Citation Nr: 21005819 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 07-22 513 DATE: February 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis from November 1, 2005 to May 8, 2016, a rating in excess of 30 percent from May 9, 2016 to May 6, 2018, and a rating in excess of 50 percent thereafter is denied. FINDINGS OF FACT 1. For the period of November 1, 2005 to May 8, 2016, the Veteran’s bilateral plantar fasciitis manifested through foot pain on use and manipulation, without objective evidence of marked deformity, callosities, inward displacement, or severe spasms. 2. For the period of May 9, 2016 to May 6, 2018, the Veteran’s bilateral plantar fasciitis manifested through pain on manipulation and indication of swelling on use. 3. For the period beginning May 7, 2018 and thereafter, the Veteran’s bilateral plantar fasciitis manifested with extreme tenderness of plantar surfaces. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for bilateral plantar fasciitis from November 1, 2005 to May 8, 2016, a rating in excess of 30 percent from May 9, 2016 to May 6, 2018, and a rating in excess of 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.71a, Diagnostic Code (DC) 5276 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1984 to April 1985 and from April 1986 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2006, February 2017, and June 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board remanded the appeal to afford the Veteran a Board hearing. In June 2015, the Veteran testified before the undersigned at a travel Board hearing. A copy of the transcript has been associated with the claims file. The Board issued two other remands on this claim in September 2015 and January 2018. In October 2019, the Board issued a decision denying the claim. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in June 2020 a Joint Motion for Partial Remand was entered, vacating the portion of the Board’s October 2019 decision denying this claim. Specifically, the Court found that the Board did not address the Veteran’s wife’s Board hearing testimony, nor was the correct application of DC 5276 used in the October 2019 decision. The Board has addressed each of these issues in the instant decision. See Carter v. Shinseki, 26 Vet. App. 534, 543 (2014) (providing that when parties reach agreements in joint motions that are approved by the Court, those agreements control subsequent adjudication of the claimant's case). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.    Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.    The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s bilateral plantar fasciitis disability is rated under DC 5276, which assigns a noncompensable rating for mild symptoms or those relieved by built-up shoe or arch support; and assigns a 10 percent rating for moderate flatfoot, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, either bilateral or unilateral. A 20 percent rating compensates for unilateral symptoms and a 30 percent rating compensates for bilateral symptoms of severe flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is provided for unilateral symptoms and a 50 percent rating for bilateral symptoms of pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spams of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. 1. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis from November 1, 2005 to May 8, 2016, a rating in excess of 30 percent from May 9, 2016 to May 6, 2018, and a rating in excess of 50 percent thereafter. The RO initially granted service connection for the Veteran’s plantar fasciitis of the bilateral feet in a January 2006 rating decision because he was diagnosed with and treated for such in August 2005, while still in active service. The Veteran’s bilateral plantar fasciitis was evaluated at 10 percent, effective November 1, 2005, the day after he separated from active service. He was initially assigned a 10 percent evaluation based on a review of service treatment records and the October 2005 VA pre-discharge examination findings, which revealed tenderness with palpation to both plantar areas extending to the Achilles bilaterally. The feet had good range of motion, although mild tenderness was noted. The examiner diagnosed mild bilateral plantar fasciitis. The VA examiner also noted mild degenerative changes to the left foot, but the x-ray of the left foot and the left ankle revealed the same degenerative changes of the talus, which was addressed through the assignment of a disability rating for the left ankle. There was also an x-ray of the right foot that revealed degenerative changes to the right great toe, which was also addressed in a separate rating. Treatment records from May 2006 show the Veteran made an appointment to obtain arch supports for his plantar fasciitis. That same month, the Veteran was noted to have no localized soft tissue swelling in the foot, no bone pain in the foot, no pain in the bilateral heels, no change in the arch of the foot, no joint pain in the toes, and the feet did not appear to be deformed. The Veteran underwent further examination in February 2008. He reported problems with both feet, particularly along the plantar aspect. He reported constant ache toward the heel, mild to moderate in intensity. He also reported flares of sharp pain from the lateral, aspect of the foot, mild in intensity and more on the left than right, precipitated by stepping off a curve or getting out of the tub. This was alleviated by taking pain medications. The Veteran denied the use of corrective shoes, but stated that he used arch supports, which affords mild improvement. He denied swelling, warmth, or redness. He reported fatigability and lack of endurance. He also reported that the foot condition resulted in a mild effect on mobility and slowed him down at work. Upon physical examination, the examiner noted mild tenderness, along the plantar aspect towards the arch and proximally to the heel. There was no functional limitation on standing and walking. The examiner found no objective evidence of abnormal weightbearing and no evidence of pes planus. Dorsiflexion of the left and right foot/ankle was measured from zero to 20 degrees; plantar flexion was zero to 60 degrees with no pain elicited and no limitation following three repetitive movements. Eversion was zero to 30 degrees and inversion was zero to 35 degrees. The examiner confirmed a diagnosis of bilateral plantar fasciitis. VA treatment records from September 2008 note “foot exam right foot slight pain with eversion, no sig swelling or warmth nl plantar flexion and dorsiflexion” indicating the Veteran was not suffering from swelling due to his plantar fasciitis at this time. Another VA examination was conducted in September 2013. The examiner confirmed a diagnosis of bilateral plantar fasciitis. The Veteran reported using shoe inserts for relief. Foot pain was also relieved with rest. The examiner found no other foot injuries, to include weak foot and pes cavus. The Veteran indicated that he used a wheelchair and walker occasionally, a brace regularly, and a cane constantly for back, neck, shoulder, and knee pain. The functional impact of the foot condition was its limitation on the Veteran’s ability to stand for more than 15 minutes. The Veteran and his wife appeared at a hearing before the Board in June 2015. The Veteran described the in-service diagnosis of bilateral plantar fasciitis and explained his current treatment through use of insoles and pain medication. He described the pain as “burning” and a “pins and needles” sensation. In regard to functional impact, he mentioned limitations on running and walking, due in part to a spinal injury as well as his foot conditions. As noted above, the JMR found that the Board did not previously address the Veteran’s wife’s Board hearing testimony. Specifically, the JMR noted that the Board did not discuss the Veteran’s wife’s reports of swelling. However, a review of the hearing transcript shows that the Veteran’s wife was testifying about the Veteran’s feet swelling in the context of his left ankle problem and the braces he wears for such. In fact, the Veteran’s wife again testified later in the hearing “He honestly, the, the compression stockings he has and the knee braces, the ankle braces and the special shoes and whatnot, he swells. … But its not every day that we can get those compression stockings on. Not every day that we can get those braces back on and because the swelling is there.” Following this discussion, the Veteran testified “And that, they’re not sure if it’s from the medication because one of the side effects that all those medications is, may cause swelling. May, may cause constipation anything, but –” The Board notes that the Veteran is service-connected for degenerative disc disease of the cervical and lumbar spine, radiculopathy of the bilateral lower extremities, bilateral ankle conditions, bilateral knee conditions, and a right hip strain, all of which require pain medication and treatment other than what is specifically required for his bilateral plantar fasciitis. VA treatment records show the Veteran sending a message to his doctor in January 2014 complaining of burning in his feet, writing “I know it’s due to the neuropathy. It’s just so painful even the covers of the bed hurts. Is there anything else we can do besides the insoles and the pregabalin?” To which his doctor responded with the option of light therapy for the Veteran’s neuropathy, which the Veteran declined. In his response, the Veteran also complained that “the swelling doesn’t help and the ankle and knee braces I have to adjust through-out the day.” The Board has no doubt that the Veteran’s pain and symptoms of each condition are related to one another, however, the Veteran is currently receiving separate ratings for each condition and their associated symptoms. To that end, the Board notes that the Veteran has been rated at 100 percent disabled since January 9, 2006. The record does not support a finding of swelling due to the Veteran’s bilateral plantar fasciitis until May 9, 2016. In May 2016, the Veteran underwent another VA examination. The examiner noted a diagnosis of bilateral plantar fasciitis. The Veteran reported foot pain and painful flare-ups. The examiner reported pain upon manipulation of the feet bilaterally. Indication of swelling upon use of the feet was present. No characteristic calluses were present. The examiner noted that the Veteran used arch supports bilaterally. He indicated that extreme tenderness of the plantar surfaces was not present. The Veteran did not have decreased longitudinal arch height of the feet in weight-bearing. The examiner found no objective evidence of marked deformity in either foot. There was no marked pronation in either foot. There was no inward displacement and severe spasms of the Achilles tendons. The examiner noted pain upon physical examination in both feet and stated that the pain contributed to functional loss. Contributing factors of the disability were reported as pain on movement (bilaterally), instability of motion (right), interference with standing (right), and lack of endurance (right). The examiner reported pain, weakness, fatigability, and incoordination would limit functional ability after repeated use over time, depending on the type of activity performed and severity of pain experienced by the Veteran. Constant use of a brace for back and knee pain was reported by the Veteran. The functional impact of the bilateral plantar fasciitis was reported as limited walking. Most recently, the Veteran was afforded further VA examination in May 2018. A diagnosis of bilateral plantar fasciitis was noted. The Veteran described burning and tingling pain in his feet. He described flare-ups as burning and tingling pain in his feet. The examiner noted pain upon manipulation of the feet bilaterally. There was no indication of swelling upon use. No characteristic calluses were noted. The Veteran reported that he tried orthotics without relief. The examiner documented extreme tenderness on the plantar surfaces of both feet. The tenderness was improved with the use of orthotics. The Veteran did not have decreased longitudinal arch height of the feet in weight-bearing. The examiner found no objective evidence of marked deformity in either foot. There was no marked pronation in either foot. The examiner noted pain upon physical examination in both feet and stated that the pain contributed to functional loss. Contributing factors of the disability were reported as pain on movement (bilaterally), pain on weight-bearing (bilaterally), and interference with standing (bilaterally). The examiner reported pain, weakness, fatigability, and incoordination would limit functional ability after repeated use over time; the functional loss was described as pain with prolonged standing. The Veteran reported constant brace use for knee pain and constant cane use to help with balance. The examiner stated that the bilateral plantar fasciitis impacted the Veteran’s ability to perform occupational tasks because of foot pain with prolonged standing. The Board has also reviewed and considered the additional VA and private treatment records, which reflect complaints of foot pain, weakness, burning, and tingling. Discussion of an initial rating in excess of 10 percent for the period from November 1, 2005 to May 8, 2016. After careful consideration of the evidence of record, the Board finds that a rating in excess of the assigned 10 percent evaluation is not warranted for the period from November 1, 2005 to May 8, 2016. Under DC 5276, a 20 percent rating compensates for unilateral symptoms and a 30 percent rating compensates for bilateral symptoms of severe flatfoot with objective evidence of marked deformity, pain on manipulation and use, accentuated indication of swelling on use, characteristic callosities. As noted above, the JMR also found that the Board erroneously applied the relevant DC criteria as if it was joined in the conjunctive. The Board previously used the word “and” between the last two rating symptoms for purposes of a full sentence. DC 5276 is neither successive nor conjunctive, so the Veteran could satisfy the criteria in the 50 percent evaluation without establishing criteria in the 10 percent or 30 percent evaluations. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). VA examinations during this period note a good range of motion for the feet, with no more than mild tenderness. The February 2008 examiner found no objective evidence of abnormal weightbearing. The September 2013 examiner noted that the functional impact of the foot condition was limitation on the Veteran’s ability to stand for more than 15 minutes. Moreover, treatment records consistently show that the Veteran was not suffering from swelling as a result of his bilateral plantar fasciitis. During VA examinations, the Veteran reported a constant ache toward the heel, mild to moderate in intensity. He also reported flares of sharp pain from the lateral aspect of the foot, mild in intensity and more on the left than right. This was alleviated by taking pain medications and resting. He denied the use of corrective shoes, but stated that he used arch supports, which afforded mild improvement. He reported that the foot condition resulted in a mild effect on mobility and slowed him down at work. At the June 2015 Board hearing, the Veteran reported treatment through use of insoles and pain medication. He described the pain as “burning” and a “pins and needles” sensation. In regard to functional impact, he mentioned limitations on running and walking, due in part to a spinal injury as well as his foot conditions. The Board notes that in messages to his doctor, the Veteran attributed this burning sensation in his feet to his neuropathy, rather than his bilateral plantar fasciitis. Moreover, the Veteran’s wife’s testimony of swelling was with regard to the Veteran’s bilateral ankle conditions, as well as the totality of his bilateral lower extremity conditions, including his radiculopathy, his knee conditions, and his ankle conditions. The Veteran and his wife are both competent to provide evidence about the Veteran’s disability; for example, they are both competent to describe symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). They are also credible to the extent that they sincerely believe the Veteran is entitled to a higher rating. However, neither the Veteran nor his wife are competent to identify a specific level of disability according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the condition was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The medical findings as provided in the various VA examination reports directly address the criteria under which this disability is evaluated. Critically, the Veteran has multiple diagnoses related to the feet, including degenerative arthritis and radiculopathy. Neither he nor his wife is shown to possess the requisite medical expertise or knowledge to evaluate the severity of or distinguish between complex medical conditions such as plantar fasciitis, arthritis, and radiculopathy. Thus, while the Board has considered the Veteran’s and his wife’s lay statements regarding the severity of his disability, the lay evidence is outweighed by the competent and credible medical evidence that evaluated the true extent of the impairment of the service-connected condition based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment due to bilateral plantar fasciitis. The probative evidence during this period reflects generally mild pain and impairment due to bilateral plantar fasciitis and does not establish the presence of severe flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. Therefore, the Board concludes that the preponderance of the evidence weighs against a rating in excess of 10 percent for the period from November 1, 2005 to May 8, 2016. Discussion of a rating in excess of 30 percent for the period from May 9, 2016 to May 6, 2018. After careful consideration of the evidence of record, the Board finds that a rating in excess of the assigned 30 percent evaluation is not warranted for the period from May 9, 2016 to May 6, 2018. Under DC 5276, a 50 percent rating compensates for bilateral symptoms of pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spasms of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The May 2016 VA examiner noted pain upon manipulation of the feet bilaterally but found no extreme tenderness of the plantar surfaces. The Veteran reported foot pain and painful flare-ups. Indication of swelling upon use of the feet was present. No characteristic calluses were present. The examiner noted that the Veteran used arch supports bilaterally. He found no objective evidence of marked deformity in either foot. There was no inward displacement and severe spasms of the Achilles tendons. The functional impact of the bilateral plantar fasciitis was reported as limited walking. For the reasons discussed above, the Board has considered the Veteran’s and his wife’s lay statements but assigns greater evidentiary weight to the examination findings regarding the type and degree of impairment due to bilateral plantar fasciitis. Accordingly, the Board finds that the current evaluation of 30 percent is appropriate for the period of May 9, 2016 to May 6, 2018. The Veteran is not shown to have pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces, or marked inward displacement and severe spasms of the tendo Achilles, not improved by orthopedic shoes or appliances to warrant a higher rating of 50 percent during this period. Therefore, the Board concludes that the preponderance of the evidence weighs against a rating in excess of 30 percent for the period from May 9, 2016 to May 6, 2018. Discussion of a rating in excess of 50 percent beginning May 7, 2018 and thereafter. No higher disability evaluation under DC 5276 may be assigned for the Veteran’s bilateral plantar fasciitis from May 7, 2018 onward, as 50 percent is the maximum schedular evaluation possible under that Diagnostic Code. The Board has considered whether higher or separate ratings might be available under another Diagnostic Code. The Veteran has not been diagnosed with weak foot (DC 5277); claw foot (DC 5278); Morton’s disease (DC 5279); hallux valgus (DC 5280); hallux rigidus (DC 5281); hammer toe (DC 5282); malunion or nonunion of tarsal or metatarsal bones (DC 5283), or other foot injuries (DC 5284), much less has any such disability been associated with the service connected foot disability. Notably, the Veteran is already in receipt of disability ratings for bilateral lower extremity radiculopathy (DC 8620); degenerative changes of the left ankle (DC 5003-5271); right ankle lateral collateral ligament sprain (DC 5271); and degenerative changes, fracture, right first (great) toe (DC 5010-5283). To compensate the Veteran for foot pain under multiple Diagnostic Codes for the same symptomatology would constitute a pyramiding of benefits, which is impermissible. See 38 C.F.R. § 4.14 (2018); Esteban, 6 Vet. App. at 261-62. Moreover, the Board finds that Diagnostic Code 5276 is most appropriate because the "anatomical localization" of, "functions affected" by, and "symptomatology" of the Veteran’s bilateral plantar fasciitis is analogous to an individual who suffers from bilateral pes planus. The functions affected by the plantar fasciitis are analogous to the functions affected by pes planus. The Board’s determination is based on the fact that service treatment records show the Veteran complained of and was treated for relevant symptoms. There was no history of trauma. Thus, the origin of the Veteran’s disability is not an “injury” as contemplated under Diagnostic Code 5284, which assigns ratings for “foot injuries.” The Board concludes that the probative evidence fails to show manifestations of bilateral plantar fasciitis that warrant higher or separate evaluations under other Diagnostic Codes beyond the evaluations already assigned under DC 5276 during the periods on appeal. Accordingly, the claim for an increased rating is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.