12-25 823
12-25 823
Board of Vet. App.May 31, 2017Background
- Veteran served Feb–Aug 1978; appealed a March 2012 RO decision granting 10% for each foot for plantar fasciitis.
- Veteran reported progressive bilateral foot pain, painful fibromas, heel spurs, use of a CAM boot alternating feet every ~6 weeks, limited walking endurance, and use of orthotics and narcotics for pain.
- VA obtained examinations (Mar 2012, Apr 2015). Examiners documented pronation, decreased arch height, callosities, pain on use and manipulation, painful fibromas, and heel spurs; some neuropathic findings attributed to nonservice-connected diabetes.
- The Board previously remanded for development; remand actions (including a new exam) were completed and the exam evidence was adequate.
- Action on the Veteran’s claim for a compensable evaluation for bilateral tinea pedis was stayed pending resolution of Johnson v. McDonald at the Federal Circuit because the record shows topical corticosteroid use during the appeal period.
Issues
| Issue | Veteran's Argument | VA/Board's Argument | Held |
|---|---|---|---|
| 1. Increased rating in excess of 10% prior to Apr 30, 2015 — left foot plantar fasciitis | Left foot symptoms and treatment (CAM boot, fibromas, heel spur, pain, limited walking) warrant >10% | Evidence supports more pronounced bilateral plantar fasciitis consistent with higher (50%) rating under schedular criteria | Grant: overall 50% evaluation for bilateral plantar fasciitis effective prior to Apr 30, 2015 (thus left foot effectively increased) |
| 2. Increased rating in excess of 10% prior to Apr 30, 2015 — right foot plantar fasciitis | Same as left foot — right foot functional loss and findings warrant >10% | Same as above: findings support pronounced bilateral condition meriting 50% | Grant: as above, 50% evaluation for bilateral plantar fasciitis prior to Apr 30, 2015 (right foot effectively increased) |
| 3. Evaluation in excess of 50% from Apr 30, 2015 for bilateral plantar fasciitis | Veteran seeks >50% for continued severe symptoms despite treatment | 50% is the maximum schedular rating available for the condition; no other diagnostic codes or secondary ratings justify higher evaluation | Denied as a matter of law: no evaluation >50% available under the Rating Schedule from Apr 30, 2015 onward |
| 4. Compensable evaluation for bilateral tinea pedis | Veteran seeks compensable rating for tinea pedis | Claim is impacted by Court precedent in Johnson; records show corticosteroid cream use (triggering Johnson issues) | Stayed pending final resolution of Johnson v. McDonald on appeal |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (procedural/notice principles referenced)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (adequacy of VA examination for rating purposes)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (role of examiners and adequacy of exam reports)
- D'Aries v. Peake, 22 Vet. App. 97 (Vet. App.) (medical evidence and VA examination standards)
- Dyment v. West, 13 Vet. App. 141 (Vet. App.) (substantial compliance with Board remand directives)
- Sabonis v. Brown, 6 Vet. App. 426 (Vet. App.) (if law precludes higher schedular rating, claim denied as a matter of law)
- Hart v. Mansfield, 21 Vet. App. 505 (Vet. App.) (benefit of the doubt rule in assigning ratings)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (proof and reasonable doubt rule for veterans' benefits)
- Johnson v. McDonald, 27 Vet. App. 497 (Vet. App.) (authority governing evaluation of skin conditions and reason for stay)