Citation Nr: 21062666 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-34 020 DATE: October 8, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for bilateral plantar fasciitis is granted. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral plantar fasciitis manifested in symptoms of pain on use, bilateral swelling, pain on manipulation, abnormal weightbearing, antalgic gait, lack of improvement from orthotic inserts, and flare-ups at various points across the appeal period, with no evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation. CONCLUSION OF LAW The criteria for a rating of 30 percent, but no higher, for bilateral plantar fasciitis have 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 FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1985 to September 1985 and from December 2009 to July 2010. Additionally, the Veteran served in the Tennessee Army National Guard for over 25 years. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an April 2012 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO). The Board previously remanded this matter in August 2018 and October 2020 for further development. With that development having been completed, the Board will now adjudicate the claim on the merits. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating of 30 percent, but no more, for bilateral plantar fasciitis. The Veteran seeks an initial rating in excess of 10 percent from July 18, 2010, the day after separation from service, for bilateral plantar fasciitis. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's bilateral plantar fasciitis is rated analogously under Diagnostic Code (DC) 5276, for pes planus. 38 C.F.R. §§ 4.20, 4.71a. Under DC 5276, a 30-percent rating is warranted where the bilateral condition is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. A 50-percent rating, which is the highest rating available under these criteria, is available where the bilateral 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. Id. Effective February 7, 2021, DC 5269, specifically for plantar fasciitis, was added to 38 C.F.R. § 4.71a. For the period from February 7, 2021, the Board will consider the Veteran's claim under the previous regulations and the current regulations, applying whichever regulations are most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). Under DC 5269, a 30-percent rating is warranted where there is bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. 38 C.F.R. § 4.71a. Otherwise, a 10-percent rating is warranted. Id. Procedurally, this appeal originates from an April 2012 rating decision granting service-connection for bilateral plantar fasciitis and assigning an initial noncompensable rating from the effective date of July 28, 2010 for bilateral plantar fasciitis developing within a year of separation from service. The Veteran appealed and was granted a 10 percent initial rating in a March 2017 rating decision. Because this was only a partial grant of the benefits sought, the matter was forwarded to the Board. In August 2018, the Board remanded the matter for RO consideration of new evidence, because the Veteran had not waived RO consideration. The matter was returned to the Board again, and was once again remanded in October 2020 based on evidence of worsened symptomatology of the Veteran's bilateral foot condition. Thus, the Veteran seeks an initial rating higher than 10 percent from the effective date July 18, 2010 to present. See AB v. Brown, 6. Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Turning to the evidence, a review of the Veteran's claims file shows that he was assigned a 10 percent disability rating effective the day after the Veteran separated from service based on the findings of a September 2011 VA examination. Notations of this examination reflect that the Veteran had bilateral plantar fasciitis characterized by swelling, pain during use, stiffness of the foot, tenderness on palpation, abnormal weight-bearing, and antalgic gait. It noted that the Veteran was also using orthotic inserts, but that they were only partially effective in relieving the Veteran's symptoms. The Veteran also reported that he experienced functional limitations due to his feet, such as durational limitations to walking and standing, and being precluded from running at the advice of his VA podiatrist, who he had been seeing since March 2010. After the Veteran's September 2011 VA examination, he continued to be followed by his VA podiatrist for treatment. A February 2012 podiatry outpatient note reported that the Veteran's left foot had increased in pain to palpitation, but also that pain to palpitation in the right foot had decreased there was no longer swelling of the Veteran's lower extremities. The Veteran's condition was next evaluated at a July 2015 VA examination. The report showed that the said he was experiencing "constant" pain but not flare-ups, and that his orthotic inserts continued not to improve his condition. However, it also noted that his gait was normal and that he did not report functional limitations. This examination is to be contrasted with another podiatry outpatient note issued the same month, which stated that his gait was abnormal, that he was now experiencing flare-ups, and still should not run but also remarked that the orthotic inserts had "helped out greatly." The next evaluation of his condition was conducted in April 2017. At this exam, the Veteran presented with a new symptom pain accentuated on use. The Veteran's pain had also gone from being "constant" to now only being experienced "on arising and with prolonged use." The Veteran's bilateral foot condition continued to be assessed by his VA podiatrist between 2017 and 2021, during which time no changes in symptomatology were noted. In March 2021, the Veteran had another VA examination, where he presented once again with pain on use accentuated, and with pain not relieved by orthotic devices. Notably, on this examination, the Veteran discussed his flare-ups at length, reporting that they occurred daily and were causing functional impairments at work. The Board has considered the revised regulations; however, consideration of these new criteria would not result in a rating in excess of 30 percent for the Veteran's bilateral plantar fasciitis as a 30 percent rating is the highest available schedular rating under Diagnostic Code 5276. The Board finds a 30 percent rating is warranted throughout the appeal period. The Veteran's bilateral condition manifested in symptoms of pain on use and on manipulation, swelling of the feet, and abnormal weight-bearing. Although there was no evidence of marked deformity such as pronation or abduction, the Board finds that after resolving any benefit of reasonable doubt in favor of the Veteran, his plantar fasciitis manifested in symptoms more closely approximating the rating criteria for a 30 percent rating throughout the appeal period. At no time, however, did the Veteran's plantar fasciitis manifest in symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation. Accordingly, the criteria for a disability rating in excess of 30 percent have not been met at any time during the appeal period. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.