Citation Nr: 21005387 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-47 009 DATE: February 1, 2021 ORDER Entitlement to service connection of right arm tendonitis has been withdrawn. Entitlement to a rating in excess of 20 percent for left subacromial subdeltoid bursitis has been withdrawn. Entitlement to a compensable rating for bilateral plantar fasciitis is denied. REMANDED Entitlement to a compensable rating for left knee patellofemoral pain syndrome is remanded. Entitlement to a compensable rating for right knee patellofemoral pain syndrome is remanded. Entitlement to a compensable rating for lumbosacral strain is remanded. FINDINGS OF FACT 1. In his hearing before the undersigned Veterans Law Judge, the Veteran expressed his desire to withdraw any claim of entitlement to service connection of right arm tendonitis. 2. In his hearing before the undersigned Veterans Law Judge, the Veteran expressed his desire to withdraw any claim of entitlement to a rating in excess of 20 percent for left subacromial subdeltoid bursitis. 3. The Veteran’s bilateral plantar fasciitis has resulted in pain in his feet, relieved by orthotic shoe inserts; his foot pain has been compensated under the rating for pes cavus, and any additional rating would constitute impermissible pyramiding. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection of right arm tendonitis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 2. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for left subacromial subdeltoid bursitis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 3. The criteria for a compensable rating for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from September 1991 to August 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of that hearing is of record. Withdrawal 1. Entitlement to service connection of right arm tendonitis 2. Entitlement to a rating in excess of 20 percent for left subacromial subdeltoid bursitis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Board notes that the undersigned Veterans Law Judge erroneously identified entitlement to an increased rating for a left shoulder was on appeal and that service connection for a right shoulder disorder was not, as it was not listed on his VA Form-9. In actuality, the opposite was the case. However, at the hearing, the Veteran and his representative made clear that the only issues they wished to continue were the claims related to the Veteran’s plantar fasciitis, lumbosacral strain and knees, and would like to “get rid of the rest.” Although the issues on appeal were admittedly incorrect at the hearing, the Board is satisfied that it is adjudicating the issues the Veteran wished to pursue, and is dismissing the issues he does not. Indeed, the undersigned explained the consequences of withdrawing any claims on the record, and the Veteran expressed his understanding and clear desire to only pursue the foot, knee, and low back claims. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the Board does not have jurisdiction to review the right arm tendonitis and left shoulder claims and they are dismissed. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s plantar fasciitis, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 3. Entitlement to a compensable rating for bilateral plantar fasciitis The Veteran seeks initial compensable ratings for bilateral plantar fasciitis. The Board finds that the claim should be denied. As an initial matter, the Board recognizes that the Veteran is service connected for both plantar fasciitis and pes cavus in both feet. The Veteran has been awarded a 10 percent rating for bilateral pes cavus, which he has not appealed, and with which he expressed satisfaction in his hearing before the undersigned. Therefore, the pes cavus rating is not for consideration at this time. However, the fact that there is such a rating is of consequence to the plantar fasciitis rating. Plantar fasciitis is not explicitly provided for in the diagnostic criteria. Nonetheless, it is traditionally rated under Diagnostic Code (DC) 5276, which rates for acquired flatfoot, and by analogy rates the typical symptoms of plantar fasciitis. Under the applicable rating criteria, mild symptoms or symptoms relieved by built-up shoe or arch support. Moderate symptoms, described as weight-bearing line over or medial to great toe, inward bowing of the Tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is granted a 10 percent rating. Bilateral severe symptoms are granted a 30 percent rating when symptoms show objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Finally, pronounced bilateral symptoms, described as 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 are afforded a 50 percent rating. 38 C.F.R. § 4.71a, DC 5276. Terms such as “mild,” “moderate,” “severe,” and “pronounced” are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It is noted, however, that the rating criteria in this matter do give some description of those terms. For purposes of adjudicating this claim, the Board also recognizes that a 10 percent rating for bilateral pes cavus compensates based on the presence of the great toe dorsiflexed, some limitation of dorsiflexion at ankle, and definite tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DC 5278. The Board has also considered whether any of the other rating criteria applicable to the foot should apply, but finds that DC 5276 is the most appropriate code, when considering the Veteran’s symptoms. The Veteran was afforded a VA examination in connection with his claim in October 2015. At that time, plantar fasciitis was identified, as well as pes cavus, bilaterally. His only symptom was noted to be bilateral foot pain, relieved with shoe inserts. He denied flare-ups. He did not have hammer toe, hallux valgus, or hallux rigidus. He did have pes cavus, which resulted in definite tenderness under the metatarsal heads, and a shortened plantar fascia, although no dorsiflexion or varus deformity were found. Functionally, he was found to have pain in the feet on physical examination, but no functional loss of the feet. The only factor contributing to his disability was excess fatigability, bilaterally. No other pertinent physical findings were noted. The Veteran, in his hearing before the undersigned, noted ongoing pain in his feet, which he described as worse in the mornings, requiring manual stretching. He reported that his foot symptoms were improved with orthotics. The Veteran’s available treatment records indicate ongoing use of orthotics with foot pain, attributable to pes cavus and plantar fasciitis. As discussed above, the Veteran has been separately rated for pes cavus at 10 percent disabling, which he has not contested. Unfortunately, based on the evidence of record, the Board cannot assign a second compensable rating for plantar fasciitis, as that would constitute impermissible pyramiding. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. In essence, symptoms attributable to more than one disability, should only be rated once. This matter is complicated in that the Veteran has two separate foot diagnoses, which have been granted service connection. However, the evidence of record appears to imply that the Veteran’s plantar fasciitis, is in fact, a symptom of his pes cavus. Indeed, the rating decision on appeal, which granted a 10 percent rating for pes cavus, listed a shortened plantar fascia as one of the primary symptoms allowing for such a rating. Further, to the extent that the Veteran’s foot pain was attributed to both the plantar fasciitis and pes cavus in the 2015 examination report, and the rating decision which granted the 10 percent for pes cavus also explicitly did so due to pain attributable to a shortened plantar fascia, those symptoms have already been compensated under the pes cavus disability. Turning to any other symptoms which may give rise to a compensable rating for plantar fasciitis, there is no evidence of stationary symptoms such as movement of the weight-bearing line or bowing of the Tendo Achillis. There is no evidence of deformity of the feet. While pain is noted on use of the feet, that pain has already been compensated under the pes cavus rating, and his symptoms are relieved by arch supports. In short, there is no evidence of symptoms other than pain (which is already compensated under the pes cavus rating) which would give rise to a higher rating than the noncompensable rating already assigned for either the right or left foot. In light of this, the Board finds that the Veteran’s claim for a compensable rating for bilateral plantar fasciitis should be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. As a final matter, the Board would be remiss in not mentioning that 38 C.F.R. § 4.71a is to be amended effective February 7, 2021, and will include a new diagnostic code specifically written to address plantar fasciitis. As such, while this decision applied the current regulations, the Board makes no determination as to how the Veteran’s ratings may change under the new regulations, should he wish to file a new claim at a later date. REASONS FOR REMAND 1. Entitlement to a compensable rating for right knee patellofemoral pain syndrome is remanded. 2. Entitlement to a compensable rating for left knee patellofemoral pain syndrome is remanded. The Veteran, in his hearing before the undersigned, testified as to increased severity of his symptoms since the most recent examination of his knees, which took place in 2015. Particularly, he testified to increased instability in both knees, with episodes of them giving out. Therefore, to the extent that it has been over five years since his most recent examination, and he has testified to worsening symptoms, the Board will remand this appeal so that a new examination of his knees might be accomplished. 3. Entitlement to a compensable rating for lumbosacral strain With regard to the Veteran’s lumbosacral strain, the Veteran was most recently evaluated in March 2017, nearly three years ago. In his hearing before the undersigned, the Veteran testified to increased symptoms since his most recent examination, to include potential neurological symptoms in his lower extremities, which he believed were attributable to his low back disability. These symptoms were not identified in the most recent examination. A rating for a low back disability may include a rating for any associated neurological symptoms. As the Veteran has testified as to worsening symptoms attributable to his low back, and expressed his willingness to appear for a new examination, the Board will also remand this claim for further development. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel