Citation Nr: 21011535 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-01 353 DATE: March 2, 2021 ORDER A rating of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016, to December 5, 2017, is granted. A rating in excess of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016, forward, is denied. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, from December 6, 2016, to December 5, 2017, his service-connected plantar fasciitis, tenosynovitis, left foot, was manifested by, in pertinent part, marked pronation and extreme tenderness of the plantar surfaces, not improved by orthopedic shoes or appliances. 2. As of December 6, 2016, the Veteran’s service-connected plantar fasciitis, tenosynovitis, left foot, is rated as 30 percent disabling and his service-connected left foot disability, to include posttraumatic arthrosis of the left subtalar joint, is rated as 20 percent disabling; his combined rating for disabilities of the left lower extremity below the knee is 40 percent. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, and no more, for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016, to December 5, 2017, are met. 38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.102, 3.400(o)(2), 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for a rating higher than 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016, forward, is precluded by the amputation rule. 38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.102, 3.400(o)(2), 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.68, 4.71a, DCs 5165, 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 30, 1965, to December 30, 1965. In September 2020, the Veteran testified during a videoconference hearing of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is of record. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from one year before the claim was filed; in this case, December 6, 2016, one year prior to the Veteran’s December 6, 2017, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The Veteran’s service-connected plantar fasciitis, tenosynovitis, left foot, was rated as 30 percent disabling by the June 2018 rating decision on appeal, effective December 6, 2017, under DC 5276, contemplating flatfoot, acquired. He is also in receipt of service connection for another left foot disability, one captioned as left foot disability, to include posttraumatic arthrosis of the left subtalar joint, rated as 20 percent disabling during the entire appellate period. 38 C.F.R. § 4.71a, DC 5276. Under DC 5276, in pertinent part, for unilateral involvement, a noncompensable rating is warranted for mild flatfoot, with symptoms relieved by built-up shoe or arch support; a 10 percent rating is warranted for moderate flatfoot, with the weight-bearing line over or medial to the great toe, with inward bowing of the tendo achillis, pain on manipulation and use of the feet; a 20 percent rating is warranted for severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etcetera), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; and a maximum 30 percent rating is warranted for pronounced flatfoot, with 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. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Relevant to the present case, the new regulations include DC 5269, specifically contemplating plantar fasciitis. Under DC 5269, a maximum 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. However, Note 1 provides that with actual loss of use of the foot, a 40 percent rating is warranted. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. However, in the present case, as no rating warranted under the new regulations may be granted prior to February 7, 2021, and, as discussed below, as of December 6, 2016, an increased rating for the Veteran’s service-connected plantar fasciitis, tenosynovitis, left foot, is precluded by the amputation rule, the new regulations may not serve as a basis for an increased rating and further consideration of such is not required. The claimant bears the burden of presenting and supporting their claim for benefits. 38 U.S.C. § 5107 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to a rating of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016 to December 5, 2017. In a December 2017 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with inflammatory tenosynovitis and plantar fasciitis, left foot. He complained of worsening symptoms with functional impairment described as impairment in walking, sitting, or standing for long periods of time. The examiner found, for the left foot, pain on use and pain on manipulation of the foot, with pain accentuated during each. There was extreme tenderness on the plantar surfaces, improved with orthotic shoes or appliances, however, the examiner also noted that use of orthotics did not relieve symptoms. There was evidence of marked deformity and marked pronation, not improved with orthotic shoes or appliances. There was inward bowing of the Achilles’ tendon. The Veteran presented using a cane and demonstrated pain on examination, with contributory factors of disability including pain on movement, pain on weight bearing, swelling, disturbance of locomotion, interference with sitting, and interference with standing. The examiner reported that pain, weakness, fatiguability, and incoordination significantly limits functional ability during flare-ups of symptoms or with repeated use over time. As noted above, the Veteran’s claim of entitlement to a rating in excess of 10 percent, the rating assigned to his service-connected plantar fasciitis, tenosynovitis, left foot, at that time, was submitted on December 6, 2017. Prior to his December 2017 DBQ, he presented for VA treatment using a cane in September 2017, sought VA assistance with his shoe inserts, or orthotics, in September 2017, and was treated for left foot pain by VA in December 2017. Resolving all doubt in favor of the Veteran, the Board finds that the symptoms with which he presented at the time of the December 2017 DBQ were present during the entire appellate period, thus, present in the year preceding his December 6, 2017, claim, since December 6, 2016. During his December 2017 DBQ, he specifically reported that his condition had worsened and his VA treatment records demonstrate treatment for left foot complaints prior to the December 2017 DBQ. The Board does not imagine a scenario wherein his marked pronation and extreme tenderness of the plantar surfaces, not improved by orthopedic shoes or appliances, the symptoms contemplated by DC 5276 that warrant the 30 percent rating he was assigned in the June 2018 rating decision based upon the results of the December 2017 DBQ, suddenly appeared on that date and were not present in the year prior. Resolving all doubt in favor of the Veteran, as is required by law, a rating of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, is warranted from December 6, 2016 to December 5, 2017. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 2. Entitlement to a rating in excess of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, since December 6, 2016. The “amputation rule” set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. Considering the Board’s grant herein, as of December 6, 2016, the Veteran’s service-connected plantar fasciitis, tenosynovitis, left foot, is rated as 30 percent disabling and his service-connected left foot disability, to include posttraumatic arthrosis of the left subtalar joint, is rated as 20 percent disabling; his combined rating for disabilities of the left lower extremity below the knee is 40 percent. See 38 C.F.R. § 4.25. As the Veteran’s left lower extremity disabilities, his service-connected plantar fasciitis, tenosynovitis, left foot, and left foot disability, to include posttraumatic arthrosis of the left subtalar joint, involve the leg below the knee, the combined rating for those disabilities may not exceed 40 percent. See 38 C.F.R. §§ 4.68, 4.71a, DC 5165. Thus, pursuant the amputation rule, the 40 percent combined ratings for the left lower extremity disabilities are the maximum ratings available. Since any increase beyond the grant herein of the 30 percent rating from December 6, 2016, to December 5, 2017, awarded to the Veteran’s service-connected plantar fasciitis, tenosynovitis, left foot, will violate the amputation rule under 38 C.F.R. § 4.68, his claim of entitlement to a rating in excess of 30 percent for service-connected plantar fasciitis, tenosynovitis, left foot, from December 6, 2016, forward, must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.