Citation Nr: 20002004 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 13-30 354 DATE: January 9, 2020 ORDER Entitlement to a rating in excess of 30 percent for a right foot disability is denied. FINDING OF FACT The Veteran has not had actual loss of use of the right foot. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a right foot disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5283 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from November 1966 to November 1969. The appeal originates from a March 2012 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded in January 2018 for a VA examination, which was obtained in October 2018. A May 2019 rating decision granted a 30 percent rating for the entire period on appeal. That rating was continued in a decision later that month following receipt of an addendum opinion. There has been substantial compliance with the Remand directives. Entitlement to a rating in excess of 30 percent for a right foot disability. Disability ratings are determined by comparing a veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s right foot disability is rated under Diagnostic Code 5283 for malunion or nonunion of the tarsal or metatarsal bones. The 30 percent rating is assigned for severe symptomatology. A rating in excess of 30 percent for a unilateral foot disability is only available for actual loss of use of the foot, which is assigned a 40 percent rating. The Board has considered alternative Diagnostic Codes, and there is no available Diagnostic Code that would afford the Veteran a higher disability rating. The presently assigned 30 percent rating represents the maximum rating that can be assigned for any disability of a single foot. The only possibility for a higher rating is with loss of use. The Veteran has not had actual loss of use of the right foot. Consideration has been to his complaints of pain, aching, and swelling that limit extensive walking, driving long distances, hiking, fishing, and intensive gardening. However, significant use of the foot for activities of daily living has been consistently demonstrated. The record shows that he continues to ambulate independently, drive, shop, and perform yardwork. See May 2016 Hearing Transcript; September 2018 and April 2019 CAPRI. The December 2011 and October 2018 examiners specifically found that right foot functioning was not so diminished such that amputation with prosthesis would equally serve him. As actual loss of use of the right foot is not shown, a 40 percent rating is not warranted. The Board notes medical evidence submitted by the Veteran pertaining to receipt of a higher rating. A January 2008 VA surgical orthopedic note states that he may “qualify for at least a 30 to maybe even as high as a 40% permanent-partial disability on his right foot.” The note does not indicate actual loss of use of the foot which would support the assignment of an increased rating. A May 2016 note from his private physician discusses symptoms of pain, swelling, and nonunion in the right foot and states that “it is as if it had been amputated . . .” No rationale was provided. Indeed, this conclusion is at odds with the weight of the medical and lay evidence, including the examination reports and treatment records, showing that the Veteran continues to have significant use of the right foot. . MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals M. Alhinnawi, Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.