Citation Nr: 18147245 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-14 194 DATE: November 2, 2018 ORDER Entitlement to a disability rating in excess of 10 percent prior to April 22, 2017 and in excess of 30 percent thereafter for hammertoes, status post hammertoe surgery with painful scars of the second, fourth, and fifth toes and plantar fasciitis of the right foot (previously rated as scars and residuals of the right foot status post hammertoe surgery, all toes except the great toe) is denied. Entitlement to a rating evaluation in excess of 10 percent prior to April 22, 2017 and in excess of 30 percent thereafter for hammertoes, status post hammertoe surgery with painful scars of the second, fourth, and fifth toes and plantar fasciitis of the left foot (previously rated as scars and residuals of the left foot status post hammertoe surgery, all toes except the great toe) is denied. FINDINGS OF FACT 1. Prior to April 22, 2017, the Veteran’s bilateral foot disability was manifested by bilateral hammertoes of the second, third, fourth, and fifth digits and hammertoe surgical scars, which were not painful or unstable, and did not exceed an area of 39 square centimeters with symptomatology consistent with a moderate but not a moderately severe bilateral foot injury. 2. From April 22, 2017 the Veteran’s bilateral foot disability has been manifested by painful hammertoe scars bilaterally of the second, fourth, and fifth toes, and plantar fasciitis with symptomatology consistent with a severe bilateral foot injury but inconsistent with the actual loss of use of either foot. CONCLUSIONS OF LAW 1. Prior to April 22, 2017 the criteria for a rating in excess of 10 percent for a right foot disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5282 (2018). 2. Prior to April 22, 2017 the criteria for a rating in excess of 10 percent for a left foot disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5282 (2018). 3. From April 22, 2017 the criteria for a rating in excess of 30 percent for a right foot disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5284 (2018). 4. From April 22, 2017 the criteria for a rating in excess of 30 percent for a right foot disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5284 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to December 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board remanded the case for additional development. Thereafter, in May 2017, the RO issued another rating decision addressing the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation 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. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the United States Court of Appeals for Veterans Claims (Court) held that, for disabilities rated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court 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, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact that are diseased. Flexion elicits such manifestations. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Diagnostic Code 5284 provides ratings for “Foot injuries, other,” whereas Diagnostic Codes 5003 and 5282 provide ratings for hammertoes, metatarsalgia, and degenerative arthritis, respectively. As will be discussed, the Veteran had a diagnosis of these disabilities bilaterally prior to April 22, 2017. Thus, prior to August 22, 2017 a rating under Diagnostic Code 5284 is not applicable, as there are specific Diagnostic Codes for the Veteran’s diagnosed and service-connected foot disabilities. Musculoskeletal disabilities of the foot are rated under Diagnostic Codes 5276 through 5284. As an initial matter, the Board observes that the Veteran has no foot disability characterized by weak foot, claw foot, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, the Diagnostic Codes pertaining to those disabilities are not applicable in the instant case. See 38 C.F.R. § 4.71a, DCs 5277, 5278, 5281, 5283 (2018). Under Diagnostic Code 5003, degenerative or traumatic arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under Diagnostic Code 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.45, “multiple involvements of the interphalangeal, metatarsal and tarsal joints of the lower extremities” are considered “groups of minor joints” and as it is present bilaterally, the Veteran has two or more “groups.” Under Diagnostic Code 5276, a noncompensable rating is assigned for mild flatfoot with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Id. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability. Id. A 50 percent rating is awarded where bilateral flatfeet are manifested by pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achillis on manipulation, that is not improved by orthopedic shoes or appliances. Id. The words “mild,” “moderate,” “marked,” “severe,” and “pronounced” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Diagnostic Code 5279 provides a 10 percent rating for metatarsalgia, anterior (Morton’s disease) unilateral or bilateral. Diagnostic Code 5282 provides ratings for hammertoes. A zero percent rating is awarded for single hammertoes, and a ten percent rating is awarded if all toes are hammertoes, unilateral without claw foot. 38 C.F.R. § 4.71a. 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 DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated as 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804 (2018). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. Id. at Note 3. The evidence shows the Veteran has a number of foot conditions, which he has reported cause him pain. However, the evidence does not show that the Veteran has lost use of either foot. Additionally, and as further noted below, the VA examiners throughout the appeal period have consistently found that the Veteran’s bilateral foot disabilities do not cause functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Entitlement to a disability rating in excess of 10 percent prior to April 22, 2017, and in excess of 30 percent thereafter for each right foot and left foot disorder rated as hammertoes, status post hammertoe surgery with painful scars of the second, fourth, and fifth toes and plantar fasciitis of the right foot and the left foot (previously rated as scars and residuals of the right foot and the left foot status post hammertoe surgery, all toes except the great toe). The Veteran contends that he is entitled to higher ratings for his service-connected bilateral foot disorders. He has been assigned a 10 percent rating for each foot disorder prior to April 22, 2017, and a 30 percent rating thereafter. In April 2013, the Veteran underwent a VA examination of his bilateral foot disability. The VA examiner noted a history of hammertoe surgeries on both feet during active duty. Diagnoses pertaining to the Veteran’s right and left foot disorder were metatarsalgia with hammertoes bilaterally on the second, third and fourth toe. Hammertoe surgical scars were noted however they were not found to be painful, unstable, or greater than 6 inches in the affected area. The VA examiner also stated that the Veteran’s second and third toe were still hammered bilaterally, the second toe did not purchase the ground bilaterally and a callous was present under the second and third metatarsal bilaterally. Imaging studies were performed and documented bilateral degenerative arthritis. The Veteran reported that he experienced aches and pains on the top of the third toe, the bottom of the third metatarsal and tenderness on the tip of the third and fourth toes of both feet. While he did identify pain in the dorsal foot while standing and walking, he did not require an assistive device. The VA examiner opined that the Veteran’s diagnosis had not changed and his bilateral foot condition did not impact his ability to work. The Veteran’s bilateral foot disability was re-evaluated again at an April 2017 VA scars examination. He was found to have painful scars on the dorsal surfaces his second, fourth and fifth toe. On the Veteran’s right foot, the scars measured 3 centimeters by 0.5 centimeters, 2.5 centimeters by 0.25 centimeters, and 2.5 centimeters by 0.25 centimeters respectively. On his left foot the scars measured 6 centimeters by 0.5 centimeters, 3 centimeters by 0.25 centimeters, and 3 centimeters by 0.25 centimeters respectively. Due to his painful scars, the Veteran reported that he was unable to wear shoes except for flip-flops. He was unable to stand and walk for any period of time and had poor balance when standing. The VA examiner opined that this impacted his ability to work. The Veteran’s bilateral foot disability was further reevaluated at an April 2017 VA foot conditions examination. His bilateral foot disability was diagnosed as bilateral plantar fasciitis, hammertoes, and residuals from hammertoe surgery. The Veteran experienced pain in the arches of the feet and pain on the dorsum of the feet and in the region of the scars at the tops of his toes. The VA examiner opined that the Veteran’s bilateral foot condition had progressed with cramping and pain on the tops of the feet radiating into the ankles. The Veteran reported that his feet hurt more when they were on cold ground or there was cold weather outside. Further, he reported that the pain in his feet impaired his ability to wear shoes and affected his balance. The April 2017 VA examiner also found that the Veteran had bilateral pes planus (flat feet). As a result, he experienced pain on use and manipulation of both feet. The VA examiner also noted that in addition to flat feet, the Veteran’s hammertoe deformity further altered weightbearing because he did not want to put weight on his toes. The VA examiner indicated that because of his bilateral foot disorder, the Veteran experienced excess fatigability, pain on movement, pain on weight bearing, swelling deformity, instability of station, disturbance of locomotion, interference with standing, and lack of endurance, all bilaterally. It was also noted the Veteran required a cane for stability when standing or walking. The VA examiner opined that the Veteran was severely impaired regarding his balance when standing or walking for prolonged periods of time and that his ability to work was severely impacted. The Veteran’s VA medical records document that prior to April 2017, he required regular foot care as a result of poorly controlled diabetes mellitus. His bilateral foot examinations indicated that although he had some complaints of cramping and aching his extremities were free from edema, the range of motion of his joints was normal and he had well healed dorsal scars on both his right and left foot. See e.g., New Orleans VA Medical Center (VAMC), June 2013 and Pensacola VAMC, December 2014. In February 2015, the Veteran reported that he had experienced burning of his feet for four months. See Pensacola VAMC, February 2015. Treatment records, however, note the Veteran was homeless, non-compliant with medication and suffered from neuropathy and hyperthyroidism. A bilateral foot examination in August 2016 documented no edema, no compromised foot skin and no loss of protective sensation. There is no indication in the VA treatment records that a cane has been prescribed or obtained as a result of the Veteran’s service-connected bilateral foot disorder. The Board also notes that the Veteran did not respond to inquiries regarding his private and VA medical treatment subsequent to January 2016. In light of the foregoing evidence, the Board finds that prior to April 22, 2017 a rating in excess of 10 percent for scars and residuals of both the right foot and the left foot status post hammertoe surgery of all toes except the great toe, is not warranted. The Board also finds that from April 22, 2017 a rating in excess of 30 percent for hammertoes, status post hammertoe surgery with painful scars of the second, fourth, and fifth toes and plantar fasciitis of the right foot and the left foot is not warranted. Bilateral Foot Disability-Prior to April 22, 2017 Prior to April 22, 2017 the Veteran’s bilateral foot disability was rated under, DC 5282. Under this Diagnostic Code, a rating of 10 percent is the highest compensable rating for hammertoes of all toes, unilateral without claw foot. The Board considered whether an increased disability rating would be appropriate under alternative DC provisions. While the Veteran had five or more scars, prior to April 22, 2017, he never reported that any were painful. They were also not found to be unstable on medical examination. DC 7804, therefore, is inapplicable. Diagnostic testing during the April 2013 VA examination revealed degenerative arthritis in both feet. However, there was no complaint or finding that prior to April 22, 2017, the Veteran experienced loss of range of motion due to arthritis. See Burton, 25 Vet. App. at 1. Further there was no evidence of degenerative arthritis documented in the Veteran’s medical treatment records or the April 2017 VA examination. Accordingly, the Board finds that in light of the foregoing and absent evidence of limitation of motion and occasional incapacitating exacerbations, that a separate rating is not warranted under DC 5003. The Board considered DC 5284, evaluating “foot injuries, other”. In Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court held that to rate a Veteran’s service-connected foot disability under DC 5284, when it was specifically provided for in the schedular rating criteria, would ignore the plain meaning of the term “other,” and would make the remaining eight foot-related Diagnostic Codes redundant. Accordingly, prior to April 22, 2017, DC 5284 was not applicable because the Veteran's bilateral foot disability diagnosed as bilateral hammertoes was specifically provided for in the schedular rating criteria. See 38 C.F.R. § 4.71a, DC 5282. Bilateral Foot Disability- From April 22, 2017 From April 22, 2017, the Veteran’s diagnoses of record are bilateral pes planus, bilateral hammertoes of the second, fourth and fifth toes with painful hammertoe scars bilaterally and bilateral plantar fasciitis; these have rated separately at 30 percent under DC 5284. Specifically, the RO referred to the Board’s January 2017 remand in determining whether an evaluation under DC 5284 supported a higher disability under this code. The Board finds a rating in excess of 30 percent for the Veteran’s bilateral foot disability is not warranted. The April 2017 VA examination documents that the Veteran’s bilateral foot disability manifests in symptoms which include impaired balance, pain bilaterally in the arches of his feet due to plantar fasciitis, and edema bilaterally. While the Board notes that the Veteran requires a cane to assist him with mobility he has not alleged nor has it been concluded by any medical examiners that his service-connected bilateral foot disability is consistent with the actual loss of his foot warranting a 40 percent rating under DC 5804. In evaluating whether other diagnostic codes might apply to the Veteran’s bilateral foot disability, the Board notes that there are no other diagnostic codes for the feet that would afford the Veteran a higher rating. In this regard, both DC 5276 (acquired flatfoot) and DC 5278 (acquired claw foot (pes cavus)) list a 50 percent rating. However, this 50 percent is awarded bilaterally. Therefore, the 30 percent ratings assigned for each of the Veteran’s right and left foot result in a higher combined rating. Moreover, assigning separate ratings under DC 5276 or DC 7804 is not permissible because it would constitute pyramiding by compensating the Veteran twice for the same symptomatology; in this case, painful motion of the feet. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel