Citation Nr: 20021956 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 12-33 776A DATE: March 30, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for migraines is denied. Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis prior to June 21, 2019 is denied. Entitlement to a rating in excess of 50 percent for bilateral plantar fasciitis since June 21, 2019, is denied. FINDINGS OF FACT 1. The Veteran’s migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the period prior to June 21, 2019 the Veteran’s bilateral plantar fasciitis was characterized by no more than severe symptoms including objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities with no evidence of pronounced symptoms. 3. Since June 21, 2019, the Veteran’s bilateral plantar fasciitis was characterized by extreme tenderness of plantar surfaces of the feet, symptoms not improved by orthotics, and pain on use and manipulation of the feet. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for migraines have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. For the period prior to June 21, 2019, the criteria for a rating in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 3. Since June 21, 2019, the criteria for a rating in excess of 50 percent (on an extraschedular basis) for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 2007 to August 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his original claim for service connection for migraines, bilateral plantar fasciitis and bunions in December 2010. The RO granted service connection for migraines and bilateral plantar fasciitis in a September 2011 rating decision. The RO assigned a 10 percent rating effective August 29, 2010 for migraines and assigned a 0 percent (non-compensable) rating for bilateral plantar fasciitis. The RO denied service connection for bunions. The Veteran’s representative filed a Notice of Disagreement (NOD) with the ratings assigned for migraines and bilateral plantar fasciitis and the denial of service connection for bunions in November 2011. A statement of the case was provided to the Veteran in October 2012. The Veteran perfected her appeal for an increased rating for her migraines and bilateral plantar fasciitis and the denial of service connection for bunions in December 2012. Subsequently, during the period of the appeal, the RO issued an October 2016 rating decision granting a higher rating of 30 percent rating for the Veteran’s bilateral plantar fasciitis effective August 11, 2016. In doing so, the RO changed the diagnostic code assigned to the bilateral plantar fasciitis to Diagnostic Code 5276. See Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011) (service connection for a disability is not severed when the Diagnostic Code associated with it is changed to more accurately determine the benefit to which a Veteran may be entitled). In May 2017 and January 2018 Board decisions, the Board remanded the Veteran’s claim for an increased rating for migraines and bilateral plantar fasciitis and the Veteran’s claim for service connection for bunions for further development. While on remand, the RO granted service connection for bilateral hallux valgus (bunions) in an August 2019 rating decision. That rating action constituted a full grant of the benefit sought on appeal with respect to the claim for entitlement to service connection for bilateral hallux valgus (bunions); therefore, it is no longer before the Board. Additionally, while on remand, the RO issued a December 2019 rating decision granting a higher rating of 50 percent rating for the Veteran’s bilateral plantar fasciitis effective June 21, 2019. The claims for an increased rating for migraine and bilateral plantar fasciitis are back before the Board for adjudication. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While a Veteran’s entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, the present level of the disability is of primary concern where the issue is entitlement to an increase in the rating for a disability for which service connection has already been established. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 30 percent for migraines The Veteran’s service-connected migraines has been evaluated as 30 percent since August 29, 2010. She contends that she is entitled to increased disability rating for her service-connected migraines. Migraines are evaluated pursuant to Diagnostic Code 8100. Under Diagnostic Code 8100, a disability rating of 30 percent is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months, and a disability rating of 50 percent is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran underwent a VA examination in April 2011. The Veteran reported experiencing migraine headaches while deployed in Korea in 2008. She described these attacks as bifrontal temporal, throbbing at times, and with associated photosensitivity and nausea. The Veteran reported her headaches were preceded by a visual aura, visual obscuration in her temporal fields which gradually increases over several months and has a slight kaleidoscope quality and a general obscuration of her vision which she had difficulty describing. The Veteran noted that she also feels foggy during many of her headaches. She reported that over the last six months she had experienced an increase in frequency of these headaches which were occurring one to two times each week. The examiner determined the Veteran has classic migraine headaches with visual aura. In a May 2011 VA examination, the Veteran reported the onset of her migraine headaches was intermittent with remissions. In her October 2011 statement in support of claim, the Veteran reported that she gets debilitating migraines, at least two days a week, that render her unable to get out of bed. In her December 2012 Substantive Appeal, the Veteran reported that she experiences migraines at least once a week. The Veteran underwent another VA examination in August 2016. The Veteran reported pulsating or throbbing headache pain localized to both sides her head with pain worsening with physical activity, and with a duration of more than two days. Her non-headache symptoms included nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision (such as scotoma, flashes of light and tunnel vision). The examiner opined that the Veteran had an intermittent frequency of prostrating attacks, and that the Veteran’s prostrating attacks of headache pain were not productive of severe economic inadaptability. The examiner determined that the Veteran’s migraines did not impact her ability to work. The rationale relied on by the examiner was that the Veteran reported one prostrating migraine in the last six months. On remand, the Veteran underwent another VA examination in June 2019. The Veteran reported pulsating or throbbing headache pain localized to the right side of her head with pain worsening with physical activity, and with a duration of one to two days. Her non-headache symptoms included nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision (such as scotoma, flashes of light and tunnel vision), and sensory changes (such as feeling of pins and needles in extremities). The examiner determined the Veteran’s migraines impact her ability to work. The impact was described as affecting the Veteran’s ability to focus/concentrate on work tasks. The examiner opined that the Veteran had prostrating attacks of once every month over the last several months, and that the Veteran’s prostrating attacks of headache pain were not productive of severe economic inadaptability. The weight of the evidence indicates that the Veteran is not entitled to a disability rating of 50 percent, because her migraines did not manifest in frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In fact, the competent medical evidence weighs heavily against such a finding. Rather, on August 2016 and 2019 VA examinations, the Veteran’s headaches were assessed to not be not productive of severe economic inadaptability. The record does not otherwise show that the Veteran’s ability to work due to her headaches would be so severely implicated. The record contains no medical evidence during the period at issue that has found that the Veteran’s migraines are otherwise indicative of severe economic inadaptability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such entitlement to a disability rating in excess of 30 percent for migraines is denied. 2. Entitlement to an increased rating for bilateral plantar fasciitis Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The Veteran’s bilateral plantar fasciitis is rated under Diagnostic Code 5276 with a rating of 50 percent beginning June 21, 2019; and rating of 30 percent beginning August 11, 2016. Under Diagnostic Code 5276 a rating of 30 percent is warranted for evidence of severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A rating of 50 percent is warranted if there is evidence of bilateral flatfoot with 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. A 50 percent rating is the highest rating under Diagnostic Code 5276. Similarly, the schedule of ratings does not contain a rating in excess of 50 percent for any disability of the foot. For the reasons discussed below, the record does not substantiate entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis for the period prior to June 21, 2019. The Veteran was afforded a VA examination in March 2011. The examiner noted a diagnosis of bilateral plantar fasciitis diagnosed in 2007. The Veteran reported that her symptoms included bilateral pain and tenderness in the medial band of plantar fascia. She had no swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance or other symptoms. She reported no flare-ups or functional limitations on walking or standing. The examiner noted bilateral pain and tenderness, but no evidence of painful motion, swelling, instability, weakness or abnormal, weight bearing. The examiner opined that the Veteran’s bilateral plantar fasciitis impacted daily activities to include mild pain when shopping, moderate pain with recreation, and severe pain with exercise and sports. The examiner further determined that the Veteran has mild to moderate discomfort in her plantar fascia that prevents her from exercising vigorously. The Veteran contends that her bilateral plantar fasciitis is worse than her current evaluation reflects. In her October 2011 statement in support of claim, the Veteran reported experiencing daily pain in her feet that has made her unable to run, participate in low impact exercise, walk any extended distance or stand for extended periods of time. She reported that while in the Army, she had a no-running profile for over a year and was told she would need surgery to cut the plantar muscles. In her December 2012 Substantive Appeal, the Veteran reported that her feet are the most painful. She reported being unable to walk very far, she cannot run or stand for long periods of time. Even without doing these things, she reports extreme pain due to plantar fasciitis. The Veteran underwent another VA examination in August 2016. The Veteran reported that she has stopped running and that she avoids long distance walking due to foot pain. She reported having sharp pain when she goes for a walk. With respect to pain, the Veteran reported pain prevented her from running, jumping or doing anything with impact. The Veteran was noted to demonstrate bilateral pain on manipulation. Pain was not noted to be accentuated on use bilaterally. There was no indication of swelling and no characteristic calluses. There was also no extreme tenderness of plantar surfaces, no decreased longitudinal arch height, no objective evidence of marked deformity and no marked pronation. The Veteran’s weight bearing line did not fall over or medial to the great toe and there was no evidence of marked inward displacement and severe spasm of the achilles tendon on manipulation of one or both feet. The Veteran also did not have Morton’s neuroma, metatarsalgia, symptoms due to a hallux valgus condition, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones. On examination, the examiner noted bilateral pain on movement, weight-bearing, non-weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The examiner noted pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time, but functional loss was not reported. Use of orthotics and arch supports were noted not to be effective in relieving symptoms. On remand, the Veteran underwent another VA examination in June 2019. The Veteran reported pain with prolonged standing. With respect to pain, the Veteran’s pain was noted to be accentuated on use bilaterally and the Veteran demonstrated pain on manipulation. There was no indication of swelling and no characteristic calluses. On examination, there was extreme tenderness of plantar surfaces, but no decreased longitudinal arch height, no objective evidence of marked deformity and no marked pronation. The Veteran’s weight bearing line did not fall over or medial to the great toe and there was no evidence of marked inward displacement and severe spasm of the achilles tendon on manipulation of one or both feet. The Veteran also did not have Morton’s neuroma, or metatarsalgia. Symptoms due to a hallux valgus condition were noted to be mild. There was no report of hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones. On examination, the examiner noted bilateral pain on movement, weight-bearing, non-weight-bearing, disturbance of locomotion, and interference with standing. There was evidence of bilateral pain on passive and active range of motion testing and on weightbearing and non-weight-bearing. The examiner noted pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted the Veteran’s migraines impact her ability to perform any type of occupational task, and noted bilateral foot pain with prolonged standing. Use of orthotics were noted not to be effective in relieving symptoms. The Board notes the Veteran contends her plantar fasciitis causes daily pain that interfered with her ability to do physical activity or to stand for extended periods of time, prior to June 21, 2019. However, the Board finds that an evaluation in excess of 30 percent prior to June 21, 2019, and a rating of 50 percent thereafter, is not warranted. The medical examination findings for the period prior to June 21, 2019, show that the Veteran’s bilateral plantar fasciitis is productive of bilateral pain on manipulation, pain on movement, pain on weight-bearing and non-weight-bearing, disturbance of locomotion, inference with standing and lack of endurance. However, there is no medical evidence to show that she had marked pronation, or marked inward displacement, and severe spasm of the tendo achilles on manipulation. In summary, the Veteran’s symptoms do not substantiate a rating for pronounced symptoms. Entitlement to a rating in excess of 30 percent for the period prior to June 21, 2019 is denied. Significantly, extreme tenderness was not shown on VA examination or in the treatment records prior to this date, however such was shown on June 2019 VA examination, prompting the assignment of the increased rating. Since June 21, 2019, a rating in excess of 50 percent is not warranted. For one, a 50 percent rating is the highest available under the diagnostic code. The Board further finds that because the Veteran’s symptoms are contemplated by this code, and other symptoms are not shown, that extraschedular consideration is not warranted. There is not other diagnostic code that would provide for a higher rating based upon the Veteran’s disability picture. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.