiner is requested to indicate first whether the Veteran has any current disability of the low back, previously diagnosed as thoracolumbar-sacral disorder, that is clearly distinguishable from her already service-connected degenerative joint disease (DJD) and degenerative disc disease (DDD) of the neck and mid-back. If a separate disability exists, then the examiner should opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s thoracolumbar-sacral disorder began during active service, or is related to an incident of service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s thoracolumbar-sacral disorder was proximately due to or the result of her service-connected DJD and DDD of the neck and mid-back. c. Whether it is at least as likely as not that the thoracolumbar-sacral disorder was aggravated beyond its natural progression by her service-connected (1) plantar fasciitis, (2) DJD and DDD of the neck, and (3) DJD and DDD of the mid-back. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 2. Then readjudicate the claim on appeal for service connection for a thoracolumbar-sacral disorder, based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons