Citation Nr: 21073420 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-25 754 DATE: December 8, 2021 ORDER An initial rating of 30 percent for service-connected plantar fasciitis, status-post surgery, right foot, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his service-connected plantar fasciitis, status-post surgery, right foot, is manifested by symptoms that approximate a severe foot injury. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, and no more, for service-connected plantar fasciitis, status-post surgery, right foot, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.63, 4.71a, Diagnostic Code (DCs) 5002, 5003, 5010, 5269, 5276, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to December 1971, February 1991 to May 1991, September 1993 to May 1995, and September 1996 to November 2011. In July 2021, the Veteran testified during a videoconference hearing of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is of record. Entitlement to an initial compensable rating for service-connected plantar fasciitis, status-post surgery, right foot. Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Separate diagnostic codes identify the various disabilities. 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 many 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 questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures 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 disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. 38 C.F.R. § 4.14; see Ambermanv. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown,6 Vet. App. 259, 261-62 (1994). The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an initial increased rating claim is from the date of the initial assignment of the rating, December 1, 2011, until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Board has considered the Veteran's claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran's service-connected plantar fasciitis, status-post surgery, right foot, was initially rated as noncompensably disabling by the August 2013 rating decision on appeal, effective December 1, 2011, under DC 5276, contemplating flatfoot, acquired. 38 C.F.R. § 4.71a , DC 5276. Under DC 5276, in pertinent part, for unilateral involvement, a noncompensable rating is warranted for mild flatfoot, with symptoms relieved by built-up shoe or arch support; a 10 percent rating is warranted for moderate flatfoot, with the weight-bearing line over or medial to the great toe, with inward bowing of the tendo achillis, pain on manipulation and use of the feet; a 20 percent rating is warranted for severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etcetera), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; and a maximum 30 percent rating is warranted for 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, not improved by orthopedic shoes or appliances. Id. Also of note is DC 5003, contemplating degenerative arthritis, providing that such is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected, to be combined, not added under DC 5003. In the absence of objectively confirmed limitation of motion, a 10 percent rating is assigned when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a maximum 20 percent rating is assigned when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The joints of the feet, beyond that of the ankle, are defined by VA as a single minor joint group for the purpose of rating disability from arthritis. 38 C.F.R. § 4.45. Further, DC 5284, contemplating foot injuries, other, provides a 10 percent rating for symptomatology of a moderate foot injury, a 20 percent rating for symptomatology of a moderately severe foot injury, a 30 percent rating for symptomatology of a severe foot injury; a maximum 40 percent rating is warranted by the actual loss of the foot. 38 C.F.R. § 4.71a, DC 5284. Loss of use of the foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the act of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. 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. However, the use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA's Office of General Counsel has stated that DC 5284 is a more general DC under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, VA's General Counsel concluded that, depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45, along with the DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). See VAOPGCPREC 9-98 (August 14, 1998). Here, the Veteran's right foot disability result in limitation of motion of the foot; thus, 38 C.F.R. §§ 4.40 and 4.45 are applicable. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The pertinent regulations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the factors discussed in the preceding paragraph, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Relevant to the present case, the new regulations include DC 5269, specifically contemplating plantar fasciitis. Under DC 5269, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis, a 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment, and a maximum 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Note 1 provides that with actual loss of use of the foot, a 40 percent rating is warranted, and Note 2 provides that if the Veteran has been recommended for surgical intervention, but is not a surgical candidate, the rater should evaluate the disability under the 20 percent or 30 percent criteria, whichever is applicable. 38 C.F.R. § 4.71a, DC 5269. Also, the new regulations include DC 5002, contemplating multi-joint arthritis, of two or more joints, as an active process. Again, as the joints of the feet, beyond that of the ankle, are defined by VA as a single minor joint group for the purpose of rating disability from arthritis, the criteria for a compensable rating cannot be met for multi-joint arthritis affecting the joints of one foot. 38 C.F.R. §§ 4.45, 4.71a, DC 5002. The new regulations include DC 5010, contemplating post-traumatic arthritis, and providing that the disability is to be rated under limitation of motion, dislocation, or other specified instability under the affected joint, and for two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5010. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. No rating warranted under the new regulations may thus be granted prior to February 7, 2021. In a December 2011 VA examination, conducted by a private examiner, the examiner diagnosed the Veteran with bilateral plantar fasciitis and degenerative joint disease with scars. The Veteran reported constant right foot pain, even at rest, travelling to the toes, that is aching, sharp, and sticking, rated as an 8 on a 10-point pain scale. The Veteran reported that his pain was exacerbated by physical activity but also comes on spontaneously, and is relieved by rest and over-the-counter medication. The Veteran reported that he could function with medication. He reported that he did not use support in his shoes and denied weakness, stiffness, swelling, fatigue, and reported that while standing and walking, he had pain and weakness, without stiffness, swelling, and fatigue. The examiner reported that the Veteran's overall functional impairment was limited walking, running, and lifting. Physical examination was silent for painful motion, edema, disturbed circulation, weakness, atrophy, heat, redness, or instability; there was normal alignment, active motion in the joints, and palpation of the plantar surface on the right foot revealed moderate tenderness. During private treatment in January 2014, the Veteran reported pain in his right foot. X-ray examination revealed retained hardware; he was diagnosed with metatarsal stress fracture, lis franc fracture, and osteoarthritis. In his February 2014 Notice of Disagreement (NOD), the Veteran asserted entitlement to a 30 percent rating. He asserted that VA had not reviewed evidence of the original injury and treatment or post-surgical treatment notes demonstrating the placement of screws. He asserted that while he was granted service-connected for plantar fasciitis, such was a different medical problem that his residuals, lis franc fracture with surgery and placement of screws and bone grafting. He did not seek a disability rating reflecting symptoms of plantar fasciitis. In a May 2014 statement, the Veteran again asserted that VA ignored his painful and debilitating residuals related to his most painful and enduring injury, his lis franc fracture, a disability separate from his plantar fasciitis. In his May 2017 Substantive Appeal, the Veteran clarified that he had not sought compensation for symptoms of plantar fasciitis as a recurring physical limitation since service, only that he had sought such for his residuals, lis franc fracture. He asserted that he disagreed with the private examiner's assessment, in December 2011, that there was no painful motion, edema, weakness or instability, or limitation with standing or walking. In March 2021, the Veteran and a private physician submitted two Disability Benefit Questionnaire (DBQs), one conducted by the Veteran with the assistance of the physician, and one conducted by the physician. In a July 2021 statement, the Veteran cited his experience as a Special Forces Medical Sergeant and asserted that he was thus qualified to provide competent medical evidence in the current appeal. The Veteran's service separation document, his DD214, for one of his periods of active service indeed reflects such experience. The Board finds no basis upon which to find the competent Veteran not credible in his reports of right foot symptoms; his statements are thus probative evidence in the current appeal. In the March 2021 DBQ submitted by the Veteran, as an examination conducted with the assistance of the physician, the Veteran was diagnosed with plantar fasciitis, arthritis, status-post foot symptoms for lis franc fracture and plantar fascia release; the dominant diagnosis being residuals, lis franc fracture. The Veteran reported progressive symptoms since onset, with the current level of disability in place since before the December 2011 VA examination. The Veteran reported extreme pain at rest and during sleep and while walking, standing, and sitting; he noted that he could not attempt to run or walk as long as one mile. He asserted that he was unable to wear hard-soled shoes and that he could not manipulate his right foot without pain and needed to know whenever a treatment provider would attempt to do so prior to the manipulation due to pain. He reported flare-ups of symptoms during which he could hardly walk without severe pain, rated as a 10 on a 10-point pain scale, lasting all day, brought on by walking, relieved by nothing. He reported that he had exquisite pain in the mid-foot on the right, sharp and lancinating, requiring rest for extended periods of time during which he cannot walk. He reported a history of surgical and nonsurgical treatment for plantar fasciitis, without relief. He asserted that his functional loss from plantar fasciitis included moderate pain at the calcaneal insertion when walking and/or standing, easily distinguishable from his other symptoms, attributed to arthritis, including very severe and pronounced pain, daily, even without provocation. He asserted that even moderate amounts of walking and/or standing result in severe pain. He reported that his right mid-foot was tender to even minimal palpation and that his disability chronically compromises his weight bearing and requires shoe modification. He asserted that his residual signs and symptoms included the end of a broken screw that is palpable in his right foot tissue, pain that contributes to functional loss, including less movement, weakened movement, swelling, deformity, instability, interference with sitting and standing, fatigue, weakness, lack of endurance, and incoordination, which significantly limit his functional ability during flare-ups and during repetitive use over time. The Veteran reported that he did not use assistive devices, and that would not be equally well served by an amputation with prosthesis. The Veteran reported that his disability impacted his ability work, that all occupational tasks are impacted due to interference with walking, standing, squatting, climbing stairs, and distraction and lack of concentration due to chronic pain. The March 2021 DBQ submitted by the physician is almost identical in content and need not be recited in detail herein. The physician diagnosed the Veteran with plantar fasciitis, post-traumatic arthritis, status-post foot surgeries (lis franc fracture fusion and plantar fascia release). The physician included in the DBQ report his curriculum vitae and a statement that he was an examiner who conducted private examinations for VA for compensation purposes. He noted his review of the pertinent medical evidence of record and stated that he found the Veteran to be credible and a reliable historian with regard to the course of his symptoms. The examiner asserted that the Veteran's present level of disability has been present since prior to the December 2011 VA examination. He asserted that the VA examination conducted in December 2011 appears to have been conducted in such a way as to trivialize and minimize the Veteran's symptoms and focused on the less severe disability, plantar fasciitis. During his July 2021 Board hearing, the Veteran discussed, as noted above, his pertinent medical history, disagreement with the findings of the VA examiner during the December 2011 VA examination, and assertion that VA had not properly considered the symptoms attributed to his severe right foot disability, his status-post lis franc fracture and instead rated only the symptoms of his plantar fasciitis. He reported the use of narcotic pain medication, and complained of his foot deformity and abnormal gait; he asserted that his treatment providers have reported that there is nothing else that they can do. He cited the findings reported in the March 2021 DBQs. Given the symptomatology described in the examination reports and treatment records, and during the July 2021 Board hearing and in written statements, the Board finds, resolving all doubt in favor of the Veteran, that the overall disability picture related to his service-connected plantar fasciitis, status-post surgery, right foot, more closely approximates severe impairment of the right foot during the current appeal. There is consistent evidence of a right foot manifested by severe pain, instability, and motion limited by weakened movement, swelling, deformity, interference with sitting and standing, fatigue, weakness, lack of endurance, and incoordination, which significantly limit his functional ability during flare-ups and during repetitive use over time. See 38 C.F.R. §§ 4.40 and 4.45, DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). The Board has considered that while the word severe as used in DC 5284 is not defined by VA, it must make certain that its decisions are equitable and just. In this regard, the Board finds that evidence of palpable screws in the soft tissue of the right foot, a right foot so tender on palpation that the Veteran must be made aware of it prior to manipulation, pain even at rest, and with the limitations described, his symptoms are severe. 38 C.F.R. § 4.6. Such warrants a 30 percent rating under DC 5284, contemplating foot injuries, other, and providing a 30 percent rating for symptomatology of a severe foot injury. 38 C.F.R. § 4.71a, DC 5284. The Board finds, however, that the Veteran's service-connected plantar fasciitis, status-post surgery, right foot, does not warrant a 40 percent rating under DC 5284, during the current appeal. To warrant such, there must be loss of the foot. 38 C.F.R. § 4.71a, DC 5284. There is no evidence or assertion that the Veteran has lost the use of his right foot such that a 40 percent rating is warranted under DC 5284. To the contrary, and with consideration of 38 C.F.R. §§ 4.40 and 4.45, the Veteran himself, and the private physician, who each submitted separate March 2021 DBQs, each stated that the Veteran's disability did not cause functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner in December 2011 was not asked to report findings related to loss of use of the right foot. See 38 C.F.R. §§ 4.63, 4.71a, DC 5284. Under DC 5276, the DC under which the Veteran's disability was initially rated, contemplating flatfoot, acquired, a disability with which the Veteran has not been diagnosed, a there is no rating in excess of 30 percent. 38 C.F.R. § 4.71a, DC 5276. DC 5276 may thus not serve as a basis for an initial rating in excess of the 30 percent warranted under DC 5284. Under DC 5269, effective February 7, 2021, contemplating plantar fasciitis, a disability with which the Veteran has been diagnosed, 40 percent rating is warranted only when there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5269. Such is not the case here, no party asserts such, and DC 5269 may thus not serve as a basis for an initial rating in excess of the 30 percent warranted under DC 5284. The Board has considered whether the Veteran is entitled to separate ratings for either plantar fasciitis, under DC 5269, effective February 7, 2021, or for arthritis. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban, 6 Vet. App. 259, 261. Here, the Veteran and the physician, in their March 2021 DBQs, reported that the functional loss from plantar fasciitis included moderate pain at the calcaneal insertion, easily distinguishable from his other symptoms, attributed to arthritis, including very severe and pronounced pain, and discussed such in the right mid-foot. However, the Board, in determining that the Veteran's symptoms more closely approximate severe impairment of the right foot that warrants a 30 percent rating under DC 5284, has considered the Veteran's foot pain, at the calcaneal insertion and the mid-foot, that result in the limitations described herein. To provide a separate rating for the same symptoms, right foot pain, would amount to pyramiding and should be avoided. 38 C.F.R. § 4.14; id. (Continued on the next page) In summary, the preponderance of the evidence reflects that during the entire appellate period, since December 1, 2011, the Veteran's service-connected plantar fasciitis, status-post surgery, right foot, symptoms approximate the criteria for an initial 30 percent rating, and no more. Fenderson, supra. Consequently, the claim is granted. 38 U.S.C. § 5107 (b). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.