Citation Nr: 21003330 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-22 083A DATE: January 21, 2021 ORDER Entitlement to service connection for a separate right foot condition, asserted as a residual foreign object, is denied. Entitlement to an increased disability rating in excess of 30 percent for plantar fasciitis of the right foot is denied. Entitlement to a compensable disability rating for scarring of the left leg is denied. Entitlement to a compensable disability rating for painful scarring of the left leg prior to December 20, 2019 is denied. FINDINGS OF FACT 1. It is more likely than not that the Veteran does not have a foreign object in his right foot. 2. The Veteran’s plantar fasciitis does not manifest bilaterally and the schedular criteria are adequate to describe the severity of his symptoms. 3. The Veteran’s scarring of the left leg is 3.5 by 0.5 centimeters and is not associated with underlying soft tissue damage. 4. It is more likely than not that the Veteran’s painful scarring of the left leg did not manifest to a compensable degree prior to December 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a separate right foot condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to an increased disability rating in excess of 30 percent for plantar fasciitis of the right foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.71a, Diagnostic Codes 5024, 5276. 3. The criteria for entitlement to a compensable disability rating for scarring of the left leg have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7802, 7805. 4. The criteria for entitlement to a compensable disability rating for painful scarring of the left leg prior to December 20, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2005 to October 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of May 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2016. A transcript of the hearing is of record. The Board previously remanded this case in September 2017 and again in November 2019 to obtain additional medical records and updated VA examinations. After reviewing the evidence of record, the Board now finds that the RO has substantially complied with its remand directives and will therefore adjudicate the Veteran’s claims on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). For clarity, the Board also notes that the issue of entitlement to service connection for a right ankle condition, which was previously part of the Veteran’s appeal, has been subsequently granted by the RO. See September 2020 Rating Decision at 1. Accordingly, the issue of entitlement to service connection for a right ankle condition is no longer before the Board. Service Connection Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a separate right foot condition. The record reflects that the Veteran is service-connected for plantar fasciitis of the right foot from October 2008. See September 2020 Rating Codesheet at 1. However, the Veteran also asserts that he has a separate right foot condition due to a foreign object in his foot. See November 2008 VA 21-526 at 6 (listing “right foot planter [sic] foreign body”). Service treatment records (STR) of September 2008 include an x-ray of the Veteran’s right foot. See December 2014 STR at 33 (noting “no trauma” and onset of pain following running in August 2008); see also id. (ordering x-ray to assess a possible hairline fracture); see also id. at 34 (noting “an apparent small bony density just adjacent to the tip of the lateral malleolus of the fibula,” as well as “a small linear metallic density foreign object in the soft tissues over the plantar aspect of the first cuneiform tarsal bone”) (emphasis added). However, multiple prior and subsequent x-rays have been unable to replicate these findings. See January 2009 VA Examination Report at 6 (finding that “right foot… x-ray findings are within normal limits”); see also id. at 7 (finding “no pathology to render a diagnosis”); see also April 2012 VA Examination Report at 20 (diagnosing only plantar fasciitis); see also id. at 24 (finding that imaging studies did not indicate abnormalities); see also id. at 33 (finding “no current evidence of a retained foreign body [within the] right foot”); see also December 2019 VA Examination Report at 8 (finding that contemporaneous x-rays showed “early degenerative changes” but “[no] specific acute abnormality”); see also id. at 12-13 (reviewing history of x-rays, including August 2008 x-ray “negative for metallic fragment”); see also id. at 13 (opining that “there is no diagnosis of metallic fragment [or] density foreign object noted within the right foot”). The Board notes that medical treatment records of October 2009 do include an MRI scan finding “[foreign] body causing field inhomogeneity artifact… in the soft tissues just inferior to medial cuneiform bone.” However, this MRI scan was performed on the Veteran’s right ankle, not his right foot. See August 2018 Medical Treatment Records at 85. The Board notes the Veteran’s assertion that “my right foot broke and I think that’s where the fragments that are inside my foot came from.” See September 2016 Transcript at 9. However, this assertion does not distinguish between fragments of bone and a foreign object, nor does the Veteran’s testimony otherwise provide an explanation for how a foreign object is alleged to have become lodged in his right foot. See id. at 4-10 (discussing foot and ankle symptoms and variously attributing causes to an injury sustained while running or to an injury sustained as a result of a workplace accident). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the other x-rays of record collectively support the conclusion that the Veteran does not have a foreign object in his right foot, the Board assigns them greater probative weight than the sole September 2008 x-ray. Additionally, the Veteran has not identified any additional symptoms or degrees of disability attributable to such an alleged foreign object which are not already contemplated by his service-connected plantar fasciitis. See January 2009 VA Examination Report at 2-3 (noting that both the Veteran’s plantar fasciitis and this additional right foot condition were asserted to manifest with the same symptoms). The Board therefore concludes that the assignment of service connection for a separate right foot condition on the basis of a retained foreign object is not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not warranted because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal is from the initial rating assigned with the grant for service connection, “staged” ratings (for periods when varying degrees of disability are shown) may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased disability rating in excess of 30 percent for plantar fasciitis of the right foot. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The rating decision on appeal initially assigned a noncompensable rating for the Veteran’s plantar fasciitis. See May 2009 Rating Decision at 1. However, a subsequent rating decision increased this rating to 30 percent. See June 2013 Rating Decision at 1. Accordingly, the record reflects that the Veteran is rated as 30 percent disabled for plantar fasciitis of the right foot from October 2008 under Diagnostic Codes (DC) 5024 and 5276. The applicable rating criteria provide that a disability rating in excess of 30 percent is not assigned unless the condition is “[pronounced]; [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… [and] [bilateral][.]” See 38 C.F.R. § 4.71a, DC 5276 (emphasis added). The Veteran does not assert, nor does the record otherwise reflect, that his plantar fasciitis is bilateral. See September 2020 Rating Codesheet at 1-2 (providing that the Veteran is not service-connected for any conditions of the left foot). A disability rating in excess of 30 percent is therefore not warranted for the Veteran’s plantar fasciitis on a schedular basis. 38 C.F.R. § 4.71a, DC 5276. However, the Veteran has also requested an alternate or extra-schedular rating for this condition. See May 2010 Correspondence at 3 (asserting that “[DC] 5284… states that any foot injury which results in loss of use of a foot shall be granted a disability rating of 40%... [and the Veteran asserts] that his pain is sufficiently severe as to render him unable to use his foot”); see also September 2016 Correspondence at 3 (asserting that extraschedular rating is warranted due to “being in shock 24 hours a day, only getting relief when sleeping”). The Board finds that these assertions are not credible because they are inconsistent with the Veteran’s own testimony before the Board, with his statements to VA examiners, and with those examiners’ findings. See September 2016 Transcript at 4 (asserting that “I have good days and bad days… [sometimes] I make it 50 feet before I have to stop and sit down[,] [other] days I can walk a quarter mile or a half mile”); see also January 2009 VA Examination Report at 5-6 (noting tenderness of the right foot, but also noting that the Veteran “does not have any limitation with standing and walking” and that “symptoms and pain are relieved by [shoe inserts]”); see also id. at 7 (finding that functional impairment includes “impaired prolonged standing, walking, and running”); see also April 2012 VA Examination Report at 23 (finding “moderately severe” plantar fasciitis); see also id. at 24 (noting no use of assistive devices and finding that functioning was not so diminished as to be equivalent to amputation and use of a prosthesis); see also id. at 25 (finding that functional impairment is “difficulty with prolonged ambulation”); see also December 2019 VA Examination Report at 3-4 (noting use of an ankle brace, no flare-ups, and pain with prolonged walking or standing); see also id. at 6 (noting “a slight limp favoring the right”); see also id. at 8 (providing examiner’s recommendation against the Veteran “perform[ing] prolonged standing [or] walking”). The balance of the evidence of record therefore supports the conclusion that the Veteran’s plantar fasciitis, while creating real functional impairment in his activities of daily living, is not equivalent to a total loss of the right foot and does not warrant an extraschedular disability rating. The threshold criterion for determining whether referral for an extraschedular rating is warranted is whether the established schedular criteria are inadequate to describe the severity and symptoms of the Veteran’s disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Because the established schedular criteria contemplate the Veteran’s symptoms, referral for an extraschedular disability rating is not warranted. 38 C.F.R. § 3.321(b)(1). The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. 2. Entitlement to compensable disability ratings for scarring and painful scarring of the left leg. The record reflects that the Veteran’s left leg scarring is rated as noncompensable from October 2008 under Diagnostic Code 7805. See September 2020 Rating Codesheet at 2. The applicable rating criteria provide that any disabling effects not already rated under DC 7800-7804 are to be rated “under an appropriate diagnostic code.” See 38 C.F.R. § 4.118, DC 7805. The medical evidence of record supports the conclusion that the Veteran’s left leg scarring is not associated with underlying soft tissue damage. See April 2012 VA Examination Report at 17 (noting that scars associated with underlying soft tissue damage are deep and non-linear); see also id. at 19 (finding one linear 3 cm scar of the left calf); see also December 2019 VA Examination Report at 2-3 (identifying 3.5 by 0.5 centimeter scar without underlying soft tissue damage). The appropriate DC for evaluating the Veteran’s left leg scarring is therefore 7802, which provides that a compensable disability rating is not assigned unless there is scarring in an area of at least 144 square inches, or 929 square centimeters. See 38 C.F.R. § 4.118, DC 7802. The evidence of record does not support the conclusion that the Veteran’s left leg scarring meets this requirement. See January 2009 VA Examination Report at 4 (evaluating scar as “about 4 cm by 0.5 cm” and noting “hypopigmentation of less than six square inches”); see also April 2012 VA Examination Report at 19; see also December 2019 VA Examination Report at 3 (estimating total area as 1.75 square centimeters). The Board notes that a separately compensable disability rating may be assigned where scars are painful or unstable. The applicable rating criteria provide that a compensable rating is assigned where there are one or two scars which are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. The record reflects that the RO has already assigned such a rating from December 2019. See September 2020 Rating Decision at 5. The Board has considered whether this separately compensable rating may be warranted throughout the rating period on appeal. However, previous VA examinations do not support such a finding. See January 2009 VA Examination Report at 4 (finding no tenderness or instability); see also April 2012 VA Examination Report at 18 (finding neither pain nor instability). The Board notes that the Veteran has asserted that his left leg scarring is painful. See September 2016 Transcript at 2 (asserting that “when my pants rub up against it it feels numb but then something hits it right and I get sharp pains like I got stung by a bee”); see also December 2019 VA Examination Report at 2 (noting Veteran’s assertion of “needles and pins” sensation on touch). However, in light of the discrepancies in the Veteran’s assertions discussed above, the Board is not prepared to find that these assertions are of equivalent weight to the findings of the January 2009 and April 2012 VA examiners. The assignment of a compensable disability rating for scarring of the left leg, and of an earlier effective date for a separately compensable rating for painful scarring, is therefore not warranted. 38 C.F.R. § 4.118, DC 7802, 7804, 7805. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable   because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.