Citation Nr: 1802407	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-41 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a rating in excess of 10 percent for left 5th metatarsophalangeal (MTP) joint arthritis and residual pain. 


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 






INTRODUCTION

The Veteran served on active duty from October 1957 to October 1960.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.     

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's left 5th MTP joint arthritis and residual pain is manifested by severe symptoms. 


CONCLUSION OF LAW

The criteria have been met for a 30 percent rating, but no higher, for left 5th MTP joint arthritis and residual pain.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Increased rating 

VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities.  These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability.  38 C.F.R. §§ 3.321, 4.10 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  

The Veteran's service-connected left 5th MTP joint arthritis and residual pain is rated as 10 percent disabling under DC 5284. 

DC 5284 pertains to other injuries of the foot.  Under this DC, moderate disability warrants a 10 percent rating, moderately severe disability warrants a 20 percent rating, and severe disability warrants a 30 percent rating.  Actual loss of the foot warrants a 40 percent rating.  38 C.F.R. § 4.71a, DC 5284 (2017). 

The terms "mild," "slight," "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence.  38 C.F.R. § 4.6 (2017).

In this case, the Veteran reports experiencing constant pain.  He underwent VA examinations in February 2016 and June 2015, where it was noted that he has pain that contributes to functional loss, which necessitates constant use of a walker and occasional use of a wheelchair.  The Veteran has severe pain, which prevents prolonged standing or walking more than a few steps.  See February 2016 VA examination; see also June 2015 VA examination.  During the February 2016 VA examination, the examiner characterized the Veteran's condition as moderately severe and found that it chronically compromises weight bearing.  The examiner listed excess fatigability, pain on movement, deformity, pain on weight-bearing and non-weight-bearing, as well as disturbance of locomotion, as contributory factors of the Veteran's disability.  

The Veteran's constant pain, which limits his ability for prolonged standing and walking, constitutes functional loss that more nearly approximates severe disability.  Therefore, resolving all reasonable doubt in favor of the Veteran, the totality of the evidence of record establishes that the Veteran has functional loss consistent with a 30 percent rating under DC 5284.  However, the evidence does not show that the Veteran has actual loss of use of the foot to warrant a 40 percent rating.  

The Board has considered whether a higher rating for the Veteran's condition is warranted under other rating criteria applicable to the foot-particularly DC 5278 and DC 5276, which are the only other DCs that allow rating higher than 30 percent.  However, the medical evidence of record does not establish that the Veteran has either flatfoot or claw foot for these DCs to be applicable.  

In sum, the preponderance of the evidence supports severe disability of the Veteran's left foot.  38 C.F.R. § 4.71a, DC 5284 (2017).


ORDER

A 30 percent rating, but no higher, for left 5th metatarsophalangeal (MTP) joint arthritis and residual pain is granted, subject to the laws and regulations governing the payment of monetary benefits. 



____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs