Citation Nr: 1648553	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-25 876	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased rating in excess of 30 percent for bilateral plantar fasciitis.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Stephen LoGerfo, Associate Counsel 


INTRODUCTION

The Veteran had active military service from April 1986 to September 1986 and March 1988 to December 1995. 

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video hearing in June 2015. 

This claim was remanded by the Board in September 2015 for further development. 

A subsequent March 2016 rating decision increased the rating for bilateral plantar fasciitis from 10 percent to 30 percent effective on March 10, 2010. 


FINDING OF FACT

The Veteran's bilateral plantar fasciitis is manifested objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated; indication of swelling on use, or characteristic callosities and most nearly approximates a severe level of disability for the entire period on appeal.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014) 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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.A. § 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2015).

As described further below, the VA examination reports are adequate for adjudication.  The examiners examined the Veteran, considered her history, and set forth objective findings necessary for adjudication.  In reaching the decisions below, the Board considered the admissible and believable assertions of the Veteran.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, the criteria needed to support higher ratings for the disabilities on appeal require medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  The lay statements are not considered more persuasive than the objective medical findings obtained.  

The Board has also considered whether referral for consideration of an "extraschedular evaluation" is warranted for any disability on appeal, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).  

The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected disabilities that would render the schedular criteria inadequate.  As shown below, the Veteran's symptoms for each of her disabilities are contemplated in the assigned schedular ratings.  Thus, the application of the Rating Schedule is not rendered impractical.  Moreover, he has not argued that her symptoms are not contemplated by the rating criteria; rather, she has merely disagreed with the assigned disability ratings for her levels of impairment.  In other words, he does not have any symptoms from her service-connected disabilities that are unusual or different from those contemplated by the schedular criteria.

Finally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Accordingly, referral for consideration of an extraschedular evaluation for any claim on appeal is not warranted.

A. Plantar Fasciitis 

The Veteran reports that he wears custom shoe inserts but that his feet still bother him. He also has had injections in both heels and arch areas by a private podiatrist. He reports that the bottoms of his feet are tender all of the time. At his November 2015 VA examination, he reported chronic daily pain in both feet that is worse in the morning. He reports functional loss in that he has difficulty working out or standing for a prolonged period of time. 

On examination, the Veteran had pain on us of both his feet as well as pain on manipulation on both his feet. There was no indication of swelling on use. There were characteristic calluses on both feet but not extreme tenderness of plantar services. There was decreased longitudinal arch height of one or both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet. There was no marked pronation of one or both feet. The weight bearing line fell over or medial to the great toe. There was no lower extremity deformity or "inward" bowing or marked inward displacement or severe spasm of the Achilles tendon. 

The VA examiner found pain on movement but noted that there was no significant limitation of functional ability during flare-ups. 

Under DC 5276, a noncompensable rating is assigned where bilateral flatfoot is mild, with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276. A 10 percent rating is assigned for moderate bilateral flatfoot, with weight-bearing line over or medial to the great toe, inward bowing of the tendon achillis, or pain on manipulation and use of the feet, either bilateral or unilateral. Id. A 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. Id. Finally, a 50 percent rating is assigned for bilateral 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, not improved by orthopedic shoes or appliances. Id.

While the Veteran does have many of the characteristics of the 30 percent rating, he does not have any of the characteristics of the 50 percent rating. The feet did not result in marked deformity or marked pronation. The weight bearing line fell over or medial to the great toe. There was no lower extremity deformity or "inward" bowing or marked inward displacement or severe spasm of the Achilles tendon. Therefore, a higher rating is not warranted. 

The Board considered the application of 38 C.F.R §§ 4.40 and 4.45 in light of the Court's ruling in DeLuca, supra.  The record consistently demonstrates that the Veteran reported foot pain, and the Board recognizes that VA examiners acknowledged and confirmed that he experienced such symptomology.  However, any additional functional impairment due to pain, including on use, is already contemplated in the evaluation assigned and that there was no demonstration, by lay or medical evidence, of additional functional impairment comparable to the next higher evaluation due to the service-connected foot disability.

Therefore, the claim for a rating higher than 30 percent must be denied. 

II. Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2015).  Here, the Veteran was provided with the relevant notice and information in June 2009 letter prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  He has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Pertinent to the issues decided herein, in September 2015, this claim was remanded for a new examination of the Veteran's foot disability.  

Pursuant to the September 2015 Board remand, a new examination was provided and updated treatment records were obtained. Accordingly, the Board finds that VA at least substantially complied with the February 2016 Board remand. See 38 U.S.C.A. § 5103A (b); Stegall, 11 Vet. App. 268


ORDER

Entitlement to an increased rating in excess of 30 percent for bilateral plantar fasciitis is denied. 


____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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