Citation Nr: 21070144 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-13 963 DATE: November 23, 2021 ORDER Entitlement to a 10 percent disability rating for bilateral plantar fasciitis from January 28, 2011 to June 23, 2018 is granted. REMANDED Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. Entitlement to a rating in excess of 40 percent for minimal anterior hypertrophic spondylosis at L3-L4 of the lumbar spine, to include any separate ratings for associated neurological disabilities, is remanded. Entitlement to a rating in excess of 10 percent for bilateral plantar fasciitis is remanded. Entitlement to a total disability individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on factual aid and attendance is remanded. Entitlement to SMC at the housebound rate is remanded. FINDING OF FACT From January 28, 2011 to June 23, 2018, the Veteran's bilateral plantar fasciitis resulted in pain on manipulation and use of the feet. CONCLUSION OF LAW The criteria for entitlement to a 10 percent disability rating for bilateral plantar fasciitis from January 28, 2011 to June 23, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5276. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to August 1988, from August 1989 to January 1990, from February 2003 to June 2003, from February 2004 to September 2004, from October 2004 to January 2005, from January 2006 to May 2006, from June 2006 to September 2009, and from October 2009 to September 2010. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated August 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. The appellant testified at a July 2021 video hearing with the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. INCREASED RATING Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Upon review of the evidence, the Board finds that a staged rating is no longer necessary as the Veteran's symptoms have most closely approximated a 10 percent disability rating under DC 5276 throughout the duration of the appeal period. Where there is a question as to which of the 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. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021, including the creation of DC 5269 for plantar fasciitis. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board may consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board is permitted to consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. As the period from February 7, 2021 to the present is being remanded, as discussed below, the Board will apply the Diagnostic Code that was in place prior to February 7, 2021 to the limited stage adjudicated in this decision. Entitlement to a 10 percent disability rating for bilateral plantar fasciitis from January 28, 2011 to June 23, 2018 The Veteran generally asserts that the assigned noncompensable rating under DC 5276 does not adequately reflect the severity of his bilateral plantar fasciitis from January 28, 2011 to June 23, 2018. The period on appeal begins on January 28, 2011, the effective date for the award of service connection for the Veteran's bilateral plantar fasciitis. Plantar fasciitis is an inflammation of plantar fascia, owing to repetitive stretching or tearing of muscle fibers near their attachment to the calcaneal tuberosity. It is one of the most common causes of heel pain. Dorland's Illustrated Medical Dictionary 684 (32nd ed. 2012). The Veteran's plantar fasciitis has been rated by analogy under the criteria for pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Pursuant to Diagnostic Code 5276 for bilateral pes planus a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use of the feet. Id. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. Id. A 50 percent rating is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. Id. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. After a complete review of the record, the Board finds that from January 28, 2011 to June 23, 2018, the Veteran's bilateral plantar fasciitis was manifested by the same pain on manipulation and use of the feet that served as a basis for the grant of 10 percent from June 24, 2018 to the present. Thus, a 10 percent disability rating is warranted. The issue of entitlement to a rating in excess of 10 percent for bilateral plantar fasciitis for the entirety of the appeal period, from January 28, 2011 to the present, is remanded and addressed below. REASONS FOR REMAND Relevant to all issues on appeal, during his July 2021 Board hearing, the Veteran testified that he received treatment from a private chiropractic provider. However, there is no indication that the VA has attempted to obtain these records. On remand, the AOJ should attempt to obtain any such private treatment records relevant to the Veteran's appeal. 1. Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. In his July 2021 hearing, the Veteran testified that his right knee strain had worsened since his last VA examination. As the Veteran was last provided a VA examination for his right knee strain in November 2016, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestation of that disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, remand is warranted. 2. Entitlement to a rating in excess of 40 percent for minimal anterior hypertrophic spondylosis at L3-L4 of the lumbar spine, to include any separate ratings for associated neurological disabilities, is remanded. In his July 2021 hearing, the Veteran testified that his minimal anterior hypertrophic spondylosis at L3-L4 of the lumbar spine (hereinafter "back disability") had worsened since his last VA examination. As the Veteran was last provided a VA examination for his back disability in December 2018, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestation of that disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, remand is warranted. Additionally, during the Veteran's July 2021 hearing, he raised concerns about neurological disabilities associated with his service-connected back disability, including bladder dysfunction, erectile dysfunction, motor function disruption in both his legs and feet, pain, numbness, and tingling from his back. Thus, the Board finds that remand is also warranted to provide the Veteran an examination for any associated neurological symptoms that have been present at any time since January 28, 2011. 3. Entitlement to a rating in excess of 10 percent for bilateral plantar fasciitis is remanded. In his July 2021 hearing, the Veteran testified that his bilateral plantar fasciitis had worsened since his last VA examination. As the Veteran was last provided a VA examination for his bilateral plantar fasciitis in October 2018, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestation of that disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, remand is warranted. 4. Entitlement to a TDIU is remanded. 5. Entitlement to SMC based on factual aid and attendance is remanded. 6. Entitlement to SMC at the housebound rate is remanded. The issues of entitlement to a TDIU, entitlement to SMC based on factual aid and attendance, and entitlement to SMC at the housebound rate were all raised by the record and are inextricably intertwined with the remanded higher rating claims. Thus, a remand of these claims is required. The matters are REMANDED for the following action: 1. Give the Veteran the opportunity to identify his private healthcare providers, to include chiropractic providers, and to submit releases for VA to obtain any private records identified. The Veteran must assist in the matter by providing identification and releases for providers who treated him from January 28, 2011 to the present. 2. Attempt to obtain all private treatment records identified in Directive #1. 3. Schedule the Veteran for examinations to determine the current severity of his right knee strain, back disability, and bilateral plantar fasciitis. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. a) When evaluating the Veteran's service-connected right knee and back disabilities, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). b) When evaluating the Veteran's service-connected right knee and back disabilities, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). c) When evaluating the Veteran's service-connected back disability, the examiner should capture any reported functional ankylosis that occurs during flare ups, and determine whether the functional ankylosis that occurs is in a favorable or an unfavorable position. d) When evaluating the Veteran's service-connected connected back disability, provide examinations for any neurological impairments associated with the Veteran's service-connected back disability that have been present at any time since January 28, 2011, to include bladder dysfunction, erectile dysfunction, motor function disruption in both his legs and feet, pain, numbness, and tingling. 4. After all other remand directives have been completed, and any additionally indicated development has been completed, readjudicate the inextricably intertwined issues of entitlement to a TDIU, entitlement to SMC based on factual aid and attendance, and entitlement to SMC at the housebound rate from January 28, 2011 to the present. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock The Board's decision in this case is binding only with respect to the instant matter interpretations of general applicability. 38 C.F.R. § 20.1303.