Citation Nr: 21002005 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-08 311A DATE: January 12, 2021 ORDER Entitlement to a staged compensable initial evaluation for left foot plantar fasciitis prior to January 25, 2011 is denied. Entitlement to a staged initial evaluation in excess of 10 percent for right foot plantar fasciitis prior to January 25, 2011 is denied. Entitlement to a staged initial evaluation in excess of 10 percent for bilateral plantar fasciitis from January 25, 2011 is denied. FINDINGS OF FACT 1. Throughout the initial appeal period prior to January 25, 2011, the Veteran’s left foot plantar fasciitis was productive of mild symptomology. 2. Throughout the initial appeal period prior to January 25, 2011, the Veteran’s right foot plantar fasciitis was productive of no worse than moderate symptomology. 3. Throughout the initial appeal period from January 25, 2011, the Veteran’s bilateral plantar fasciitis was productive of no worse than moderate symptomology. CONCLUSIONS OF LAW 1. The criteria for a staged compensable initial rating for left foot plantar fasciitis prior to January 25, 2011 has been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 2. The criteria for a staged initial rating in excess of 10 percent for right foot plantar fasciitis prior to January 25, 2011 has been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 3. The criteria for a staged initial rating in excess of 10 percent for bilateral plantar fasciitis from January 25, 2011 has been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to November 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The March 2010 rating decision, in pertinent part, granted service connection for right foot plantar fasciitis and service connection for left foot plantar fasciitis, and assigned noncompensable evaluations, each effective from December 1, 2009. Additionally, an August 2018 rating decision, in pertinent part, granted a 10 percent evaluation for right foot plantar fasciitis, effective from December 1, 2009, and granted a 10 percent evaluation for bilateral plantar fasciitis (previously rated as right foot plantar fasciitis) effective from January 25, 2011, which also subsumed the separate evaluation of left foot plantar fasciitis. Because these grants do not represent the maximum benefits allowable under the VA Schedule for Rating Disabilities, these issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). However, due to these grants, the issues have been recharacterized as listed in the Order section above. This case was previously before the Board in February 2017 and April 2019, when it was remanded for further development. It now returns for appellate review. Increased Rating Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the United States Court of Appeals for Veterans Claims (Court) held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities proximate to the rating period on appeal to see if the history supports higher ratings during the rating period on appeal. Special Considerations for Musculoskeletal Disability Ratings Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Pain may be taken into consideration when rating functional loss. However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” 38 C.F.R. § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. Finally, it is the intention of the VA rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a staged compensable initial evaluation for left foot plantar fasciitis prior to January 25, 2011 2. Entitlement to a staged initial evaluation in excess of 10 percent for right foot plantar fasciitis prior to January 25, 2011 3. Entitlement to a staged initial evaluation in excess of 10 percent for bilateral plantar fasciitis from January 25, 2011 The Veteran seeks higher evaluations for his bilateral plantar fasciitis. Specifically, in an April 2012, VA Form 9, Appeal to the Board of Veterans’ Appeals, the Veteran stated he had recurrent painful motion of his feet and had limitation of motion when he had the pain. The Veteran’s right foot plantar fasciitis and left foot plantar fasciitis, later recharacterized as bilateral plantar fasciitis, has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot, throughout the appeal period. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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 maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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 terms moderate and severe, as used in the various Diagnostic Codes, are not defined in the Rating Schedule. Webster’s II New College Dictionary defines “moderate” as of average or medium quantity, quality, or extent. Id. at 704 (1995). “Severe” is defined as extremely intense. Id. at 1012. As noted above, this case was most recently remanded by the Board in April 2019. Pursuant to the April 2019 Board remand, the Agency of Original Jurisdiction (AOJ) was in the process of scheduling the Veteran to undergo an updated VA examination in to help determine the extent and severity of his bilateral plantar fasciitis. However, in January 2020, the scheduled examination was cancelled at the Veteran’s request. The Veteran has not provided good cause, or any communication, explaining his absence and/or failure to cooperate. Additionally, in October 2019, the AOJ sent a request to the Veteran for assistance in obtaining private treatment records. The record does not show (and it is not claimed) that the letter was not received. The Veteran has not requested that the examination be rescheduled or responded to the request to authorize disclosure of information to VA from a private medical provider. As noted above, while VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). As such, remand to reschedule the examination or request private treatment records is not warranted. Turning to the evidence of record, an October 2009 examination of the Veteran’s feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shear wear pattern. Palpitation of the plantar surface revealed slight tenderness of both feet. The Veteran did not have any limitation with standing and walking. Further, as to left foot plantar fasciitis, the October 2009 examiner found, while at rest, or while standing or walking, the Veteran did not have any pain, weakness, stiffness, swelling, or fatigue, and he did not experience any overall functional impairment from this condition. A May 2010 treatment record noted the Veteran had pain in the right heel aggravated by prolonged walking, prolonged standing, and running. The right plantar fascia was tender on palpation. In August 2010, the Veteran reported pain and numbness in the ball of the left foot. The treatment provider noted left foot pain in the plantar aspect under the forefoot in the center radiating to the second and third toe. Plantar calluses were noted. The Veteran was referred for custom orthoses. In January 2011, the Veteran was treated for left heel pain and a plantar fasciitis test elicited pain in the heel. A May 2015 private treatment note for right foot pain assessed the severity level as mild and an August 2015 private treatment note for follow-up of right foot pain assessed the severity level as mild-moderate. The pain was dull, aggravated by climbing stairs, movement, walking and standing, and relieved by injection and rest. The Veteran was also advised to substitute his running for other cardiovascular options. At an August 2017 VA examination, the Veteran reported foot pain that was worse when rising from a laying/sitting position. He further reported he had tried electrode socks, physical therapy, injections, and custom fit orthotics with no improvement. He reported flare-ups three to four times a month that usually resolved in a few minutes. There was no pain on physical examination. The VA examiner opined there was no functional loss attributable to right or left plantar fasciitis, but stated she was unable to offer an opinion without resorting to mere speculation on functional loss with repeated use or during flare-ups. At an April 2018 VA examination, the Veteran reported continuing to experience intermittent foot pain that has remained the same over the last 18 months. The bilateral foot pain was associated with prolonged standing and difficulty walking barefoot. The Veteran also reported pain was worse at night and when rising from a lying position but denied flare-ups which impacted the function of the foot. Upon examination, the Veteran did have pain on the use of both feet but did not have pain on manipulation of the feet, there was no indication of swelling on use, and the Veteran did not have characteristic calluses. The VA examiner also noted no extreme tenderness of plantar surfaces, there was no objective evidence of marked deformity, there was no marked pronation, the weight-bearing line did not fall over or medical to the great toe, and there was no marked inward displacement and severe spasm of the Achilles’ tendon on manipulation. In February 2019, the April 2018 examiner provided an addendum opinion which stated Veteran did not have pain on non-weightbearing motion, did not have right or left foot pain on physical examination, foot pain was intermittent and associated with rising from a lying position (weightbearing), and the Veteran did not have pain on manipulation of the feet. Based upon the evidence currently in the record, the Board concludes that prior to January 25, 2011, a compensable rating is not warranted for the Veteran’s service-connected left foot plantar fasciitis. The Veteran’s left foot pain was treated in August 2010 and he was prescribed custom orthoses, which is generally consistent with the rating criteria for a noncompensable rating pursuant to Diagnostic Code 5276. Further, the Board is precluded from granting a separate 10 percent rating pursuant to Diagnostic Code 5276, as Diagnostic Code 5276 provides for a single evaluation for a unilateral or bilateral condition, and the Veteran has already been granted a 10 percent rating for his right foot under Diagnostic Code 5276 for the appeal period prior to January 25, 2011. Additionally, the Veteran’s left foot plantar fasciitis prior to January 25, 2011 did not demonstrate marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities or symptomology productive of even higher ratings. Further, the Board also concludes the preponderance of the evidence is against a rating in excess of 10 percent for right foot plantar fasciitis prior to January 25, 2011 or bilateral plantar fasciitis thereafter. The preponderance of the evidence, including the April 2018 VA examination report, is against a finding that the Veteran’s service-connected right foot plantar fasciitis prior to January 25, 2011, or bilateral plantar fasciitis thereafter, more nearly approximated symptomology productive of severe disability. As discussed above, the evidence of record generally shows that the Veteran’s right foot plantar fasciitis prior to January 25, 2011, and bilateral plantar fasciitis thereafter, resulted in symptoms productive of numbness, pain, and tenderness. The Veteran did not have marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities or symptomology productive of even higher ratings. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss, to include tenderness, numbness, and pain, including foot pain that was worse when rising from a laying/sitting position, difficulty walking barefoot, right foot pain aggravated by prolonged walking, prolonged standing, running, and climbing stairs, and left foot pain in the plantar aspect under the forefoot in the center radiating to the second and third toe. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation would not result in symptoms more nearly approximating severe unilateral or bilateral acquired flatfoot. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s bilateral plantar fasciitis is unlisted and rated by analogy. In this regard, Diagnostic Codes 5277, 5278, 5279, 5280, 5280, 5281, 5282, 5283 are not applicable. Specifically, August 2017 and August 2018 VA examiners did not endorse diagnoses of weak foot, pes cavus, Morton’s neuroma, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion/nonunion of tarsal/metatarsal bones, nor are such diagnoses chronically reflected in the evidence of record. Further, the Veteran’s bilateral plantar fasciitis is best encompassed by Diagnostic Code 5276 for pes planus as the criteria includes pain on manipulation and use which is analogous to the Veteran’s bilateral plantar fasciitis symptomology. Additionally, throughout the appeal period at issue, the Veteran has already been awarded service connection for left foot strain and right foot strain, each rated as noncompensable under Diagnostic Code 5284, for foot injuries. Additionally, the Board also notes the August 2017 and August 2018 VA examiners did not endorse a diagnosis of a foot injury. Moreover, application of Diagnostic Code 5284 would not allow for a higher rating as the evidence of record does not demonstrate moderately severe symptomology as required for a higher rating. In this regard, as to the Veteran’s right foot, which generally had the most severe symptomatology, a May 2015 private treatment assessed the severity level as mild and an August 2015 assessed the severity level as mild-moderate, findings which are not indicative of a higher rating. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record as to these issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, the preponderance of the evidence is against the claims for entitlement to a staged compensable initial evaluation for left foot plantar fasciitis prior to January 25, 2011, entitlement to a staged initial evaluation in excess of 10 percent for right foot plantar fasciitis prior to January 25, 2011, and entitlement to a staged initial evaluation in excess of 10 percent for bilateral plantar fasciitis from January 25, 2011. Therefore, the benefit of the doubt rule does not apply, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 55. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.