Citation Nr: 21010294 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-43 799 DATE: February 24, 2021 ORDER An increased rating in excess of 10 percent for a low back disability before August 2, 2018 is denied. An increased rating of 40 percent for a low back disability is granted from August 2, 2018. An increased rating in excess of 10 percent for right lower extremity radiculopathy is denied. For the period prior to August 2, 2018, an increased initial rating of 10 percent for bilateral plantar fasciitis is granted. An increased rating of 30 percent for bilateral plantar fasciitis is granted from August 2, 2018. An increased rating in excess of 30 percent for bilateral plantar fasciitis from August 2, 2018 is denied. FINDINGS OF FACT 1. Before August 2, 2018, the Veteran’s low back disability was manifested by no more than non-compensable limitation of motion with painful movement. See April 2012 VA Examination. 2. Since August 2, 2018, the Veteran’s low back disability has been manifested by lumbar flexion limited to around 30 degrees. There is no evidence throughout the claim period of ankylosis or intervertebral disc disease (IVDS) with incapacitating episodes lasting more than six weeks in the past twelve months. See August 2018 Representative’s Statement; August 2018 Board Hearing; VA Examinations dated April 2012, October 2019, November 2020. 3. The Veteran’s right lower extremity radiculopathy has been manifested by no more than mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness throughout the claim period. There is no evidence of signs or symptoms of moderate or more severe paralysis, such as constant radiating pain, objective evidence of numbness, muscle atrophy, or trophic changes. See id. 4. Before August 2, 2018, the Veteran’s bilateral plantar fasciitis was manifested by daily pain of the bilateral arches and heels, but no more. See April 2012 VA Examination. 5. Since August 2, 2018, the Veteran’s bilateral plantar fasciitis has been manifested by pain on use and manipulation, swelling on use, and symptoms not responsive to orthotics, but no more. There is no evidence of characteristic callosities, extreme tenderness of plantar surfaces, marked deformity or inward displacement and severe spasm of the tendo Achillis on manipulation. See VA Examinations dated April 2012, October 2019. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent before August 2, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for an increased rating of 40 percent for a low back disability are met from August 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 3. The criteria for an increased rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 4. The criteria for an initial rating of 10 percent for bilateral plantar fasciitis are met for the period prior to August 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 5. The criteria for an increased rating of 30 percent for bilateral plantar fasciitis from August 2, 2018 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 6. The criteria for an increased rating in excess of 30 percent for bilateral plantar fasciitis from August 2, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from January 1989 to September 1992 and from November 2010 to July 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in WACO, Texas. The Board remanded the claims for additional development in January 2019. 1. Low Back The Veteran’s low back disability is currently rated as 10 percent disabling before October 7, 2019 and as 20 percent disabling from that date on, under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula, a rating in excess of 10 percent for a low back disability requires flexion limited to 60 degrees or less, combined range of motion limited to 120 degrees, or muscle spasm or guarding resulting in abnormal gait or spinal contour. Ratings in excess of 10 percent are also available for IVDS with incapacitating episodes having a total duration of at least two weeks in the past twelve months. A rating in excess of 30 percent under the General Rating Formula requires flexion limited to 30 degrees or less or ankylosis of the thoracolumbar or entire spine. Ratings in excess of 30 degrees are also available for IVDS with incapacitating episodes having a total duration of at least four weeks in the past twelve months. Before August 2, 2018 The Veteran has been afforded three VA examinations evaluating the severity of his low back disability during the claim period. An April 2012 VA examination noted flexion limited to 90 degrees with combined range of motion limited to 240 degrees. The examination noted no guarding or muscle spasm. The examination also noted IVDS, but with no incapacitating episodes. The findings of the April 2012 VA examination are competent, credible, and entitled to significant weight. Moreover, there is no evidence suggestive of more severe disability before August 2, 2018. Therefore, the Board finds that before August 2, 2018, the Veteran’s low back disability was manifested by no more than non-compensable limitation of motion with painful movement. Accordingly, an increased rating in excess of 10 percent is not warranted for this period. From August 2, 2018 On The Veteran reported that his low back disability had worsened in a statement from his representative received by VA on August 2, 2018. He submitted testimony to the same effect at his August 2018 Board hearing, stating that he had trouble sitting and standing up, trouble sitting or standing for long periods, limited range of motion, and daily pain and stiffness with lifting. Based on his testimony of worsening, the Board remanded the claim in January 2019 to afford the Veteran a new VA examination to evaluate the current severity of his back disability. An October 2019 report of VA examination noted flexion limited to 55 degrees, further limited to 40 degrees after three repetitions. Moreover, the examiner opined that the Veteran’s range of motion would be limited by an additional 20 percent during flare ups or with use over time. A reduction of 20 percent from the recorded 40 degrees of flexion after three repetitions would come to around 32 degrees. The examination noted no IVDS and no ankylosis. A November 2020 report of VA examination noted flexion limited to 60 degrees with no additional limitation after three repetitions. The Veteran reported no flare ups, and the examiner opined that flexion would be limited to 55 degrees with use over time. The examination noted no IVDS and no ankylosis. The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. Moreover, where the evidence is equally balanced, the Board will resolve any reasonable doubt in the Veteran’s favor. 38 C.F.R. § 3.102. The findings of both the October 2019 and November 2020 VA examinations are competent, credible, and entitled to significant weight. Therefore, insofar as the November 2020 VA examination reflects less severe disability than the October 2019 VA examination and both examinations are equally probative, the Board resolves all reasonable doubt in the Veteran’s favor and finds that his low back disability has been manifested by limitation of motion to around 32 degrees during flares or with use over time. As noted above, an increased rating of 40 percent requires limitation of flexion to no more than 30 degrees. However, 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 required for that rating. 38 C.F.R. § 4.7. The Board finds that limitation to 32 degrees more nearly approximates the criteria for a 40 percent than for a 20 percent rating under the General Rating Formula. Accordingly, an increased rating of 40 percent is warranted from August 2, 2018, the date the Veteran first reported worsening of his low back disability. 2. Right Lower Extremity Radiculopathy The Veteran’s right lower extremity radiculopathy is currently rated as 10 percent disabling throughout the claim period, under DC 8526. Under that code, a rating in excess of 10 percent requires moderate incomplete paralysis of the anterior crural, or femoral, nerve. 38 C.F.R. § 4.71a. Symptoms of moderate incomplete paralysis may include objective evidence of numbness, moderate constant pain, or moderate paresthesias and/or dysesthesias. Symptoms of more severe incomplete paralysis may include constant radiating pain, muscle atrophy, or trophic changes. The Veteran has been afforded three VA examinations throughout the claim period to evaluate the severity of his right lower extremity radiculopathy. An April 2012 VA examination noted no objective evidence of numbness (decreased sensation), but did note reported symptoms of mild numbness of the right lower extremity. An October 2019 VA examination noted no signs or symptoms of radiculopathy. A November 2020 VA examination noted no objective evidence of numbness, but did note reported symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity. The findings of the April 2012, October 2019, and November 2020 VA examinations are competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, the Board finds that the Veteran’s right lower extremity radiculopathy has been manifested by no more than mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness throughout the claim period. There is no evidence of moderate or more severe paralysis, such as constant radiating pain, objective evidence of numbness, muscle atrophy, or trophic changes. Accordingly, an increased rating in excess of 10 percent is not warranted. 3. Bilateral Plantar Fasciitis The Veteran’s bilateral plantar fasciitis is currently rated as noncompensably disabling before October 7, 2019, and 30 percent disabling from that date on, under DC 5276 (rated by analogy to flat feet). Under this code, a compensable rating requires moderate symptoms, including weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, or pain on manipulation and use of the feet. A rating in excess of 30 percent requires pronounced bilateral symptoms, including marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. Compensable ratings are also available under DC 5284 (Foot injuries, other) for moderate, moderately severe, and severe foot injuries, with a maximum evaluation of 30 percent, and an evaluation of 40 percent for loss of use of the foot. Before August 2, 2018 The Veteran has been afforded two VA examinations evaluating the severity of his bilateral plantar fasciitis throughout the claim period. An April 2012 VA examination noted symptoms of daily bilateral plantar arch and heel pain and no other findings. As noted above, under DC 5276, a rating of 10 percent is warranted for moderate symptoms, including pain on manipulation and use of the feet. Therefore, the Board finds that an increased rating of 10 percent is warranted for the period before August 2, 2018 is warranted. However, there is no evidence of any impairment of the feet during this period other than daily pain. Therefore, an increased rating in excess of 10 percent is not warranted. From August 2, 2018 On The Veteran reported that his bilateral plantar fasciitis had worsened in a statement from his representative received by VA on August 2, 2018. He submitted testimony to the same effect at his August 2018 Board hearing, stating that he had used orthotics but without much relief and that a 2016 plantar fascia release on the left foot resulted in a difficult recovery and very little improvement. He testified that he does not walk much and has a special parking place at work. Based on his testimony of worsening, the Board remanded in January 2019 to afford the Veteran a new VA examination to evaluate the current severity of his bilateral plantar fasciitis. An October 2019 VA examination noted “sharp” pain in the soles and heels, pain on use and manipulation, swelling on use, and symptoms not improved by orthotics. The Veteran reported worsening if he is on his feet longer than ten minutes. He reported pain with running, climbing, squatting, and walking distances. In light of these signs and symptoms, the Board finds that the Veteran’s bilateral plantar fasciitis most nearly approximates the criteria for a rating of 30 percent under DC 5276. Accordingly, an increased rating of 30 percent is warranted from August 2, 2018, the date the Veteran first reported worsening of his bilateral plantar fasciitis. However, there is no evidence throughout the claim period of marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, or similar symptoms, nor any evidence of loss of use of the feet. Therefore, the Board finds that an increased rating in excess of 30 percent is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.