Citation Nr: 1752416	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  11-30 689	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased evaluation in excess of 20 percent for residuals of a right foot contusion.

2.  Entitlement to an increased evaluation in excess of 20 percent for residuals of a left foot contusion.


REPRESENTATION

Veteran represented by: 	West Virginia Department of Veterans Assistance


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 

The Veteran served on active duty from October 1963 to October 1965. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

A Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in September 2013.

This case was previously before the Board in November 2014, March 2016, and October 2016, at which times it was remanded for additional development.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.


FINDINGS OF FACT

1.  The Veteran does not have a severe injury of the right foot.

2.  The Veteran does not have a severe injury of the left foot.

CONCLUSIONS OF LAW

1.  The criteria for an increased rating in excess of 20 percent for residuals of a right foot contusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017).

2.  The criteria for an increased rating in excess of 20 percent for residuals of a left foot contusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017).

The Veteran was provided with the relevant notice and information. He has not alleged any notice deficiency during the adjudication of that claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA's duty to assist under the VCAA includes helping claimants to obtain pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159 (c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  For his increased rating claims, the Veteran was afforded adequate VA examinations that considered his medical history, his treatment records, a physical examination of the Veteran, and a review of his symptoms in accordance with the schedular criteria.  

Finally, the Board finds that the AOJ sufficiently complied with the remand directives of the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Law and analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  

Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

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 portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 

The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). A claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

The Veteran filed claims for increased ratings for his bilateral foot disorders in April 2011.  He was afforded a VA examination of the feet in May 2011.  The examiner noted pain in the bilateral feet and enthesopathy of the ankle and tarsus.  The examiner noted, by way of history, that the Veteran's feet were run over by a truck during service.  He has experienced symptoms of pain since discharge and was noted to have a deformity of the left foot, involving the fifth toe.  A podiatrist fractured and reset the foot.  The Veteran was also noted to have a "flexible cavovarus foot type with significant evidence of calcaneal inversion."  

The Veteran reported aching, shooting, burning, intermittent-type pain that involves his ankles, toes, and the remainder of both feet at various times but the left foot in generally more painful than the right.  He will have the pain once to 10 times a day and can last 20 minutes to six hours, depending on activity.  The pain is exacerbated by cold weather and being on his feet.  The examiner noted that symptoms of neuropathy would not be related to the contusions from service but are more indicative of peripheral vascular condition as would the edema.  

A physical examination of his feet showed they were warm to the touch with palpable pulses.  Capillary refill was quite sluggish.  There was edema, worse on the left, which was primarily along the lateral aspect of each foot, distal to the ankles and discoloration.  There was tenderness with palpation.  The examiner opined that the edema and skin discoloration are not related to the in-service contusion.  There was no evidence of callosities breakdown or unusual shoe wear. Sensation was intact for pinprick and light touch bilaterally. There was no indication of hammertoe, high arch, claw foot, or flat foot in either foot. There was no indication of hallux valgus.  There was active motion in the metatarsophalangeal joint of the great toe and toes wiggled freely.  X-rays showed a remote fracture of the fifth metatarsal with no acute abnormality.  The examiner diagnosed contusion, right foot, resolved and contusion, left foot; remote fracture fifth metatarsale, resolved.  

An August 2011 rating decision continued the Veteran's bilateral 20 percent ratings for his foot disorder.  

In a September 2011 notice of disagreement, the Veteran argued that his foot disorders were more severe than the ratings reflect.  Specifically, he noted that he had neuropathy, restricted range of motion, skin discoloration, and edema; however, he did not have a peripheral vascular disorder.  He stated that he had functional loss due to pain.  

In an October 2011 statement, a VA physician submitted a statement that the May 2011 VA examination report was altered and did not accurately reflect the assessments made during the examination.  

The Veteran was afforded another VA examination of the feet in February 2013.  The examiner noted diagnoses of contusions to the left and right foot and mild degenerative changes of the interphalangeal joints of the great toes bilaterally.  The Veteran reported symptoms of achy pain and discomfort with walking.  He denied that his foot problems interfered with his activities of daily living or his occupation.  Upon examination, there was discoloration.  The examiner opined that the discoloration was consistent with statis dermatitis, not related to his initial contusion injury as it was not documented until May 1999, over 30 years from initial injury and more likely related to venous insufficiency.  

The Veteran was afforded a VA examination in January 2015.  The examiner noted the in-service foot injuries and a 2013 diagnosis of degenerative arthritis.  He reported pain at a level of 6 to 7 with no flare-ups.  The examiner opined that his foot disorders were of moderate severity, not chronically compromising weight-bearing or requires shoe modifications, supports, or orthotics.  There was pain on examination, but not causing functional loss.  X-rays showed mild degenerative changes of the interphalangeal joints of the great toes, an old healed fracture of the left fifth metatarsal, and no acute fracture or dislocation. 

In a September 2017 VA examination report, the examiner found the residuals of the Veteran's contusions of the feet to be mild on the left with no functional impairment.  The examiner noted no disorder of the right foot.  

Upon review of the evidence, the Board finds that ratings in excess of the 20 percent assigned are not warranted.  At worst, the Veteran's bilateral foot injuries were noted to be moderate.  To warrant a higher rating, the Diagnostic Code requires a showing of severe symptoms.  The examiners have consistently noted pain, but no functional loss due to residuals of the Veteran's bilateral foot contusions.  Therefore, higher ratings may not be assigned.  

The Board has considered the evidence of discoloration, swelling, and neurologic symptoms.  The Board recognizes the Veteran's private treatment records including the May 2011 record that shows the Veteran's podiatrist assessed the Veteran with a peripheral neuropathy with subjective pain, stemming from a crush injury and the March 2015 opinion from J.L., DPM, in which he opined that the Veteran has "pain to both feet secondary to crushing injury, complicated by metatarsus adductus, Malunion of a fracture. Likely compression neurapraxia." However, the Board finds the opinions of the April 2013, January 2015, April 2016, February 2017, and August 2017 VA examiners to be more probative as to the cause of these symptoms.  Specifically, those examiners found that the Veteran's neurological symptoms were not the result of the in-service injuries.  The examiners cited the medical records at the time of the injury showing no nerve or joint damage, the Veteran's service exit examination showing no disorder, and the length of time between the in-service injury and the onset of neurological symptoms.  Additionally, the examiners cited other likely causes of the Veteran's neurological symptoms, including alcohol abuse and diabetes.  Therefore, the Board will not consider these symptoms in assessing the Veteran's service-connected foot disorders for the purpose of increased ratings. Mittleider, supra.

Based on this evidence, the Board finds that ratings in excess of those presently assigned are not warranted for the period on appeal. The Board has considered the Veteran's lay statements regarding his symptoms and finds him competent and credible.  However, as discussed above, the Veteran's symptoms have been applied to the relevant rating criteria as they apply to the symptoms of the Veteran's service-connected disorder and the Board finds that they do not warrant ratings in excess of those currently assigned.  Therefore, the Veteran's claims are denied. 


ORDER

An increased evaluation for residuals of a right foot contusion in excess of 20 percent is denied.

An increased evaluation for residuals of a left foot contusion in excess of 20 percent is denied.


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

Department of Veterans Affairs