Citation Nr: 22014696 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-00 600 DATE: March 14, 2022 ORDER The claim of entitlement to a rating in excess of 10 percent prior to February 4, 2021, and 30 percent thereafter, for bilateral plantar fasciitis is denied. The rating for degenerative disc disease of the lumbar spine with IVDS was improperly reduced, and the 20 percent rating is restored effective January 1, 2016. The claim of entitlement to a rating higher than 20 percent prior to February 4, 2021, and higher than 40 percent thereafter, for degenerative disc disease of the lumbar spine with IVDS, is denied. An initial 20 percent rating, but not higher, for left lower extremity radiculopathy effective July 8, 2015, is granted. The claim of entitlement to an initial rating higher than 10 percent prior to February 4, 2021, and higher than 20 percent thereafter, for right lower extremity radiculopathy is denied. REMANDED The claim of entitlement to a rating higher than 10 percent for left knee strain is remanded. FINDINGS OF FACT 1. Prior to February 4, 2021, the Veteran's bilateral plantar fasciitis was moderate, with pain on use. Starting from February 4, 2021, his bilateral plantar fasciitis has been severe, with pain on use and accentuated by use and by manipulation. 2. The evidence does not show an actual improvement in the Veteran's degenerative disc disease with IVDS necessitating a reduction in his rating. 3. The Veteran's degenerative disc disease with IVDS manifested, prior to February 4, 2021, with painful motion and flexion greater than 30 degrees; thereafter, his functional loss reduced his flexion to 30 degrees. 4. His left lower extremity radiculopathy has manifested as moderate incomplete paralysis of the sciatic nerve since July 8, 2015. 5. His right lower extremity radiculopathy manifested as mild incomplete paralysis of the sciatic nerve prior to February 4, 2021, and as moderate incomplete paralysis thereafter. CONCLUSIONS OF LAW 1. The criteria are not met for a rating of 10 percent prior to February 4, 2021, or 30 percent thereafter, for bilateral plantar fasciitis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.22, 4.71a, DC 5276. 2. The criteria are met to restore the 20 percent rating for degenerative disc disease and IVDS effective January 1, 2016. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. § 3.105. 3. The criteria are not met for a rating higher than 20 percent prior to February 4, 2021, or higher than 40 percent thereafter, for degenerative disc disease of the lumbar spine with IVDS. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. 4. The criteria are met for an initial 20 percent rating for left lower extremity radiculopathy, effective July 8, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.124a, DC 8520. 5. The criteria are not met for an initial rating higher than 10 percent prior to February 4, 2021, or higher than 20 percent thereafter, for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to March 1987, September 2005 to July 2007, and December 2009 to March 2011. This appeal is from an October 2015 rating decision. In February 2020, the Veteran had a personal hearing with the undersigned VLJ. The Board remanded the claim in June 2020 for further development. Thereafter, in May 2021, a supplemental statement of the case (SSOC) was issued. The appeal was returned to the Board in June 2021. Following return to the Board, the Veteran attended VA examinations for the back in September and October 2021. This new evidence was not initially considered by the AOJ (agency of original jurisdiction), but the Veteran's representative has waived that right. In regard to the waivers received, the first was received in October 2021 and the second in December 2021, each after the Veteran's updated VA lumbar examinations. The waiver letters indicated the Veteran and/or the representative had submitted new evidence and to waive consideration of that, but the Board notes that no new evidence has been submitted by the Veteran or his representative. The October 2021 letter specifically waives initial consideration of all evidence received since the last statement of the case, which would include that submitted by the Veteran and generated by VA. Given the timing of the receipt of the letters, and the generalized statement referring to "all evidence," the Board finds the intent was to waive initial consideration by the AOJ of the newly generated examination evidence. Accordingly, the Board may proceed with consideration on the merits. Increased Rating 1. The claim of entitlement to a rating in excess of 10 percent prior to February 4, 2021, and 30 percent thereafter, for bilateral plantar fasciitis is denied. The Veteran seeks a higher rating for his bilateral plantar fasciitis. During the period on appeal, the Veteran's bilateral plantar fasciitis has been rated by analogy to DC 5276, which pertains to flatfoot, as 10 percent disabling prior to February 4, 2021, and 30 percent disabling thereafter. 38 C.F.R. § 4.71a. The Board notes the some of the regulations pertaining to rating musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). However, these amendments are not applicable any earlier than their effective date. Because none of the relevant evidence is dated February 7, 2021, or after, the provisions are not for application. In any event, the Board notes that the newly amended regulation now includes criteria specifically applicable to plantar fasciitis, DC 5269. The Board considered whether this appeal should be remanded for an updated examination to assess the current severity of his plantar fasciitis under the new criteria, but does not find it necessary. The newly added DC 5269 criteria provide for a minimum 10 percent for plantar fasciitis, which the Veteran already has, and requires, for a higher rating, no relief from both non-surgical and surgical treatment, or actual loss of use to the foot. The record does not show or suggest that the Veteran has had surgical treatment for plantar fasciitis or that he has lost the use of his feet. As there is no indication that he would meet the new criteria for a higher rating, the duty to assist does not require that this be developed further. Thus, the Board will apply DC 5276. The Board notes that DC 5276 was not amended and that criteria has not changed. Under DC 5276, a 10 percent rating is warranted for moderate symptoms, where the weight-bearing line is over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted for bilateral pes planus with severe symptoms, where there is objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted when the symptoms are pronounced, there is 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. 38 C.F.R. § 4.71a, DC 5276. Based on review of the record, the Board finds a rating in excess of 10 percent prior to February 4, 2021, is not warranted. The May 2014 VA examination indicated that the Veteran had foot pain on use and that he used orthotics. However, there was no pain on manipulation, no indication of swelling on use, no characteristic calluses, no extreme tenderness of the plantar surfaces, no decreased longitudinal arch height on weightbearing, no objective evidence of marked deformity, no marked pronation of the feet, no evidence of the weightbearing line falling over or medial to the great toe, no inward bowing of the Achilles tendon, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner found no pain of both feet on examination but noted that the Veteran complained of foot pain that was throbbing and constant. The examiner opined that neither foot had functional loss. The examiner found that the bilateral plantar fasciitis had no functional impact on the Veteran's ability to perform occupational tasks or employment. The May 2014 VA examination did not reveal any of the symptoms required for the 30 percent or higher rating criteria. Similarly, the medical records associated with the file are not suggestive of symptoms contemplated by the higher rating criteria. Finally, the Board considered whether any functional loss resulted in a higher level of disability, but does not find that is warranted. The Veteran complains of pain. He reported that his pain increases after standing more than 30 minutes, or when driving. He reported that he sits to avoid the pain, and pays someone to do outdoor chores. His pain is considered functional loss, and is part of the criteria for his current 10 percent rating. However, as discussed above, even with his pain, he has not been shown to have functional loss that would allow for a higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA examiner opined against the Veteran having any functional loss, or functional loss during flares or after repetitive use, which the Board finds probative. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner also noted the Veteran has no neurological deficits and no foot deformity. He indicated the Veteran was independent with activities of daily living and did not require a cane or walker or special orthopedic shoes. The Board finds the evidence more closely approximates his current 10 percent rating prior to February 4, 2021. 38 C.F.R. § 4.7. The Board further finds that a rating higher than 30 percent as of February 4, 2021, is not warranted. During the February 4, 2021, VA examination (prior to the effective date of the amendments to 38 C.F.R. § 4.71a), the examiner noted there was pain on use, pain on manipulation of the feet, use of arch supports, and decreased longitudinal arch height on weightbearing. The examiner noted functional loss from difficulty with prolonged walking and standing. This evidence corresponds to his currently assigned 30 percent rating. There was no tenderness of the plantar surfaces, no objective evidence of marked deformity, no marked pronation of the feet, no marked inward displacement and severe spasm of the tendo achillis on manipulation, which is what is required for the next higher rating. 38 C.F.R. § 4.71a, DC 5276. As above, the Board does not find that the higher rating is more closely approximated when taking his functional loss into consideration. The Veteran reported that flareups occurred bilaterally lasting 8-24 hours, consisting of pain, and that they caused difficulty with prolonged standing and walking. The VA examiner opined that his pain and other symptoms would not significantly limit function during flares or after repetitive use, which is supported by the Veteran's statements that his pain causes difficulty, but does not prevent, walking. See Sharp, supra. The examination report shows he uses a cane, but because of his back and his knee, and that he does not require special orthopedic shoes. Based on the available evidence, the Board finds a higher rating is not warranted based on functional loss. The Board has considered other foot diagnostic codes and finds they do not apply. The only other diagnostic code providing a higher rating is DC 5278 for claw foot, and the evidence does not show or suggest claw foot. The Board acknowledges the Veteran's reports of foot pain and that he is competent to report pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, his statements are consistent with the rating assigned. The occurrence of pain while performing activities such as standing or walking are not an additional symptom, but rather the practical effect that the pain caused by bilateral plantar fasciitis would have on such activities. To the extent that the Veteran argued his symptomatology is more severe than shown on evaluation, the specific examination findings of trained health care professionals are of greater probative weight than his more general lay assertions. Indeed, the VA examiners investigated the Veteran's reports and provided opinions on his level of disability. The Board notes he has not raised any issues with the findings of the examination report. In sum, the Board finds that the evidence persuasively favors the assignment of the ratings that are currently assigned, and therefore this appeal must be denied. 38 C.F.R. § 4.3. 2. The rating for degenerative disc disease of the lumbar spine with IVDS was improperly reduced, and the 20 percent rating is restored effective January 1, 2016. 3. The claim of entitlement to a rating higher than 20 percent prior to February 4, 2016, and higher than 40 percent thereafter, for degenerative disc disease of the lumbar spine with IVDS, is denied. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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 claimant. 38 C.F.R. § 4.3. Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ (agency of original jurisdiction) must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e), (i). Here, the Board notes that these notice requirements are not applicable as the rating decision in question also granted additional disabilities. The combined rating provided as of the rating decision went up and not down. As discussed below, however, the Board finds that the evidence does not show actual improvement. The examinations before and after the reduction show, at least (entitlement to rating increase is further addressed below), the same level of disability and no not reflect an actual improvement in the disability, to include when considering whether there was improvement in his actual ability to function. The next inquiry is whether a higher rating is warranted for the lumbar spine. His current rating is 20 percent prior to February 4, 2021, and 40 percent thereafter, under DC 5243, which pertains to intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a. The Board notes that the criteria for the spine were not substantially changed, with regard to this case, in the February 2021 amendments. IVDS may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine. Id. A footnote (1) to the General Rating Formula indicates that any associated neurological disabilities are to be separately rated under the appropriate diagnostic code. Id. Indeed, the Veteran has been awarded separate ratings for right and left lower extremity radiculopathy, discussed below. These are the only neurological abnormalities diagnosed. IVDS may also be rated under a separate set of criteria based on the duration of incapacitating episodes, and the rater is directed to use the criteria that results is the highest rating after all disabilities are combined pursuant to 38 C.F.R. § 4.25. Under the Formula for Rating IVDS based on incapacitating episodes, a 10 percent rating is warranted for a total duration of 1 to 2 weeks; a 20 percent rating is warranted for 2 to 4 weeks; a 40 percent rating is warranted for 4 to 6 weeks; and, a 60 percent rating is warranted for 6 weeks or more. However, under this criteria, separate ratings are not permitted for neurological abnormalities, which have already been awarded. Further, a note to the IVDS criteria indicates that an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Veteran's rating has been assigned based on the General Rating Formula rather than on incapacitating episodes. The record does not show prescribed bed rest, and the Veteran does not so allege, therefore the Board will continue to rate this disability based on the General Rating Formula. Turning to the evidence, the Board does not find that a higher rating is warranted prior to February 4, 2021, or thereafter. Prior to February 4, 2021, the Veteran's worst flexion measurement was shown in private treatment in December 2016, at 50 degrees. This corresponds to a 20 percent rating. 38 C.F.R. § 4.71a. The Veteran complained of flares at the July 2015 and May 2014 VA examinations. He complained of back spasms and increased pain, which was aggravated by driving and sleeping on his back. The July 2015 VA examination showed the Veteran had painful flexion starting from 45 degrees. The Board considered whether a higher rating was warranted based on functional loss, but does not find that the next higher rating is warranted. His painful flexion started at 45 degrees, and although painful motion is functional loss, his pain started at 45 degrees, which corresponds to the criteria for a 20 percent. The examiner did note that the Veteran would have additional loss of motion during flares or after repetitive use over time, but he indicated the Veteran reported that the amount of his additional loss varied depending on the circumstances, and he declined to provide an opinion. However, none of the evidence shows flexion reduced to 30 degrees or less, or that level of severity. Deluca, supra. Indeed, his pain started at 45 degrees, which shows a range of motion was possible beyond 30 degrees. He reported increased pain with flares but not that it prevented him from performing any specific activities or restricted motion beyond any specific point. Sharp, supra. Accordingly, the Board finds that the evidence does not show that a rating higher than 20 percent is warranted based on functional loss, for the period prior to February 4, 2021. At the February 4, 2021, VA examination, the Veteran's flexion was reduced to 30 degrees, which corresponds to a 40 percent rating. 38 C.F.R. § 4.71a. The examination was conducted during a flare, and it shows the Veteran's worst flexion for this period. He was able to flex to 75 degrees in September 2021 but only to 60 in October 2021, which do not warrant a higher rating. Indeed, the next higher rating requires ankylosis, which has not been shown. He has always been able to conduct range of motion testing. The Board does not find that his functional loss warrants a rating higher than 40 percent. His 40 percent is based on functional loss during a flare restricting his flexion to 30 degrees. There is no indication that his functional loss has ever resulted in an equivalent to ankylosis. As mentioned, he has always been able to conduct range of motion testing. He has not complained of being rendered immobile because of his lumbar disability. At the February 2021 VA examination, he reported having flares up to three times a week, consisting of pain, and caused by standing, sitting, and walking for prolonged periods. He reported that his functional loss consisted of trouble with bending, standing, and walking. At the September 2021 and October 2021 VA examinations, the Veteran denied having flares but did report functional loss. He indicated that long periods of standing or walking resulted in pain and that resting reduced it, and that he had pain bending over. He reported working at a desk job and only missing less than one week. He also reported that he was prescribed bed rest, which is not documented, and he has not reported which treatment provider prescribed the bed rest. These reports do not suggest that the Veteran's lumbar spine disability causes the functional equivalent of ankylosis. The Board finds that the updated examinations are adequate for adjudication. Each examination report (February, September, and October 2021) was based on an in-person examination, interview with the Veteran, and review of the record. The Veteran has not raised any arguments pertaining to any of them. The Board notes that the September and October 2021 VA examiners did not opine on functional loss during flares, but also that the Veteran denied having any flares at those examinations. The examiners are permitted to rely upon such statements unless there was other, obvious and contemporaneous, evidence to the contrary, which there was not. His treatment records do not show flares. Accordingly, the appeal for higher ratings before and after February 4, 2021, for lumbar degenerative disc disease and IVDS is denied. 4. An initial 20 percent rating, but not higher, for left lower extremity radiculopathy effective July 8, 2015, is granted. 5. The claim of entitlement to an initial rating higher than 10 percent prior to February 4, 2021, and higher than 20 percent thereafter, for right lower extremity radiculopathy is denied. The Veteran's left and right lower extremity radiculopathy are each currently rated at 10 percent prior to February 4, 2021, and 20 percent thereafter. His radiculopathy is rated under DC 8520, which pertains to complete and incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Mild incomplete paralysis warrants a 10 percent rating; moderate warrants a 20 percent rating; moderately severe warrants a 40 percent rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Complete paralysis warrants an 80 percent rating, and is shown when the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexions of the knee is weakened or (very rarely) lost. Id., DC 8520. A note prior to the rating criteria pertaining to diseases of the peripheral nerves, which contains DC 8520, explains that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. Disability ratings with respect to neurological conditions are ordinarily rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Special consideration is given to complete or partial loss of use of one or more extremities. 38 C.F.R. § 4.124a. As to the left lower extremity, the Board notes that it was diagnosed at the July 8, 2015, VA examination. The report indicated the Veteran had reduced muscle strength in the hip flexor, and that he severe constant pain. He did not have numbness, intermittent pain, or paresthesias and/or dysesthesias. Because of the reduced muscle strength and the severity and frequency of his pain, the Board finds he meets the criteria for moderate incomplete paralysis of the sciatic nerve. The Board does not find that he has moderately severe incomplete paralysis of the left sciatic at any time in the appeal period. His reduced muscle strength was not severe, but instead only reduced to a 4/5, which means he still had active movement against resistance. He has not been shown to have muscle atrophy, or abnormal reflexes. None of his symptoms have been assessed as severe, except for at the July 2015 VA examination. Accordingly, a rating higher than 20 percent is not warranted. As to the right lower extremity, the Board does not find that a rating higher than 10 percent is warranted prior to February 4, 2021. It was diagnosed at the July 8, 2015, VA examination. Muscle strength, reflex, and sensory testing was normal. He had no atrophy. He had moderate constant pain, but no numbness, intermittent pain, or paresthesias and/or dysesthesias. Given his symptoms only consisted of pain, the Board does not find that a higher rating for moderate is warranted, as the symptoms were wholly sensory. Starting February 4, 2021, the Board does not find that a rating higher than 20 is warranted. At the February 2021 VA examination, he showed reduced muscle strength (to 4/5) in the right leg. He had reduced sensation, but normal reflexes, and no muscle atrophy. These symptoms are also wholly sensory, which does not warrant a rating higher than moderate. The examination does show an increase from the previous examination, which accounts for his 20 percent rating. As above, the Board finds the February, September, and October 2021 VA examinations, obtained following the last remand, to be adequate for adjudication, as they were based on in-person examinations, interviews with the Veteran, and a review of the records. The Board notes the Veteran has not raised any objection to any of the examinations. In sum, the Board is granting a higher initial rating for the left lower extremity radiculopathy but not the right. The evidence does not support an increase of the right and that appeal must be denied. REASONS FOR REMAND 1. The claim of entitlement to a rating higher than 10 percent for left knee strain is remanded. The February 2021 VA examination is internally inconsistent. In the diagnosis section, the examiner noted the Veteran is now diagnosed with shin splints. In the remarks section, she noted again he was newly diagnosed with shin splints. However, in the section of the examination devoted to discussion of that diagnosis, the examiner indicated he did not have any tibial or fibular impairment, which includes shin splints. The Board notes that the July 2015 VA examination for the back includes a report of painful shins. The Board notes that the newly amended regulations provide for a rating based on shin splints, and so an updated VA examination is warranted to correct the VA examination and to determine whether the Veteran is entitled to a separate rating under the new criteria. See 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. After completion of the above directive, schedule the Veteran for an appropriate examination for a report on the current severity of his left knee strain. The examiner is asked to conduct a thorough examination and provide a list of all left knee diagnoses. The examiner is asked to clarify whether the Veteran has left shin splints, and if so, the examiner is asked whether it has been present for 12 months, what treatment has been given, and whether it has responded to treatment. The examiner is asked to address whether the Veteran has recurrent subluxation or lateral instability, and to discuss whether he uses an assistive device for stability. The examiner is asked to address whether the Veteran has any symptoms of dislocated semilunar cartilage. The examiner is asked to conduct range of motion measurements in both active and passive motion and in both weightbearing and non-weightbearing positions. The examiner is asked to elicit from the Veteran a detailed history of his symptoms and functional abilities generally, and during flares and after repetitive use. The examiner is asked whether he has additional functional loss during flares and after repetitive use, and if so, to provide an opinion on the extent of that loss in terms of range of motion. If unable to opine, the examiner must explain why the Veteran's statements were not helpful in rendering an opinion. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.