Citation Nr: 1751269	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  10-17 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for surgical intervention for a cartilage removal from the lateral left foot clamed as left ankle disorder, to include whether a separate compensable rating is warranted for heel and foot impairment.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Y. Taylor, Associate Counsel
INTRODUCTION

The Veteran served on active duty from July 2005 to July 2009.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

A Travel Board hearing was held in December 2010 before the undersigned Veterans Law Judge, sitting in Pittsburgh, Pennsylvania.  A copy of the transcript is of record.  

In September 2014, the Board denied entitlement to an initial evaluation in excess of 10 percent for a left foot and ankle disorder.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). 

In a July 2015 order, pursuant to a Joint Motion for Remand, the CAVC vacated the September 2014 Board decision. 

In November 2015 and June 2016, the Board remanded the appeal for further development.  In June 2016, the Board granted an initial 20 percent rating for this disability and remanded the issue.  In April 2017, the Board remanded the appeal to rectify deficiencies in the VA medical examination under Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  It is once again before the Board for review.  

In September 2017, the Veteran submitted a statement to the AOJ, in which he concedes that the 20 percent rating for his left ankle condition is appropriate, but requested that a separate rating be given to his left heel/foot condition.  As explained below, the Board finds that the Veteran's left heel/foot condition is separate from his ankle, and thus is entitled to a separate rating.  Accordingly, the issue in the title page has been modified to reflect the change.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record.  


FINDINGS OF FACT

1. In a September 2017 statement, the Veteran stated that he wanted to withdraw from appellate consideration the issue of entitlement to an initial rating in excess of 20 percent for surgical intervention for a cartilage removal from the lateral left foot clamed (and rated) as left ankle disorder.

2. During the period on appeal, the Veteran's surgical intervention for a cyst removal from the left heel claimed as left heel and foot disorder has more likely than not approximated moderately severe foot injuries.  


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to an initial rating in excess of 20 percent for surgical intervention for a cartilage removal from the lateral left foot clamed as left ankle disorder have been met and the appeal is withdrawn.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2. With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent disability rating for service-connected surgical intervention for a cyst removal from the heel claimed as left heel and foot disorder have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.71a, Diagnostic Code 5284 (2016).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Left Ankle Disability

A substantive appeal may be withdrawn by an appellant or an appellant's authorized representative at any time before the Board promulgates a final decision.  38 C.F.R. § 20.204 (b).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  In a September 2017 written statement, the Veteran stated that he was satisfied with his current 20 percent evaluation and that is taken as his desire to withdraw his appeal of this issue. 

Having met the requirements of 38 C.F.R. § 20.204, the Veteran has essentially withdrawn his substantive appeal with respect to the issue of entitlement to an initial rating in excess of 20 percent for surgical intervention for a cartilage removal from the lateral left foot clamed as left ankle disorder.  Accordingly, there remains no case or controversy before the Board.

II. Left Heel and Foot Disability

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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R.§ 4.1.

In September 2017, the Veteran submitted a statement, in which he requested that a separate disability rating be assigned for his left heel and foot because his ankle pain and left heel/foot pain derive from two separate surgeries that he underwent in service.  He asserts that one surgery involved removal of cartilage from the top of his left foot, which causes his ankle pain, whereas the other surgery involved removal of a cyst from his heel from the left side of his foot.  See September 2017 Veteran's Statement.  The medical evidence of record confirms that the Veteran underwent two surgeries.  Further, the Veteran testified during the September 2010 Board hearing that his felt foot problem began in July 2006, while deployed as a flyer based in Iraq and this problem constantly got worse over time, which resulted in the surgeries.  See September 2016 Travel Board hearing transcript.  Therefore, the Veteran's left ankle and left heel/foot disorders derive from separate surgeries conducted for the same in-service injury.  

Based on the review of the record, the Board finds that the Veteran's left ankle disorder and left heel/foot disorder are separate, albeit resulting from the same injury, because the symptomatology for his left ankle is not duplicative of or overlapping with that of his left heel and foot condition.

In general, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

The medical evidence of record establishes that the Veteran has pain on impact of the left heel when walking and pain in the ankle on dorsiflexion and that the range of motion for his left ankle has been markedly limited due to the surgeries.  See, e.g., May 2017 VA examination, at 1.  Since the functional impact on the heel is not measured by its range of motion, it can and should be considered separate from the functional impact captured by a range of motion of the ankle.  

The functional impact of limited range of motion of his ankle has been captured by the diagnostic code (DC) 5271 under 38 C.F.R. § 4.71a, and the Veteran has been assigned an initial evaluation of 20 percent under the code.  However, this code does not cover the functional impact of the surgeries on his left heel and foot pain.  The Veteran claims that DC 5284 more nearly approximates the condition of his left heel and foot disability.  

When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995).

Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe.  With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167.  Diagnostic Code 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code, such as in this case.  The Court has held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284.  Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).

In order for DC 5284 to apply, the Veteran must show that he has a foot injury, not a disease.  The Board finds that the Veteran's left foot disability presents, and is more analogous to, a disability resulting from actual injury to the foot.  See Yancy v. McDonald, 27 Vet. App. 484, 492-93 (2016) (holding that application of Diagnostic Code 5284 is limited to disabilities resulting from actual injuries to the foot, but that unlisted conditions may be rated by analogy to injury of the foot under Diagnostic Code 5284); 38 C.F.R. § 4.20(2016) (providing that unlisted conditions may be rated by analogy under a closely related disease or injury).  "The plain meaning of the word 'injury' limits the application of Diagnostic Code 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions."  Yancy, 27 Vet. App. at 491.  The Veteran's foot surgery is more like an injury than a disease such as arthritis.  Rating by analogy under Diagnostic Code 5284 is therefore appropriate.

Since the Veteran does not seek a higher rating under DC 5271 for his ankle disability, the Board must determine an evaluation for his heel and foot disability under DC 5284.  

The evidence of record indicates that an assignment of 20 percent under DC 5284 more nearly approximates the Veteran's left heel and foot condition.   

In the May 2017 VA ankle examination, the examiner opines that the Veteran's functional limitation with regard to the foot is based on pain, whereas the functional impairment of the ankle is also based on pain with additional weakness and fatigability.  However, in December 2015, the Veteran underwent a VA foot conditions examination, where his foot was examined more thoroughly than the May 2017 examination, which focused on his ankle.  In the December 2015 examination, the Veteran reported that he got pain in the back of his heel when he steps down and the pain occurred at the same time when he got pain in the front of the ankle.  December 2015 VA examination, at 2.  The Veteran also reported that fatigue as well as pain with use was a functional loss or impairment of both foot and ankle.  Id., at 3.  The examiner noted that the Veteran had a foot injury, which was consistent with retrocalcaneal bursitis and marked its severity as moderate.  The examiner also noted that this foot condition chronically compromised weight bearing.  Id., at 4.  Contributing factors of disability were noted as pain on weight bearing and lack of endurance, both on the left side.  Id. at 5.  Lastly, the examiner found that there was fatigue in both foot and ankle with prolonged walking.  Id., at 5.  

Based on the review of the evidence summarized above, the Board finds that the functional loss or limitation on the left heel and foot is at approximately the same level as the functional limitation on the left ankle.  Therefore, the Board concludes that the Veteran's left heel and foot is more than moderate, but less than severe, namely "moderately severe," and hence, an evaluation of a 20 percent under DC 5284 more nearly approximates the condition of the Veteran's left foot disorder. 



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ORDER

The issue of Entitlement to an initial rating in excess of 20 percent for surgical intervention for a cartilage removal from the lateral left foot clamed as ankle disorder is dismissed.

Entitlement to a separate disability rating of 20 percent for surgical intervention for a cartilage removal from lateral left foot manifested as left heel and foot disability is granted, subject to the regulations governing payment of monetary awards.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs