Citation Nr: 21000130 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-17 932 DATE: January 4, 2021 ORDER Entitlement to an earlier effective date of March 28, 2017, but not earlier, for a 50 percent rating for plantar fasciitis (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an earlier effective date of March 28, 2017, but not earlier, for a noncompensable rating for hallux valgus (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) is granted. Entitlement to an initial compensable rating in excess of 50 percent for plantar fasciitis (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) is denied. Entitlement to an initial compensable rating for rating hallux valgus (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) is denied. FINDINGS OF FACT 1. A claim for service connection for bilateral stress fracture (claimed as bilateral foot condition) now recharacterized as plantar fasciitis was initially received on March 28, 2017, and recent examination opinion determined that plantar fasciitis progressed from his bilateral stress fracture. 2. A claim for service connection for bilateral stress fracture (claimed as bilateral foot condition) now recharacterized as hallux valgus was initially received on March 28, 2017, and recent examination opinion determined that hallux valgus progressed from his bilateral stress fracture. 3. Since March 28, 2017, the Veteran’s service-connected plantar fasciitis most nearly approximates extreme tenderness of the plantar surfaces, marked pronation, and symptoms that are not improved by orthopedic shoe or appliance and a 50 percent rating, the highest schedular rating evaluation allowed under law. 4. Since March 28, 2017, the Veteran’s hallux valgus is not manifested by severe symptoms equivalent to amputation of great toe, or an operation with resection of the metatarsal head. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of March 28, 2017, but not earlier, for a 50 percent rating for bilateral plantar fasciitis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an earlier effective date of March 28, 2017, but not earlier, for a noncompensable rating for hallux valgus have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an initial compensable rating in excess of 50 percent for service-connected bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5276. 4. The criteria for compensable rating for service-connected hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1963 to September 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2019, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In the January 2020 decision, the Board determined a remand was necessary in order to provide the Veteran with a VA examination to determine the nature and severity of his bilateral foot stress fracture, claimed as bilateral foot condition. Per the Board’s remand directives, the Veteran was afforded a VA examination in October 2020. The issue of bilateral foot stress fracture was recharacterized as plantar fasciitis and hallux valgus. The Veteran was granted a 50 percent and noncompensable rating, respectively, for each disability with an effective date of May 19, 2017. Given that the original increased rating claim was based on the filing date of March 28, 2017, the issues on appeal are now entitlement to effective dates earlier than May 19, 2017, for the newly assigned ratings, and entitlement to ratings in excess of those newly assigned ratings. 1. Entitlement to an effective date earlier than May 19, 2017, for the 50 percent rating for plantar fasciitis (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition). 2. Entitlement to an effective date earlier than May 19, 2017, for the noncompensable rating for hallux valgus (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition). To promote efficiency, the Board will address the issues of entitlement to an earlier effective date for plantar fasciitis and hallux valgus together. By way of history, the Veteran was previously assigned a noncompensable rating for bilateral stress fracture, claimed as bilateral foot condition, with an effective date of March 28, 2017, the date he submitted his claim to VA. He was afforded a VA examination on May 19, 2017. In a June 2017 rating decision, he was granted service connection with a noncompensable rating. He submitted a timely notice of disagreement in March 2018. During his Board hearing with the undersigned Veterans Law Judge in November 2019, he testified that his symptoms surrounding his service-connected bilateral foot stress fracture had worsened in severity since his previous examination. Further, the Veteran testified that he felt the examiner did not properly consider his condition at the time. As such, the Board determined a remand was necessary in order to provide the Veteran with an additional VA examination. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the grant of service connection for disability compensation is the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). The Veteran was provided an additional VA examination in October 2020. The Veteran’s bilateral foot stress fracture was recharacterized as plantar fasciitis and hallux valgus. The Veteran was assigned a 50 percent and noncompensable rating, respectively, for each disability with an effective date of May 19, 2017, the date the Veteran underwent his first VA examination. However, the Board notes that the October 2020 examiner indicated that the Veteran’s plantar fasciitis and hallux valgus progressed from the Veteran’s bilateral stress fracture. Therefore, notwithstanding that there is no specific record of a diagnosis of these additional disabilities until May 19, 2017, based on the Veteran’s testimony and the opinion of the October 2020 examiner, the Board will give the Veteran of the doubt, and find that these conditions preceded the May 19, 2017, examination date and that as shown more fully below, the respective ratings for these disorders should be effective from the original date of claim of March 28, 2017. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. Entitlement to an initial compensable rating in excess of 50 percent for plantar fasciitis (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) from March 28, 2017. 4. Entitlement to an initial compensable rating for rating hallux valgus (previously evaluated as bilateral stress fracture, claimed as bilateral foot condition) from March 28, 2017. In this post-remand case, the Veteran contends he is entitled to an initial compensable rating in excess of 50 percent for his service connection plantar fasciitis. Further, the Veteran contends he is entitled to an initial compensable rating for hallux valgus. As provided for above, the Veteran was originally service connected for bilateral stress fracture; however, after the Veteran’s most recent VA examination, it has been recharacterized as plantar fasciitis and hallux valgus. He is currently in receipt of a 50 percent disability rating for his plantar fasciitis and a noncompensable rating for his hallux valgus with a new effective date of March 28, 2017. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set for the in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case certain staged evaluations are warranted based on the evidence. The Veteran is currently rated under Diagnostic Code (DC) 5299-5276 for plantar fasciitis and DC 5299-5280 for hallux valgus. His current disabilities are not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which only the functions affected, but anatomical localization and symptoms, are closely related. See 38 C.F.R. § 4.20. Furthermore, hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional DC is shown after the hyphen. 38 C.F.R. § 4.27. DC 5299 is used to identify musculoskeletal system disabilities that are not specifically listed in the schedule but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. Addressing the Veteran's plantar fasciitis, it has been rated under DC 5276 for an acquired flatfoot disability. DC 5276 provides that a 50 percent rating is warranted when the evidence shows that flatfeet are "pronounced" in nature, with symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Tendo Achillis on manipulation, and lack of improvement after use of orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, DC 5276. A 50 percent rating is the highest schedule evaluation allowed under the law for acquired flat foot. 38 C.F.R. § 4.57, 38 C.F.R. § 4.71a. The October 2020 VA examination notes the Veteran has symptoms that have progressed from his original stress fracture, to include extreme tenderness of plantar surfaces of the feet, marked pronation, characteristic callosities, objective evidence of marked deformity, pain on manipulation and use of the feet, and these symptoms not improved by orthopedic shoes or appliances. The Board finds his symptoms to be most approximate to his current 50 percent disability rating. Furthermore, this is the highest schedular evaluation allowed, therefore, an increased rating in excess of 50 percent for plantar fasciitis is not warranted. Addressing the Veteran’s hallux valgus, it is rated under DC 5280. DC 5280 provides for a 10 percent rating where hallux valgus is “severe,” if equivalent to amputation of the great toe; or where there has been an operation with resection of the metatarsal head. See 38 C.F.R. § 4.71a, DC 5280. Here, the October 2020 VA examination notes he has a slight hallux valgus deformity with mild symptoms that are a progression of his service-connected stress fracture. The Veteran’s hallux valgus is characterized as a diagnosed disability with no compensable symptoms. Therefore, the Board finds an increase rating of 10 percent is not warranted because his symptoms are not severe and equivalent to amputation or result in surgery. A noncompensable rating is warranted when the rating schedule does not provide a zero percent evaluation for a diagnostic code. 38 C.F.R. § 4.31. The Board finds all the symptomatology and impairment caused by the service-connected plantar fasciitis and hallux valgus are specifically contemplated by the schedular rating criteria, and no claim for extraschedular rating has been raised. Accordingly, the Board finds that the schedular rating criteria are adequate to rate the plantar fasciitis and hallux valgus symptoms, and that a claim for extraschedular rating has not been raised. Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability based on individual unemployability (TDIU) is considered a component of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Here, no claim has been raised by the Veteran or the record. Therefore, the Board finds that a TDIU claim under Rice has not reasonably been raised in conjunction with the current claim for a higher rating and need not be addressed herein. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.