Citation Nr: 21065264
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 16-27 513
DATE: October 25, 2021

ORDER

Entitlement to a compensable rating for bilateral flatfoot and bilateral plantar fasciitis prior to April 17, 2018 is denied.

Entitlement to a 50 percent rating beginning April 17, 2018 for bilateral flatfoot and bilateral plantar fasciitis is granted.

Entitlement to a compensable rating for allergic rhinitis is denied.

Entitlement to a 10 percent rating for hypertension (HTN) is granted.

FINDINGS OF FACT

1. Prior to April 17, 2018, the Veteran's bilateral plantar fasciitis and bilateral flatfoot exhibited no more than mild symptoms relieved by built up shoe or arch support.

2. Beginning April 17, 2018, the Veteran's bilateral plantar fasciitis and bilateral flatfoot exhibited symptoms of extreme tenderness of plantar surfaces bilaterally, which were not improved with orthopedic shoes or appliances; marked pain on weight-bearing and during ambulation, excessive supination, pain upon adduction; and lack of orthotic control.

3. For the entire appeal period, the Veteran's allergic rhinitis did not exhibit complete obstruction on either side of the nasal passages, obstruction greater than 50 percent on both sides, permanent hypertrophy with obstruction, nasal polyps, or granulomatous conditions.

4. The Veteran's hypertension required continuous medication for control, and it is more likely than not that but for medication, the Veteran would have exhibited systolic pressure predominantly 160 or more and/or diastolic pressure predominantly 100 or more, but there is no evidence of the Veteran having diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 

CONCLUSIONS OF LAW

1. The criteria for a compensable rating prior to April 17, 2018 for bilateral flatfoot and bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276. 

2. The criteria for a 50 percent rating beginning April 17, 2018 for bilateral flatfoot and bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276. 

3. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.97, Diagnostic Code 6522.

4. The criteria for a 10 percent rating, but no higher, for hypertension, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from August 1981 to August 1991. 

This matter was previously before the Board in September 2018 in which the Veteran's claims for higher ratings were denied. However, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). As a result, the parties entered into a Joint Motion for Remand (JMR) in June 2019 and the Board's September 2018 decision was vacated. 

In November 2020 and May 2021, the Board remanded the matters to obtain outstanding private treatment records and VA treatment records. While the agency of original jurisdiction (AOJ) obtained the Veteran's outstanding VA treatment records, the Veteran did not complete the requested VA Forms 21-4142 and 21-4142(a) which would have permitted the AOJ to obtain the Veteran's private treatment records as well. In this regard, the Board recognizes that VA has a duty to assist the Veteran. However, the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds that VA's duty to assist has been satisfied in this regard. Therefore, as remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his 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.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

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. See 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

1. Entitlement to a compensable rating for bilateral flatfoot and bilateral plantar fasciitis prior to August 7, 2018.

2. Entitlement to a rating greater than 10 percent from August 7, 2018, to Febreuary 22, 2020 for bilateral flatfoot and bilateral plantar fasciitis. 

3. Entitlement to a rating greater than 50 percent beginning February 22, 2020 for bilateral flatfoot and bilateral plantar fasciitis.

Disabilities of the feet are contemplated by Diagnostic Codes 5276 through 5284, which in some instances, provide for disability ratings for unilateral or bilateral disabilities. 38 C.F.R. § 4.71a.

The Veteran's bilateral flatfoot and bilateral plantar fasciitis have been assigned staged ratings under Diagnostic Code 5276 for flatfoot. 38 C.F.R. § 4.71a.

The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the foot, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

In this regard, the Board notes that the regulation change created a new Diagnostic Code for plantar fasciitis at Diagnostic Code 5269. See 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); amended 86 Fed. Reg. 8142 (Feb. 4, 2021) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). Under Diagnostic Code 5269, a 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, bilateral. A 20 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, unilateral. A 10 percent rating is warranted for otherwise, unilateral or bilateral.

Prior to the regulation change, plantar fasciitis was not specifically listed in the Diagnostic Code; however, the Board finds that Diagnostic Code 5276, for pes planus, is the most appropriate analogous rating code for the Veteran's disability. Both pes planus and plantar fasciitis affect the same approximate anatomical area, the plantar aspect of the foot, and manifest with similar symptoms of pain and spasm in the bottom of the foot while standing and walking.

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 bilateral disability when there is severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating requires bilateral pes planus that 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. 38 C.F.R. § 4.71a.

The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Cf. Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); see also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). 

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.

Merits

With regard to the merits of the Veteran's claim, the Board notes that for the period on appeal, the Veteran is in receipt of staged ratings including a noncompensable rating prior to August 7, 2018; a 10 percent rating from August 7, 2018 to February 22, 2020, and a 50 percent rating thereafter. After reviewing the evidence, the Board finds that staged ratings are appropriate; however, the Board finds a noncompensable rating is warranted prior to April 17, 2018, and a 50 percent rating is warranted thereafter.  

In support of the Board's conclusion, the Board notes that for the period prior to April 17, 2018, the evidence shows that the Veteran's symptoms were mild and were relieved by shoe orthotics. This finding is evidenced in a January 2013 podiatry evaluation where the Veteran reported no more pain in his legs and that he feels much better after receiving custom inserts. The examiner diagnosed the Veteran with shin splits bilateral-healed and pes cavus deformity. It was also noted the Veteran had no further pedal complaints at that time. 

Additionally, in the Veteran's September 2014 VA examination for foot conditions, the Veteran reported that he has received orthotics for both feet and feels much better. He reported no pain in his feet since he received custom orthotics and denied flare-ups or functional loss. Upon examining the Veteran, the examiner found no marked deformity of either foot, other than mild decrease in longitudinal arch height of the left foot. There was no pain or tenderness to palpation on plantar or dorsal aspect of either foot. 

The examiner further found that there was no established diagnosis of pes planus, and that the Veteran's foot condition was mild in severity. The examiner noted that the Veteran's foot condition required custom orthotics, but it did not compromise weight bearing. There was no pain reported on exam or functional loss. The examiner further found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the right or left foot was used repeatedly over a period of time. Likewise, there was no functional loss during flare-ups or when the right or left foot was used repeatedly over a period of time. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms. 

In a January 2017 podiatry visit, the Veteran reported that he is pleased with his orthotics but feels as if they are getting worn since he is on his feet seven days a week for 13 hours. He also reported being pleased with his previous nail removals. On examination, the Veteran was noted to have mild tenderness to the medial aspect of the right hallux in the area of the previous nail avulsion, but no other POP [sic]. The Veteran was diagnosed with pes planus, bilaterally, and replacement orthotics were ordered. He was advised to continue wearing his orthotics for pain free ambulation.

Given the above findings, the Board finds a noncompensable rating is warranted as the Veteran's right and left foot exhibited symptoms that were mild at best and were relieved by custom orthotics. There is no evidence of moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, bilateral or unilateral, that would warrant a higher rating prior to April 17, 2018. Therefore, a noncompensable rating is warranted for the period prior to April 17, 2018. 

For the period beginning April 17, 2018, the Board finds a 50 percent rating, but no higher is warranted. In so finding, the Board initially notes that in a March 2020 rating decision, the AOJ assigned a 50 percent rating, effective February 22, 2020, based on the Veteran's foot condition exhibiting extreme tenderness of plantar surfaces bilaterally, which were not improved with orthopedic shoes or appliances. The AOJ also noted the effective date was based on the date the Veteran filed for an increased rating. The Board notes, however, that the Veteran's increased rating claim for his service-connected bilateral foot condition was already on appeal since the filing of his claim in March 2014.

To that end, the Board notes that the Veteran began complaining of his orthotics not working in an April 17, 2018 VA podiatry visit. In doing so, the Veteran reported that he was having burning after prolonged standing. He was diagnosed with pes planus and a new pair of orthotics were ordered.

Additionally, in a December 2018 private treatment record, the private examiner noted that the Veteran's orthotics revealed very poor control of the abnormal forces during his gait. The examiner found lack of orthotic control, marked pain on weight-bearing and during ambulation, and excessive supination noted through gait cycle. Similarly, A November 2018 private treatment record shows the Veteran reported minor pain to his bilateral feet and mild improvement. However, the private examiner noted that the severity was moderate. The examiner further noted marked pain on weight-bearing and during ambulation, excessive supination, and pain upon adduction. The examiner diagnosed the Veteran with tarsal tunnel syndrome bilaterally, and other acquired deformities of the right and left foot. Moreover, in the Veteran's April 2019 and March 2020 VA foot conditions examinations, the Veteran was found to have extreme tenderness of plantar surfaces bilaterally, which was not improved with orthopedic shoes or appliances.

Based on the above, the Board finds that the Veteran's extreme tenderness of plantar surfaces is clearly noted during his April 2019 examination which would entitle the Veteran to a 50 percent rating at that time; however, there is also factually ascertainable evidence that suggests the Veteran's condition worsened even earlier given the Veteran's initial complaint of his orthotics not working in April 2017, and the private examiner's subsequent findings of marked pain on weight-bearing and during ambulation, excessive supination, painful adduction, and lack of orthotic control. As such, the Board resolves all doubt in favor of the Veteran and finds that a 50 percent rating is warranted as of April 17, 2018.

The Board has considered whether Diagnostic Code 5284 (for "other" foot injuries) is applicable to this case. However, the Board finds that the Veteran's plantar fasciitis is adequately contemplated by his assigned rating under Diagnostic Code 5276. Plantar fasciitis is defined in part as inflammation of the soles of the feet. See Stedman's Medical Dictionary 1392, 652 (27th ed. 2000). Diagnostic Code 5276 explicitly considers swelling, pain, and tenderness of the plantar surfaces of the feet. As such, Diagnostic Code 5276 is the proper diagnostic code to apply to his service-connected plantar fasciitis. 

Additionally, as mentioned above, the amended rating criteria, if favorable to the claim, can be applied from the effective date of the regulatory change. However, the Board finds that Diagnostic Code 5276 is the appropriate code to apply as this is more favorable to the Veteran given his currently assigned 50 percent rating.  

4. Entitlement to a compensable rating for allergic rhinitis.

The Veteran seeks a compensable rating for allergic rhinitis which has been evaluated under Diagnostic Code 6522. Under Diagnostic Code 6522, allergic rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97. A 30 percent evaluation is assigned when polyps are present. Id. 

After having reviewed the evidence of record, the Board finds a compensable rating is not warranted.

A review of the evidence shows the Veteran received a VA rhinitis examination in July 2013 where he was diagnosed with chronic sinusitis and allergic rhinitis. The Veteran reported since leaving active duty he uses saline flushes two days and a netti pot weekly. He also takes Zyrtec and montelukast. He reported that he presently has sinus pressure, slight headache, and congestion. The examiner noted that the Veteran has not needed any antibiotics or had any further ENT evaluation. He has not had any recent sinus infections and is presently not treated for chronic sinusitis, but that he is only being treated for allergic rhinitis. The examiner further found that the Veteran's rhinitis did not cause greater than 50 percent obstruction on both sides, complete obstruction on one side, permanent hypertrophy, nasal polyps, or any granulomatous conditions.

In his September 2014 VA rhinitis examination, the Veteran complained of runny nose with clear nasal discharge and dry cough. He reported using medications daily and noted that his symptoms are worse during the fall months. The examiner found no complete obstruction on either side, no obstruction greater than 50 percent on both sides, no permanent hypertrophy, no nasal polyps, and no granulomatous conditions. Likewise, the Veteran's subsequent December 2019, January 2020, and March 2020 VA rhinitis examinations continued to find the same. 

In addition to the above, the Veteran's VA and private treatment records are absent of evidence showing complete obstruction of either side of the nasal passages, obstruction greater than 50 percent on both sides, nor is there evidence of polyps that would warrant a compensable rating under Diagnostic code 6522 for allergic rhinitis. Moreover, the Board recognizes a January 2016 VA ENT record where it was noted that an examination of the Veteran showed mild right septal deviation and turbinate hypertrophy bilaterally; however, the examiner did not indicate obstruction of the nasal passages. The examiner recommended the Veteran see an allergist and the Veteran replied that he was transitioning care to Kaiser and would follow-up with an allergist at that time. However, as explained above, the Veteran did not provide authorization for VA to retrieve these private records. Therefore, these records are not available for the Board's consideration.

Given the above, the Board finds a compensable rating for allergic rhinitis is not warranted as there is no evidence that the Veteran's nasal passages showed obstruction greater than 50 percent on both sides, complete obstruction on either side, nasal polyps, permanent hypertrophy with obstruction of nasal passages, nasal turbinates, or granulomatous conditions. 

As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for a compensable rating for allergic rhinitis is denied.

5. Entitlement to a compensable rating for hypertension.

The Veteran seeks a compensable rating for his service-connected hypertension. 

Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101.

A review of the evidence shows the Veteran received a VA examination for hypertension in April 2013 where he was noted to have hypertension since 1984. The examiner found that the Veteran's treatment plan requires the use of continuous medication; however, the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. His current blood pressure readings were noted as 116/64 in all three instances.

Similarly, in his September 2014 VA hypertension examination, it was noted that the Veteran takes continuous medication for his blood pressure; however, he did not have a history of a diastolic blood pressure predominantly 100 or more. Current readings during the examination were noted as 115/71, 126/78, and 123/78, with an average blood pressure reading of 121/75. Subsequent VA examinations in February 2019, December 2019, and March 2020 continue to show the use of continuous medication without a history of a diastolic blood pressure predominantly 100 or more. 

Although the Veteran's current blood pressure readings do not show diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, the Board finds a 10 percent rating is warranted given the Veteran's need for continuous medication for the entire appeal period. In addition, while VA treatment records show that the Veteran's hypertension remained stable, it was also noted that he was taking medication the entire time. Moreover, the Board recognizes a March 2019 treatment record where it was noted that the Veteran's blood pressure was elevated since he did not take his medication that morning. At that time, the Veteran's blood pressure was noted as 150/83. Although his reading did not show systolic pressure greater than 160 or diastolic pressure greater than 100 to warrant a compensable rating, the Board finds that this evidence clearly suggests that but for being controlled on medication, the Veteran's blood pressure would have likely exceeded systolic pressure greater than 160 and/or diastolic pressure greater than 100 to warrant a compensable rating. 

Therefore, resolving all doubt in favor of the Veteran, the Board finds a 10 percent rating is warranted. A higher rating is not warranted as the evidence does not show diastolic blood pressure readings predominantly 110 or higher or systolic blood pressure readings predominantly 200 or higher. Accordingly, a 10 percent rating for hypertension is granted.

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Laffitte, 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.