Citation Nr: 21066378 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-24 853A DATE: October 29, 2021 ORDER Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus prior to December 9, 2019 is denied. Entitlement to a rating of 50 percent, and no higher, for bilateral plantar fasciitis with pes planus from December 9, 2019 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 12, 2013 is denied. REMANDED Entitlement to service connection for a headache disability is remanded. FINDINGS OF FACT 1. The Veteran's bilateral plantar fasciitis with pes planus did not more nearly approximate bilateral pronounced flatfoot prior to December 9, 2019. 2. From December 9, 2019, the Veteran's bilateral plantar fasciitis with pes planus is manifested by marked pronation and extreme tenderness of the plantar surfaces of the feet, not improved by orthopedic shoes or appliances. 3. Prior to August 12, 2013, the preponderance of the evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus prior to December 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5276. 2. The criteria for entitlement to a rating of 50 percent for bilateral plantar fasciitis with pes planus from December 9, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5276. 3. The criteria for TDIU prior to August 12, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. In a March 2020 decision, the Board, in pertinent part, denied service connection for a headache disability; denied a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus; and denied entitlement to TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the portions of the March 2020 Board decision which denied service connection for a headache disability; denied a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus; and denied entitlement to TDIU. In June 2021, the Board remanded the claims for further development. Subsequently, a September 2021 rating decision, in pertinent part, granted a 50 percent rating for bilateral plantar fasciitis with pes planus from June 25, 2021, and granted TDIU from August 12, 2013. The issues of entitlement to TDIU prior to August 12, 2013; and entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus prior to June 25, 2021, and in excess of 50 percent from June 25, 2021, remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 30 percent for bilateral plantar fasciitis with pes planus prior to June 25, 2021. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where a claimant is awarded service connection and assigned an initial disability rating, separate ratings can be assigned for different periods of time since the effective date for the award of service connection ("known as staged ratings"). See Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of the two disability evaluations is 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. The Veteran's bilateral plantar fascitis with pes planus is rated 30 percent, effective August 12, 2013, and 50 percent, effective June 25, 2021, pursuant to 38 C.F.R. § 4.71a, DC 5276. The JMPR directed the Board to consider whether a higher rating was warranted under DC 5276. The Veteran's claim for an increased rating was received in August 2013. The relevant period for consideration therefore begins one year prior, in August 2012. The Board notes that prior to August 2013, the Veteran was in receipt of separate, zero percent ratings for each foot. Pes planus is rated under DC 5276, which provides that a 30 percent rating is assigned for severe bilateral flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A 50 percent rating is assigned for bilateral pronounced flatfeet, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. Effective February 7, 2021, under DC 5269, a 10 percent rating is assigned for unilateral or bilateral plantar fasciitis; a 20 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of one foot (unilateral); a 30 percent rating is assigned when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of both feet (bilateral). Id. A 40 percent rating is assigned under DC 5269 for actual loss of use of the foot. Id., DC 5269, Note (1). If a veteran has been recommended for surgical intervention, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. Id., Note (2). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021, do not apply prior to that date. See id.; 85 Fed. Reg. 76453. However, the Board may continue to apply any former rating criteria pertaining to the disability at issue, if such application is more favorable to the claim. The Veteran was afforded a VA examination in May 2014. There was no pain on use of the feet. There was no pain on manipulation of the feet. There was no swelling and no characteristic callouses. The Veteran used arch supports for both feet. There was no extreme tenderness of the plantar surfaces of either foot. Decreased longitudinal arch height of both feet on weight bearing was noted. The weight-bearing line did not fall over or medial to the great toe on either foot. There was no objective evidence of marked deformity of either foot. There was evidence of marked pronation of both feet. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was no inward bowing of the achilles tendon of either foot. There was no marked inward displacement and severe spasm of the achilles tendons. The examiner stated that there was no functional loss for left or right lower extremity attributable to claimed condition. There was no impact on his ability to complete any occupational task. At his December 9, 2019 Board hearing, the Veteran testified that his feet were tender and swollen every morning when he wakes up. He described them as locking while he sleeps, and he stated that it takes 30 to 40 minutes until he can walk or flex his feet once he wakes up. A VA examination was conducted in June 2021. The Veteran reported that over the years his pain to bilateral feet had worsened. The examiner described the current symptoms for both feet as "pain to heel of foot that radiates towards middle of foot on plantar aspect. Pain described as constant pressure. Pain changes to sharp when weight placed on feet. Pain worse during first steps in a.m. Pain does not radiate." The Veteran denied flare-ups, but reported functional loss as "difficulty walking first steps in [morning]. Unable to run, climb ladders, and do outside work due to foot pain." Examination noted pain on use of both feet. There was no pain on manipulation of the feet. There was swelling on use of both feet. The Veteran used arch supports. There was extreme tenderness of the plantar surfaces of both feet, and marked pronation of both feet. This was not improved by orthopedic shoes or appliances. The Veteran endorsed pain to bilateral feet with weight bearing activities; pain was described as sharp to bilateral heels that radiated to middle of foot. In a September 2021 addendum to the examination report, the examiner noted that due to the overlap in symptomatology between the Veteran's service-connected bilateral plantar fasciitis and pes planus, and nonservice- connected bilateral hallux valgus and arthritis, it was not possible beyond mere speculation to state which symptoms noted on the examination were attributable to one condition or the other. For the period prior to December 9, 2019, the evidence indicates the Veteran's bilateral plantar fasciitis with pes planus was manifested by symptoms that do not more nearly approximate the criteria for a 50 percent rating. The evidence showed that the only symptom present that is contemplated by the 50 percent rating was marked pronation. None of the other criteria for this higher rating were found. Thus, it cannot be said that his bilateral plantar fasciitis with pes planus more nearly approximated the 50 percent criteria. The RO assigned a 50 percent rating from June 25, 2021 based on the VA examination findings of that date, specifically marked pronation and extreme tenderness of the plantar surfaces of the feet, not improved with orthopedic shoes or appliances. However, the Board finds that the Veteran's December 9, 2019 hearing testimony provides evidence that the findings noted at the June 2021 examination were present as of the date of the hearing. The Veteran testified to experiencing tenderness as well as functional loss including difficulty walking in the morning. Accordingly, the 50 percent rating is warranted from December 9, 2019. A 50 percent rating is the maximum available under DC 5276. The Board has considered whether switching DCs to 5269 from February 7, 2021, would be more favorable to the Veteran. However, the Board notes that a 30 percent rating is the maximum rating under DC 5269 unless there is actual loss of use of the foot, which has not been demonstrated in this case. The Board also finds that separate ratings may not be assigned under DC 5276 and DC 5269. Rather, the Veteran's plantar fasciitis is rated by analogy to flatfoot under DC 5276 because prior to February 7, 2021, there was no diagnostic code specific to plantar fasciitis and, thereafter, DC 5276 is more favorable for the Veteran. 2. Entitlement to TDIU prior to August 12, 2013 The Veteran contends that he is unable to work due to his service-connected disabilities, including his left upper extremity radicular group weakness. As such, a claim for TDIU is part-and-parcel of his claim for a higher rating for that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2020, the Board took jurisdiction of the claim for a TDIU as part and parcel of the Veteran's claim for an increased rating pursuant to Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In a September 2021 rating decision, the RO granted TDIU, effective August 12, 2013, for only part of the appeal period. Thus, entitlement to TDIU prior to August 12, 2013, remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the increased rating claims were received in February 2014, the appeal period for IU consideration follows the same appeal period; this includes a one year look back period. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38C.F.R. §4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38C.F.R. §§3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38C.F.R. §§3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38C.F.R. §4.16 (b). For the period prior to August 12, 2013, the Veteran was service connected for traumatic enucleation, left eye, rated 40 percent; lower radicular group weakness, rated 20 percent; tinnitus, rated 10 percent; and bilateral plantar fasciitis with pes planus, hearing loss, hemorrhoids, and scars or the left forearm, all of which were rated zero percent. His combined rating was 60 percent during the appeals period prior to August 12, 2013. Thus, the schedular criteria for a TDIU were not met. See 38 C.F.R. § 4.16 (a). Nevertheless, entitlement to a TDIU still may be granted on an extraschedular basis under §4.16(b). This additional subpart of the regulation indicates "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi,15 Vet. App. 1 (2001). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component, which is pertinent in this case, includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Upon review, the Board finds the evidence does not support a TDIU prior to August 12, 2013. The Veteran testified that he retired in 2013. His VA Form 21-8940 completed in January 2020, as well as VA Form 21-4192 indicated that he voluntarily retired on February 28, 2013 from a full-time position as a Public Affairs Specialist earning approximately $92,000 per year. The Veteran had held this position since 2005. With regard to the economic considerations in Ray, the evidence clearly shows that the Veteran was engaged in an occupation earning more than marginal income for the appeal period in question until February 28, 2013. The Board notes that the Veteran had two years of college. He previously worked as a civilian Defense Department employee, and as a journalist. He had multiple assignments in Southwest Asia and other locations. His service-connected disabilities have been present throughout his post-service working career, and his loss of the left eye, left arm disability, and bilateral foot disability did not keep him from a successful career from which he voluntarily retired in February 2013. With regard to the non-economic considerations discussed in Ray, the Board determines that, prior to August 12, 2013, the Veteran had the mental and physical ability (considering his education and past training, skills, and work history) to perform substantially gainful work in public affairs or journalism or similarly situated occupations. There are no relevant medical records addressing the Veteran's ability to work during the period from February 2013 (when he last worked full-time) and August 12, 2013 (the date from which TDIU has been granted). However, the October 2014 VA examiner noted the impact of the Veteran's left lower radicular group weakness disability on his ability to work as "he cannot hold or grasp things well, especially during flare-ups." The May 2014 VA examiner stated that there was no impact from the service-connected bilateral foot disability on the Veteran's ability to complete any occupational task. To the extent that he reported on the VA 21-8940 that he could not work due to headaches, head injuries, and PTSD, the Board notes that the Veteran is not service connected for traumatic brain injury or PTSD. Further, even if his claim for service connection for headaches were to be granted on remand, the effective date of such award could not be earlier than August 12, 2013 (i.e., the date his original, informal claim for service connection for the headache disability was received at VA). Therefore, the Board cannot consider the effect of PTSD, TBI, or headaches. As noted, the Court in Ray held that the appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Based on the Board's review, the evidentiary record fails to demonstrate that the Veteran was unemployable due solely to his service-connected disabilities from February 2013, when he voluntarily retired from a full-time position, until August 12, 2013. Accordingly, there is no basis to refer this matter to the Director of Compensation Services for extraschedular consideration. The preponderance of the competent and probative evidence is against entitlement to a TDIU prior to August 12, 2013. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). The claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability is remanded. The parties to the December 2020 JMPR found that the Board erred by not addressing the Veteran's theory that his headache disability was secondary to his service-connected eye disability. The JMPR indicates that at his December 2019 hearing, the Veteran testified that he has had many surgeries to his eye, and that the surgeries have "create[d] a lot of headaches and a lot of issues." The Board remanded the claim for an examination and opinion to properly evaluate the relationship, if any, between the Veteran's service-connected traumatic enucleation of the left eye, to include surgical treatment thereof, and his claimed headache disability. This was to include an opinion as to whether Veteran's claimed headache condition was at least as likely as not aggravated by the Veteran's service-connected left eye disability, or aggravated by surgical treatment for such. An examination was conducted in June 2021. The examiner provided an adequate opinion addressing whether the service-connected eye disability caused the Veteran's headache disability. However, with respect to possible aggravation, the examiner appears to have limited her opinion to aggravation during the active duty service period only. As the June 2021 VA opinion does not address aggravation sufficiently, a remand is required for an addendum opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: Return the file to the June 2021 VA examiner for an addendum opinion. If that examiner is not available, an opinion must be obtained from an appropriate medical professional. The examiner must address whether the Veteran's headache disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected traumatic enucleation of the left eye, to include surgical treatment thereof. A clear rationale must be provided. In doing so, the examiner must specifically address whether there has been any aggravation of the headache disability by the left eye enucleation or surgical treatment thereof, since at least August 2013 (the date of his informal service connection claim), to include whether there was any history of aggravation prior to that time. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.