Citation Nr: 21014699 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-47 297 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the left foot is denied. Entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the right foot is denied. Entitlement to a rating in excess of 50 percent for service-connected bilateral plantar fasciitis from January 13, 2020 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected frostbite with plantar fasciitis of the left foot is manifested by pain, numbness, color changes, nail abnormalities, locally impaired sensation, and osteoarthritis. 2. The Veteran’s service-connected frostbite with plantar fasciitis of the right foot is manifested by pain, numbness, color changes, nail abnormalities, locally impaired sensation, and osteoarthritis. 3. From January 13, 2020, the Veteran’s service-connected bilateral plantar fasciitis is manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthoscopic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-14, 4.40, 4.45, 4.59, 4.104, Diagnostic Code 7122. 2. The criteria for entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-14, 4.40, 4.45, 4.59, 4.104, Diagnostic Code 7122. 3. From January 13, 2020, the criteria for entitlement to a rating in excess of 50 percent for service-connected bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-14, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5299-5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to September 1979 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript of the hearing is of record. In March 2019, the Board remanded the issues of entitlement to increased ratings for bilateral plantar fasciitis for additional development. In an August 2020 rating decision, the RO assigned a separate evaluation of 50 percent for bilateral plantar fasciitis from January 13, 2020, under 38 C.F.R. § 4.71(a), Diagnostic Codes 5299 to 5276. The RO rated plantar fasciitis analogous to flatfoot. The Board recharacterized the issues on appeal to reflect this new grant. Additionally, the RO included arthritis and degenerative spurs involving the first metatarsophalangeal (MTP) joint as part of the diagnosis since the January 2020 VA contract examiner stated that it was a progression of the Veteran’s disability. Increased Ratings 1. Entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the left foot. 2. Entitlement to a rating in excess of 30 percent for service-connected frostbite with plantar fasciitis of the right foot. 3. Entitlement to a rating in excess of 50 percent for service-connected bilateral plantar fasciitis from January 13, 2020. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Currently, the Veteran is rated at 50 percent from January 13, 2020, for bilateral plantar fasciitis under 38 C.F.R. § 4.71(a), Diagnostic Codes 5299 to 5276. She is rated at 30 percent prior to January 13, 2020, for frostbite with plantar fasciitis of the right foot under 38 C.F.R. § 4.71(a), Diagnostic Code 7122. The Veteran is rated at 30 percent prior to January 13, 2020, for frostbite with plantar fasciitis of the left foot under 38 C.F.R. § 4.71(a), Diagnostic Code 7122. From January 13, 2020, the Veteran is rated at 30 percent for frostbite of the right foot with arthritis and degenerative spurs involving the first MTP joint. From January 13, 2020, she is rated at 30 percent for frostbite of the left foot with arthritis and degenerative spurs involving the first MTP joint. Under Diagnostic Code 7122, a 10 percent rating is assigned when cold injury residuals are manifested by arthralgia or other pain, numbness, or cold sensitivity in affected parts. 38 C.F.R. § 4.104. A 20 percent rating requires arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) in the affected parts. A maximum 30 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following in affected parts: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104. A note to Diagnostic Code 7122 states that amputations of fingers or toes and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be separately evaluated under other codes. Other disabilities that have been diagnosed as the residual effects of a cold injury, such as Raynaud’s phenomenon, muscle atrophy, etc., also are to be separately evaluated unless they are used to support a disability rating under Diagnostic Code 7122. A second note provides that each affected part is to be evaluated separately. 38 C.F.R. § 4.104. Under Diagnostic Code 5276, a 0 percent is assigned for mild acquired flatfoot with symptoms relieved by built-up shoe or arch support; a 10 percent is assigned for moderate acquired flatfoot with weight -bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, bilateral or unilateral; a 20 percent is assigned for severe acquired flatfoot that is unilateral with objective evidence of marked deformity (pronation, abduction.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent is assigned for severe acquired flatfoot that is unilateral with objective evidence of marked deformity (pronation, abduction.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent is assigned for unilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance; and a 50 percent is assigned for bilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance. 38 C.F.R. § 4.71(a), Diagnostic Code 5276. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, plantar fasciitis was rated by analogy and did not have a listed diagnostic code. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5269 was created to rate plantar fasciitis. Under Diagnostic Code 5269, a 10 percent is assigned for bilateral or unilateral; a 20 percent is assigned for unilateral no relief from both non-surgical and surgical treatment; and a 30 percent is assigned for bilateral no relief from both non-surgical and surgical treatment. Note 1 states that actual loss of use of the foot should be rated as 40 percent. Note 2 states that if the veteran has been recommended for surgical intervention, but is not a surgical candidate, then it should be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. In February 2015, the Veteran was afforded a VA examination for cold injury residuals. The Veteran was diagnosed with frostbite of the right and left foot. Physical examination of the right and left foot showed that the Veteran had arthralgia or other pain, numbness, and nail abnormalities. The Veteran reported that daily pain interfered with her ability to walk on foot. The Veteran was positive for deep pain “to the bones of the foot.” She reported that with sitting for any period of time, it was hard to start ambulation again without initially taking small steps. She reported ongoing numbness and tingling to her foot. She had decreased sensory function to the planar surface of the foot (metatarsal phalangeal joint space) with the use of a micro-filament. The Veteran had decreased sensory function to the great, second, and third toes of the plantar surface of the foot. The toenail to 5th toe was blackened/grey color and thick. X-rays showed osteoarthritis of the right and left foot. She reported using a cane daily for ambulatory stabilization and weight bearing. The examiner noted that the Veteran had a moderate bilateral limp with ambulation and seemed to be in pain when doing so. The Veteran reported that she had bilateral foot pain with weight bearing and increased activity. The examiner noted that the Veteran had bilateral plantar fasciitis and residuals including chronic pain and paresthesias from frostbite injury in service, which were moderately severe. In February 2015, the Veteran was afforded a VA examination for foot conditions. The Veteran was diagnosed with bilateral plantar fasciitis. The Veteran reported having increased pain with weightbearing and activity and neuropathy pain in foot as well. The VA examiner noted that the Veteran had bilateral plantar fasciitis and residuals including chronic pain and paresthesias from frostbite injury in service, which was moderately severe. The Veteran’s feet did not require arch supports, custom orthotic inserts, or shoe modification. The Veteran did not have foot surgery. Her functional ability was limited due to her foot conditions. She had to constantly use a cane as a normal mode of locomotion. The VA examiner concluded that the Veteran had significant foot pain that would preclude her from performing work requiring prolonged time on her feet. However, she could perform work that required sitting or no physical activity. In January 2020, the Veteran was afforded a VA examination for cold injury residuals. The Veteran was diagnosed with bilateral plantar fasciitis since 1977, plantar spur involving the calcaneus since January 13, 2020, and degenerative spurs involving the first metatarsophalangeal (MTP) joint since January 13, 2020. A VA examination showed that the Veteran had arthralgia or other pain, numbness, cold sensitivity, color changes, and locally impaired sensation of both the right and left foot. She had decreased sensation on plantar surfaces of feet, numbness and tingling, and gray/pale color on the plantar surfaces. The Veteran regularly used inserts and constantly used a cane for her feet problems. The Veteran’s injury impacted her ability to work in that she could only stand/walk for approximately 15 to 20 minutes before having increased pain. In January 2020, the Veteran was afforded a VA examination for her foot conditions. She was diagnosed with bilateral pes planus since 2008, bilateral hammer toes since 2008, bilateral plantar spur involving the calcaneus, bilateral plantar fasciitis since 1978, and bilateral degenerative arthritis since 2008. The Veteran reported that she was in constant pain from day to day. Her leg and feet went numb and pain handicapped her. The Veteran had constant aching and throbbing numbness and tingling with sharp pain, intermittently. Flare-ups of the right foot occurred daily. The right foot flare-ups were severe and lasted weekly. The right foot flare-ups were precipitated by standing/walking for an extended amount of time. Th right foot flare-ups were alleviated by rest and medication. Flare-ups of the left foot occurred daily. The left foot flare-ups were severe and lasted weekly. The left foot flare-ups were precipitated by standing/walking for an extended amount of time but were alleviated by rest and medication. The Veteran could only stand/walk for approximately 15 to 20 minutes before having increased pain. The Veteran had pain on both feet that was accentuated on use and pain on manipulation of feet that was accentuated on use. She had extreme tenderness of plantar surfaces on both feet. It was not improved by orthopedic shoes or appliances. However, the Veteran did not have any swelling or calluses. The Veteran had marked deformity of both feet and marked pronation of both feet that was not improved by orthopedic shoes or appliances. She did not have marked inward displacement and severe spasm of the achilles tendon. The Veteran’s bilateral foot condition caused pain on movement, pain on weight-bearing, disturbance of locomotion, and interference with standing. The Board finds the February 2015 and January 2020 VA examinations to be competent, credible, and highly probative, as they are supported by in-person examinations, medical expertise, adequate findings, sufficient rationales, and proper consideration of the Veteran’s lay statements. After a review of the evidence of record, the Board finds that increased ratings are not warranted for the Veteran’s bilateral foot disorder. From January 13, 2020, the Veteran’s bilateral plantar fasciitis was rated at 50 percent from Diagnostic Codes 5299 to 5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be “99” for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. During this period on appeal, the Veteran’s bilateral plantar fasciitis is rated by analogy to flatfoot under Diagnostic Code 5276. According to the January 2020 VA examination, the Veteran had constant aching and throbbing numbness and tingling with sharp pain, intermittently in her feet. The VA examiner diagnosed the Veteran with flatfeet and noted that the Veteran had marked deformity of both feet and marked pronation of both feet that was not improved by orthopedic shoes or appliances. Under Diagnostic Code 5276, a 50 percent rating is the highest rating available, and the Veteran’s bilateral fasciitis is already evaluated at the highest maximum rating available under these diagnostic criteria. Therefore, a rating in excess of 50 percent is not warranted from January 13, 2020, under Diagnostic Code 5276 for the Veteran’s service-connected bilateral fasciitis. The Veteran’s service-connected frostbite with plantar fasciitis of the right foot and frostbite with plantar fasciitis of the left foot are both rated at 30 percent under Diagnostic Code 7211. According to a February 2015 VA examination, the Veteran’s foot disabilities were characterized by moderate severe pain. Physical examination of the right and left foot showed that the Veteran had arthralgia or other pain, numbness, and nail abnormalities. The Veteran had decreased sensory function to the great, second, and third toes of the plantar surface of the foot. The toenail to 5th toe was blackened/grey color and thick. The VA examiner concluded that the Veteran had significant foot pain that would preclude her from performing work requiring prolonged time on her feet. Under Diagnostic Code 7122, a 30 percent rating is the highest possible rating available for cold injury residuals. The Veteran’s service-connected foot disabilities are already rated at the highest maximum rating available. Therefore, a rating in excess of 30 percent is not warranted. The Board has also considered whether a higher rating is warranted under the new criteria of Diagnostic Code 5269. However, a higher rating is not warranted because the Veteran is already in receipt of the maximum evaluation possible for this diagnostic code. The Board has considered the Veteran’s lay statements in support of her claim for an increased rating for her service-connected foot disabilities. However, the Board concludes that the medical findings are of greater probative value than the Veteran’s allegations regarding the severity of his condition. The nature and extent of the Veteran’s disability have been addressed during the appeal period and the medical findings directly address the criteria under which this disability is evaluated. The Board has also considered whether extraschedular consideration is warranted under 38 C.F.R. § 3.321(b)(1). Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran’s disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. If the Veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id. In this case, the Board finds that the Veteran’s service-connected bilateral foot disabilities do not show an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The Veteran’s symptoms of pain, swelling, and numbness were contemplated by the rating criteria. Also, the Veteran’s disability did not cause her to have marked interference with employment or frequent hospitalization. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.