Citation Nr: 21042489 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-59 173 DATE: July 13, 2021 ORDER Entitlement to an initial compensable disability rating of 10 percent for service-connected residuals of a left heel fracture is granted. Entitlement to service connection for a right foot disability is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left heel disability manifested as a moderate disability. 2. There is an approximate balance of evidence concerning the etiology of the Veteran's right foot disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but not higher, for the service-connected residuals of a left heel fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5284. 2. The criteria for entitlement to service connection for a right heel disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1980 to October 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision that granted service connection for a left heel disability (and assigned a noncompensable evaluation, effective November 13, 2014) and denied service connection for a right foot disability. In December 2018, the Board issued a Remand of both issues and, in so doing, acknowledged conflicting medical opinions concerning the diagnosis and etiology of the Veteran's right foot disability as well as an assertion by the Veteran of a worse nature and severity of her left heel pain than previously documented. The Board directed that any outstanding medical records be obtained and incorporated into the file and that the Veteran be accorded an additional examination to determine the etiology of her right heel pain and the nature and severity of her service-connected left heel disability. That additional examination and medical opinion have been obtained, and the case returns for final adjudication. Initial Compensable Rating Residuals of Left Heel Fracture The Veteran contends that her service-connected residuals of a left heel fracture warrant an initial compensable rating. The Board finds the evidence shows that her left foot condition is a "moderate" disability, and therefore warrants a rating of 10 percent, but not higher, for the entire appeal period. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes (DCs), is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complains of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. In addition, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). In this case, the Veteran's left heel residuals is rated noncompensable under DC 5284. DC 5284, applicable to foot injuries, provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Note following DC 5284. DC 5284 may apply to any foot condition, such as achilles tendon rupture, that is not specifically listed in the rating schedule. See Copeland v. McDonald, 27 Vet. App. at 337 (2015) (38 C.F.R. § 4.71a, DC 5284 only applies to foot disabilities for which there is not already a specific DC). See also Scott v. Wilkie, No. 2018-1535 (Fed. Cir. April 15, 2019) (the Board is obligated to consider analogous DCs, including DC 5284, when rating unlisted conditions, despite the presence of listed conditions). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. On VA examination in April 2015, the Veteran reported pain with walking, pain with weight-bearing and nonweight-bearing. The examiner observed moderate heel pain which compromised weight-bearing and required arch supports, but found no functional loss. On VA examination in September 2019, the Veteran reported pain on the use of her left foot and use of orthotic inserts. She also indicated pain in heels after walking for 10 minutes and pain after standing for 2 hours. The examiner acknowledged heel pain with ambulation, but found the Veteran had a steady gait without limp. The examiner remarked that the chronic plantar surface pain was primarily in the heels with moderate severity. The Board finds that throughout the appeal period, the Veteran has consistently reported pain in her feet. Her left heel condition with pain manifested as a moderate disability, as the condition compromised her weight-bearing and required orthotic inserts. However, none of the examiners found this condition to be moderately severe. While there was pain with ambulation, the Veteran has been able to walk without a limp. As such, the Veteran's left foot condition warrants a 10 percent rating, but not higher, throughout the appeal period under DC 5284. Further, while the Veteran has been diagnosed with metatarsalgia in the past, it was not found on the September 2019 examination. As symptoms of pain are addressed by the disability rating under DC 5284 and as no other symptoms associated with metatarsalgia have been identified, a separate rating would result in pyramiding, which is not warranted. The Board also considered other possible ratings for the Veteran's left heel condition. However, this disability, with its associated symptoms, do not warrant a separate rating under other available ratings for foot conditions. See 38 C.F.R. §§ 4.14, 4.71a, DCs 5276-5283. Service Connection Right Foot Disability The Veteran contends that her right foot condition is a residual from a September 1990 in-service injury. After careful review of the evidence, the Board finds that there is an approximate balance of positive and negative evidence as to the etiology of the Veteran's right foot plantar fasciitis and neuritis. Service connection for this condition is warranted. Service connection is granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309. Service medical records show that both the Veteran's left and the right feet were injured in September 1990. At the separation examinations, there was no notation of either right or left foot problems. VA treatment records show that the Veteran complained of a worsening of bilateral foot tingling and numbness in January 2011, with a suggestion that she had previously been tested and treated for a nerve condition in 2005. The treatment provider stated that the etiology of the condition was unclear. October 2013 podiatry notes reflect abductor hallucis edema, medial calcaneal neuritis, plantar fasciitis, and pain. She was prescribed shoe inserts at that time. Private treatment records indicate the Veteran received injections for heel pain in 2014 and further treated with acupuncture. Radiology reports show that in September 2013, neither foot exhibited remarkable findings, nor was there evidence of an acute fracture of the right foot. In June 2016, imaging did show a significant change, including right foot osteopenia and evidence of an old, healed fracture of the 5th toe proximal phalanx. The radiology report stated that this likely reflected old trauma. An April 2015 VA examiner acknowledged a history of right foot pain, but found no current diagnosed condition and found no mention of a right foot fracture in service records. The examiner opined that the current medical examination was unremarkable and that, because there was no mention of any foot injuries in the service treatment records, it was less likely than not that the Veteran's current right foot condition was incurred in, or otherwise related to, active duty. On VA examination in September 2016, the examiner noted a diagnosis of bilateral plantar fasciitis, but stated it was less likely than not incurred in or caused by a fall on rocks in September 1990. The examiner explained that the Veteran's medical records are silent for her foot conditions until April 2015, 20 years after separation from service and nearly 25 years after the injury. According to medical sites, the etiology of plantar fasciitis is multi-factorial. Risk factors include obesity, prolonged standing or jumping, flat feet, and reduced ankle dorsiflexion. In her April 2015 podiatry evaluation, the Veteran also had flat feet and heel spurs. Flat feet is a predisposing factor for plantar fasciitis. In the February 2016 Notice of Disagreement (NOD), the Veteran stated that, following her broken foot in September 1990, she was required to wear shoes such as boots and other improper footwear for running 5 to 9 miles per day, and she attributed this to her bilateral foot conditions. In a January 2017 private medical opinion, the Veteran's treating podiatrist indicated the Veteran's foot diagnoses were plantar fasciitis and nerve, plexus, and root disorders bilaterally, further stating there was a possible connection either causation or exacerbation between these diagnoses and extensive physical training along with improper shoes required by the military. In a February 2019 private medical opinion, the Veteran's treating physician stated that the Veteran's chronic foot pain, metatarsalgia, and plantar fascial fibromatosis are likely secondary to overuse from her military service with the Navy and represents a greater than 50% likelihood of having been attributed to her prolonged military service. Pursuant to the December 2018 remand, the Veteran was accorded an additional VA examination in September 2019. At that evaluation, the Veteran reported bilateral use of orthotics. The examiner noted bilateral metatarsalgia had been diagnosed, but was not found on the current evaluation. The examiner listed plantar fasciitis and neuritis as the diagnosed bilateral foot conditions. In the accompanying October 2019 medical opinion, the examiner acknowledged that right foot plantar fasciitis and neuritis were diagnosed in October 2013, but found that these conditions were less likely than not due to the in-service fall in 1990, relying on the fact that following the laceration in 1990, the service medical records were silent for any sequela including pain, as were the VA treatment records from 1998 through 2010. Further, the examiner stated that, if the 1990 injury had resulted in a nerve injury or plantar fasci injury, the Veteran would not have been able to continue an active lifestyle or go without further medical treatment or evaluation until 2013. Thus, her diagnosed plantar fasciitis and neuritis are new onset. The rating decision on appeal granted service connection for the Veteran's left foot, but not the right foot. The reason for the denial was that no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. The Board finds, however, that there is clearly right foot diagnosed plantar fasciitis and neuritis. Further, the Veteran experienced a right foot injury during service. As the left foot condition has the same diagnosis and etiology as the right foot condition, and as the medical opinions (concerning the right foot) are conflicting, the Board finds there is a relative equipoise of evidence concerning the etiology of her right foot conditions. Here, the medical opinions conflict as to the etiology of the Veteran's right foot conditions. The private treating physicians, including her treating podiatrist, found that the Veteran's right foot conditions were related to her active service. Despite the opinions stating that the right foot condition began in 2013, (which is not fully supported by evidence,) and was not related to the 1990 injury overall, the conflicting opinions cannot be reconciled other than in favor of the Veteran due to their relative equipoise. In sum, the evidence is at least evenly balanced as to whether the Veteran's right foot condition is related to her active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right foot condition is warranted. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.