Citation Nr: 21076766
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 16-46 349
DATE: December 27, 2021

ORDER

Entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for right foot plantar fasciitis is granted.

Entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for left foot plantar fasciitis is granted.

Entitlement to an increased evaluation in excess of 10 percent disabling from August 29, 2018 for bilateral plantar fasciitis is denied.

FINDINGS OF FACT

1. From March 31, 2014 to August 28, 2018, the Veteran's right foot plantar fasciitis was manifested by moderate, but not moderately severe, symptoms.

2. From March 31, 2014 to August 28, 2018, the Veteran's left foot plantar fasciitis was manifested by moderate, but not moderately severe, symptoms.

3. From August 29, 2018, the Veteran's bilateral plantar fasciitis was asymptomatic and did not result in moderate symptoms, or severe unilateral acquired flat foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for right foot plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5284.

2. The criteria for entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for left foot plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5284.

3. The criteria for entitlement to an increased evaluation in excess of 10 percent disabling from August 29, 2018 for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1992 to June 1996, from August 2004 to November 2004, from May 2009 to May 2010, and from October 2010 to September 2011. He had additional service in the United States Army Reserve.

This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated August 2014 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed.

The Veteran's appeal has previously been before the Board. In January 2019 and May 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction for additional development.

Increased Ratings

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 30 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.

The Board notes that, 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.

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 acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276.

Pursuant to Diagnostic Code (DC) 5276 for acquired flatfoot, a 10 percent rating is assigned for moderate symptoms of acquired flatfoot, 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.

A 20 percent rating is assigned for severe unilateral acquired flatfoot and requires objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. Id.

A 30 percent rating is assigned for severe bilateral acquired flatfoot and requires objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. Id.

A 30 percent rating is also assigned for pronounced unilateral acquired flatfoot, 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.

A 50 percent rating is assigned for pronounced bilateral acquired flatfoot, 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.

Separate rating criteria are available for weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, and malunion/nonunion of the tarsal and metatarsal bones, but as the Veteran has not been found to have these conditions, these conditions will not be further discussed. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5283.

Under DC 5284 for other foot injuries, a 10 percent rating is assigned for moderate symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5284.

A 20 percent rating is assigned for moderately severe symptoms. Id.

A 30 percent rating is assigned for severe symptoms. Id.

Entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for right foot plantar fasciitis

Entitlement to a separate evaluation of 10 percent disabling, but no higher, from March 31, 2014 to August 28, 2018 for left foot plantar fasciitis

The Veteran contends that his right and left foot plantar fasciitis is more severely disabling than represented by the 10 percent rating assigned from March 31, 2014. The appeal period starts on March 31, 2014, the date of the Veteran's claim for an increased rating. The Board finds that during this stage, the Veteran should be awarded separate 10 percent ratings for each foot due to plantar fasciitis.

After a complete review of the record, the Board finds that during the period on appeal, the Veteran's right and left foot plantar fasciitis was manifested by moderate symptoms, but not by moderately severe symptoms.

In a July 2014 foot conditions disability benefits questionnaire (DBQ), the Veteran reported daily pain in his feet and stated that it waxed and waned from a 5 to 8 out of 10 throughout the day. He stated the pain was worse at the beginning of the day when he took his first couple of steps. He wore orthotic inserts and special shoes that helped with the pain. He took Motrin and Tramadol which were effective. He did not report flare-ups or functional loss or impairment. He had pain on use of both feet, it was not accentuated on manipulation. He did not have pain on manipulation of the feet. There were no swelling or characteristic calluses. He did not have extreme tenderness. He had decreased longitudinal arch height of both feet on weight-bearing. There was no evidence of marked deformity or marked pronation. The weight-bearing line did not fall over or medial to the great toe. He did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. He had moderate plantar fasciitis in both feet, which required arch supports, custom orthotic inserts or shoe modifications. Mild pes planus was also noted.

Medical treatment records ranging from November 2014 to August 2018 showed that the Veteran complained of continued pain. During this time, he was fitted for inserts. A diagnosis of plantar fasciitis was noted. During this time, the Veteran was also prescribed shoes and molded plastazote inserts for his shoes.

In March 2015, the Veteran had bilateral foot pain that was described as tender and rated as a 6 out of 10. At its worst, pain was a 10 out of 10 and at its best it was a 2 out of 10. The pain was sharp, achy, deep, and caused pressure. It increased with activity, and was relieved by medication and rest.

In a March 2015 podiatry note, the Veteran took off his unna boot off. He said the dull aching subsided but he still had pain with movement. He said he felt like he was stepping on something.

In an April 2015 podiatry note, the Veteran had consistent pain in the left heel noted as a 5 to 6 out of 10 daily. By the end of the day, his pain was a 9 or 10 out of 10. He used the compression and Tramadol daily. He said his custom insoles did not help, they only made it worse. The Veteran had complaints of foot deformity, foot pain, and hallux limitus. Other complaints listed included bursitis and fasciitis. An assessment showed lipoma, possible with inflammation of the left medial plantar heel, bursitis of the left heel, pes planus in the right foot, fasciitis in the right foot, and hallux limitus in the right foot.

In a correspondence received July 2015, the Veteran's representative wrote that the Veteran was entitled to a 10 percent evaluation for each foot under Diagnostic Code (DC) 5284. He contended that the Veteran believed DC 5284, which rates the feet separately, provided more appropriate and favorable criteria for rating his bilateral plantar fasciitis than his current rating under DC 5276.

In a July 2015 Notice of Disagreement (NOD), the Veteran contended that he was entitled to separate 10 percent ratings for moderate impairment of each foot under Diagnostic Code 5284.

In a correspondence received November 2016, the Veteran contended that separate evaluations were warranted for each foot for his bilateral plantar fasciitis. The Veteran contended that his bilateral plantar fasciitis was more appropriately rated under DC 5284 rather than DC 5276. He contended that DC 5284 would be more favorable to him and more clearly compensated for a moderate foot disability in each foot separately. The Board agrees.

In this case, under DC 5284, a 20 percent rating is warranted for other foot injuries that are moderately severe. In this case, the evidence from March 31, 2014 to August 28, 2018 shows that the Veteran's right and left foot plantar fasciitis was of moderate severity. The July 2014 examiner found that the Veteran had moderate bilateral plantar fasciitis. This evidence supports finding that the Veteran's right and left foot plantar fasciitis was manifested by moderate symptoms, but not by moderately severe symptoms. Accordingly, the evidence preponderates against finding that the criteria for a rating higher than 10 percent under DC 5284 were met from March 31, 2014 to August 28, 2018.

The Board acknowledges the Veteran's foot pain during the earlier years of the appeal period, but there is no indication that pain or impairment from flare-ups would result in any further functional loss which would allow for a rating higher than 10 percent per foot. The medical evidence of record does not indicate that any foot pain was productive of such moderately severe functional impairment so as to approximate the criteria for a higher 20 percent rating. The functional limitations related to right and left foot plantar fasciitis are described as moderate and the overall disability picture does not more nearly approximate moderately severe symptoms.

As discussed above, there is no evidence of moderately severe symptoms. The Board therefore finds that the medical evidence of record preponderates against assigning any higher rating based on symptoms of pain or the presence of any other symptoms which could impact functional ability of the feet. Thus, a 20 percent rating is not warranted.

The Board acknowledges the Veteran's lay reports of symptoms. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected would not result in symptoms more nearly approximating moderately severe symptoms. In this case, the Veteran did not report flare-ups or functional loss at any point during the appeal period. Furthermore, medical treatment records and VA examinations during the period on appeal do not show that the Veteran experienced flare-ups or functional loss due to his service-connected bilateral plantar fasciitis.

The Board has also considered whether it would be more beneficial to the Veteran to rate his disability under a different Diagnostic Code pertaining to the foot; however, the Board finds that this is not appropriate in this case. 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.

Additionally, as noted above, separate rating criteria are available for weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, and malunion/nonunion of the tarsal and metatarsal bones, but as the Veteran is not service-connected for any of these conditions, a higher rating under these DCs is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5283.

In conclusion, the Board finds that the preponderance of the evidence is in favor of separate ratings of 10 percent, but no higher, for each foot due to plantar fasciitis from March 31, 2014 to August 28, 2018 under DC 5284.

3. Entitlement to an increased evaluation in excess of 10 percent disabling from August 29, 2018 for bilateral plantar fasciitis

The Veteran contends that his bilateral plantar fasciitis is more severely disabling than represented by the 10 percent rating assigned from August 29, 2018. This staged rating starts on August 29, 2018, the date of a relevant treatment record.

On August 29, 2018, the Veteran had a normal foot examination.

In September 2019 and October 2019 orthotics consultations, the Veteran was prescribed shoes. A diagnosis of congenital pes planus was noted.

In a November 2019 Foot Conditions DBQ, the Veteran did not report pain, flare-ups that impacted the function of the foot, or functional loss or impairment of the foot. He did not have pain on use of the feet, pain on manipulation of the feet, swelling on use, or characteristic callouses. He used orthotics on both feet. He did not have extreme tenderness of plantar surfaces on either foot, decreased longitudinal arch height on weight-bearing, or objective evidence of marked deformity. There was no weight-bearing line fall over or medial to the great toe on either foot. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, he did not have inward bowing of the Achilles tendon, and he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. He did not have any foot injuries or other foot conditions. There was no pain on physical examination on either foot, and the examiner noted that subjective complaints were not consistent with objective findings. There was no functional loss for either lower extremity. There were no contributing factors of the disability associated with limitation of motion. There was no other functional loss during flare-ups when the foot was used repeatedly over a period of time.

In May 2021, the Board remand directed, in relevant part, that "The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected bilateral plantar fasciitis." The examiner was also asked to "report all signs and symptoms necessary for rating the plantar fasciitis disability. In particular, he or she should indicate whether the Veteran's service-connected bilateral foot disability is best characterized as moderate, moderately severe, or severe."

Subsequently, the Veteran underwent a VA examination for foot conditions in July 2021, during which the Veteran stated that he had not seen a podiatrist in three years. He reported that he had no active problems with pes planus, hallux limitus or ganglion cyst removal. He had a ganglion cyst removal in 1992, 29 years ago. He was fully ambulatory without assistance. He stated that he had no other problems with his feet other than plantar fasciitis. He did not report pain, flare-ups, or functional loss or impairment. He had undergone non-surgical treatment for plantar fasciitis in both feet which relieved the symptoms. He did not have any foot injuries or other foot conditions not already described.

The Board notes that the July 2021 VA examiner did not specifically indicate whether the Veteran's bilateral foot disability is moderate, moderately severe, or severe as requested by the May 2021 BVA decision. However, the examiner found that there was no pain, complaint of pain or flare-ups, or functional limitation. Thus, from these findings, the Board is able to logically deduce that in the absence of symptoms the disability can be no more than moderate. Therefore, the Board finds that there has been substantial compliance with its May 2021 BVA remand and it has adequate evidence to adjudicate the claim.

In August 2021, the Veteran reported plantar fasciitis pain increasing in both feet. Examination of the feet was normal. There is no indication that the pain produced functional impairment.

After a complete review of the record, the Board finds that during this stage, the Veteran's bilateral plantar fasciitis was largely asymptomatic, with only a single report of pain. Therefore, it was not manifested by even moderate symptoms to warrant separate ratings for each foot under DC 5284 as granted for the prior stage. 

As for DC 5276, there was no report of objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. Rather, in the November 2019 examinations for foot conditions, the examiner noted that the Veteran did not experience these symptoms. Additionally, none of these symptoms were present in his other VA examinations or medical treatment records during the period on appeal. Accordingly, the evidence preponderates against finding that the criteria for a rating higher than 10 percent under DC 5284 or DC 5276 were met from August 29, 2018.

The Board acknowledges the Veteran's single report of foot pain at the end of this stage, but there is no indication that pain or impairment from flare-ups result in any functional loss which would allow for a rating higher than that now assigned. In this case, the Veteran did not report, and treatment records and VA examinations did not show, flare-ups or functional loss at any point during this stage due to plantar fasciitis. The medical evidence of record does not indicate that any foot pain was productive of such severe functional impairment so as to approximate the criteria for a higher 20 percent rating or for separate ratings for each foot. 

As discussed above, there is no evidence of severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. The Board therefore finds that the medical evidence of record preponderates against assigning any higher rating based on symptoms of pain or the presence of any other symptoms which could impact functional ability of the feet. Thus, a 20 percent rating is not warranted.

The Board has also considered whether it would be more beneficial to the Veteran to rate his disability under a different Diagnostic Code pertaining to the foot. Specifically, from February 7, 2021, the new DC 5269 for plantar fasciitis may be for application.

In this case, under DC 5269 for plantar fasciitis, a single 10 percent rating is warranted for bilateral or unilateral plantar fasciitis. The next higher 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. The highest 30 percent rating is warranted for the same criteria as the 20 percent, but for bilateral involvement. However, during this stage, the evidence of record shows that the Veteran underwent non-surgical treatment (orthotics) for plantar fasciitis in both feet  which relieved the symptoms. See Foot Conditions DBQ dated July 2021. Therefore, he does not meet the criteria for a rating in excess of 10 percent under DC 5269.

During the period from August 29, 2018 to the present, the Veteran is not entitled to separate 10 percent ratings for each of his feet because, as discussed above, the Veteran did not exhibit symptoms during this period, with the exception of a single report of pain in August 2021. The fact the Veteran largely did not have symptoms during this stage prevents the Board from assigning a higher rating than that which is already in place.

The Board also acknowledges the directive of the May 2021 Board decision, which asked the examiner to specifically address diagnoses of pes planus, hallux limitus, and residuals of left foot ganglion cyst removal. However, the July 2021 examiner found that the Veteran did not have separate foot disabilities that were unrelated to his bilateral plantar fasciitis. Furthermore, during this examination, the Veteran himself reported that he had no active problems with pes planus, hallux limitus or ganglion cyst removal. Thus, the Board finds that separate ratings for foot conditions other than bilateral plantar fasciitis is not warranted.

In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral plantar fasciitis from August 29, 2018. In denying such a rating, 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.

 

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 decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.