Citation Nr: 18144917 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-38 226 DATE: October 25, 2018 ORDER An initial compensable rating for right leg shortening is denied. FINDING OF FACT The Veteran’s right leg is shortened by no more than one-half (0.5) inch. CONCLUSION OF LAW The criteria for an initial compensable rating for right leg shortening are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.40, 4.44, 4.71a Diagnostic Code 5275 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1970 to January 1974 with additional inactive service in the New York Air National Guard. REFERRED The issue of entitlement to a right foot disability, to include metatarsalgia and Freiberg’s disease, including as secondary to the Veteran’s other service-connected disabilities affecting the right lower extremity was raised in his September 2013 notice of disagreement, and October 2015 substantive appeal, among other documents of record, but has not yet been adjudicated. This issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. An initial compensable rating for right leg shortening 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. All applicable rating criteria and regulations must be considered. 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 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. In this case, the Veteran seeks a higher initial rating for his service-connected right leg shortening, currently rated as zero percent, or noncompensably disabling. Of note, in the Veteran’s October 2015 substantive appeal, he stated that he based his present appeal not on errors in the percentage assigned for the leg length discrepancy, but for the “related medical disabilities created by the leg length discrepancy” primarily related as matters pertaining to the right hip and right foot. However, as a procedural matter, those matters are not the issues currently perfected for appeal to the Board. The right foot issue raised is a secondary service connection claim, and the Board has referred it for proper adjudication by the AOJ. Other mobility issues which the Veteran discusses, including the right hip and right ankle issues addressed in October 2015, may be seeking a higher disability rating, however separate service connection is already in effect for those disabilities which are distinct from the leg shortening issue addressed here. If the Veteran seeks a higher rating for those other service-connected disabilities, he must file the appropriate form to state such claims. At present, the only appeal properly before the Board for appellate consideration is the rating of the right leg length discrepancy. Diagnostic Code 5275 states that a 10 percent rating is warranted for shortening of 1.25 to 2 inches. Lower extremity shortening is measured by comparing both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Higher ratings are available for greater lengths of shortening. 38 C.F.R. § 4.71a, Diagnostic Code 5275. (Continued on the next page)   In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Here, the Veteran’s right leg is shown to be shorter than the left by 0.5 or one-half inch. VA examination, November 2012. The discrepancy must by at least 1.25 inches to warrant a compensable rating. As it is less than 1.25 inches, a zero percent rating is assigned. There is no evidence that warrants a higher rating for right leg shortening on any other grounds. The preponderance of the evidence is against an increased rating, and the claim must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald