Citation Nr: 21010368 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-38 278A DATE: February 24, 2021 ORDER A 30 percent disability rating for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period prior to October 3, 2019 is granted. A disability rating in excess of 30 percent for the service-connected plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period from October 3, 2019 is denied. FINDINGS OF FACT 1. Prior to October 3, 2019, the Veteran’s right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle most closely approximated pronounced unilateral pes planus. 2. From October 3, 2019, the Veteran is in receipt of the maximum 30 percent rating available for unilateral pes planus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a disability rating of 30 percent for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period prior to October 3, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 2. The preponderance of the evidence shows that the criteria for a disability rating in excess of 30 percent for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period from October 3, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to January 1979. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a compensable disability rating for service-connected plantar fasciitis, residuals of fracture, 5th metatarsal, right foot now claimed as residual fracture of the right ankle. In January 2013, VA received the Veteran’s Notice of Disagreement (NOD). In November 2014, the RO issued a Statement of the Case (SOC). In November 2014, VA received the Veteran’s VA Form 9 appeal to the Board. In January 2019 the Board remanded the case for further development and adjudicative action. Increased Rating 1. Entitlement to a compensable disability rating for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period prior to October 3, 2019. 2. Entitlement to a disability rating in excess of 30 percent for the service-connected plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle for the period from October 3, 2019. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276 as unilateral pes planus. Diagnostic Code 5276 provides for a noncompensable rating for mild pes planus relieved by built-up shoe or arch support. A 10 percent rating is available for moderate unilateral pes planus, with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 20 percent rating is available for severe unilateral acquired flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use; characteristic callosities. A 30 percent evaluation is assigned for pronounced unilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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 (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM 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. Initially, although the Veteran has a current diagnosis of right ankle degenerative arthritis, her right ankle is not currently service-connected. The Veteran underwent a VA examination of her right foot in November 2012 in connection with her claim for increased rating. The only diagnosis noted was a proximal 5th metatarsal fracture on the right foot. However, the examiner primarily examined the Veteran’s right ankle rather than her right foot. Additionally, the examiner stated that the Veteran “has never had a fracture of her foot or plantar fasciitis.” Large sections of the VA examination report were left incomplete and no pertinent statements were elicited from the Veteran during the examination. As noted in the January 2019 Board remand, the Veteran’s VA treatment records indicate that she had experienced “burning throbbing pain over medial and lateral ankle as well as dorsal hindfoot” (emphasis added). Women’s clinic note dated February 26, 2016. Additionally, treatment records reveal additional diagnoses of right midfoot arthritis, hindfoot valgus, and flatfoot. See physical medicine rehabilitation E & M note dated January 14, 2016; February 2014 x-ray report. The Veteran’s right foot pain and tenderness resulted in pain during weightbearing activities, such as standing and walking. See id. She has required use of a cane, walker, hindfoot brace, and custom orthotics for her right foot. See, e.g. Women’s clinic note dated February 26, 2016. In her November 2014 VA Form 9, the Veteran reported that her right foot disability resulted in “constant weakness, swollen and irritated (inflamed),” with increased pain in the heel and bottom of the foot on standing. Although the Veteran’s right ankle and right foot disabilities both undoubtably affect the Veteran’s ability to bear weight on the right lower extremity, in this case, it is impossible distinguish the functional impact of each disability. In this regard, all symptoms shall be attributed to the service-connected right foot. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran received another VA examination in October 2019. The examiner provided diagnoses of right flat foot, right metatarsalgia, and plantar fasciitis, and noted treatment records dating back to 1991 documenting chronic right foot pain, flat foot, right foot arthritis. The Veteran also reported chronic right foot pain since a 1975 in-service injury. She endorsed flare-ups occurring every few days and reported having “to stay off my feet for a day or two” until the flare-ups resolved. There was pain on use and manipulation; swelling on use; extreme tenderness on the plantar surface of the foot; decreased longitudinal arch height of the right foot on weightbearing; objective evidence of marked deformity of the foot; marked pronation of the foot; weightbearing line falling over or medial to the great toe; inward bowing of the Achilles’ tendon; and, marked inward displacement and severe spasm of the Achilles’ tendon. No characteristic callouses were noted. Contributing factors of disability included pain on movement, pain on weightbearing, swelling, deformity, disturbance of location, and interference with standing. Constant use of a brace, cane, and walker was noted. Based on the foregoing, a 30 percent disability rating is warranted for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle prior to October 3, 2019. In this regard, prior to October 3, 2019, the evidence shows pain, swelling, and tenderness of the right foot which continued despite use of orthotics and other assistive devices. Although the Veteran did not receive an examination which was adequate for rating purposes until October 2019, the evidence shows that the Veteran’s right foot symptoms throughout the period on appeal are substantially consistent with the symptoms recorded by the October 2019 examiner. Accordingly, the criteria for a disability rating of 30 percent for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle prior to October 3, 2019 is warranted. A 30 percent rating is the maximum rating available for unilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Furthermore, no alternative Diagnostic Code relating to the foot would produce a higher rating. Additionally, the Veteran has not asserted, and the evidence does not show, that her right foot symptoms are not adequately compensated under the rating criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). Given the above, a disability rating in excess of 30 percent for the service-connected right foot plantar fasciitis, residuals of fracture 5th metatarsal right foot now claimed as residual fracture of the right ankle is not warranted at any point during the period on appeal. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.