Citation Nr: 1800882	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  15-42 750A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a rating in excess of 10 percent for postoperative bunionectomy, right great toe with shortening of the proximal phalanx of toe, post-traumatic degenerative arthritis of the interphalangeal joint of the right toe with limitation of motion of first metatarsal phalangeal joint (a right foot disability).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from May 1972 to July 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, PA.

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


FINDING OF FACT

The evidence shows moderately severe disability from his service-connected right foot disability.


CONCLUSION OF LAW

The criteria for a 20 percent rating for a right foot disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5284 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that his right foot symptoms are more severe than the rating assigned, which is currently 10 percent disabling under DC 5280.  The Board has considered whether the Veteran could receive a separate rating for his foot under DC 5284 and finds in the affirmative.

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. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3. 

In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered.  Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999).  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal.  Fenderson, 12 Vet. App. 119, 126-27. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate 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); 38 C.F.R. § 4.14.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 , 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

The Veteran is competent to report symptoms observable by his senses.  See Jandreau, 492 F.3d at 1377.

The Veteran's right foot postoperative bunionectomy, right great toe with shortening of the proximal phalanx of toe, post-traumatic degenerative arthritis of the interphalangeal joint of the right toe with limitation of motion of first metatarsal phalangeal joint has been rated as 10 percent disabling under DC 5280 for unilateral hallux valgus.  DC 5280 addresses symptoms specific to hallux valgus but not the symptoms of shortening of the proximal phalanx of toe and post-traumatic degenerative arthritis, which have been determined to be part of the Veteran's right foot disability.

Under DC 5280, the highest rating provided is 10 percent for unilateral hallux valgus; accordingly, the Veteran is in receipt of the highest rating under DC 5280.  With this in mind, the Board finds that it is most favorable to the Veteran to evaluate all foot disabilities recognized as service-connected under DC 5284, and to apply such rating separately.  In this manner, the Veteran will achieve a higher 20 percent rating for his right foot disability.  This is a greater benefit than the currently-assigned 10 percent evaluation under DC 5280.

Again, the Board's decision to change the Diagnostic Code assists the Veteran in allowing him to attain a higher rating.  See 38 C.F.R. §§ 4.25, 4.71a, DC 5284.  Thus, the change is in accordance with the law.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (change to diagnostic code is appropriate as long as not arbitrary, capricious, or an abuse of discretion); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (change in diagnostic code does not violate protective statutes).

DC 5284 provides for a 10 percent rating for a moderate condition, 20 percent for moderately severe, and 30 percent for a severe condition.  38 C.F.R. § 4.71a.  After review of the record, the Board finds that the criteria for a 20 percent rating, but not higher, for his right foot disability have been met.  See 38 C.F.R. § 4.71a, DC 5284.

VA treatment records show that the Veteran consistently complains of right foot pain and is treated with custom orthotics and prescription acetaminophen.

At a May 2015 VA examination, the Veteran reported constant pain in the right great toe while standing or walking.  He reported that his right great toe does not touch the ground; he has little to no motion in the toe and the toe sometimes feels numb and swells.  The decreased motion limits the amount of walking and standing that is able to tolerate.  Objective evidence of pain was noted resulting in less movement than normal, deformity and disturbance of locomotion.  Gait analysis revealed an apropulsive gait on the right side with abduction of the foot during the swing phase.  Arthritis of the right foot was also noted.

During the August 2017 Board hearing, the Veteran testified that his right toe does not touch the ground and sticks up in the air.  He reported that sometimes just standing up will cause an acute pain of the right great toe.  He also reported that there are times when his right foot hurts all day.

After careful review of the record, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, the Veteran's right foot disability is most appropriately rated as 20 percent disabling as an overall moderately severe foot injury pursuant to DC 5284.  38 C.F.R. § 4.71a, DC 5284.  The Board has considered the Veteran's reports of intense pain and limitations of walking and standing caused by his right foot disability, and the VA examination report of pain causing less movement than normal, deformity and disturbance of locomotion; and the Veteran's apropulsive gait.  Such reports are not found to support the next-higher 30 percent evaluation.

Although the Board has resolved reasonable doubt in the Veteran's favor in awarding a 20 percent rating for the disability, the Board also finds that the preponderance of the evidence is against the assignment of any higher rating at any pertinent point.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

A 20 percent disability rating, but no higher, for a right foot disability is granted.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs