Citation Nr: 1805366	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  12-02 612A	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to an evaluation in excess of 10 percent for residuals of right foot injury, status post-bunionectomy and subluxed second toe correction. 

2. Entitlement to an evaluation in excess of 10 percent for allergic rhinitis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel




INTRODUCTION

The Veteran served on active duty from August 1963 to August 1993.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The Board previously remanded these matters in July 2016 for further evidentiary development.

In a document received on April 4, 2017, the Veteran reported that he had a pinful scar.  That document is referred to then AOJ.


FINDINGS OF FACT

1. The Veteran's residuals of right foot injury, status post-bunionectomy and subluxed second toe correction are manifested by complaints of pain on walking and are classified by no more than a moderate impairment of the right foot.

2. The Veteran's allergic rhinitis is manifested by greater than 50 percent obstruction of the nasal passages on both sides without polyps.


CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for residuals of right foot injury, status post-bunionectomy and subluxed second toe correction have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017).

2. The criteria for an evaluation in excess of 10 percent for allergic rhinitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97 Diagnostic Code 6522 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Evaluation Right Foot

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4.  The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance."  Id. (quoting 38 C.F.R. § 4.40).

Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  As explained below, the Board has determined that a uniform evaluation of 10 percent is warranted for the entire period on appeal.

The Veteran is in receipt of a 10 percent evaluation for residuals of right foot injury, status post-bunionectomy and subluxed second toe correction under Diagnostic Code 5284.  The Veteran filed his increased rating claim on January 23, 2009.  Prior to February 1, 2009, the Veteran is in receipt of a temporary total evaluation for his right foot disorder under the provisions of 38 C.F.R. § 4.30.  

Diagnostic Code 5284 provides ratings for residuals of other foot injuries.  Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and, severe residuals of foot injuries are rated 30 percent disabling.  A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling.  38 C.F.R. § 4.71a.

The words "moderate," "moderately severe," and "severe" are not defined in the VA Schedule for Rating Disabilities.  Furthermore, the use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  Rather, all evidence must be evaluated in arriving at an appropriate rating that would compensate the veteran for losses such as impairment in earning capacity and functional impairment.  38 C.F.R. §§ 4.2, 4.6.

At a September 2010 VA examination, the Veteran reported being unable to walk more than a few yards.  Physical examination revealed no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing.  There was evidence of tenderness in the first MTP joint.  There was hallux valgus and a 20 degree medial toe deviation when standing.  There was no hammertoe, clawfoot, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, or atrophy.  Gait was slightly antalgic. 

At an August 2013 VA examination, there was hallux rigidus with mild or moderate symptoms.  The Veteran regularly used a cane.  X-rays revealed mild osteophytes and cyst present at the interphalangeal joint.  There was not Morton's neuroma, hammer toe, hallux valgus, clawfoot, malunion or nonunion of the tarsal or metatarsal bones, or bilateral weak foot.

At an October 2016 VA examination, the Veteran reported pain when walking.  He denied flare-ups and there was no functional loss or impairment.  There was not Morton's neuroma, hammer toe, hallux valgus, clawfoot, malunion or nonunion of the tarsal or metatarsal bones.  Physical examination revealed no objective tenderness to palpation.  The Veteran was able to wiggle all toes, he had full range of motion on both passive and active motion, without any objective evidence of pain.  There was no pain with weight bearing or with non-weight bearing.  There was a 20 degree medial deviation of the right big toe, consistent with previous findings and stable.  The examiner noted that there was no affect.  Weight bearing was not chronically compromised.  The Veteran wore custom shoes and inserts.  There was not pain, weakness, fatigability, or incoordination that limited functional ability.

In addition to VA examinations, the Board has reviewed VA and private treatment records as well as lay statements.

Based on the lay and medical evidence of record, the Board finds that the Veteran's residuals of right foot injury, status post-bunionectomy and subluxed second toe correction has manifested in moderate symptoms, more closely approximating the current 10 percent evaluation.  Symptoms do not more nearly approximate the level of severity contemplated by a 20 percent rating, as at no point during the period on appeal has the evidence shown manifestations of a moderately severe foot injury.  The Board notes the Veteran's contentions regarding his right foot pain exacerbated by walking.  The Veteran is competent to testify to such lay observable symptomatology.  Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation.  In considering, which disability evaluation 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.  Based on the evidence of record, a 10 percent evaluation is warranted for the entire period on appeal for the right foot disability. 

In order to warrant a higher 20 percent rating, there must be a moderately severe foot injury.  In this case, however, there has not been a moderately severe injury of the right foot.  The Board notes that the record indicates limitations on the Veteran's ability to walk and he has at times required a cane.  However, VA examination, including the most recent October 2016 examination, indicate that there is no objective evidence of pain or any limitation of motion or pain on weight bearing or non-weight bearing.  A thorough review of the record indicates that the Veteran's right foot disability is moderate, and does not rise to the level of moderately severe warranting a 20 percent rating.  To the extent that the Veteran requires use of a cane to ambulate, the record does not indicate that the use of a cane is the result of this specific disability.  While the Veteran reports ongoing pain, discomfort and difficulty walking, the medical evidence does not show moderately severe symptoms.  

With respect to other potential Diagnostic Codes, the Board notes the varying diagnoses of hallux valgus and hallux rigidus in the record.  Notably, evaluations in excess of 10 percent under these criteria are not available.  As a result, they would not benefit the Veteran.  No additional higher or alternative ratings under different Diagnostic Codes for the right foot can be applied during this period, as none of the remaining Diagnostic Codes are applicable.  38 C.F.R. § 4.71a, 5276-5284.  The evidence does not indicate weak foot, claw foot, hammertoes, or malunion or nonunion disorders involving the foot.  See 38 C.F.R. § 4.71a, Diagnostic Codes, 5276-84.

All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The preponderance of the evidence is against an evaluation in excess of 10 percent for the Veteran's service-connected 
residuals of right foot injury, status post-bunionectomy and subluxed second toe correction.  As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.  For this reason, the claim is denied.

III. Increased Evaluation Rhinitis

The Veteran's allergic rhinitis is currently assigned a 10 percent evaluation under Diagnostic Code 6522.  The Veteran filed his increased rating claim on January 23, 2009.

As explained below, the Board has determined that a uniform evaluation of 10 percent is warranted for the entire period on appeal.  See Hart, supra; Fenderson, supra.  

Diagnostic Code 6522, allergic or vasomotor rhinitis, provides a 10 percent rating without polyps, but with greater than 50 percent obstruction of the nasal passages on both sides, or complete obstruction on one side.  A 30 percent rating is provided with polyps.  See 38 C.F.R. § 4.97.

At a September 2010 VA examination, the Veteran reported green-yellow nasal rhinorrhea, sinus pressure/pain, intermittent nasal congestions, and frontal headaches in the morning.  He reported daily clear rhinorrhea after the morning.  There was no functional impairment.  Physical examination revealed septum midline with no inferior turbinate hypertrophy or nasal polyps visualized on anterior rhinoscopy.  There was 0 percent obstruction of the nasal passageways.  

At an August 2013 VA examination, the Veteran reported severe allergic rhinitis and symptoms including red watery eyes.  The Veteran used oral and nasal allergy medication, but reported avoiding going outside.  Examination revealed greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis.  There was not complete obstruction on one side.  There was permanent hypertrophy of the nasal turbinates.  There were no nasal polyps or no granulomatous conditions, including rhinoscleroma, Wegener's granulomatosis, or lethal midline granuloma.  

At an October 2016 VA examination, the Veteran reported daily year-round symptoms of congestion, rhinorrhea, post nasal drip, and sneezing.  The Veteran used nasal spray daily.  Examination revealed that there was not greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, there was not complete obstruction of either side, there was not permanent hypertrophy of the nasal turbinates, and there were no nasal polyps.  There was no granulomatous conditions, including rhinoscleroma, Wegener's granulomatosis, or lethal midline granuloma.  

The Board has reviewed additional treatment records and the Veteran's lay statements.

In light of the above, the Board finds that the preponderance of the evidence is against finding that the criteria for an evaluation in excess of 10 percent under Diagnostic Code 6522 have been met.  As shown above, there is no objective evidence of nasal polyps.  Therefore, the criteria for an evaluation in excess of 10 percent under Diagnostic Code 6522 are not met or approximated.

The Board has considered whether entitlement to a higher evaluation would be warranted under any other Diagnostic code.  An evaluation in excess of 10 percent would not be warranted under Diagnostic Code 6523 as there is no evidence of rhinoscleroma.  Similarly, an evaluation in excess of 10 percent would not be warranted under Diagnostic Code 6524 as there is no evidence of granulomatous rhinitis, including Wegener's granulomatosis or lethal midline granuloma.  See 38 C.F.R. § 4.97.  Thus, no higher rating would be warranted under any other code.

All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected allergic rhinitis.  As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.  For this reason, the claim is denied.
ORDER

Entitlement to an evaluation in excess of 10 percent for residuals of right foot injury, status post-bunionectomy and subluxed second toe correction is denied.

Entitlement to an evaluation in excess of 10 percent for allergic rhinitis is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs