Citation Nr: A25035223 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240513-440141 DATE: April 16, 2025 ORDER Entitlement to an initial evaluation in excess of 10 percent for bilateral plantar fasciitis is denied. REMANDED Entitlement to service connection for a bilateral foot disorder other than plantar fasciitis, to include bilateral pes planus and left Morton's neuroma, is remanded. FINDING OF FACT The Veteran has not been shown to have surgical treatment for his bilateral plantar fasciitis, and surgical intervention has not been recommended. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5269. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to January 2001. In September 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 2023 rating decision. In January 2024, the agency of original jurisdiction (AOJ) issued a HLR decision, which considered the evidence of record at the time of the prior August 2023 decision. The Veteran submitted a VA Form 10182 in May 2024 and elected direct review. Therefore, the Board may only consider the evidence of record at the time of the August 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued that decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim for service connection for a bilateral foot disorder other than plantar fasciitis, any evidence that the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Law and Analysis The Veteran and his representative have not raised any issues with the pre-decisional duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v McDonough, 21 F.4th 776 (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran's service-connected bilateral plantar fasciitis is currently assigned a 10 percent evaluation effective from March 30, 2023, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5269. Under Diagnostic Code 5269, a 10 percent evaluation is assigned for unilateral or bilateral plantar fasciitis. A 20 percent evaluation is warranted when there is no relief from both non-surgical and surgical treatment for unilateral plantar fasciitis, and a 30 percent evaluation is contemplated when there is no relief from both non-surgical and surgical treatment for bilateral plantar fasciitis. Note (1) provides that a 40 percent evaluation will be assigned for actual loss of use of the foot. Note (2) states that, if a veteran has been recommended for surgical intervention, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to a higher initial evaluation for his service-connected bilateral plantar fasciitis. Although the Veteran has received non-surgical treatment, he has not had surgical treatment of the disability. Indeed, there are no treatment records documenting any surgical treatment or recommended surgical intervention, and a June 2023 VA examiner specifically noted that he had not undergone surgical treatment for plantar fasciitis and that surgical intervention had not been recommended with him not being considered a surgical candidate. A March 2023 private disability benefits questionnaire (DBQ) also indicated that the Veteran has not gone surgical treatment or had it recommended. As previously noted, the rating criteria require both non-surgical and surgical treatment for bilateral plantar fasciitis without relief for higher evaluations. Thus, the Veteran has not met the criteria for an evaluation in excess of 10 percent under Diagnostic Code 5269. Moreover, when a condition is specifically listed in the rating schedule (plantar fasciitis in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Diagnostic Code 5284 does not apply to the foot conditions specifically listed in the rating schedule. Id. at 337. In this case, Diagnostic Code 5284, which covers other foot injuries, along with the other diagnostic codes applicable to the foot, does not need to be considered because the Veteran's service-connected foot disability, plantar fasciitis, is specifically listed by the schedule. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is "unlisted."). Thus, the only Diagnostic Code relevant to this appeal is Diagnostic Code 5269. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). REASONS FOR REMAND Upon review, the Board finds that a remand is needed to correct a pre-decisional duty to assist error for the remaining issue on appeal. In an April 2023 VA Form 21-526EZ, the Veteran filed a claim for bilateral plantar fasciitis and a bilateral foot disorder, which the AOJ denied in an August 2023 rating decision. Although the AOJ later granted service connection for bilateral plantar fasciitis, the Veteran also included a bilateral foot disorder in his May 2024 VA Form 10182, and there is evidence showing other diagnoses. See June 2023 VA examination report (noting diagnoses of bilateral pes planus and left Morton's neuroma); May 2023 private DBQ (noting diagnosis of pes planus). A February 1999 enlistment examination noted bilateral pes planus. Therefore, the presumption of soundness does not apply. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A June 2023 VA examiner opined that the Veteran's bilateral pes planus and left Morton's neuroma were less likely than not incurred in or caused his military service. However, the examiner did not address whether the Veteran's preexisting pes planus was aggravated by his military service. Moreover, the May 2023 DBQ addressed incurrence rather than aggravation of a preexisting disorder. Therefore, the Board finds that an additional medical opinion was needed to determine if there was an increase in severity of the preexisting pes planus during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. The matters are REMANDED for the following action: The Veteran should be afforded a VA examination to determine the nature and etiology of any foot disorder other than plantar fasciitis, to include bilateral pes planus and left Morton's neuroma, that may be present. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should be noted that the presumption of soundness does not apply for pes planus because the disorder was noted at the time of the Veteran's February 1999 enlistment examination. Regarding pes planus, the examiner also should opine as to whether it is at least as likely as not that the Veteran's preexisting pes planus was aggravated by his military service. In so doing, he or she should address whether there was any increase in the severity of the condition during service. If so, the examiner should also discuss whether any increase was due to the natural progression of the condition or whether it represented a chronic worsening of the underlying pathology. For any disorder identified other than plantar fasciitis and pes planus, the examiner should opine as to whether the disorder is at least as likely as not causally or etiologically related to the Veteran's military service, to include any injury, symptomatology, or duties therein. He or she should specifically address the prior diagnosis of left Morton's neuroma. See June 2023 VA examination report. In rendering these opinions, the examiner should address the Veteran's contentions that his feet were fine when he entered military service, but collapsed after basic training and that his foot disorder is due to extreme training conditions, which included long runs in combat boots and long road marches in combat boots. He or she should also consider Dr. M.D.'s May 2023 letter stating that the Veteran's bilateral pes planus is more likely than not a direct result of improper shoe gear and improper support for his feet during military service. See April 2023 VA Form 21-526EZ; May 2023 Disability Benefits Questionnaire; June 2023 medical Record. A clear rationale for all opinions should be provided. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Windsor, Debra A. 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.