Citation Nr: 23013045 Decision Date: 03/03/23 Archive Date: 03/03/23 DOCKET NO. 18-48 013 DATE: March 3, 2023 ORDER An increased disability rating for bilateral plantar fasciitis with pes planus of 30 percent from October 7, 2013 to March 6, 2018, 30 percent from May 1, 2018 to March 13, 2020, and 50 percent from March 14, 2020, is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from October 2, 2020, is granted. FINDINGS OF FACT 1. For the increased rating periods from October 7, 2013 to March 6, 2018 (with a 100 percent disability rating from March 7, 2018, to April 30, 2018), and from May 1, 2018 to March 13, 2020, the bilateral plantar fasciitis with pes planus disability manifested in swelling and pain on use not improved by orthopedic appliances in both feet. 2. For the increased rating period from March 14, 2020, the bilateral plantar fasciitis with pes planus disability manifested in extreme tenderness of the plantar surfaces with symptoms not improved by orthopedic appliances in both feet. 3. Since October 2, 2020, service-connected disabilities have prevented the Veteran from retaining (maintaining) substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent disability rating, and no higher, for the periods from October 7, 2013 to March 6, 2018, and from May 1, 2018, to March 13, 2020, and a 50 percent disability rating, and no higher, from March 14, 2020, for the bilateral foot disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met from October 2, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1993 to February 1997. These issues come to the Board of Veterans' Appeals (Board) on appeal from July 2014 and April 2020 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these matters in October 2019 to schedule a new VA examination for bilateral plantar fasciitis disability. The Board finds substantial compliance with this remand directive as VA examinations were conducted in March and June 2020 and the reports were added to the file. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). The Veteran removed the previous representative as power of attorney in August 2019 and, to date, has not designated another individual or Veterans Service Organization; therefore, the Board recognizes the Veteran as proceeding pro se in this appeal. Disability Ratings Legal Authority Disability ratings are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the claimant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular rating criteria for disabilities of the foot are found at DCs 5269 through 5284. Under DC 5269 which rates plantar fasciitis, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis. According to Note One, plantar fasciitis occurs with the actual loss of use of a foot, a 40 percent rating is warranted. A 20 percent rating is warranted when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of one foot (unilateral). A 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment for plantar fasciitis of both feet (bilateral). According to Note Two, if a veteran has been recommended for surgical intervention, but is not a surgical candidate, VA is to evaluate the plantar fasciitis under the 20 percent or 30 percent criteria, whichever is applicable. 38 C.F.R. § 4.71a. Under DC 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. 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, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. The rating criteria for evaluating musculoskeletal disabilities were amended effective February 7, 2021. The entirety of the current criteria in DC 5269 were added; however, DC 5276 was not amended. 85 Fed. Reg. 230 (Nov. 30, 2020); 38 C.F.R. § 4.71a. The Board notes that the RO originally granted service connection for the bilateral plantar fasciitis disability in November 1997 and indicated that the plantar fasciitis was "secondary to pes planus." In this way, the RO and the Board have recognized bilateral pes planus as part of the service-connected bilateral foot disability, without differentiation of symptoms attributable to the pes planus from those attributable to the plantar fasciitis. As such, all foot symptoms and impairments are considered service connected, and will be rated under the criteria most favorable to the Veteran. See Mittleider v. West, 11 Vet. App. 181 (1998). The assignment of a particular DC depends upon the facts of each particular case, and the Board is authorized to choose an appropriate DC that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the DC assigned to that disability is revised in order to more accurately reflect the veteran's relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). The RO has always rated the Veteran's bilateral plantar fasciitis disability pursuant to the criteria of DC 5276, which rates pes planus, instead of DC 5269, which rates plantar fasciitis. The RO appears to have rated both the bilateral plantar fasciitis and pes planus disabilities together as there are diagnoses for both disabilities and due to the severity of the symptoms. The Board finds that the rating criteria for pes planus are more favorable to the Veteran than that of plantar fasciitis. The highest possible disability rating for plantar fasciitis (DC 5269) is 40 percent for plantar fasciitis with actual loss of use of a foot, while the highest possible disability rating for pes planus (DC 5276) is 50 percent for "pronounced" symptoms. With the severity of the symptoms of the bilateral foot disability in this case, a rating of 50 percent pursuant to the criteria of pes planus (DC 5276) is more appropriate and more favorable to the Veteran for one stage of the rating than a maximum 40 percent possible rating under plantar fasciitis (DC 5269), which would not even be warranted under DC 5269 because the Veteran still has use of both feet. For this reason, the Board will continue to rate the bilateral foot disability pursuant to the pes planus rating criteria found in DC 5276. 1. An increased disability rating for bilateral plantar fasciitis with pes planus of 30 percent from October 7, 2013 to March 6, 2018, 30 percent from May 1, 2018 to March 13, 2020, and 50 percent from March 14, 2020, is granted. The Veteran appeals for higher disability ratings for the bilateral plantar fasciitis with pes planus. The current ratings are 10 percent from October 7, 2013 to March 6, 2018, 10 percent from May 1, 2018 to March 13, 2020, and 30 percent from March 14, 2020. See July 2015 Notice of Disagreement (NOD). The Veteran contends that since 1997 the bilateral foot disability has worsened and that constant foot pain, swelling, stiffness, tightness, throbbing. and achy heel and arch pain was not relieved by a March 2018 right foot fasciotomy surgery. See April 2021 correspondence. After a review of all the evidence, lay and medical, the Board finds that, for the rating periods from October 7, 2013 to March 6, 2018, and from May 1, 2018 to March 13, 2020, the bilateral plantar fasciitis disability more nearly approximated "severe" symptoms contemplated by a 30 percent rating. An October 2013 VA treatment record indicates continuous foot pain not relieved by pain relievers, night splints, or shoe inserts. At the April 2014 VA examination, the Veteran reported occasional bilateral foot swelling and pain that prevented prolonged walking, standing, household chores, and exercise. In a July 2015 lay statement, the Veteran reported that the feet are "unbearably painful" when waking up or standing from a seated position, making it hard to function at times, with the only solution being rest. In a September 2018 lay statement, the Veteran's spouse reported that the Veteran finds it hard to drive due to foot pain, occasionally limps, finds simple tasks difficult, and has a constant pain level of 6 or 7 out of 10. The January 2018 VA examination report indicates that orthopedic devices were unsuccessful in treating the bilateral foot pain, pain on manipulation, and stabbing in the arches with burning in the heels. The Veteran underwent a right foot fasciotomy surgery in March 2018 (a 100 percent disability rating is assigned for convalescence after the surgery from March 7, 2018 to April 30, 2018). In a September 2018 request to be Advanced on the Docket, the Veteran reported intense pain, calluses and blisters of the feet, extreme tenderness of the plantar surfaces, weakness and fatigue, and symptoms not improved by orthopedic appliances. Photographs submitted in October 2018 demonstrate calluses and blisters on both feet. In a May 2019 lay statement, the Veteran reported a pain level of 8 out of 10. The Veteran has received VA treatment for the bilateral foot disability from 2009 to 2018. Swelling, pain, and characteristic calluses of both feet are symptoms contemplated by a 30 percent rating for "severe" bilateral pes planus and symptoms not improved by orthopedic appliances and extreme tenderness of the plantar surfaces are contemplated by a 50 percent rating for "pronounced" bilateral pes planus. With the majority of the symptoms reported during the rating periods from October 22, 2013 to March 6, 2013, and from May 1, 2018 to March 13, 2020, including swelling and pain on manipulation, falling into a 30 percent rating, the Board grants such rating for this rating period. While the Veteran reported extreme tenderness of the plantar surfaces in a September 2018 request to be Advanced on the Docket, the majority of the medical and lay evidence during this rating period indicates symptoms contemplated by a 30 percent rating, including pain, swelling, and bilateral foot calluses. For these rating periods, the evidence of record does not support a disability rating of 50 percent for "pronounced" pes planus symptoms because the evidence does not indicate extreme tenderness of the plantar surfaces, marked pronation, or marked inward displacement and severe spasm of the tendo achillis on manipu-lation. As such, the evidence is against higher initial disability rating in excess of 30 percent for these rating periods. The Board finds that, for the last stage of the rating period from March 14, 2020, the bilateral plantar fasciitis disability more nearly approximated "pronounced" symptoms and impairment contemplated by a 50 percent rating. At the March 2020 VA examination, the Veteran reported worsened foot pain since the March 2018 right foot surgery, swelling, pain, numbness, a pain score of 7 out of 10, and pain with prolonged standing and walking. The examination report indicated pain on manipulation and use accentuated but there were no signs of swelling, calluses, extreme tenderness of the plantar surfaces, marked deformities, marked inward displacement, or severe spasm of the tendo achillis on manipulation. In a May 2020 lay statement, the Veteran reported calluses, extreme tenderness, pain and swelling on use, and a gait disturbance, requesting a 50 percent rating. At the June 2020 VA examination conducted via tele-health, the Veteran reported constant foot throbbing and not being able to stand or walk for very long. The examination report indicated calluses, extreme tenderness of the plantar surfaces, and symptoms not improved by orthopedic appliances, but showed no marked deformities, marked inward displacement, or severe spasm of the tendo achillis on manipulation. In March 2022, the Veteran submitted a congressional letter regarding a 25-year process of appealing for a higher disability rating. In a January 2023 lay statement, the Veteran repeated experiencing no relief from orthotics and swelling, pain, and extreme tenderness of the plantar surfaces. In a February 2023 lay statement, the Veteran's spouse reported that the Veteran's foot pain makes simple tasks like grocery shopping, cooking, and cleaning difficult, and causes wincing and moaning upon standing. Extreme tenderness of the plantar surfaces (reported by the Veteran and found in the June 2020 VA examination report) and symptoms not relieved by orthopedic appliances are symptoms contemplated by a 50 percent rating for "pronounced" pes planus. The Board finds that these two symptoms, in addition to evidence indicating swelling, pain on use, and characteristic calluses through medical and lay evidence, more nearly approximate the criteria for a higher disability rating of 50 percent for the rating period from March 14, 2020. A 50 percent rating for bilateral pes planus is the highest possible schedular disability rating for bilateral pes planus. For the foregoing reasons, the appeals for higher disability ratings are granted. 38 C.F.R. §§ 4.3, 4.7. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impair-ment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the VA adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 2. A TDIU is granted from October 2, 2020. The issue of TDIU was raised by the record in a February 2019 lay statement from the Veteran and is inextricably intertwined with the bilateral foot disability on appeal from October 7, 2013. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). However, the evidence shows that the Veteran medically retired from Delta Airlines on October 1, 2020, working full time from October 31, 2005 to October 1, 2020. See March 2022 lay statement; February 2023 VA Form 21-4192. As such, the period for the grant of a TDIU begins October 2, 2020, a day after the Veteran's last day of full-time substantially gainful work. The service-connected disabilities meet the combined disability rating percentage requirements for TDIU eligibility from October 2, 2020, as posttraumatic stress disorder (PTSD) is rated at 50 percent and the total combined disability rating is 90 percent. 38 C.F.R. § 4.16(a). For the period on appeal since October 2, 2020, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran's service-connected disabilities prevent retaining (maintaining) substantially gainful employment. The evidence of record shows that the Veteran had the requisite history, education, skill, and training to secure and follow a substantially-gainful occupation until October 2, 2020. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The Veteran has associate's and bachelor's degrees and was employed since age 17, working at Electrolux after service from 1999 to 2001, at Harbison Walker from 2002 to 2003, and for Delta Airlines from 2005 to 2020. See April 2017 VA PTSD examination. At Delta, the Veteran worked in customer care, training, and social media. See January 2023 VA Form 21-8940; 38 C.F.R. § 4.16(b). While the Veteran has the requisite history and education, service-connected disabilities limit the physical ability to perform the activities required to retain the most recent position at Delta Airlines. The current service-connected disabilities are lumbar spine arthritis, left and right knee patellofemoral pain syndrome, right lower extremity radiculopathy, and a foreign object in the right foot, all which make it difficult to remain comfortably seated while driving to work or while working at Delta. In a September 2018 lay statement, the Veteran reported becoming quickly fatigued, not being able to do much without pain, finding it hard to get comfortable whether sitting or lying down, and having trouble driving due to anxiety and foot/leg pain. The October 2019 VA examination report for the knees and lower legs indicates that the Veteran could not engage in any work activities requiring prolonged weight-bearing, like standing or walking. As of January 9, 2023, the Veteran qualifies for Social Security disability benefits of $1,698 per month. See January 2023 Social Security Administration (SSA) letter. The Veteran's mental illnesses also prevent performance of activities required to retain the most recent position at Delta. The April 2017 VA PTSD examination report indicates that the Veteran had a hard time maintaining work and social relationships, adapting to stressful situations, and has had panic attacks, causing her to drive to work to then return home. The February 2018 VA PTSD examination report indicates the Veteran felt overwhelmed by the position, having crying episodes and panic attacks, feeling unable to breathe at work. In a March 2022 lay statement, the Veteran reported that frequent incapacitating episodes precluded work, causing a medical retirement in October 2020. In a June 2022 lay statement, the Veteran reported that both mental and physical service-connected disabilities impede the ability to work and decreased quality of life. In a January 2023 lay statement, the Veteran reported worsening conditions prevented the physical and mental acts required of employment. The Veteran stated that in 2008 and 2013, there was trouble functioning at work, which caused a "major interference" with job performance, and in 2017 found it difficult to get out of bed in the morning, with emotional and pain issues making it hard to concentrate, and feeling pain and fatigue when in any position for too long. The Veteran reported becoming overwhelmed easily, finding it hard to maintain composure for an eight-hour work day, being triggered by certain smells, sights, and sounds, and having panic attacks, including a fear of experiencing a panic attack in front of others at work. The Board notes that, while the Veteran was employed until October 2020, there were missed periods of work because of the service-connected physical and mental disabilities. The evidence shows that in May 2010, June and July 2015, December 2016, February 2017, September and October 2017, January 2018, March to May 2018, July 2018, October 2018, and November 2018, the Veteran was on medical leave from employment due to the bilateral foot condition and the service-connected PTSD. At the June 2020 VA examination for the feet, the Veteran reported being on short-term disability from employment since 2018. In a September 2018 lay statement, the Veteran reported missing more than three months of work per year due to her service-connected disabilities. The Board acknowledges the medical evidence of record indicating that the physical service-connected disabilities do not prevent the Veteran from occupational tasks or the ability to perform sedentary activities. The examiners in the February 2012, April 2014, March 2020, and June 2020 VA examinations indicate this assessment. In this case, however, there is both medical and lay evidence of both physical and mental impairment in combination. The evidence shows physical limitations such as inability to stand, walk, and sit for prolonged periods of time due to pain, which is an essential function of working in customer care in the baggage claim office for Delta Airlines. The mental limitations show the effects of the service-connected PTSD that include anxiety, depression, and panic attacks inhibiting functioning throughout an eight-hour workday. See Ray v. Wilkie, 31 Vet. App. 58 (2019). For the foregoing reasons, the Board resolves reasonable doubt in the Veteran's favor to find that the criteria for a TDIU are met from October 2, 2020. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. DeSpirito 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.