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http://www.va.gov/vetapp16/Files5/1639929.

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Citation Nr: 1639929
Decision Date: 09/30/16
DOCKET NO.
)
)

Archive Date: 10/13/16

05-41 330 ) DATE

On appeal from the


Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1.

Entitlement to an initial rating greater than 10 percent for left hip a

2.

Entitlement to an initial rating greater than 20 percent from June 29,

3.

Entitlement to an initial rating greater than 20 percent from June 29,

4.

Entitlement to an initial rating greater than 50 percent from August 20

REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. J. Houbeck, Counsel
INTRODUCTION

The Veteran served on active duty with the United States Army from March 20

This matter comes before the Board of Veterans' Appeals (Board) on appeal f

In February 2010, the Veteran testified at a hearing held before the unders

The Board's August 2011 decision was then vacated in its entirety in April
The Veteran appealed the May 2014 decision to the Court of Appeals for Vete

Following the Board remand, a subsequent March 2016 rating decision combine

A claim for increased rating includes a claim for a finding of total disabi
The Veteran's file has been scanned, and converted from a hybrid paper and

The issue of entitlement to an increased rating for a left hip disability i

FINDINGS OF FACT
1.

From June 29, 2009, to August 20, 2015, the Veteran's left foot plantar

2.

From June 29, 2009, to August 20, 2015, the Veteran's right foot planta

3.

From August 20, 2015, the Veteran's bilateral plantar fasciitis is mani

CONCLUSIONS OF LAW
1.

For the period from June 29, 2009, to August 20, 2015, the criteria for

2.

For the period from June 29, 2009, to August 20, 2015, the criteria for

3.

For the period from August 20, 2015, the criteria for the assignment of

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS


Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provision

This appeal arises from the Veteran's disagreement with the initial ratings

VA also has a duty to assist the Veteran in the development of the claim, w
The Board concludes VA's duty to assist has been satisfied.

The Veteran's

As noted above, the Veteran also was afforded a hearing before the undersig
With respect to claims for increased ratings, the duty to assist includes,

The RO provided the Veteran with multiple examinations for his service-conn

Based on the association of VA treatment records, the August 2015 VA examin

As there is no indication that any failure on the part of VA to provide add


Increased Ratings

Disability evaluations are determined by the application of a schedule of r

Where the issue involves the assignment of an initial rating for a disabili

If there is a question as to which evaluation to apply to the Veteran's dis


The Veteran is service-connected for bilateral plantar fasciitis, which is

In this instance, for the period on appeal from June 29, 2009, to August 20
DC 5276 provides ratings for acquired flatfoot.

Mild flatfoot with symptom

DC 5284, for "foot injuries, other" provides for a 30 percent rating for se

Medical evidence demonstrates that the Veteran has additional foot disabili
On June 29, 2009, the Veteran appeared for a VA foot examination.

At that

Less than one month later, the Veteran sought treatment at the VA for conti
In August 2012, the Veteran was diagnosed with decreased arch height

with

On August 20, 2015, the Veteran underwent a VA examination for his bilatera
From June 29, 2009, to August 20, 2015

The Board concludes that the objective medical evidence and the Veteran's s

Although the Veteran clearly has pain on manipulation of his feet, the evid

As to assigning an increased rating under DC 5284, the June 29, 2009, VA ex


The Board notes that the Veteran's functional loss was considered.

38 C.F.

As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589


From August 20, 2015

For the period from August 20, 2015, the Veteran is in receipt of a 50 perc

As to the applicability of a higher rating under DC 5284, the highest avail

The Board has considered the other foot DCs in 38 C.F.R. 4.71a, to inclu

As from August 20, 2015, the Veteran is receiving the maximum rating contem

The Board concludes that further staged ratings are not for application, ba

As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board
Additional Considerations
The Board also has considered whether the Veteran is entitled to a greater

According to the regulation, an extraschedular disability rating is warrant

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry f

With respect to the first prong of Thun, the evidence in this case does not

Finally, the Board notes that a veteran may be awarded an extraschedular ra

Further, there is no medical evidence indicating that the Veteran's service


The Board also has considered the applicability of 38 U.S.C.A. 1114 (l)
In short, the rating criteria reasonably describe the Veteran's disability

ORDER

Entitlement to an initial rating greater than 20 percent from June 29, 2009

Entitlement to an initial rating greater than 20 percent from June 29, 2009

Entitlement to an initial rating greater than 50 percent from August 20, 20

(CONTINUED ON NEXT PAGE)


REMAND

The Veteran also contends that his current 10 percent disability rating for

This issue was remanded by the Board in June 2015, pursuant to the above-re

Subsequent to the Board remand and VA examination report, however, the Cour
Accordingly, the case is REMANDED for the following action:
1.

Schedule the Veteran for an appropriate VA examination in order to dete

In addition, the examiner specifically must, to the extent possible, (1) ca


2.

After the above is complete, readjudicate the Veteran's claim.

If a co

The appellant has the right to submit additional evidence and argument on t
This claim must be afforded expeditious treatment.

______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

The law requires that a

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