Citation Nr: 21076217
Decision Date: 12/22/21	Archive Date: 12/22/21

DOCKET NO. 10-16 754
DATE: December 22, 2021

ORDER

Entitlement to an increased disability rating in excess of 10 percent, prior to February 7, 2021, for plantar fasciitis of the right foot is denied.

Entitlement to an increased disability rating in excess of 10 percent prior to February 7, 2021, for plantar fasciitis of the left foot is denied.

Entitlement to a single 30 percent disability rating for bilateral plantar fasciitis, from February 7, 2021, is granted, subject to laws and regulations regarding monetary payments. 

FINDINGS OF FACT

1. Throughout the appellate period the Veteran's plantar fasciitis of the right foot is most appropriately characterized as moderate.

2. Throughout the appellate period, the Veteran's plantar fasciitis of the left foot is most appropriately characterized as moderate.

3. From February 7, 2021, the Veteran's symptoms of bilateral plantar fasciitis were not relieved by nonsurgical treatment and was recommended for surgery but was not a surgical candidate.

CONCLUSIONS OF LAW

1. Prior to February 7, 2021, the criteria for an evaluation in excess of 10 percent for plantar fasciitis of the right foot are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5021, 5284.

2. Prior to February 7, 2021, the criteria for an evaluation in excess of 10 percent for plantar fasciitis of the left foot are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5021, 5284.

3. From February 7, 2021, the criteria for an evaluation of 30 percent for bilateral plantar fasciitis are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5269.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from April 1994 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2015. A transcript of the hearing is of record.

In May 2017, the Board denied the Veteran's claims for entitlement to disability ratings in excess of 10 percent for plantar fasciitis of the right foot and plantar fasciitis of the left foot. In February 2018, the United States Court of Appeals for Veterans Claims (Court) pursuant to a Joint Motion for Remand (JMR) vacated the May 2017 decision and remanded the case for further Board appellate review. The Board remanded the case for additional development in July 2018. In September 2019, the Board again denied the Veteran's plantar fasciitis claims. In December 2020, the Court vacated the September 2019 Board decision and remanded the plantar fasciitis claims back to the Board. In August 2021, the Board remanded this matter for further development. 

Increased Rating

Entitlement to increased ratings for bilateral plantar fasciitis 

The Veteran contends that his plantar fascitis in both of his feet should be rated higher based on the severity of his disability.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1.

Additionally, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7.

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § § 4.20.

The Veteran was service-connected for right and left plantar fasciitis in a June 1999 rating decision, at which time the AOJ assigned a compensable rating of 10 percent rating pursuant 38 C.F.R. § § 4.71a, Diagnostic Codes (DCs) 5003-5021, effective January 27, 1999. The Veteran filed a claim for an increased rating in June 2007.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § § 4.27. In this case, the rating schedule did not provide a specific diagnostic code for plantar fasciitis, so the Veteran's plantar fasciitis of the right and left foot have been rated analogously under DC 5021 for myositis.

Under 38 C.F.R. § § 4.71a, DC 5021, myositis (inflammation of muscle tissue) is rated as degenerative arthritis, DC 5003. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. When the limitation is noncompensable under those codes, however, a 10 percent rating is warranted for limitation of motion of the joint, provided that limitation of motion is confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Although diseases under DCs 5013 through 5024 are to be rated as degenerative arthritis (DC 5003), Note (2) to DC 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings with no limitation of motion of the joint or joints will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a.

However, VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Overall, the Board finds that the following diagnostic codes pertaining to the foot and providing for higher than 10 percent evaluations do not apply in this case, as the evidence does not demonstrate pes planus (DC 5276), weak foot (DC 5277), claw foot (5278) Morton's disease (DC 5279), hallux valgus (DC 5280), hallux rigidus (5281), hammer toe (5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). 38 C.F.R. § § 4.71a.

By contrast, the Board finds that the evidence shows that the Veteran's symptoms of plantar fasciitis of the right and left foot are most appropriately evaluated under 38 C.F.R. § 4.71a, DC 5284, a general rating criteria for "other foot injuries." The Board finds that this rating is more appropriate than DC 5003, under which the Veteran was previously rated because DC 5284 provides a more favorable rating scheme for the Veteran. Under the facts of this case, the currently assigned 10 percent ratings are the maximum rating assignable under DC 5003. The Veteran's primary diagnosis is the foot condition, plantar fasciitis. Plantar fasciitis is not included in the Schedule; therefore, the Board finds that DC 5284 is the most appropriate code.

Under DC 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A Note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot.

The words "mild," "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. It should also be noted that 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. The Board does note, for reference and illustrative purposes only, that the definitions for "slight" includes small in size, degree, or amount. WEBSTER'S II NEW COLLEGE DICTIONARY at 1038 (1995). The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012.

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).

As of February 7, 2021, the Veteran's plantar fasciitis is to be evaluated 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.

The Veteran's medical records show consistently that the Veteran has pain in both his feet. His records further demonstrate that the Veteran has attempted a variety of treatment options, which were not successful in alleviating the Veteran's symptoms. He was advised and given training on the use of a cane in April 2008; however, he only uses the cane when he knows he will be standing for a prolonged time period. In June 2008 he was prescribed orthopedics.

Following the Veteran's June 2007 claim for an increased rating for his service-connected bilateral plantar fasciitis, the Veteran received a VA examination in October 2007. The Veteran reported pain on the balls and heels of his feet, describing the pain as like needles sticks, like a spike, or standing on a sharp rock. The Veteran stated that he had pain when standing and walking. The Veteran reported that the pain worsened the longer he was on his feet, including during long periods of standing or walking more than ten minutes. The Veteran further reported that he had pain when driving, specifically using a clutch with his left foot. The Veteran reported that he would not walk on his toes because he felt burning and tearing sensation in his arch when he attempted to put pressure on the balls of his feet. He walked on the heels of his feet. The Veteran reported that laying down and elevation of his feet alleviated pain. He also stated that taking ibuprofen helped with the pain. The Veteran denied flare ups and walked unaided with a normal gait, and had no unusual shoe wear pattern.

In the October 2007 examination, the examiner observed that the Veteran had a normal gait. He walked and stood without pain or difficulty. The Veteran had full range of motion in his all his toes, without pain. The dorsiflexion of his feet was 0-20 degrees without pain. His plantar flexion was 0-40 degrees without pain. The Veteran had no deformity or angulation. The examiner further stated that the Veteran had no swelling, erythema, lesions, abnormalities, or deformities appreciated. The Veteran had good Achilles tendon alignment, but with tenderness to palpitation. He also had tenderness with palpitation to both arches, with his right greater tenderness than his left. The Veteran had no guarding or apprehension during the examination. His x-rays show that the Veteran's bone structures were intact, no fracture or subluxation were identified, and no hallux valgus, deformity, or inferior calcaneal spurs were identified. The examiner identified additional limitation to joint function were caused by factors of pain, including pain on repeated use and pain during flare-ups, fatigue, weakness, lack of endurance, and incoordination.

The Veteran had another VA examination in November 2015. The Veteran reported that he had had persistent pain since service, but that the pain increased in 2005 or 2006. The Veteran had functional loss when he stood or walked for any length of time; and the more he stood the more his feet hurt. The examiner noted that the Veteran had pain with weight bearing and non-weight bearing in both his feet. The Veteran used a cane and over-the-counter shoe inserts, but declined to use custom orthotics in the past because they caused too much pain. The Veteran reported he used to cane regularly to "take the pressure off" The examiner noted that the Veteran had been treated at a podiatry clinic at a VA hospital once, which recommended Graston therapy but found after one session to be too painful to continue.

The Veteran's x-ray found mild degenerative arthritis, which the examiner opined had no bearing on Veteran's plantar fasciitis. The x-ray further showed no plantar calcaneal spurs on either side, but did find posterior calcaneal spur on the right foot. The examiner opined that the posterior calcaneal spur on the right foot was incidental and not the cause of Veteran's plantar fasciitis in the right foot.

The examiner stated found no calluses, swelling, or deformity of either foot. The examiner found no evidence of pes planus (flat foot), weak foot, claw foot, Morton's diseases, hallux valgus, hallux rigidus, hammer toe, or malunion of tarsal or metatarsal bones. The examiner stated that the Veteran's complaint of pain on palpitation and stretching of both feet were consistent with plantar fasciitis. The Veteran had an antalgic gait favoring his right side. The examiner opined, after the Veteran reported pain in his knee, ankle, and back and observing the Veteran walk, that it was unclear whether the Veteran's pain stemmed from his right knee. The examiner further opined that the Veteran's weight qualified as a risk factor for plantar fasciitis according to medical literature.

In an August 2016 addendum opinion, the November 2015 examiner opined that the Veteran's plantar fasciitis resulted in moderate impairment. The examiner's reasoned that while Veteran complained of severe bilateral foot pain, he refused treatment for his disability, he canceled a follow up appointment with a foot specialist, and he was able to perform daily activities of daily life and maintained full employment.

In May 2019, the Veteran underwent another VA foot examination. The examiner diagnosed the Veteran with bilateral plantar fasciitis. The Veteran reported that his feet had worsened and that the pain was constant. The Veteran complained of tenderness to the feet and several falls due a balance issue. The Veteran denied redness, swelling, warmth, topical analgesic use, heat application, steroid injections, acupuncture or recent podiatry clinic visit. 

The examiner found that there were no flare-ups of the condition. The Veteran had pain accentuated on use of both feet. The Veteran did not have pain on manipulation of the feet, swelling on use, or characteristic callouses. The Veteran used orthotics bilaterally which effected relief of the Veteran's symptoms. The Veteran did not have extreme tenderness of plantar surfaces on his feet; decreased longitudinal arch height; objective evidence of marked deformity; mark pronation; weight-bearing line fall over or medial to the great toe; inward bowing of the Achilles tendon; or marked inward displacement and severe spasm of the Achilles' tendon. The examiner found there was no pain upon physical examination in either foot. The examiner noted that the pain or tenderness was not observed on day of the examination. The examiner found there was no functional loss for the left or right lower extremity attributable to the Veteran's plantar fasciitis. 

The examiner found there was no pain, weakness, fatiguability, or incoordination that significantly limited functional ability during a flare-up or when the foot was used repeatedly over time. The examiner found no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. The examiner stated that the Veteran does not have flat feet and a flat foot examination was used as instructed by raters. The examiner found that the Veteran walked with his father-in-law's wooden cane (not made for the Veteran's height) in his right hand favoring his right leg. The examiner found that as the Veteran walked more steps, his gait and stance became equal, smooth, and steady. The examiner found that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner found that the Veteran's plantar fasciitis did not impact his ability to perform any type of occupational tasks. The examiner noted the severity of the Veteran's disability was unchanged. The Board notes that the May 2019 VA examination were compliant with both Correia and Sharp. The May 2019 VA examiner did not find evidence of pain on passive range of motion testing, and no evidence of pain when the joint is used in non-weight bearing. Further, the examiner did not find evidence of, nor did the Veteran report, flare-ups.

In September 2021, the Veteran underwent another VA foot examination. The examiner diagnosed the Veteran with bilateral plantar fasciitis and bilateral foot degenerative arthritis. The Veteran reported pain all the time, especially when he walked. The Veteran did not report flare-ups that impact the function of his feet. The Veteran reported functional loss or impairment. The Veteran stated his feet drained and hindered him; he explained that his job had become harder due to pushing on the clutch and gas pedals of his truck.  

Upon examination, the examiner found the Veteran undergone nonsurgical treatment for his plantar fasciitis in both feet and such treatment did not relieve his symptoms. The examiner found the Veteran did not undergo surgical treatment for plantar fasciitis. The examiner found the Veteran was recommended for surgical intervention but was not a surgical candidate for both feet. The examiner reported that the Veteran had functional loss to his feet due to his plantare fasciitis. The examiner explained that the Veteran did not have flare-ups, but had moderate limitation with standing, walking, lifting, and carrying with repeated use of time due to plantar fasciitis related pain. The examiner noted the pain was noted on active and passive dorsiflexion of bilateral feet as well as on palpitation. The examiner found that the functional loss of the Veteran's feet disability was caused interference with standing and pain. The additional contributing factor of the disability was pain on palpitation and range of motion. The Veteran also had pain on weight bearing. The examiner found that there was pain on passive motion, active motion, weight bearing, non-weight bearing, and at rest, bilaterally. 

The examiner noted the Veteran used a cane regularly.  The examiner noted the cane was used for the Veteran's back and ankle issues. The examiner did not find that functional impairment of the plantar fasciitis was such that no effective function remained other than that which would be equally serve by and amputation with prothesis. The examiner found functional impacts that would impact his ability to perform occupational tasks. The examiner noted that the Veteran's condition would cause moderate limitation with standing, walking, lifting, and carrying due to his plantar fasciitis. The examiner also explained that the Veteran's arthritis was not secondary to his plantar fasciitis. The examiner explained that plantar fasciitis is not known to cause arthritis and the Veteran had plantar fasciitis first, prior to his arthritic changes seen in 2014. 

The Board finds that the throughout the appellate period, the severity of the Veteran's right and left plantar fasciitis is best characterized as moderate. While the Veteran experiences pain in his feet, the Veteran's plantar fasciitis of the right and left foot do not manifest symptoms that can be characterized as moderately severe. As noted above, severe is defined as extremely intense, provided that moderate is defined at average, the modifier of moderately to extremely intense indicates that the foot severity must be at least intense, albeit not extremely intense. Here the Board does not find that the Veteran's plantar fasciitis is intense in either foot. Throughout the appellate period encompassing several VA examinations of the symptoms and severity of the Veteran's bilateral plantar fasciitis, no examiner found the severity of the foot disability to be other than moderate. The Board takes note that the Veteran reported his pain level of 7 to 8 out of 10 in the November 2015 examination and the indications that the pain level had increased. The Board finds these statements less probative the VA examiners' opinions on the severity being moderate. Pain is subjective and while the pain of the Veteran cannot be discounted in determining the severity of the disability, the more important factor is the impact that pain has on impairment of earning capacity caused by that pain. As noted above ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Therefore, the Board takes into account the level of pain the Veteran reports and the statement that it increased; however, the level of impairment did not increase in severity nor does it rise to the level of moderately severe. Further, while the Veteran used an assertive of a cane and increased its use over the appellate period, the use of a cane was for his ankles and back. The Board notes that in the November 2015 examination, the Veteran reported he used a cane to take the pressure off. However, the September 2021 examiner explained that the use of the cane was for his back and ankle disabilities. This indicates severity of his feet disability was not moderately severe defined as intense. Overall, the VA examiners found that the Veteran's bilateral plantar fasciitis, while impacting his ability to withstand prolonged standing, walking, and carrying things was more appropriately characterized as moderate. Further, the May 2019 examiner found that the as the Veteran walked more steps, his gait and stance became equal, smooth, and steady. This indicates that the severity of the Veteran's disability could not described as moderately severe. The Veteran's ability to continue working and to perform the activities of daily living, albeit with restrictions is another factor in determining the level of severity the Veteran's feet. Evidence of ability to continue working and perform activities is generally used to consider total disability based on individual unemployability and special monthly compensation. But, in this case, the Board finds that such evidence is useful in determining the severity of the Veteran's disability as it relates functional impairment of earning capacity.  A moderately severe bilateral foot disability would have more of an impact ability to work and due daily activities. The Board finds that the VA examiners' assessment of his functional impairment as moderate is consistent with the evidence. The Veteran report that his feet would swell and become stiff is not clinically demonstrated such that such impairment comports with the degree of functional loss envisioned by DeLuca with manifestations consistent with weakened movement, incoordination, and fatigability. Therefore, absent a finding or more objectively manifested pathology of the feet, or any clinical indication that bilateral foot impairment equates to moderately severe foot disability under Diagnostic Code 5284, the Board finds that the Veteran's plantar fasciitis of the right and left foot are each no more than 10 percent disabling.

However, as noted above, VA amended its regulations adding plantar fasciitis under February 7, 2021. The September 2021 VA examiner found the Veteran was recommended surgical intervention for both his bilateral plantar fasciitis but was not a surgical candidate. The examiner also found the Veteran non-surgical undergone nonsurgical treatment for his plantar fasciitis in both feet and such treatment did not relieve his symptoms. Under the new regulations when the Veteran recommended for a surgical intervention but was not a candidate, the rater was to rate based a 20 percent or 30 percent rating. As the evidence indicates that both the Veteran's plantar fasciitis symptoms were not relieved by nonsurgical treatment and was recommended for surgery but was not a candidate, the Board finds that since the implementation of the new regulations, a 30 percent disability rating is warranted.

The Board notes that under the new regulations, plantar fasciitis is rated under a single disability rating rather than separate ratings for each foot. The Board finds from February 7, 2021 a 30 percent disability rating is higher than two separate 10 percent disability rating, even taking into account the bilateral factor. Thus, the disability rating most beneficial for the Veteran from February 7, 2021 is under the new Diagnostic Code for plantar fasciitis. The Board notes that the new disability rating for plantar fasciitis is not available prior to the effective date of February 7, 2021. 

In sum, prior to February 7, 2021 a disability rating in excess of 10 percent for each the Veteran's feet is denied. A single disability rating of 30 percent for the Veteran's plantar fasciitis is granted from February 7, 2021. In denying a higher rating prior to February 7, 2021, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert Batten

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.