Citation Nr: 1759920	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  13-05 702	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for a right foot disability, to now include hallux limitus, degenerative arthritis, calluses, metatarsalgia, and status post cheilectomy of the 1st toe with residual scar,  prior to August 9, 2016. 

2.  Entitlement to a disability rating in excess of 10 percent for a left foot disability, to now include hallux limitus, degenerative arthritis, calluses, metatarsalgia, and status post cheilectomy of the 1st toe with residual scar,  prior to August 9, 2016. 


REPRESENTATION

Appellant represented by:	American Veterans


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

I. Altendorfer, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1974 to January 1977.
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 

In a November 2016 rating decision, the RO increased the disability rating for the Veteran's service-connected right and left foot disabilities to 30 percent disabling, effective August 9, 2016.  As the increase did not represent a total grant of the benefits sought on appeal, the claim remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

In August 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

Following the November 2016 Rating Decision, the Veteran filed a Statement in Support of Claim in November 2016.  There, the Veteran stated that "I agree with and accept the disability rating but disagree with the effective date."  In August 2017, the Veteran's representative testified that the Veteran "is very pleased with that award and he appreciate that.  However, we're looking at the effective date of that award and he feels and I feel that that award should have an effective date of February 2010."  As such, the remaining issue on appeal is entitlement to a rating in excess of 10 percent for right and left foot disability prior to August 9, 2016.  The change is also reflected on the title page.

In April 2015, June 2016, and June 2017, the Board remanded the current issues for further evidentiary development.  The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

In an April 2015 correspondence, the Veteran stated "I wish to remain employable and not seek entitlement to unemployability compensation."  As such, the Board will not address the issue of entitlement to total disability of individual unemployability in this decision.  


FINDINGS OF FACT

1.  Since February 5, 2010, the Veteran's service connected right foot disability (subchondral bone cyst, hallux limitus, degenerative joint disease (DJD), hallux valgus, enchondroma, and calluses) has been productive of symptoms approximating severe foot injury. 

2.  Since February 5, 2010, the Veteran's service connected left foot disability (subchondral bone cyst, hallux limitus, and degenerative joint disease) has been productive of symptoms approximating severe foot injury. 

3.  A December 22, 2012 VA examination documented the diagnosis of metatarsalgia in both feet. 


CONCLUSIONS OF LAW

1.  The criteria for an increased 30 percent rating for the right foot disability are met.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 5284 (2017).

2.  The criteria for an increased 30 percent rating for the left foot disability are met.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 5284 (2017).

3.  The criteria for the assignment of a separate 10 percent disability rating for bilateral metatarsalgia have been met since December 22, 2012.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 5279.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7 (2017).

While a Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14 (2017).  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity."  See 38 U.S.C. § 1155 (2012); 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, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Diagnostic Code 5284 is entitled "Foot injuries, other."  Diagnostic Code 5284 is one of nine Diagnostic Codes within 38 C.F.R. § 4.71a.  Diagnostic Codes 5276 through 5283 specifically list the conditions that pertain to each code.  In contrast, Diagnostic Code 5284 pertains to a foot injury that is not otherwise specifically listed under Diagnostic Codes 5276 through 5283.  Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015).     

Diagnostic Code 5284 provides a 20 percent evaluation for symptoms that are moderately severe.  A 30 percent evaluation is provided for symptoms that are severe.  A 40 percent evaluation is warranted for actual loss or loss of use of the foot.  38 C.F.R. § 4.71a (2017).

Here, the Veteran's right foot disability includes hallux limitus, metatarsalgia, hallux valgus, enchondroma, and calluses associated with valgus deformity.  The Veteran's left foot disability includes hallux limitus, degenerative arthritis, calluses, metatarsalgia, and status post cheilectomy.  For the period under review, the RO assigned a 10 percent rating pursuant to Diagnostic Code 5284 for each foot. 

Other applicable Diagnostic Codes include Diagnostic Codes 5279 and 5281.  Pursuant to Diagnostic Code 5279, 10 percent is assigned when the foot injury includes metatarsalgia, anterior, unilateral, or bilateral.  Pursuant to Diagnostic Code 5281, a 10 percent rating is assigned when hallux rigidus (or limitus) is "severe."

Here, medical treatment records demonstrate several distinct diagnoses related to the service-connected disabilities.  Specifically, treatment records pertaining to the right foot show diagnoses of hallux rigidus, metatarsalgia, hallux valgus, enchondroma, DJD, subchondral bone cyst, and calluses.  In addition, treatment records pertaining to the left foot show hallux limitus, degenerative arthritis, calluses, metatarsalgia, subchondral bone cyst, and status post cheilectomy.   

March 2010 VA treatment records documented a diagnosis of likely enchondroma to the right proximal phalanx and DJD of the left first metatarsophalangeal joint (MPJ).  

In April 2010, the Veteran underwent urgent care for his bilateral foot condition.  In regards to the right foot, VA treatment records reveal an impression of DJD of the MPJ, subchondral bone cyst, status post pathologic fracture, and recurrent pain with weight bearing activities.  In regards to the left foot, VA treatment records reveal an impression of DJD of the first MPJ, hallux limitus, and recurrent pain with weight-bearing activities.  The examiner stated that radiographs showed "bilateral degenerative joint disease of both first metatarsal phalangeal joints significantly greater on the left side which correlates with his original history for injury in 1974 involving predominantly the left foot."

In a December 2011 and an October 2012 correspondence, a VA clinician shared his impression of the Veteran's bilateral foot condition.  There, the VA clinician diagnosed the Veteran with subchondral bone cyst with asymmetric narrowing of the left 1st MPJ with osteophytosis in the left foot and simply subchondral bone cyst in the right foot.  In referencing both foot conditions, the VA clinician stated "[i]ncrease service connection should be followed up for each foot as it should be considered severe."   

In December 2012, the Veteran was afforded a VA foot examination.  In regards to the right foot, the examiner diagnosed the Veteran with a foot contusion and right second toe enchondroma.  In regards to the left foot condition, the VA examiner diagnosed the Veteran with contusion and DJD in the left great toe.  The examiner noted that "[c]urrent treatment is staying off of feet, limited walking, symptoms aching/in [sic] balls of both feet constant 6-7/10 which flares to much worse, heel of left foot is in constant excruciating pain."  Upon examination, the examiner observed signs of metatarsalgia and DJD of both feet.  Also, the examiner recorded mild or moderate symptoms of hallux valgus in the right foot.  The examiner documented mild or moderate symptoms of hallux rigidus in both feet.  Last, the examiner recorded "nontender calluses medical great toes and lateral 5th toe MTP."   

In October 2015, the Veteran was afforded another VA foot examination.  Examination report documented diagnoses of DJD and metatarsalgia in both feet.  During the examination, the Veteran reported pain in both feet when standing or walking any distance.  When he would need to walk short distances, the Veteran indicated that he would use a cane for assistance.  Also, the Veteran reported recurrent pain with "essentially any weight bearing activity, pain on the left is greater than on the right."

February 2016 VA treatment records noted that the Veteran experienced increasing foot pain.  The clinician observed "[d]ecrease ability to ambulate[due] to functional loss of both feet due to pain, metatarsalgia."   

Based on a thorough review of all of the evidence of record, including VA examination reports, VA treatment records, and the Veteran's lay statements, the Board finds that the assignment of a 30 percent rating for the right foot and a 30 percent rating for the left foot is appropriate under Diagnostic Code 5284, effective throughout the entirety of the appeal period.  

Turning to the Veteran's right foot disability, medical treatment records reveal that that the etiology of the right foot disability relates to pathological fracture of right proximal phalanx.  In this regard the April 2010 VA examiner diagnosed the Veteran with DJD of the MPJ, and subchondral bone cyst, post pathological fracture of proximal phalanx.  The December 2011 and October 2012 VA clinician verified the Veteran's diagnosis of subchondral bone cyst and described the severity as "severe."  Since 2012, VA treatment records documented diagnoses of DJD in the right foot and reports of pain with any weight bearing.  The Board finds the VA treatment records highly probative.  Accordingly, the Veteran's right foot disability, which includes symptoms of DJD, calluses, subchondral bone cyst, hallux limitus,  and post pathological fracture, manifested as severe since the Veteran filed his claim and a 30 percent rating is warranted, effective February 5, 2010.  However, an effective date earlier than February 5, 2010 is not warranted because the record lacks evidence that the severity of the disability increased within the one-year period preceding the date of the claim.  

As for the left foot disability, medical treatment records reveal that that the etiology of the left foot disability relates to a 1974 MPJ injury.  As the April 2010 VA examiner indicated, the Veteran's left foot condition includes separate and distinct diagnoses, such as, DJD hallux limitus, and calluses.  In addition, December 2011 and October 2012 VA correspondences characterized the Veteran's left foot condition to include DJD with subchondral bone cyst with osteophytosis.  The VA clinician described the Veteran's left foot disability as "severe."  Since 2012, VA treatment records documented diagnoses of DJD in the left foot and reports of pain with any weight bearing.  The Board finds the VA treatment records highly probative.  Accordingly, the Veteran's left foot disability, which includes symptoms of subchondral bone cyst, DJD, hallux limitus, and calluses, manifested as severe since the Veteran filed his claim and a 30 percent rating is warranted, throughout the entirety of the appeal period.  However, an effective date earlier than February 5, 2010 is not warranted because the record lacks evidence that the severity of the disability increased within the one-year period preceding the date of the claim.  

A higher 40 percent is not warranted for each foot disability because the evidence of record does not demonstrate actual or approximate loss of use of the foot due to either the MPJ left foot injury or the pathological fracture of right proximal phalanx or its associated symptoms.  The Board acknowledges a February 2016 VA treatment record that documented "functional loss due to both feet."  However, that the Veteran experiences functional loss of both feet does not equate to him experiencing loss of all functional loss of use of the feet.  Moreover, as detailed below, the Board finds that the Veteran is entitled to a separate rating for metatarsalgia.  As such, the assignment of a higher 40 rating for symptoms attributed to  metatarsalgia would constitute pyramiding, which is prohibited.  38 C.F.R. § 4.14.

As noted immediately above, an assignment of separate 10 percent rating for bilateral metatarsalgia is warranted, effective December 22, 2012.  "When a condition is specifically listed in the Schedule, it may not be rated by analogy."  See Copeland, 27 Vet. App. at 337.  Here, the medical evidence of record demonstrates that the Veteran was first diagnosed with metatarsalgia in December 2012.  As this condition is specifically listed in 38 C.F.R. § 4.71a and the severity of the condition warrants a compensable rating, a separate 10 percent rating for bilateral metatarsalgia under Diagnostic Code 5279 is appropriate. 

The Board has considered rating the Veteran's left foot and right foot disabilities under Diagnostic Codes 5276 to 5283.  However, no such criteria are applicable in this case.  The record does not reflect, and the Veteran has not contended, that any time during the appeal period his bilateral foot disabilities have been manifested by flat feet, weak foot, claw foot, hammertoe, or malunion or nonunion of the tarsal or metatarsal bones.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5279, 5281-5283.  The Board notes that according to a December 2012 VA examination report the Veteran was diagnosed with hallux valgus (right foot) and hallux rigidus (bilaterally).  In this regard, any hallux valgus of the right foot was not noted to be severe or post-surgical intervention.  Thus, a compensable rating under Diagnostic Code 5280 for hallux valgus of the right foot would not be warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5280.  Also, any hallux rigidus of both feet was not noted to be severe.  Hence, a compensable rating under Diagnostic Code 5281 for hallux rigidus bilaterally would not be warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5281.  

Additionally, the assignment of a separate ratings for arthritis would constitute pyramiding, which is prohibited, because the symptoms of DJD are already contemplated by Diagnostic Code 5284 under which the Veteran is already rated.  See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Therefore, a separate rating is not for application.



ORDER

An increased rating of 30 percent for the right foot disability is granted. 

An increased rating of 30 percent for the left foot disability is granted. 

A separate 10 percent rating for bilateral metatarsalgia is granted, effective December 22, 2012.




____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs