Citation Nr: 18145918 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-19 961A DATE: October 30, 2018 ORDER Entitlement to an evaluation of 30 percent, but no higher, for left foot metatarsalgia with callus formation, absence of third metatarsal phalangeal joint (left foot disability), is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his left foot disability manifests in severe impairment resulting from pain and limited mobility. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 30 percent, but no higher, for a left foot disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5284 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1955 to September 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA). Entitlement to an evaluation in excess of 10 percent for a left foot disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. As an initial matter, the Board notes that remand for a new VA examination is unnecessary in this case. Even if the Board found that the VA examinations of record did not adequately address the criteria in 38 C.F.R. §§ 4.40, 4.45, and 4.49, DeLuca v. Brown, 8 Vet. App. 202 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), further development is unnecessary, because an estimate of the additional range of motion loss due to pain, excess fatigability, incoordination, or weakened movement during flare-ups or after repetitive use over time would have little probative value. Specifically, the Veteran is being granted the highest rating possible for a unilateral foot disability amongst all of the Codes applicable to the feet short of amputation or complete loss of use of the foot, which the record does not reflect and the Veteran has not alleged. See 38 C.F.R. § 4.71a, Codes 5276–84. As such, remanding to determine the extent of the Veteran’s symptoms would only delay the claim, with no benefit to the Veteran, because there is no reasonable possibility that doing so will result in a higher evaluation. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) (“A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.”). For background purposes, the Veteran underwent three surgeries in a VA hospital, each resulting in different injuries to the Veteran’s second, third, and fourth metatarsals, but after the third surgery, the Veteran’s primary injury was to his third metatarsal. See, e.g., October 2008 Board hearing. He is service-connected pursuant to 38 U.S.C. § 1151 for disability resulting from the VA surgeries. The Board notes that throughout the appeal period, the Veteran has also been diagnosed with left foot arthritis that has been opined as related to the VA surgeries at issue. See March 2009 VA examination. The Veteran underwent numerous VA examinations for this specific issue, and no examiner has questioned whether the Veteran’s reported symptoms are related to his service-connected disability; as a result, the Board will assume that all reported symptoms pertain to the present issue. In April 1996, the Veteran reported that he had discomfort whenever he walked or stood on his left foot, no matter the shoes he was wearing. He had to curtail or completely quit many of the physical activities that he previously engaged in. His foot would get continually worse with continued activity. See April 1996 correspondence. In August 1999, a VA physician opined the Veteran had a large tyloma in the third metatarsal, and would continue to have pain, discomfort, and callous formation with any type of ambulation regardless of whether he worse orthopedic shoes or not. See August 1999 VA treatment records. During a July 2000 VA examination, the Veteran reported he had pain after being on his feet for more than one-half hour. The examiner did not otherwise opine on the severity of the Veteran’s disability. See July 2000 VA examination. In October 2008, the Veteran testified that his pain and discomfort is primarily located on the third metatarsal and that his pain is constant. He could not walk long distances and his foot would get a little sore all over. See October 2008 Board hearing. During a March 2009 VA examination, the Veteran reported that it was very uncomfortable to walk unless he was in sneakers. He had pain while standing and walking. He would develop calluses over time, which he would then shave down with acid plasters and a pocket knife. The examiner opined that there was objective evidence of tenderness and abnormal weight-bearing. Further, the August 1999 VA physician’s report: clearly demonstrates significant osseous abnormality about the metatarsal heads 2, 3, [and] 4…and is expected to give him significant discomfort. The severity of this would keep him from staying on his feet for extended periods of time. [It] is impressive that he can do a 5 mile run (he walks it) but he does say that his foot hurts him a lot when it is over...This condition as is[] would be disabling from doing many activities certainly without special modification to inserts or shoes. See March 2009 VA examination. During a November 2013 VA examination, the Veteran reported he had pain with weight-bearing and tenderness to palpation. See November 2013 VA examination. In December 2013, the Veteran reported that his left foot was getting worse and uncomfortable to walk on. He could not put much pressure on it, otherwise he would feel severe pain. He also had to use callus cushions and callus removers. See December 2013 Report of General Information. During a January 2015 VA examination, the Veteran reported that he had pain with weight-bearing and tenderness to palpation. There was pain whenever he walked on his foot; the more he walked the more severe his pain. He had a flare-up while clearing snow after a big snowstorm that was “agony.” He had to walk on the side of his foot. The examiner opined that the Veteran had pain on use of his foot, pain on manipulation of his foot, pain accentuated on manipulation, swelling on use, and characteristic callouses. See January 2015 VA examination. In June 2015, the Veteran reported that his pain increases the longer he is on his feet until the pain becomes unbearable and he must get off his feet. He had to walk on the side of his foot when he was walking on a hard surface bare-footed. See June 2015 substantive appeal. During an April 2018 VA examination, the Veteran reported that he has had continuous pain at his third metatarsal head since his surgeries in the 1990s and continued to have callous formation. If he was weight-bearing for 15 to 30 minutes, he would have to rest for a few minutes for pain reduction. See April 2018 VA examination. In July 2018, the Veteran reported that his foot hurt whenever he put any weight on it or when he touched it. The function of his foot decreased as the day continued and he had to turn his foot to the side to walk on a hard surface. His foot would also swell. See July 2018 correspondence. The Veteran is currently rated by analogy pursuant to Code 5280, for unilateral hallux valgus. Pursuant to that Code, a 10 percent rating is assigned when the Veteran’s hallux valgus is operated with resection of the metatarsal head or when it is severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. Upon review of the record, the Board finds that the Veteran’s left foot disability is more appropriately rated pursuant to Code 5284, for other foot injuries. Although the Veteran is service-connected for left foot metatarsalgia and there is a specific code for that disability, Code 5279, the Board finds that Code is not the most appropriate to rate the Veteran because he is also service-connected for the absence of his third metatarsal phalangeal joint, which does not have its own specific Code. Thus, the Board finds that rating the Veteran pursuant to the Code for other foot injuries is most appropriate. Pursuant to Code 5284, a 10 percent rating is assigned for moderate foot injuries; a 20 percent rating is assigned for moderately severe foot injuries; and a 30 percent rating is assigned for severe foot injuries. With actual loss of use of the foot, a 40 percent rating is assigned. Id. The words “mild,” “moderate,” and “severe” as used in various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. After resolving reasonable doubt in the Veteran’s favor, the Board finds that his left foot disability has manifested in severe impairment. The Board attaches significant probative weight to the March 2009 VA examiner’s opinion, using an August 1999 VA physician report, that the Veteran’s left foot injury is severe and “significant,” along with having increased impacts on his functional abilities. The Veteran’s reports of his constant foot pain and difficulty walking or standing have been consistent throughout the appeal period and, while he often reported that his disability worsened, his reported symptoms remained largely the same. Thus, the Board finds that a staged rating would be inappropriate. The presence of pain during weight-bearing appears to be severe in nature, significantly hindering the use of his foot. Because the Veteran’s left foot disability is considered severe, a rating of 30 percent is warranted. CONTINUED ON NEXT PAGE As previously discussed, the Veteran is now assigned the highest rating possible for a unilateral foot injury pursuant to the Codes applicable to the feet. The Board has reviewed all potentially applicable Codes. The only way the Veteran could be assigned a higher rating if he had complete loss of use of his foot pursuant to Codes 5284 or 5167, or amputation of his foot pursuant to Codes 5165 or 5166. The record does not reflect and the Veteran has not stated that he has complete loss of use of his foot or that his foot has been amputated. Thus, the Board finds that the Veteran is appropriately rated pursuant to Code 5284 and a rating in excess of 30 percent is not warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel