Citation Nr: 21064641 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-34 572 DATE: October 21, 2021 ORDER Entitlement to an increased rating of 30 percent, but not higher, for service connected bilateral plantar fasciitis with calcaneal spurs (plantar fasciitis) is granted for the entire appeal period, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The evidence of record is at least evenly balanced as to whether the Veteran's bilateral plantar fasciitis symptomatology more nearly approximates severe bilateral disability manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, but does not more nearly approximate pronounced flatfoot. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to an increased 30 percent rating, but not higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276 (as in effect prior to February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which continued a noncompensable rating for both right and left plantar fasciitis. In August 2012, the Veteran filed his notice of disagreement with, among other things, the noncompensable ratings assigned for right and left plantar fasciitis, was issued a statement of the case in August 2013, and in October 2013 perfected his appeal to the Board. In a February 2018 decision, the Board, inter alia, remanded the Veteran's claim for a new VA examination report to determine the severity of the Veteran's bilateral plantar fasciitis. The Veteran was scheduled to appear at a Board hearing before a Veterans Law Judge which was scheduled for January 10, 2019. However, in a January 8, 2019 letter, the Veteran's attorney indicated that the Veteran wished to withdraw his request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). In December 2019, the RO, among other things, granted a rating increase for the Veteran's bilateral plantar fasciitis, evaluating it as 10 percent disabling from June 26, 2018, creating a staged rating, notifying the Veteran in a supplemental statement of the case. In March 2020, the Board, inter alia, again remanded the Veteran's claim for a higher rating for bilateral plantar fasciitis for a new VA examination to determine the current severity of the Veteran's bilateral plantar fasciitis, and to determine the severity of service related foot disabilities since 2009. In December 2020, the RO, among other things, finding clear and unmistakable error, granted a 10 percent rating for bilateral plantar fasciitis with calcaneal spurs from September 29, 2010, the date of the claim for a rating increase, notifying the Veteran in supplemental statement of the case. In April 2021, the Board, among other things, remanded the Veteran's claim for a higher rating for bilateral plantar fasciitis for a new examination to determine the severity of the Veteran's disability under the new rating criteria. In September 2021, the RO denied the Veteran's claim for a rating increase for bilateral plantar fasciitis, notifying the Veteran in a supplemental statement of the case. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, 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). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, 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, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Bilateral Plantar Fasciitis The Veteran's bilateral plantar fasciitis is currently rated 10 percent disabling from September 29, 2010 under DC 5276. The schedular criteria for rating plantar fasciitis were amended effective February 7, 2021. 38 C.F.R. § 4.71a, DC 5269. The amendments apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38U.S.C. §5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Based on the evidence discussed below, the Board finds the old criteria more favorable to the Veteran's claim, and will adjudicate the appeal accordingly. Under the new criteria of DC 5269 for plantar fasciitis, a 30 percent disability rating is warranted when there is no relief bilaterally from both non-surgical and surgical treatment. A 20 percent disability rating is warranted when there is no relief unilaterally from both non-surgical and surgical treatment. Otherwise, unilateral or bilateral, a 10 percent disability rating is warranted. Note (1) under the criteria provides that a 40 percent rating is warranted with actual loss of the foot, and Note (2) states that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. DC 5276 provides that a 10 percent evaluation is warranted for moderate bilateral acquired flatfoot (pes planus) disability manifested by weight-bearing lines over or medial to the great toes, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for a severe bilateral disability manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The maximum 50 percent evaluation is warranted for pronounced bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achillis on manipulation, and where the condition is not improved by orthopedic shoes or appliances. The words "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "slight" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In a February 2011 QTC examination report, the examiner noted that the Veteran reported constant pain in his feet which was localized, and which he described as a burning, aching, and sharp. The Veteran reported that the pain was a 7 out of 10 (with 10 being the worst pain), which was exacerbated by physical activity, and relieved by rest and spontaneously. The examiner noted that the Veteran has pain and fatigue at rest, but no weakness, stiffness, or fatigue, and while standing or walking he has pain, and swelling, but no weakness, stiffness, or fatigue. The Veteran reported trouble walking up and down stairs. The examination report reflected right foot tenderness, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. Left foot examination revealed tenderness, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. Palpation of the plantar surfaces revealed slight tenderness, alignment of the achilles tendons was normal with weight bearing and non-weight bearing, pes planus, pes cavus, hallux valgus, hallux rigidus, and Morton's metatarsalgia were not present, and no hammer toes were found upon examination. A May 2014 disability benefits questionnaire (DBQ) reflects that the Veteran uses a cane to stabilize his gait, and indicated that he had a diagnosis of calcaneal spur in both feet. In a November 2014 statement, the Veteran reported that he suffered more pain with movement and when standing. In a July 2018 DBQ, the examining physician reported onset of plantar fasciitis during service, but that spurs were not found to be demonstrated until 2014. The physician stated that there is evidence that foot conditions were severe enough to limit activity as of 2014 or 2015, thus the severity of the foot condition in 1982, and therefore 2009, did limit activity modestly, but not as bad as in 2015. The physician reported that the Veteran had flare-ups which hurt his feet as they did 20 years earlier. The Veteran reported having problems getting out of chairs and cars, as well as standing, saying he has to wait to balance himself before walking. The physician noted pain on use of the feet, but no pain on manipulation, no swelling on use, and no characteristic calluses. The physician reported no extreme tenderness of the plantar surfaces, no decreased longitudinal arch height, no evidence of marked deformity, no marked pronation, and the weight bearing line did not fall over or medial to the great toe. There was no lower extremity deformity causing alteration of the weight bearing line, the Veteran did not have inward bowing of the Achille's tendon, and did not have marked inward displacement and severe spasm of the Achille's tendon on manipulation of one or both feet. The examination report reflected moderately severe disability of both feet, with the physician indicating that the foot disability did not compromise weight-bearing, and did not require arch supports, custom orthotic inserts, or shoe modifications. Pain was noted on movement and weight bearing, with the examination report reflecting that pain increased with prolonged standing and walking, but no other functional loss during flare-ups or with repeated use over time was reported. A November 2020 DBQ reflects that the Veteran reported foot pain which has worsened since 2009 when he had to be transferred to a different job because he was no longer able to climb up and down stairs. He stated that he has pain in the soles of both feet, and feels pain when he tries to walk more than about 14 of a mile. He also stated that he has numbness in the soles of both feet when he first gets out of bed. The Veteran did not report flare-ups that impacted the function of his feet, but stated that he cannot walk far, stand for long, or walk stairs. The DBQ indicated that the Veteran had pain on use of feet which was accentuated on use, swelling on use, but no pain on manipulation of the feet. The Veteran reported use of arch supports, but did not have characteristic calluses, extreme tenderness of the plantar surfaces, decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity of one or both feet, or marked pronation of one or both feet. The examiner noted that the weight-bearing line did not fall over or medial to the great toe, that there was not a lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and the Veteran did not have inward bowing of the Achilles' tendon. The Veteran also did not have marked inward displacement and severe spasm of the Achilles' tendon of one or both feet. The DBQ reflects that the Veteran did not have Morton's neuroma, metatarsalgia, or hammer toes, or symptoms due to a hallux valgus or hallux rigidus. The examiner indicated that there was no effect on toes, pain and tenderness, effect on plantar fascia, or dorsiflexion and varus deformity due to pes cavus. The DBQ indicated that the Veteran had degenerative arthritis and heel spurs which were constant, moderate in severity, but did not chronically compromise weight-bearing, or require arch supports, custom orthotic inserts, or shoe modifications. The examiner noted that there was no pain upon examination, but the Veteran reported pain with weight-bearing, and no functional loss during flare-ups or with repeated use over a period of time. The Veteran reported occasional use of a cane due to his unrelated knee and lower back pain. The examiner stated that the Veteran's bilateral plantar fasciitis with calcaneal spurs impacted his ability to work as it causes intolerance to prolonged weight bearing. There was no objective evidence of pain during active range of motion, passive range of motion, or with non-weight bearing. In a November 2020 addendum opinion, the examiner reported that the Veteran complained of bilateral foot pain with weight bearing only which is of moderate intensity early in the morning, and after prolonged standing or walking. The examiner stated that there is no muscle weakness, fatigue, incoordination, or lack of endurance, and that the functional loss is described as difficulty with prolonged weight bearing. The examiner opined that the Veteran's degenerative arthritis in both feet was less likely than not (less than a 50 percent probability) caused by his bilateral plantar fasciitis with calcaneal spurs or is a symptom of it. The examiner stated that no documentation was found in the claims file to allow a retrospective medical opinion regarding the severity of the bilateral plantar fasciitis, especially since there was no pain during the November 2020 examination. A June 2021 DBQ reflects that the Veteran reported bilateral foot swelling, cramps, chronic pain, numbness, burning and tingling sensations. The Veteran did not report pain or flare-ups of the feet being evaluated, but reported that he cannot walk, stand for long periods of time, cut the grass, or climb stairs. He also reported a loss of range of motion and impairment with ambulation greater than 30 minutes. The examiner noted that the Veteran did not have Morton's neuroma, but did have metatarsalgia. He did not have hammer toes, symptoms due to hallux valgus or hallux rigidus, and no pes cavus. The examiner noted pain on physical examination with swelling, fatigue, weakness, and lack of endurance. The Veteran reported impairment with ambulation greater than 30 minutes, going up and down stairs, and when exercising. There was evidence of pain with active motion, weight bearing, and non-weight bearing. The Veteran did not report use of any assistive devices as a normal mode of locomotion. The examiner diagnosed metatarsalgia, and stated that his calcaneal spurs and plantar fasciitis alter his gait and weight bearing, and reported that throughout the year, degenerative arthritis occurs as a result of gait disruption caused by the Veteran putting excess weight and pressure on the balls of his feet to offset the pressure from his fascia and heels. In a separate June 2021 DBQ, the examiner opined that the Veteran's bilateral metatarsalgia and arthritis were at least as likely as not (at least a 50 percent probability) proximately due to, or the result of his service connected plantar fasciitis. The examiner explained that her opinion was supported by medical literature, and that plantar fasciitis and calcaneal spur can lead to abnormal gait patterns while walking or standing, leading to repetitive stress injuries which here contributed to the Veteran's metatarsalgia and arthritis. In a June 2021 addendum opinion, the examining physician stated that the Veteran's bilateral plantar fasciitis with calcaneal spurs and degenerative arthritis appears to have a consistent mild severity since 2009. He noted that the Veteran's foot disabilities prevent him from standing/walking long period of time, which is common for these conditions, and indicated that arch supports are used and have relieved symptoms at times, but that the Veteran remains symptomatic. He stated that pain is the primary symptom in most examinations ranging from mild to moderate, and reported that considering all factors, a retrospective opinion would include a mild severity to all foot conditions. The Board finds that a higher, 30 percent rating is warranted for the Veteran's plantar fasciitis. While the July 2018 examiner noted no pain on manipulation, swelling on use, no characteristic calluses, no evidence of marked deformity, and no marked pronation, the February 2011 examination report indicated that the Veteran suffered from pain exacerbated by physical activity, and swelling, and the Veteran reported pain rated a 7 out of 10. The November 2020 examiner noted pain on use of the feet which was accentuated on use, and swelling on use, and the June 2021 examiner reported pain with swelling, fatigue, weakness, and lack of endurance as well as evidence of pain with active motion, weight bearing, and non-weight bearing. Additionally, the June 2021 examiner reported that the Veteran's symptomatology appears to have a consistent mild severity since 2009, while the Veteran has reported chronic pain, cramps, impairment with ambulation greater than 30 minutes, and stated that he has problems using stairs, standing, and getting out of cars and chairs. The Veteran is competent to report the symptomatology associated with his plantar fasciitis, and there is no indication that he lacks credibility. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). The evidence of record is at least evenly balanced as to whether the Veteran's plantar fasciitis symptomatology more nearly approximates severe bilateral disability manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. However, a rating higher than 30 percent for the Veteran's bilateral plantar fasciitis is not warranted. The evidence of record does not reflect that the Veteran's bilateral plantar fasciitis symptomatology more nearly approximates bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achilles on manipulation, and where the condition is not improved by orthopedic shoes or appliances. The previously discussed examination reports and DBQS do not reflect evidence of marked deformity, marked pronation, "inward bowing", marked inward displacement, or severe spasm. The Veteran reported use of arch supports, indicating that he remained symptomatic with their use, but also reported no extreme tenderness of the plantar surfaces of either foot in the November 2020 DBQ. The preponderance of the evidence thus reflects that the Veteran's service connected plantar fasciitis disability does not more nearly approximate the criteria for a higher, 50 percent rating under DC 5276 as in effect prior to February 7, 2021. The evidence of record does not reflect that the Veteran experienced weak foot, claw foot, hallux valgus or rigidus, hammer toe, or malunion/nonunion of the tarsal or metatarsal bones throughout the appeal period, thus separate or higher ratings under diagnostic codes 5277, 5278, 5280, 5281, 5282, or 5283 are not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Therefore, based on the above evidence, the Board finds that an increased rating of 30 percent rating, but not higher, is warranted for the Veteran's plantar fasciitis under DC 5276. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.