Citation Nr: 18154344 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-55 207 DATE: November 29, 2018 ORDER Entitlement to an earlier effective date of September 16, 2015, for a 20 percent rating for right foot osteoarthritis is granted. REMANDED Entitlement to a disability rating greater than 20 percent for right foot osteoarthritis is remanded. FINDINGS OF FACT 1. The record evidence shows that, on VA podiatry consult on September 16, 2015, the Veteran’s service-connected right foot osteoarthritis resulted in a very painful right foot, right foot guarding, pain on palpation of a soft tissue mass on the right foot, a painful range of motion, an antalgic gait, and x-ray evidence of osteoarthritis in multiple joints of the right foot; this is the earliest factually ascertainable date that an increase in disability occurred. 2. The Veteran’s informal increased rating claim for right foot osteoarthritis was included in a letter dated on March 14, 2016, and date-stamped as electronically received by the Agency of Original Jurisdiction (AOJ) on March 18, 2016. 3. The Veteran’s formal increased rating claim for right foot osteoarthritis was included on a VA Form 21-256EZ which was dated on April 14, 2016, and date-stamped as received by the AOJ on April 18, 2016. 4. In the currently appealed rating decision dated on July 18, 2016, the AOJ assigned a higher 20 percent rating effective April 18, 2016, for the Veteran’s service-connected right foot osteoarthritis; the AOJ concluded that this was the appropriate effective date for this rating because it was the date that VA received the Veteran’s formal increased rating claim. 5. In statements on his VA Form 21-0958, dated on August 3, 2016, and date-stamped as received by the AOJ on August 4, 2016, the Veteran disagreed with the effective date assigned for the 20 percent rating for his service-connected right foot osteoarthritis. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of September 16, 2015, for a 20 percent rating for right foot osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1976 to March 1977, May 1980 to April 1983, and from January to December 1990 in the U.S. Army. He also had additional unverified U.S. Army Reserve service. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the AOJ in July 2016. Because the Veteran currently lives outside of the United States, and because all claims involving Veterans living outside of the United States are adjudicated by the RO in Pittsburgh, Pennsylvania, that facility has jurisdiction in this appeal. The Board finally notes that VA previously misspelled his first name in certain correspondence issued to him prior to this decision. The Board apologizes for VA’s error and advises the Veteran that it has attempted to correct this error in VA’s electronic records systems, to the extent possible. Entitlement to an earlier effective date than April 18, 2016, for a 20 percent rating for right foot osteoarthritis The Board finds that the evidence supports assigning an earlier effective date of September 16, 2015, for a 20 percent rating for osteoarthritis of the right foot. The Veteran essentially contends that the appropriate effective date for the 20 percent rating for his service-connected osteoarthritis of the right foot is August 4, 2006, the date that VA awarded him service connection for this disability. The Board notes initially that the AOJ granted service connection for right foot osteoarthritis, assigning a 10 percent rating effective August 14, 2006, in a May 2011 rating decision which was not appealed and became final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). He also did not submit any relevant evidence or argument within 1 year of the May 2011 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). To the extent that the Veteran is attempting to disturb the finality of the May 2011 rating decision by filing his currently appealed earlier effective date claim, the Board finds that the claim must be dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting a collateral attack on a final rating action by filing a freestanding earlier effective date claim). As noted above, a review of the record evidence shows that, on VA podiatry consult on September 16, 2015, the Veteran complained of a long history of right foot pain which he described as “shooting, sharp pain upon ambulation.” He rated his pain as 8/10 on a pain scale (with 10/10 being the worst imaginable pain). Physical examination of the right foot showed guarding due to a “very painful right foot,” pain on palpation of a soft tissue mass on the dorsal lateral aspect of the right foot, pain on dorsiflexion and plantar flexion, mild pain along the medial band of the plantar fascia, and swelling. The Veteran also had an antalgic gait. X-rays showed a progression of osteoarthritis in the first metatarsal phalangeal, sesamoid metatarsal, and first interphalangeal joints, fourth and fifth metatarsal phalangeal joints, and proximal interphalangeal joints of the second through fifth toes of the right foot. The diagnosis was a soft tissue mass of the right foot. The Veteran’s informal increased rating claim for right foot osteoarthritis was included in a letter dated on March 14, 2016, and date-stamped as electronically received by the AOJ on March 18, 2016. The Veteran specifically asserted in this letter that “my right foot has been deteriorating and I need a higher percentage on my disability benefits for my right foot.” The Veteran’s formal increased rating claim for right foot osteoarthritis was included on a VA Form 21-256EZ which was dated on April 14, 2016, and date-stamped as received by the AOJ on April 18, 2016. On VA foot conditions Disability Benefits Questionnaire (DBQ) on June 21, 2016, the Veteran’s complaints included increased right foot pain and right foot swelling after walking and standing for a long time. He reported losing movement in 2 of the toes on the right foot and used a cane for ambulation. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed moderately severe osteoarthritis of the right foot which chronically compromised weightbearing and an antalgic gait to the right foot with a cane used for support. X-rays were unchanged from September 2015. The diagnosis was degenerative arthritis of the right foot. In the currently appealed rating decision dated on July 18, 2016, the AOJ assigned a 20 percent rating effective April 18, 2016, for the Veteran’s service-connected right foot osteoarthritis. The AOJ essentially concluded that a higher 20 percent rating was warranted based on the results of the Veteran’s recent VA examination. The AOJ also concluded that April 18, 2016, was the appropriate effective date for a 20 percent rating for the Veteran’s service-connected right foot osteoarthritis because that was the date that VA received his formal increased rating claim. In statements on his VA Form 21-0958, dated on August 3, 2016, and date-stamped as received by the AOJ on August 4, 2016, the Veteran disagreed with the effective date assigned for the 20 percent rating for his service-connected right foot osteoarthritis. The regulation governing effective dates for increased ratings is clear – the effective date is the earliest date when it is factually ascertainable based on all evidence of record that an increase in disability occurred if a complete claim or intent to file a claim is received within 1 year from this date or the date of receipt of the claim. See 38 C.F.R. § 3.400(o)(2). In this case, the earliest factually ascertainable date that an increase in disability occurred is September 16, 2015, the date of a VA podiatry consult which showed that the Veteran’s service-connected right foot osteoarthritis had worsened and resulted in moderately severe osteoarthritis. VA subsequently received the Veteran’s informal increased rating claim for right foot osteoarthritis on March 18, 2016, followed by his formal increased rating claim (VA Form 21-256EZ) on April 18, 2016. The Board has reviewed the record evidence dated within 1 year of March 18, 2016, and finds that entitlement to a 20 percent rating for right foot osteoarthritis arose on September 16, 2015, the date when a VA podiatry consult showed that this disability had worsened and resulted in moderately severe osteoarthritis (i.e., a 20 percent rating under DC 5284). See also 38 C.F.R. § 4.71a, DC 5284 (2017). In other words, although the Veteran’s informal increased rating claim for right foot osteoarthritis was not received by the AOJ until March 18, 2016, entitlement to a higher 20 percent rating for this disability arose on September 16, 2015, the earliest factually ascertainable date when an increase in disability occurred within 1 year of the date of this claim. The record evidence otherwise does not demonstrate that entitlement to a 20 percent rating for the Veteran’s service-connected right foot osteoarthritis arose prior to September 16, 2015. In summary, the Board finds that the criteria for an earlier effective date of September 16, 2015, for a 20 percent rating for right foot osteoarthritis have been met. REASONS FOR REMAND Entitlement to a disability rating greater than 20 percent for right foot osteoarthritis is remanded. The Veteran also contends that his service-connected right foot osteoarthritis is more disabling than currently evaluated. The Board acknowledges that the Veteran’s service-connected right foot osteoarthritis was examined most recently in June 2016. Following the Veteran’s VA foot conditions DBQ in June 2016, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the right foot, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran’s VA foot conditions DBQ in June 2016 did not comply with Correia. For example, there is no indication in this DBQ whether the right foot range of motion obtained at that examination is active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected right foot osteoarthritis. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The matter is REMANDED for the following action: 1. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected right foot osteoarthritis. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel