Citation Nr: 18152320 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 12-02 021 DATE: November 21, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for a right foot disability from August 31, 2016 is denied. Entitlement to a disability rating in excess of 20 percent, and no higher, from July 1, 2013 to August 31, 2016 is granted. Entitlement to a disability rating in excess of 10 percent prior to July 1, 2013 is denied. Entitlement to a disability rating in excess of 30 percent on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b), is denied. FINDINGS OF FACT 1. The balance of probative evidence does not show loss of use of the Veteran’s right foot. 2. The balance of probative evidence suggests a disability picture that is productive of severe symptoms for the period of July 1, 2013 through August 31, 2016. 3. The balance of probative evidence does not suggest a disability picture that is productive of greater than moderate symptoms for the period prior to July 1, 2013. 4. The symptoms associated with the Veteran’s service-connected foot disability are contemplated by the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for a right foot disability from August 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). 2. The criteria for entitlement to a disability rating in excess of 20 percent from July 1, 2013 to August 31, 2016 have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). 3. The criteria for entitlement to a disability rating in excess of 10 percent prior to July 1, 2013 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). 4. The criteria for an extraschedular disability rating for a service-connected foot disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 2002 to January 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran is service connected for a right foot disability, which is currently evaluated as 10 percent disabling prior to July 1, 2013; 20 percent from July 1, 2013 to August 31, 2016; and 30 percent thereafter. The Board notes that the Veteran was assigned temporary total ratings (TTR) from May 11, 2011 through November 30, 2011; March 14, 2012 through September 30, 2012; December 6, 2012 through June 30, 2013; November 13, 2013 through March 31, 2014; October 29, 2014 through December 31, 2014, and August 24, 2015 through August 31, 2016. 38 C.F.R. § 4.30. The periods on appeal do not include the periods of TTR. In February 2017, the Board remanded the Veteran’s Appeal to the Agency of Original Jurisdiction (AOJ). The Board ordered an additional VA examination regarding the Veteran’s current foot disability and requested an opinion on the affect the Veteran’s symptoms had on his occupational and social impairment. The Board ordered the AOJ to then readjudicate the claims, and if necessary, issue a Supplemental Statement of the Case and return the outstanding claim(s) to the Board. The Board finds that there has been substantial compliance with the directives of the February 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record indicates that a further VA examination was conducted in May 2017, and the AOJ issued a Supplemental Statement of the Case in June 2018. Increased Rating Disability ratings are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic 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 is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time (“staged ratings”) based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code (DC) 5284 evaluates foot injuries. Under this diagnostic code, foot disabilities warrant a 10 percent disability rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. The words “moderate,” “moderately severe,” and “severe” are not defined in DC 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally welly served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In rendering its decisions, the Board has considered the Veteran’s complaints of pain, tenderness, and swelling, the Veteran’s reports of flare-ups, and how such symptoms correspond to functional loss. Where applicable, the benefit of the doubt rule has been applied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 1. Entitlement to a disability rating in excess of 30 percent for a right foot disability from September 1, 2016 The Veteran’s right foot disability is rated at 30 percent disabling during the period following August 31, 2016 due to severe symptoms. A higher rating would require loss of use of the foot. The Board notes that the Veteran’s appellate brief of October 11, 2018 requests consideration under DC 5167. The criteria for a 40 percent rating under DC 5284 or 5167 each require loss of use. In a September 2016 psychiatric consult, the Veteran reported that his most recent surgery had helped and that he was going to the gym and trying to walk more. In his May 2017 VA Exam, the Veteran reported that he is able to walk about one city block and stand for about five minutes. He reported wearing a boot-brace as needed. The examiner found that the disability would prevent manual labor but not other types of employment. The examiner also found that amputation and use of a prosthetic would not be preferable to the existing disability. In a November 2017 general care visit, the Veteran reported pain rated at a 4 out of 10. The physician reviewed X-ray reports and found no acute fracture or degenerative changes and noted that the Veteran’s pain was “tolerable at this point.” During a February 2018 consult, the Veteran sought custom-molded orthotics and said such inserts had helped manage pain in the past. In a July 2018 visit, the Veteran reported chronic pain rated at 3 of 10. The Board acknowledges that the Veteran has had multiple surgeries and continued complaints of symptoms. However, the probative evidence is against a finding that the Veteran has experienced a total loss of use of his right foot. He has maintained use and the evidence is against a finding that he would be equally well served by amputation and prosthetic appliance. Therefore, the claim for an increased rating for the period after August 31, 2016 is denied. 2. Entitlement to a disability rating in excess of 20 percent from July 1, 2013 through August 31, 2016 The Veteran’s disability is rated at 20 percent (moderately severe) from July 1, 2013 to August 31, 2016. A higher rating of 30 percent would require evidence of a severe disability. The Board notes that the Veteran had undergone three surgeries prior to this period, and he underwent four more procedures on his right foot during this period as well. In a September 2013 pain outpatient assessment, the Veteran reported chronic pain rated at 6 of 10. In March 2014, a physician noted that although the Veteran had progressed to weight-bearing with his right foot, he had “severe arthritis of the naviculocuneiform joint.” A June 2014 Medication Consult notes that the Veteran was experiencing “severe localized pain” and had severe osteoarthritis in his right foot. In February 2016, a VA examiner described the Veteran’s symptoms as “chronic severe pain [that] worsens with even short term weight bearing,” and noted the Veteran had “severe malunion” of tarsal or metatarsal bones. In short, during the period from July 1, 2013 to August 31, 2016 appears to be characterized by regular severe symptoms similar to those reported during the period from August 31, 2016 onward. Given that the Veteran is already rated at 30 percent for the latter period, and the symptomology during both periods presents a similarly severe disability picture, the Board finds that a rating of 30 percent is appropriate for the period from July 1, 2013 to August 31, 2016 under DC 5284. 3. Entitlement to a disability rating in excess of 10 percent prior to July 1, 2013 The Veteran has a TTR period from December 6, 2012 through July 1, 2013. Prior to this TTR, and unlike the records described above, the evidence does not present a greater than moderate disability outside the other TTR periods prior to July 1, 2013. In an October 2009 VA Exam, the Veteran described being unable to walk more than a quarter mile or stand longer than 15 minutes before requiring rest due to pain. The examiner noted objective evidence of painful motion and tenderness, but not abnormal weight bearing, weakness, or instability. The examiner found that the disability would have moderate effects on sports or exercise, but that there would be no or mild effects on other activities such as driving and daily chores. The examiner also stated that the disability would have some effect on the Veteran’s employment as a shipping clerk at the time. Following his May 2011 surgery, the Veteran reported during a primary care follow up that his foot had been doing well. Following his December 2012 surgery, a physician stated that the Veteran was “doing well, no pain, no constitutional symptoms,” and advised the Veteran he could transition to regular footwear as tolerated. In January 2013, a VA examiner concluded following a physical exam that the Veteran was able to work in at least certain light physical labor once he had healed from his December 2012 surgery. Although the associated Disability Benefits Questionnaire describes the Veteran’s disability as “moderately severe,” the examiner went on to state that the disability did not impact the Veteran’s ability to maintain employment. The Board notes that at the time of the examination, the Veteran’s described his pain as only a 2.5 to a 3, and did not require the use of a cane, crutch, or wheelchair. None of the record reflect that the Veteran had loss of pulses in the foot, he was neurovascularly intact, and he was able to bear weight. After considering all of the evidence, the Board finds that it does not demonstrate that the Veteran’s disability picture is productive of more than a moderate foot disability during the claimed period. Therefore, prior to July 1, 2013, the Veteran’s foot disability manifested as no greater than 10 percent disabling under DC 5284. 4. Entitlement to a disability rating in excess of 30 percent on an extraschedular basis The Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for the foot disability on appeal. An extraschedular disability rating is warranted when there is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In July 2017, the Director of the Compensation Service at the Appeals Management Center (Director) issued a memorandum of “Administrative Review -- Extra Schedular Consideration under 38 C.F.R. 3.321(b)(1).” This memorandum explains that the Director found that the “symptoms of the Veteran’s right foot disability, specifically foot pain, have been taken into account and are considered in the application of the relevant criteria in the rating schedule.” The Director found the Veteran’s level of functional impairment was consistent with the assigned evaluations, and that grant of an extra-schedular evaluation was not warranted. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may assign extraschedular ratings when reviewing a denial of an extraschedular rating by the Director, as in this case. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Director’s initial determination as to an extraschedular evaluation is not evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Director’s extraschedular decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. (Continued on the next page)   The Board has reviewed the evidence of record and finds that it does not show such an exceptional disability picture as to be outside the scope of impairment contemplated by the schedular rating criteria. The Veteran’s chronic foot pain is contemplated by the rating criteria, which encompass symptoms from moderate to complete loss of use of the foot. Thus, symptoms such as pain, tenderness, and swelling are contemplated in the criteria. Therefore, no extraschedular rating is warranted. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel