Citation Nr: 21023972 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-30 474 DATE: April 21, 2021 ORDER A rating of 50 percent, but no higher, for bilateral plantar fasciitis is granted from March 25, 2014. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, the evidence is sufficient to establish that from March 25, 2014, the Veteran’s plantar fasciitis manifested in symptoms including extreme tenderness of plantar surfaces, pain on use, and pain on manipulation, establishing a disability picture analogous to a pronounced severity. 2. From the effective date of October 1, 2012, until March 25, 2014, the evidence is not sufficient to establish a condition analogous to a severe severity. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no higher, for plantar fasciitis have been met from March 25, 2014. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.71a, Diagnostic Codes 5269 (2021), 5276. 2. The criteria for a rating higher than 10 percent for plantar fasciitis have not been met from October 1, 2012, until March 25, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded the claim for an updated VA examination to assess the current severity of the Veteran’s condition. With that development having been completed, the Board will now adjudicate the claim on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks an initial rating higher than 10 percent, and a rating higher than 50 percent from July 27, 2015, for bilateral plantar fasciitis. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s bilateral plantar fasciitis is rated analogously under Diagnostic Code (DC) 5276, for pes planus. 38 C.F.R. §§ 4.20, 4.71a. Under DC 5276, a 30-percent rating is warranted where the bilateral condition is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. A 50-percent rating, which is the highest rating available under these criteria, is available where the bilateral condition is pronounced, 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. Id. Effective February 7, 2021, DC 5269, specifically for plantar fasciitis, was added to 38 C.F.R. § 4.71a. For the period from February 7, 2021, the Board will consider the Veteran’s claim under the previous regulations and the current regulations, applying whichever regulations are most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). Under DC 5269, a 30-percent rating is warranted where there is bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. 38 C.F.R. § 4.71a. Otherwise, a 10-percent rating is warranted. Id. Procedurally, this appeal originates from an April 2013 rating decision granting service connection for bilateral plantar fasciitis and assigning an initial rating of 10 percent from the effective date of October 1, 2012. An August 2015 rating decision increased the evaluation to 50 percent effective July 27, 2015. A September 2019 rating decision reduced the evaluation to 30 percent from December 1, 2019. (As noted in the Board’s prior November 2020 decision, the propriety of the reduction is not on appeal.) Following the Board’s November 2020 decision, a January 2021 rating decision increased the evaluation back to 50 percent from December 1, 2019. Thus, the Veteran seeks an initial rating higher than 10 percent from the effective date of October 1, 2012, and a rating higher than 50 percent from July 27, 2015, to present. See AB v. Brown, 6. Vet. App. 35, 38 (1993). Turning to the evidence from the effective date of October 1, 2012, at a June 12, 2012 VA examination including for the Veteran’s feet, the Veteran’s gait was found to be within normal limits, and the foot condition was found not to impact his ability to work. Treatment records from November 2012 show the Veteran had been going to podiatry and had received shockwave therapy, one steroid injection, and had received orthotic inserts. The Veteran “state[d] orthotics have helped significantly.” He graded his foot pain at 1 or 2 out of 10. Treatment records from June 2013 and July 2013 saw the Veteran requesting new inserts to replace old ones. The Veteran related he “has been wearing inserts which have helped out a lot [and h]e feels like his return of pain is caused by inserts wearing out.” Previous injections in the heels were noted “but they didn’t help that much.” The Veteran rated his foot pain at 3 out of 10. In a March 25, 2014 notice of disagreement, the Veteran reported “I can’t stand on my feet for a prolong[ed] period of time,” “can only walk a short distance before my feet have overbearing pain,” and sometimes had to rest after walking only from the bedroom to the front door. Another VA examination was provided on July 27, 2015. The Veteran reported constant sharp pain in both feet, worsened with prolonged standing, walking, or heavy exertional activities. He also stated that his custom orthotics were increasing the pain and he experienced more relief without using them. Physical examination found pain on use and manipulation of the feet and extreme tenderness. There was no swelling, no marked pronation, no weightbearing line over or medial to great toe, and no inward displacement with severe spasm. The functional impacts included inability to run, ability to walk slowly for one hour, and pain after standing for five minutes. The Veteran stated he exercised four times a week on the treadmill and lifted weights. On July 14, 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran stated that he was still experiencing extreme tenderness of the plantar surfaces as well as pain on use and manipulation of the feet, and he said these symptoms had been present since October 2012. He related that he had to avoid being on his feet as much as possible because the pain increased the more he was on them. Another VA examination was provided on August 13, 2018. The Veteran still had daily pain that was worse with running more than a mile, any amount of hiking, or exposure to cold or wet. The examiner found no extreme tenderness, no marked pronation, or no inward displacement with severe spasming. Functional impact included pain with prolonged walking. In a statement received November 9, 2018, the Veteran stated that his feet had worsened since the July 2015 examination including pain forcing him to change his gait, needing to call out from work due to pain, and even more pain with new inserts that he had been provided. As directed by the Board’s prior November 2020 decision, a new VA examination was provided on January 6, 2021. The Veteran still had constant daily pain, triggered by weightbearing, and with cold or wet feet the pain would flare-up to the point that he could not walk. He reported limitations including needing a break from standing once every 30 minutes and avoiding prolonged standing and walking. Physical examination found pain on use and manipulation. The report indicated the Veteran had not ever undergone foot surgery but had received orthotics, injections, and ultrasound therapy. No assistive device was noted. Regarding functional loss, the examiner noted constant bilateral foot pain at a mild severity, increased to moderate severity with movement, and further increased to moderately severe and, at times, severe with weightbearing. In addition to needing a break from standing every 30 minutes, limitations included avoidance of prolonged walking, prolonged standing, running, jumping, and climbing ladders. Based on all the evidence, the Board finds that the Veteran’s 50-percent analogous rating currently assigned from July 27, 2015, is warranted from an earlier date of March 25, 2014. In his March 25, 2014 notice of disagreement, the Veteran related that he could not stand on his feet for a prolonged period and could walk only a short distance before experiencing “overbearing pain,” such as walking the distance from his bedroom to the front door. The Veteran is competent to report these observable facts, and the Board finds it was corroborated by the findings at the VA examination in July 2015. 38 C.F.R. § 3.159(a)(2) (competent lay evidence). Resolving any reasonable doubt in the Veteran’s favor, the Board finds the evidence sufficient to show symptoms including extreme tenderness of plantar surfaces and pain on use and manipulation, in turn establishing a disability picture analogous to the pronounced severity under DC 5276. 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.71a, DC 5276. A rating higher than 50 percent is not warranted at any point from March 25, 2014, to present. Under DC 5276, the 50-percent rating is the highest available. 38 C.F.R. § 4.71a. Under the new DC 5269, a rating of 30 percent is the highest available. Id. The Board notes that an evaluation under both DCs is not permitted, as it would compensate the Veteran twice for the same symptoms, a practice prohibited by regulation. 38 C.F.R. § 4.14. For the period before March 25, 2014, the Board finds that a rating higher than 10 percent is not warranted. The information in the Veteran’s March 25, 2014 notice of disagreement was the first date on which there was evidence establishing the disability picture approximating a pronounced severity. The evidence before this date saw the Veteran reporting that orthotics had “helped significantly” and that he had low pain levels. At the June 2012 VA examination, he was found to have a normal gait and to not otherwise have significant limitations. The Board acknowledges the Veteran’s statement at the November 2020 Board hearing that he had the same severity of symptoms since October 2012, but the Board finds the contemporaneous medical notes from this earlier period, which include statements directly from the Veteran at that time, are more reliable as to the severity of the Veteran’s condition during this period of time. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board’s role is to assess the weight of all evidence). Accordingly, for the period before March 25, 2014, the Board does not find the evidence sufficient to show a condition analogous to a severe condition under DC 5276. 38 C.F.R. § 4.71a. (Continued on the next page)   A rating of 50 percent, but no higher, is granted from March 25, 2014; and, a rating higher than 10 percent from October 1, 2012, is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.71a, DCs 5269 (2021), 5276. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.