Citation Nr: 18155965 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-00 807 DATE: December 6, 2018 ORDER Entitlement to a 10 percent rating effective December 7, 2012, for residuals of a left first metatarsal fracture is granted. Entitlement to a separate 10 percent rating effective July 31, 2018, for Morton's neuroma associated with service-connected residuals of a left first metatarsal fracture is granted. FINDINGS OF FACT 1. The record evidence shows that, prior to December 7, 2012, the Veteran’s service-connected residuals of a left first metatarsal fracture are manifested by, at worst, mild foot disability. 2. The record evidence shows that, on outpatient treatment on December 7, 2012, the Veteran’s service-connected residuals of a left first metatarsal fracture are manifested by, at worst, moderate foot disability. 3. The record evidence shows that, on outpatient treatment on July 31, 2018, the Veteran was diagnosed as having Morton’s neuroma associated with his service-connected residuals of a left first metatarsal fracture. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating effective December 7, 2012, for residuals of a left first metatarsal fracture have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5010-5284 (2017). 2. The criteria for a separate 10 percent rating effective July 31, 2018, for Morton’s neuroma associated with service-connected residuals of a left first metatarsal fracture have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, DC 5279 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1985 to April 1988 in the U.S. Army. She also had active service in the U.S. Air Force from July to November 2002, including in Operation Enduring Freedom, and from January 2004 to May 2006. In November 2016, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ obtained updated treatment records for the Veteran and schedule her for an updated examination to determine the current nature and severity of her service-connected residuals of a left first metatarsal fracture. The identified records subsequently were associated with the claims file and the requested examination occurred in January 2017. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Increased Rating The Veteran contends that her service-connected residuals of a left first metatarsal fracture are more disabling than currently evaluated. She specifically contends that she experiences severe left foot pain as a result of this disability. 1. Entitlement to a compensable disability rating prior to December 27, 2016, and to a disability rating greater than 10 percent thereafter, for residuals of a left first metatarsal fracture The Board finds that the preponderance of the evidence supports assigning a 10 percent rating effective December 7, 2012, for residuals of a left first metatarsal fracture. The Veteran contends that her service-connected residuals of a left first metatarsal fracture are more disabling than currently evaluated. The Board finds that the record evidence supports these assertions, at least effective December 7, 2012. The Board notes initially that, prior to December 7, 2012, the Veteran’s service-connected residuals of a left first metatarsal fracture are manifested by, at worst, mild foot disability. For example, on VA bones examination in February 2011, the Veteran’s complaints included “on and off” left ankle swelling which caused stiffness, limited ankle mobility, and pain and stiffness in the ankle in the mornings and after standing more than 2 hours or walking more than 4 hours. She wore a custom orthotic on the left ankle “almost every day unless the ankle is too swollen to put it on and wear her shoes.” Physical examination showed a normal gait, “an orthotic cup in her shoe for the left foot,” tenderness to palpation over the medial and lateral surfaces of the left ankle “and on the dorsal portion of the left foot over the tarsometatarsal,” and edema in the left ankle. X-rays of the left ankle showed no evidence of acute bony injury and unchanged mild degenerative changes of the first tarsometatarsal joint with hallux valgus deformity. The impressions were chronic left ankle strain and mild degenerative changes of the first tarsometatarsal joint with hallux valgus deformity. On private outpatient treatment in November 2011, the Veteran’s complaints included left ankle pain for the previous 15 years and left ankle “stiffness and pain especially with activity and ambulation on a daily basis.” The Veteran described her left ankle pain as “throbbing, tenderness, chronic, and constant.” Physical examination of the left ankle showed decreased dorsiflexion and plantar flexion and decreased eversion and pain of the subtalar joint. The diagnoses included osteoarthritis of the left ankle. Despite the Veteran’s lay assertions to the contrary, the record evidence shows that, prior to December 7, 2012, her service-connected residuals of a left first metatarsal fracture are manifested by, at worst, mild foot disability. VA examination in February 2011 documented the Veteran’s complaints of left ankle pain and stiffness. Physical examination showed only tenderness to palpation and edema in the left ankle. X-rays confirmed that the Veteran’s mild degenerative changes of the first tarsometatarsal joint with hallux valgus deformity was unchanged. Subsequent outpatient treatment in November 2011 again documented the Veteran’s complaints of left ankle pain and stiffness. Physical examination showed a decreased range of motion. The evidence does not indicate that, prior to December 7, 2012, the Veteran’s service-connected residuals of a left foot metatarsal fracture are manifested by at least moderate foot disability (i.e., a 10 percent rating under DC 5284) such that a compensable disability rating is warranted during this time period. See 38 C.F.R. § 4.71a, DC 5284 (2017). The Veteran also has not identified or submitted any evidence demonstrating her entitlement to a compensable disability rating prior to December 7, 2012, for her service-connected residuals of a left foot metatarsal fracture. Thus, the Board finds that the criteria for a compensable disability rating prior to December 7, 2012, for residuals of a left foot metatarsal fracture have not been met. In contrast, the Board finds that the evidence supports assigning a 10 percent rating effective December 7, 2012, for residuals of a left foot metatarsal fracture. It shows that, on private outpatient treatment on December 7, 2012, this disability is manifested by, at worst, moderate foot disability (i.e., a 10 percent rating under DC 5284). Id. In a letter dated on December 7, 2012, C. J. G., DPM, the Veteran’s private treating podiatrist stated that he had seen the her for complaints including left ankle pain secondary to an in-service ankle fracture. Dr. C. J. G. stated, “As a result of this injury, [the Veteran] has moderate to severe pain localized to the left foot and ankle which on x-ray evaluations shows subtalar arthritis secondary to the injury.” This physician also stated that he anticipated that the Veteran’s left ankle arthritis likely would cause “an alteration in gait with chronic pain.” He concluded that the Veteran’s in-service left ankle injury “is the cause of this chronic ongoing situation.” On VA foot conditions Disability Benefits Questionnaire (DBQ) in February 2015, the Veteran’s complaints included occasional left foot stiffness in the mornings which required her to use a cane and constant pain along the top of the left foot which worsened when weight bearing. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran’s in-service left ankle fracture was noted. She was unable to do prolonged standing (more than 1½ to 2 hours) “and cannot run or walk for long distances.” No Morton’s neuroma or metatarsalgia was noted. Physical examination showed moderate left foot disability, less movement than normal, pain on movement, pain on weight-bearing, and interference with standing of the left lower extremity. X-rays showed traumatic arthritis. The diagnoses included non-displaced fracture of the left first metatarsal. In a July 2015 letter included in the Veteran’s VA outpatient treatment records, a VA physician stated that the Veteran had to limit her activities due to her service-connected left foot and left ankle disabilities. “You cannot run or do anything that requires sustained repetitive motion of the left foot or ankle.” This physician also stated that the Veteran’s left ankle had not changed “on physical examination since 2006” although she experienced more pain. On VA foot conditions DBQ in January 2017, the Veteran’s complaints included intermittent left ankle pain. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed moderate left foot disability and less movement than normal, weakened movement, pain on movement, pain on weight-bearing, and swelling of the left lower extremity. X-rays showed traumatic arthritis which was unchanged from 2015. The VA examiner concluded that the Veteran’s current physical examination showed “moderate tenderness to palpation on the left first metatarsal area” without swelling. This examiner also stated that he could not provide information regarding the range of motion of the Veteran’s toes because there were no prescribed ranges of motion for the toes. This examiner stated further that there was no pain on weight bearing and pain on non-weight bearing. The Veteran contends that her service-connected residuals of a left first metatarsal fracture are more disabling than currently evaluated. The Board finds that the record evidence supports these assertions, at least effective December 7, 2012, when the Veteran’s private treating podiatrist stated that her service-connected residuals of a left first metatarsal fracture had resulted in moderate left foot disability (i.e., a 10 percent rating under DC 5284). See 38 C.F.R. § 4.71a, DC 5284 (2017). The Veteran’s moderate left foot disability, experienced as a result of her service-connected residuals of a left first metatarsal fracture, was noted on subsequent VA foot conditions DBQ’s in February 2015 and in January 2017. The January 2017 VA examiner specifically found that the Veteran’s physical examination showed “moderate tenderness to palpation on the left first metatarsal area” without swelling. The record evidence does not suggest, however, that the Veteran experiences at least moderately severe foot disability (i.e., a 20 percent rating under DC 5284) as a result of her service-connected residuals of a left first metatarsal fracture such that a disability rating greater than 20 percent is warranted for this disability at any time since December 7, 2012. Id. Although the Veteran's private treating podiatrist stated in his December 7, 2012, letter that he anticipated that her service-connected residuals of a left first metatarsal fracture likely would worsen over time, a different physician stated in July 2015 that her left ankle had not changed on physical examination since 2006. More importantly, as noted, subsequent VA examinations in February 2015 and in January 2017 documented the presence of, at worst, moderate foot disability. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 10 percent rating effective December 7, 2012, for residuals of a left first metatarsal fracture have been met. See 38 C.F.R. § 3.102 (2017). 2. Entitlement to a separate 10 percent rating effective July 31, 2018, for Morton’s neuroma associated with service-connected residuals of a left first metatarsal fracture The Board finally finds that the Veteran is entitled to a separate 10 percent rating effective July 31, 2018, for Morton’s neuroma associated with service-connected residuals of a left foot metatarsal fracture. As noted above, prior to private outpatient treatment on July 31, 2018, the record evidence did not indicate that the Veteran experienced Morton’s neuroma (or metatarsalgia) associated with her service-connected residuals of a left foot metatarsal fracture. In contrast, on private outpatient treatment on July 31, 2018, the Veteran’s complaints included “ongoing increasing pain and irritation with limitation of range of motion of the left foot and ankle” and moderate left foot pain located “in the hindfoot region.” The Veteran also reported that “any active weightbearing causes pain and disability of the left foot and ankle.” Physical examination showed mild hallux valgus of the left foot and bilateral Morton’s neuroma, peroneal tendonitis of the left foot, and 4/5 muscle strength of the left foot with joint stiffness of the left foot/ankle. The private clinician stated that the Morton’s neuroma on the Veteran’s left foot was associated with his service-connected residuals of a left foot metatarsal fracture. This clinician also stated that the Veteran “is now suffering from a fairly symptomatic peroneus brevis and longus tenosynovitis.” The diagnoses included left foot pain, left ankle osteoarthritis, hallux valgus of the left foot, and peroneal tendonitis of the left leg. The Board notes in this regard that a single 10 percent rating is assigned for Morton’s neuroma (or metatarsalgia) under DC 5279. See 38 C.F.R. § 4.71a, DC 5279 (2017). The Board also notes that the assignment of a separate 10 percent rating effective July 31, 2018, for Morton’s neuroma associated with service-connected residuals of a left foot metatarsal fracture does not violate the general prohibition against pyramiding (i.e., evaluating the same manifestation of an injury or disease under different DCs). See generally Esteban v. Brown, 6 Vet. App. 259 (1994) (finding compensation under different DCs permissible for separate and distinct manifestations relating to same injury); Fanning v. Brown, 4 Vet. App. 225 (1993) (same); see also 38 C.F.R. § 4.14 (2017). In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a separate 10 percent rating effective July 31, 2018, for Morton’s neuroma associated with service-connected residuals of a left foot metatarsal fracture have been met. See 38 C.F.R. § 3.102 (2017). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel