Citation Nr: 21069913 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 12-04 812 DATE: November 22, 2021 ORDER An initial 30 percent rating, but no higher, for right foot plantar fasciitis is granted from July 27, 2009. REMANDED Entitlement to service connection for a right ankle disorder as secondary to a service-connected right foot disability is remanded. FINDING OF FACT Throughout the appeal, the Veteran's right foot plantar fasciitis more nearly approximates marked pronation, extreme tenderness of the plantar surfaces of the feet, not improved by orthopedic shoes. CONCLUSION OF LAW The criteria for an initial 30 percent rating, but no higher, for right foot plantar fasciitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.321, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2001 to December 2001 and August 2005 to November 2006, to include service in Kuwait and Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously denied by the Board in January 2018. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court) which, in a December 2019 memorandum decision, vacated the Board's decision and remanded for additional development and readjudication. In June 2020, in pertinent part, the Board denied the Veteran's increased rating claim. The Veteran thereafter appealed the Board's decision to the Court. In an Order dated in July 2021, the Court granted the parties' Joint Motion for Partial Remand (JMR) to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. 1. An initial 30 percent rating for right foot plantar fasciitis is granted. Pursuant to the JMR, the parties agreed that the Board failed to provide an adequate statement of reasons or bases regarding whether a rating in excess of 10 percent was warranted for the Veteran's right foot disability due to her functional loss due to pain; failed to discuss all potentially favorable evidence, and failed to explain why it selected April 3, 2015, as the effective date for a rating of 30 percent for the Veteran's right foot disability. In the interest of judicial economy, the Board will focus the instant decision on the above identified areas of deficiency, and hereby incorporates all other facts and analysis of the January 2018 and June 2020 vacated Board decisions by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran asserts that she is entitled to an initial rating in excess of 10 percent prior to April 3, 2015, and in excess of 30 percent thereafter for service-connected right foot plantar fasciitis under DC 5276. The period on appeal begins on July 27, 2009, the date service connection was established. Changes to the schedule for musculoskeletal disabilities became effective February 7, 2021. The amended rating criteria, if favorable to the Veteran's 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 VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Of significance to the Veteran, plantar fasciitis was added as a separate disability and is no longer rated as or with flatfoot (pes planus) under Diagnostic Code 5276 or as a foot injury under Diagnostic Code 5284. Before the regulatory changes, 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 severe bilateral 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 also warranted for pronounced unilateral acquired flatfoot; 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. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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, Diagnostic Code 5276. As of February 7, 2021, the Veteran's plantar fasciitis can be evaluated separately under Diagnostic Code 5269. Diagnostic Code 5269 indicates unilateral or bilateral plantar fasciitis warrants a 10 percent evaluation. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Notes to this Diagnostic Code indicate that the actual loss of the use of either foot due to plantar fasciitis warrants a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5269, Note 1. A second note indicates 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. Id. at Note 2. Diagnostic Code 5284 applies to non-specified feet disabilities and provides for a 10 percent rating for a moderate injury, a 20 percent rating for a moderately severe injury, and a 30 percent rating for a severe injury. 38 C.F.R. § 4.71a, DC 5284. An August 2009 VA podiatry outpatient treatment record noted mild collapse of medial longitudinal arch upon weight-bearing with limited ankle dorsiflexion. The Veteran was given inserts for her boots. The October 2009 VA examination report documents use of orthotic inserts with fair efficacy. In a November 2009 Statement in Support of Claim, the Veteran stated her "right foot injury has become worse and it interferes with my day to day activities and employment." Additionally, the Veteran reported chronic pain with walking, severe pain, swelling, tenderness, and instability with running. See July 2010 Notice of Disagreement; February 2012 VA Form 9. February 2010 and March 2014 Physical Profiles show the Veteran was on a permanent profile with her Reserve unit because of the limitations imposed by her right foot disability. A November 2013 Reserve treatment record notes multiple flare-ups with increased pain and use of a right foot brace at night. An October 2013 private evaluation notes pain to palpation of plantar heel, significant inflammation at the plantar fascia, significant pronation, and significant calcification. A February 2014 private treatment record noted an abducted gait, antalgic gait, right pain to palpation of the plantar heel, and a need to control the pronation of the foot. On VA examination in April 2015, a VA examiner acknowledged the Veteran's report of pain (sometimes sharp) and occasional tingling. The examiner found pain accentuated on use, but found no pain on manipulation of the feet, no characteristic callouses, no extreme tenderness on plantar surfaces, no decreased longitudinal arch height on weight bearing, no deformity, no pronation, weight bearing line did not fall over or medial to great toe, no inward bowing of Achilles tendon, and no inward displacement and severe spasm of Achilles tendon on manipulation. The Veteran denied use of an assistive device. The examiner concluded that right foot pain may mildly impact employment to the extent walking further than half a mile without rest is required. In May 2016, VA received a private disability benefits questionnaire (DBQ), which indicated symptoms of pain on use of foot, pain on manipulation, swelling on use, and extreme tenderness on plantar surfaces improved by use of orthotics. The examiner also found objective evidence of marked deformity and marked pronation, but no characteristic calluses. The examiner indicated that it was unknown if the condition was improved by orthopedic shoes or appliances. In November 2017, VA received another private DBQ, which reflected the Veteran's report of pain on movement and manipulation. The clinician found pain on use of feet accentuated by manipulation, swelling, and extreme tenderness on the plantar surfaces not improved by orthotics, but found no evidence of marked deformity, decreased longitudinal arch on weight bearing, or pronation. Regarding a rating under Diagnostic Code 5269 (since February 2021), the Board finds that a higher rating under this Diagnostic Code would be not be assignable because only a 10 percent rating would be warranted. The Veteran has not reported to have had foot surgery and the record does not reflect she has been recommended for surgical intervention but is not a surgical candidate, which would preclude a rating of 20 or 30 percent. As such, a rating under Diagnostic Code 5276 or 5284 is more advantageous for the Veteran. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right foot disability has been manifested by marked pronation and extreme tenderness of the plantar surfaces of the foot that is not improved by orthopedic shoes or appliances. As indicated in the October 2009 foot VA examination report, the Veteran has continued having extreme tenderness of plantar surfaces and her plantar fasciitis was only fairly improved by orthotics. An October 2013 private treatment record notes significant calcification and significant pronation. The record also noted the Veteran's prior use of orthotics with continued pain in the mid arch. VA and private treatment records from 2009 to 2019 note several instances of complaints of severe right foot pain due to her plantar fasciitis and note that the Veteran sometimes benefited from pain relief from the use of orthotics and sometimes she did not. See e.g., October 2009 VA examination report; private DBQ received November 2017. As it is evident that the Veteran constantly experienced right foot pain with and without the use of orthotics the Board will resolve reasonable doubt in the Veteran's favor and find that her disability more nearly approximates the criteria for pronounced flatfoot, warranting the maximum 30 percent rating for a unilateral foot disability under Diagnostic Code 5276 throughout the appeal period. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be rated higher under another diagnostic code, as 30 percent is the maximum available schedular rating for a unilateral foot disability and no other diagnostic code could provide a higher rating for the right foot disability. See 38 C.F.R. §4.71a, Diagnostic Codes 5276-84. REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disorder as secondary to a service-connected right foot disability is remanded. An increased rating claim may raise issues of secondary service connection. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Here, the Veteran has reasonably raised a claim for service connection for ankle symptoms, to include limited ankle dorsiflexion, as secondary to her service-connected right foot disabilities. On remand, the Veteran should be afforded an examination as to the presence and etiology of any right ankle disorder and a necessary medical opinion should be obtained. Updated VA and private treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of her right ankle disorder. The claims file should be made available to and should be reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any right ankle disorder or functional impairment found: (a) is proximately due to the Veteran's service-connected right foot disability, to include metatarsalgia and plantar fasciitis; or (b) has been aggravated (worsened beyond natural progression) by the Veteran's service-connected right foot disability, to include metatarsalgia and plantar fasciitis. The examiner must address the May 2016 private DBQ examiner's diagnosis of bursitis of the ankle and foot, which the examiner listed as an additional disability that "pertains" to the Veteran's flatfoot, along with service-connected metatarsalgia. See also August 2009 VA podiatry outpatient record (noting limited ankle dorsiflexion); December 2016 VA problem list (joint pain involving ankle and foot.) In addressing secondary service connection, please note that the right foot disability need not be diagnosed or service-connected at the time the ankle disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale must be provided for all opinions expressed. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.