Citation Nr: 21072732 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 10-00 495 DATE: December 6, 2021 ORDER Prior to July 12, 2019, an initial rating in excess of 10 percent for bilateral plantar fasciitis is denied. As of July 12, 2019, an initial 50 percent rating, but no higher, for bilateral plantar fasciitis is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to July 12, 2019, the Veteran's bilateral plantar fasciitis is manifested by symptomatology most nearly approximating moderate flatfoot, without more severe symptomatology more nearly approximating severe or pronounced flatfoot. 2. As of July 12, 2019, the Veteran's bilateral plantar fasciitis is manifested by symptomatology most nearly approximating pronounced flatfoot, without loss of use of the feet. CONCLUSIONS OF LAW 1. Prior to July 12, 2019, the criteria for an initial rating in excess of 10 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5299-5276. 2. As of July 12, 2019, the criteria for an initial rating of 50 percent, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5299-5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to March 2008. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in June 2008 by a Department of Veterans Affairs (VA) Regional Office (RO), which, as relevant, granted service connection for bilateral plantar fasciitis with a noncompensable rating, effective April 1, 2008. In November 2010, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded case for additional development in October 2011, November 2014, and January 2018. In February 2019, the Agency of Original Jurisdiction increased the rating for the Veteran's bilateral plantar fasciitis to 10 percent, effective October 31, 2016. In September 2019, the Board awarded an initial 10 percent rating, but no higher, for the entire appeal period, i.e., as of April 1, 2008, the date service connection was awarded. Thereafter, the Veteran appealed the Board's denial of an initial rating in excess of 10 percent for bilateral plantar fasciitis to the United States Court of Appeals of Veterans Claims (Court). In September 2020, the Court granted the Secretary of VA's and the Veteran's (the parties') August 2020 Joint Motion for Partial Remand (Joint Motion), which vacated the September 2019 Board decision to the extent that it denied an initial rating in excess of 10 percent for bilateral plantar fasciitis and remanded the matter for further consideration. Upon the case's return, the Board remanded the case for additional development in February 2021. In an August 2021 rating decision, the AOJ awarded an initial 50 percent rating for the Veteran's bilateral plantar fasciitis as of April 15, 2021. As such is not the maximum rating available for this disability, the claim remains in appellate status and has been recharacterized to reflect that a staged rating is in effect. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). The case now returns for further appellate review. The Board notes that, subsequent to the issuance of the August 2021 supplemental statement of the case, additional evidence has been associated with the record. However, as such was submitted by the Veteran, is irrelevant to the instant matter, or contain findings that are duplicative to those previously considered by the AOJ, there is no prejudice to him in proceeding with a decision at the present time. 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1305(c). Entitlement to an initial rating in excess of 10 percent prior to April 15, 2021, and in excess of 50 percent thereafter for bilateral plantar fasciitis. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson, supra; Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be 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." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For the appeal period stemming from the April 1, 2008, date of service connection, the Veteran's bilateral plantar fasciitis has been evaluated as 10 percent disabling prior to April 21, 2021, and 50 percent disabling thereafter pursuant to DC 5299-5276. In this regard, when a disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. § 4.20. Plantar fasciitis is not listed under VA's rating schedule; however, it has been rated under Diagnostic Code 5276 as its symptomatology is analogous to flatfoot. Diagnostic Code 5276 addresses acquired flatfoot and provides that moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, is rated 20 percent disabling for a unilateral disability, and 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for a unilateral disability, and 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a. Further, as outlined in the Joint Motion, the Board must also consider whether a higher rating is warranted pursuant to Diagnostic Code 5284, which outlines rating criteria for non-specific foot injuries. Under Diagnostic Code 5284, a 10 percent rating is provided for a moderate foot injury. A 20 percent rating is provided for a moderately severe foot injury, and a 30 percent rating is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, effective as of as of February 7, 2021, VA amended the Rating Schedule to include plantar fasciitis. Specifically, as of such date, plantar fasciitis is rated pursuant to Diagnostic Code 5269, which provides for a 30 percent rating where there is bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 20 percent rating is warranted where there is unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Otherwise, a 10 percent rating is assigned for unilateral or bilateral plantar fasciitis. Note (1) indicates that, with actual loss of use of the foot, a 40 percent is assigned. Note (2) reports that, if a veteran has been recommended for surgical intervention, but is not a surgical candidate, his or her plantar fasciitis is evaluated under the 20 percent or 30 percent criteria, whichever is applicable. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria as of February 7, 2021, applying the criteria that is more favorable to him. As an initial matter, as directed by the parties to this appeal in the Joint Motion, the Board will first address whether bilateral metatarsalgia, diagnosed as metatarsalgia of the left foot in a June 2009 private treatment record and bilateral metatarsalgia in a November 2011 VA examination report (but not detected during December 2007 and October 2016 VA examinations), is part and parcel of, or caused or aggravated by, his service-connected bilateral plantar fasciitis. In this regard, in April 2021 and July 2021, a VA examiner, after reviewing the record, interviewing the Veteran, and conducting a physical examination, opined that the Veteran's metatarsalgia detected in 2009 and 2011 has since resolved and there is no clinical correlation between the metatarsalgia detected during this time and his service-connected bilateral plantar fasciitis. Specifically, she explained that the two disorders affect different portions of the foot, with metatarsalgia creating forefoot pain and plantar fasciitis affecting the midfoot and heel and related arch stability, citing passages from medical treatises to explain the differing pathologies. As such, the examiner found that the metatarsalgia is not a part of the Veteran's plantar fasciitis, and such service-connected disability would not cause or exacerbate such disorder. The Board affords great probative weight to the April 2021 and July 2021 opinions as the VA examiner considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the medical evidence and treatises reviewed. Moreover, the opinion contains clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary and the Veteran, as a lay person, does not have the necessary expertise to relate one foot disorder to another foot disorder. As such, the Board concludes that, as such highly probative evidence fails to establish a correlation between the Veteran's resolved metatarsalgia and his service-connected bilateral plantar fasciitis, a separate rating for metatarsalgia is not warranted. Turning to whether an increased rating for bilateral plantar fasciitis is warranted for the appeal period prior to April 15, 2021, when the Veteran is in receipt of a 10 percent rating, the next higher rating for a bilateral foot disability pursuant to Diagnostic Code 5276 is 30 percent, which is awarded for bilateral symptoms characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Additionally, a 50 percent rating is awarded for bilateral symptoms that produce marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the Achilles' tendon on manipulation, which are not improved by orthopedic shoes or appliances. Further, pursuant to Diagnostic Code 5284, 10, 20, and 30 percent ratings are provided for moderate, moderately severe, and severe foot injuries, respectively. As discussed in detail below, the Board first finds that as of July 12, 2019, the evidence of record warrants the assignment of an initial 50 percent rating. However, prior to such date, the evidence fails to reflect a basis for awarding an increased rating for either a bilateral foot disability pursuant to Diagnostic Code 5276 or separate foot disabilities pursuant to Diagnostic Code 5284. In this regard, a December 2007 VA examination reflects the Veteran's report of pain on use of his feet, and he denied weakness, stiffness, swelling, or fatigue. On examination, both feet revealed tenderness, but there was no painful motion, edema, disturbed circulation, weakness, or atrophy of the musculature of the right or left foot. Further, he did not wear or require orthotics, and the examiner noted no related limitation with standing and walking. During March 2008 private podiatric treatment, the Veteran demonstrated tenderness to the plantar surfaces of his feet, but the podiatrist did not reference (nor did the Veteran report) any swelling or callosities. The Veteran received corticosteroid injections, which immediately resolved his left foot symptoms, and his right foot symptoms resolved by May 2009 with the use of orthotics. During an October 2016 VA examination, the Veteran reported left foot pain, which was worse than his right foot pain. However, on examination, he had no extreme tenderness of plantar surfaces, marked deformities, swelling, pain on manipulation callosities, spasms, or inward displacement of one or both feet. Further, while the Veteran reported functional loss during extended use resulting in pain on weight bearing, left foot swelling, bilateral disturbance of locomotion, and bilateral interference with standing, the examiner concluded that he experienced no pain, weakness, fatigability, or incoordination that significantly limited his functional ability during flare-ups or during repeated use over a period of time. In sum, the examiner concluded that, while the Veteran reported experiencing flare-ups of plantar fasciitis symptoms, no symptoms were evident at the time of this examination, and given the complete lack of pathology at the time of the examination, it is unlikely the Veteran experience significantly disabling symptoms during a flare-up or after extended use. Based on the foregoing, the Board finds that the clinical assessments of the Veteran's service-connected bilateral plantar fasciitis prior to July 12, 2019, fail to suggest that such disability results in distinct, clinically distinguishable left and right foot disabilities analogous to foot injuries. In that regard, the bilateral symptoms recorded during the relevant period were largely assessed as having similar severity by clinicians, thereby failing to suggest that these foot disorders would be more appropriately addressed by separate ratings, as opposed to the current rating that contemplates bilateral symptoms, with higher ratings available for more severe bilateral symptoms. Further, the Board finds that the clinical evidence from this period fails to reflect that the Veteran's bilateral plantar fasciitis more nearly approximated severe or pronounced flatfoot in light of the lack of symptoms of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, as no pronation, abduction, swelling, or callosities were detected during examinations conducted during this time frame. Moreover, while the Veteran reported experiencing additional functional loss on extended use of his feet or as a result of a flare-up of his plantar fasciitis, the clinical assessments of record, including the resolution of symptoms in 2009 after treatment and the absence of any clinical indications of plantar fasciitis during the October 2016 examination, fails to suggest that an increased rating is warranted on the basis of functional loss. In sum, the Board concludes based on the evidence of record, separate ratings for left and right plantar fasciitis, or a rating in excess of 10 percent for bilateral plantar fasciitis, is not warranted prior to July 12, 2019. However, subsequent assessments of the Veteran's bilateral plantar fasciitis indicate a greater degree of severity than previously observed, as first reflected in a July 12, 2019, private podiatric record recently submitted by the Veteran. Specifically, at such time, the Veteran's bilateral plantar fasciitis symptoms were characterized as plantar fascial fibromatosis with bilateral foot contractures, and his private podiatrist subsequently performed outpatient bilateral plantar facial release (medial plantar fasciotomy) surgeries, as reflected in August and September 2019 operative reports. Nevertheless, the Veteran continued to experience bilateral plantar fascial symptoms, with treatment reports noting pain in the bilateral arches. The Veteran's symptoms were treated with corticosteroid injections, as reflected in April 2020, August 2020, and July 2021 private podiatric treatment records, as well as with custom orthotics. Nevertheless, the Veteran's significant symptoms persisted, as reported and observed at the April 2021 VA examination. Indeed, such examination findings formed the basis for the AOJ's assignment of a 50 percent rating for his bilateral plantar fasciitis. In this regard, at the April 2021 examination, the Veteran reported experiencing flare-ups of his bilateral plantar fasciitis, which spanned from 30 minutes to a day in duration and were elicited by extended use and alleviated by rest and medication. During these flare-ups, the Veteran reports he is unable to stand for extended periods. The examiner noted the limitations caused by these flare-ups and functional loss after extended use, but stated that such functional loss did not equate to loss of use of his feet. On examination, the Veteran evidenced extreme tenderness of the plantar surfaces of his feet and bilateral foot pain accentuated on use, but no swelling or callosities. As referenced above, the Veteran's 50 percent rating, currently assigned as of April 15, 2021, was awarded pursuant to Diagnostic Code 5276, which requires evidence of symptoms analogous to pronounced flatfeet, to include pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the Achilles' tendon on manipulation, which are not improved by orthopedic shoes or appliances. Viewing the evidence wholistically, and with the understanding that Diagnostic Code 5276 is a rating assigned by analogy, the AOJ seems to have awarded the 50 percent rating based on the Veteran's overall symptomatology and resulting functional impairment, to include his extreme tenderness of the plantar surfaces of his feet, and the fact that orthotics and surgical intervention, had not alleviated his symptoms. However, the Board finds that this symptomatology was evident prior to April 2021, as reflected by the Veteran's recently submitted private podiatry treatment records, which first show the presence of his severe symptoms in July 2019. As such, the Board finds that, resolving all doubt in the Veteran's favor, a 50 percent rating for his bilateral plantar fasciitis is warranted as of July 12, 2019, the date an increase in the severity of such disability warranting such higher rating is factually ascertainable. However, the Board finds that a rating higher than 50 percent is not warranted. In that regard, there is no rating higher than 50 percent expressly set forth in the rating criteria for a bilateral foot disability. Rather, the only conceivable means of achieving an increased rating would be to bifurcate the Veteran's single bilateral foot disability rating and assign separate ratings of 30 or 40 percent for each foot. In this regard, 30 percent ratings are set forth in Diagnostic Codes 5283 and 5284, and require evidence of severe nonunion or malunion of the tarsal or metatarsal bones, or a severe foot injury, respectively. Further, 40 percent ratings are assigned based on evidence of actual loss of use of the foot. In this case, the evidence of record fails to indicate that the Veteran has any nonunion or malunion of his tarsal or metatarsal bones related to his bilateral plantar fasciitis, as no such abnormalities were detected during the appeal period. Furthermore, the April 2021 examiner specifically found that the Veteran's foot disabilities were not analogous to a severe foot injury or his functional loss equates to loss of use of his feet, a finding consistent with the fact that he has not reported that his flare-ups or functional loss have resulted in an inability to ambulate. For these reasons, the Board concludes that a rating higher than 50 percent for the appeal period commencing on July 12, 2019, is not warranted. Finally, the Board notes that as referenced above, effective as of February 7, 2021, the recently enacted new rating criteria for plantar fasciitis (Diagnostic Code 5269) are in effect, and thus, VA is obligated to consider their applicability, with the understanding that, if applicable, a related rating could be awarded no earlier than the February 2021 effective date of the regulation. However, as the highest rating allowed by Diagnostic Code 5269 is 30 percent, and the Board has awarded a 50 percent rating for the period in which this rating criteria became effective, the application of this regulation would not result in the award of an increased rating. In reaching the conclusions above, the Board acknowledges the Veteran's belief that his symptoms related to his bilateral foot disabilities are more severe than as reflected by the currently assigned ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran in regard to his foot disabilities, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral plantar fasciitis; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings for the Veteran's foot disabilities are not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which resulted in the award of a partial increased rating of 50 percent as of July 12, 2019. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.