Citation Nr: 20002118 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 09-20 922 DATE: January 9, 2020 ORDER Entitlement to an increased rating in excess of 30 percent for residuals, fracture calcaneal bones, left with degenerative spurring is denied. Entitlement to an increased rating in excess of 20 percent for residuals, fracture calcaneal bones, right with degenerative spurring is denied. FINDINGS OF FACT 1. The Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability most closely approximates a severe foot injury; the Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability has not approximated an actual loss of use of the foot. 2. The Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability most closely approximates a moderately severe foot injury; the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability has not approximated a severe foot injury nor an actual loss of use of the foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 30 percent for residuals, fracture calcaneal bones, left with degenerative spurring have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for entitlement to an increased rating in excess of 20 percent for residuals, fracture calcaneal bones, right with degenerative spurring have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1979 to November 1987. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from the February 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision continued a 20 percent disability rating for residuals, fracture, calcaneal bones with degenerative spurring of the right foot and assigned a temporary total disability rating effective March 15, 2006, for left foot surgery, assigning a 30 percent rating for this disability as of March 1, 2007. This case was last before the Board in September 2017, at which time it was remanded to the RO for further development and readjudication. Those actions completed, the case has been returned to the Board for further appellate review. 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; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where the question of functional loss due to pain upon motion is raised, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to an increased rating in excess of 30 percent for residuals, fracture calcaneal bones, left with degenerative spurring is denied. The Veteran contends that he is entitled to an rating in excess of 30 percent for his residuals, fracture calcaneal bones, left with degenerative spurring disability based on functional loss due to pain. The Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability is currently assigned a 30 percent disability rating. Residuals, fracture calcaneal bones, with degenerative spurring is not a disability that is specifically listed in the VA’s Schedule for Rating Disabilities. However, VA has up to this point found that the Veteran’s left foot residuals, fracture calcaneal bones, with degenerative spurring disability is most analogous to a foot injury disability under DC 5284. DC 5284 concerns foot injuries. DC 5284 provides a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 and Note. The Board acknowledges that the terms “moderate”, “moderately severe”, and “severe” are not defined under VA law and appear to have no commonly accepted medical definition. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. The VA treatment records dated March 2006 reflects that the Veteran underwent a triple arthrodesis with internal fixation and excision of bone cyst of the left foot. The July 2006 VA treatment record documents the Veteran’s report that he was doing well and that he had occasional pain that usually related to activity. The clinician notes that there was no pain seen on attempted motion and that the Veteran could actively dorsiflex and plantar flex his foot and that he could not invert or evert his foot. August and September treatment notes documented mild pain and of the plantar calcanous and the Veteran reports numbness in the lateral portion of his foot. The October 2006 VA Compensation and Pension (C&P) examination report reflects that the Veteran’s symptom was constant pain that gets worse with standing and walking. The Veteran denied flareups. The examiner also noted that the Veteran has functional limitation on standing and walking as he cannot stand more than 10 minutes and he cannot walk more than 30 minutes. The examiner also noted that there was evidence of pain on motion of the foot and swelling. The Veteran’s range of motion (ROM) during dorsiflexion for his left foot was 0 to 20 degrees and plantar flexion was 0 to 45 degrees. The examiner noted that inversion and eversion was absent due to the fusion of the joint. The examiner further noted that the Veteran complained of pain throughout the ROM. The examiner also noted that the ROM remained the same after repetitions. The examiner noted that the motor examination and reflex examination were normal, and the sensory results were within normal limits. The Veteran’s private treatment records dated September 2006 from HealthSouth reflects that the Veteran’s gait was antalgic and that his strength during dorsiflexion ROM testing was normal, and that the Veteran reported a walking tolerance of 5 minutes and that he goes up and down stairs sideways, 1 at a time. The October 2006 HealthSouth treatment record reflects that the Veteran complained of numbness in his toes. The January 2007 VA treatment record documents that the Veteran had mild pain on palpation of the lateral rearfoot. The Veteran had normal sensation of touch on the lateral side. The Veteran was able to go up and down steps with a handrail and that he was walking at the tolerance to 60 minutes to assist with ADL performance. The Veteran was afforded a VA C&P examination in March 2012. The examiner noted that the Veteran’s left foot inversion ROM was at 0 to 35 degrees and the Veteran exhibited pain at 5 degrees. The left foot eversion ROM was at 0 to 15 degrees and the Veteran exhibited pain at 3 degrees. The Veteran was able to perform ROM testing after 3 repetitions and he exhibited pain at 4 degrees for inversion and 3 degrees for eversion. The October 2017 VA C&P examination reflects that the Veteran has most of his pain in the plantar aspect of the left first MPJ. The examiner noted that the Veteran reported pain that is worse with prolonged standing more than 10 to 15 minutes, uneven ground, and prolonged walking. The Veteran reported that the pain is intermittent. The Veteran also reported that flare-ups impact the function of his foot. The Veteran described the flare-ups as the pain described above. The Veteran further reported that he has functional loss or functional impairment of the foot such as prolonged walking and standing more than 10 to 15 minutes. The examiner noted that the Veteran reported that pain is the same after surgery with slight improvement. However, the Veteran reported that he has neuropathy and a burning sensation in his foot. The examiner noted that there was pain on the physical examination and that the pain contributes to functional loss. The examiner further noted that the Veteran has less movement than normal and pain on weight-bearing. The examiner also noted that there is disturbance of locomotion and interference with standing. The examiner noted that there is pain, weakness, fatigability, or incoordination that significantly limits the Veteran’s functional ability during flare-ups or when the foot is used repeatedly over a period of time. The functional loss is described as pain and walking limited to 10 to 15 minutes. The examiner noted that the Veteran does not have 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. The December 2018 VA C&P examination reflects that the Veteran reported that his residual foot pain is moderate. The examiner noted that the x-ray findings are moderate and unchanged since 2014, no progression of size of plantar calcaneal and achilles spurs, and that degenerative changes narrowing with spurring are unchanged since 2014 and are moderate. The examiner further noted that based on the Veteran’s statements, clinical findings, and diagnostic testing over time, the service residuals are determined to be moderate. The examiner noted that the left foot pain is dorsum of the foot, ball, heel, and lateral. The examiner also noted that the Veteran reported that his usual daily foot pain is a 5 out of 10. The Veteran reported that the worst pain is an 8 out of 10 and that the worst pain occurs once every two days depending on the activity. The examiner noted that the Veteran reported that flare-ups impact the function of his foot. The Veteran described his flare-ups occur during prolonged standing, when he does dishes at the sink and can only stand 10 minutes. The Veteran also indicated that he cannot walk for more than 200 feet and that he is unable to walk up inclines, on gravel, or on uneven surfaces. The examiner noted that the Veteran has symptoms due to a hallux valgus condition that is mild. The examiner noted that the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring does chronically compromise weight-bearing. The examiner further noted that the disability requires arch supports, custom orthotic inserts, or shoe modification such as custom orthotic shoe inserts that are used daily. Based on the above, under DC 5284, the Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability is most analogous to a severe foot injury. A disability rating in excess of 30 percent under DC 5284 is not warranted because the Veteran has not exhibited symptoms of actual loss of use of the foot, as would be required for a higher rating. 38 C.F.R. § 4.71a, DC 5284, Note. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes applying to the feet. At the March 2012 VA examination, the Veteran was found to have flat foot (pes planus). However, he is not currently service-connected for pes planus. Thus, the Board cannot assign the Veteran a disability rating under DC 5276. The December 2018 VA examiner noted that the Veteran has metatarsalgia. However, service connection has not been established for metatarsalgia. Thus, DC 5279 is not applicable. The December 2018 VA examiner also noted that the Veteran has hallux valgus. However, service connection has not been established for hallux valgus. Thus, DC 5280 is not applicable. A higher rating is not applicable under DC 5278, as the Veteran does not have claw foot. Considering all the evidence as described above, the Board finds that the Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability has exhibited symptoms of severe foot injury. As such, the Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability mostly closely approximate the criteria for the currently-assigned 30 percent disability rating under DC 5284, Note. 38 C.F.R. § 4.71a. The Board acknowledges the Veteran’s assertion that his residuals, fracture calcaneal bones, left with degenerative spurring disability warrants a higher disability rating. The Board finds the examination reports more probative than the Veteran’s assertions in this regard because they were conducted by medical professionals necessarily more familiar with foot disabilities. The Board finds the opinion of the December 2018 VA examiner to be most probative evidence of record concerning whether the Veteran’s current residuals, fracture calcaneal bones, left with degenerative spurring disability is severe enough or have worsened enough to warrant a higher disability rating. The December 2018 VA examiner’s rationale is well-reasoned and based on consideration of the Veteran’s claims file, reported history, and medical records. Thus, the Board is satisfied that the December 2018 VA examiner’s opinion is competent, credible, persuasive, and probative for deciding this appeal. Furthermore, the Veteran’s subjective complaints are fully contemplated by the currently assigned 30-percent rating for a severe foot injury. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca, 8 Vet. App. 202. Based on the above, the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran’s residuals, fracture calcaneal bones, left with degenerative spurring disability. Therefore, the Veteran’s claim of entitlement to an evaluation in excess of 30 percent for his residuals, fracture calcaneal bones, left with degenerative spurring disability must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating in excess of 20 percent for residuals, fracture calcaneal bones, right with degenerative spurring is denied. The Veteran contends that he is entitled to an increased rating in excess of 20 percent for his residuals, fracture calcaneal bones, right with degenerative spurring disability based on functional loss due to pain. DC 5284 provides a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to DC 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 and Note. The October 2006 VA C&P examination report reflects that the Veteran’s symptoms were constant pain that gets worse with standing and walking. The examiner noted that the Veteran denied flareups. The Veteran reported that because of the pain it is difficult for him to move, walk around, and go up or down stairs. The examiner noted that the Veteran’s gait is antalgic secondary to the pain. The examiner also noted that the Veteran has functional limitation on standing and walking as he cannot stand more than 10 minutes and he cannot walk more than 30 minutes. The examiner also noted that there was evidence of pain on motion of the foot. The examiner noted that there was no evidence of abnormal weightbearing like callosities or abnormal shoe wear pattern. The Veteran’s ROM during dorsiflexion for his right foot was 0 to 20 degrees and plantar flexion was 0 to 45 degrees. The examiner noted that inversion was 20 degrees and eversion was 25 degrees. The examiner further noted that the Veteran complained of pain throughout the ROM. The examiner noted that the ROM remained the same after repetitions. The examiner noted that the motor examination and reflex examination were normal, and the sensory results were within normal limits. The Veteran’s September through November 2006 private treatment records from HealthSouth reflects that the Veteran’s gait was antalgic and that he reported pain of his right foot. The examiner also noted that the Veteran’s strength during dorsiflexion ROM testing was normal. As stated above, the examiner noted that the Veteran reported a walking tolerance of 5 minutes and that he goes up and down stairs sideways, 1 at a time. The examiner noted that the Veteran reported his foot pain was 3 out of 10 at best and 8 out of 10 at worst. He also reported numbness of his toes. March and November 2007 VA treatment record document the Veteran’s reports of pain and that he underwent a triple arthrodesis of the right foot. The March 2012 C&P examination reflects that the Veteran has flatfoot and a foot injury such as bilateral fracture calcaneus. The examiner noted that the Veteran’s right foot inversion ROM was at 0 to 35 degrees and the Veteran exhibited pain at 8 degrees. The right foot eversion ROM was at 0 to 15 degrees and the Veteran exhibited pain at 7 degrees. The Veteran was able to perform ROM testing after 3 repetitions and he exhibited pain at 4 degrees for inversion and 3 degrees for eversion. The examiner noted that the Veteran reported pain that is worse with prolonged standing more than 10 to 15 minutes, uneven ground, and prolonged walking. The Veteran reported that the pain is intermittent. The Veteran reported that flare-ups impact the function of his foot. The Veteran described the flare-ups as the pain described above. The Veteran reported that he has functional loss or functional impairment of the foot due to prolonged walking and standing more than 10 to 15 minutes. The examiner noted that the Veteran reported that pain is the same after surgery with slight improvement. However, the Veteran reported that he has neuropathy and a burning sensation in his foot. The examiner noted that there was pain on the physical examination and that the pain contributes to functional loss. The examiner further noted that the Veteran has less movement than normal and pain on weight-bearing. The examiner also noted that there is disturbance of locomotion and interference with standing. The examiner noted that there is pain, weakness, fatigability, or incoordination that significantly limits the Veteran’s functional ability during flare-ups or when the foot is used repeatedly over a period of time. The functional loss is described as pain and walking limited to 10 to 15 minutes. The examiner noted that the Veteran does not have 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. The December 2018 VA C&P examination reflects that the Veteran reported that his residual foot pain is moderate. The examiner noted that the x-ray findings are moderate and unchanged since 2014. The examiner further noted that there has been no progression of size of plantar calcaneal and achilles spurs. The examiner also noted that degenerative changes narrowing with spurring are unchanged since 2014 and are moderate. The examiner further noted that based on the Veteran’s statements, clinical findings, and diagnostic testing over time, the service residuals are determined to be moderate. The examiner noted that the Veteran has metatarsalgia, calcaneal fractures, and degenerative arthritis. The examiner also noted that the Veteran has a cavus foot type, which is rigid in nature as he is status post triple arthrodesis. The examiner noted that there was no clinical ROM of the subtalar joints and there was no reproducible tenderness to palpation. The examiner noted that the Veteran has right foot pain located on bottom of foot, ball of foot, heel of foot, and laterally. The examiner noted that the Veteran’s usual right foot pain was a 5 out of 10 with the worst right foot pain being a 7 out of 10. The examiner noted that the Veteran reported that the worst pain occurs once every two days, depending on the activity. The examiner noted that the Veteran reported that flare-ups impact the function of his foot. The Veteran described his flare-ups occur during prolonged standing, when he does dishes at the sink and can only stand 10 minutes, and stagnant standing. The examiner also noted that the Veteran reported that he has functional loss or functional impairment of the foot. The Veteran described his functional loss occurs during prolonged walking. The Veteran also indicated that he cannot walk for more than 200 feet and that he is unable to walk up inclines, on gravel, or on uneven surfaces. The examiner noted that the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring chronically compromises weight-bearing. The examiner further noted that the disability requires arch supports, custom orthotic inserts, or shoe modification such as custom orthotic shoe inserts that are used daily. The examiner noted that the Veteran has residual signs or symptoms due to arthroscopic or other foot surgery. The examiner describes the residuals as pain in the foot as unchanged after surgery, slight improvement at first, now the Veteran complains of progressive worsening of pain. The examiner noted that Veteran has functional loss or functional impairment of the foot. The examiner noted that the Veteran has less movement than normal and pain on weight-bearing. The examiner also noted that there is disturbance of locomotion and interference with standing. The Veteran reported that flare-ups impact the function of his foot. The Veteran further reported that pain, weakness, fatigability, or incoordination significantly limit his functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted that the functional loss or functional impairment of the foot is due to pain with standing more than 10 to 15 minutes. The Veteran reported that the flare-ups cause him to sit to relieve the pain. The examiner noted that the Veteran does not have 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. Based on the above, under DC 5284, the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability is most analogous to a moderately severe foot injury. Thus, he is entitled to an evaluation of 20 percent under DC 5284. A disability rating in excess of 20 percent under DC 5284 is not warranted because the Veteran has not exhibited symptoms of a severe foot injury or of an actual loss of use of the foot, as would be required for a higher rating. 38 C.F.R. § 4.71a, DC 5284, Note. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes applying to the feet. At the March 2012 VA examination, the Veteran was found to have pes planus. However, he is not currently service-connected for pes planus. Thus, the Board cannot assign the Veteran a disability rating under DC 5276. The December 2018 VA examiner noted that the Veteran has metatarsalgia. However, service connection has not been established for metatarsalgia. Thus, DC 5279 is not applicable. The December 2018 VA examiner also noted that the Veteran has hallux valgus. However, service connection has not been established for hallux valgus. Thus, DC 5280 is not applicable. A higher rating is not applicable under DC 5278, as the Veteran does not have claw foot. A higher rating is also not applicable under DC 5283, as there is no evidence malunion of or nonunion of the tarsal or metatarsal bones. Considering all the evidence as described above, the Board finds that the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability has exhibited symptoms of a moderately severe foot injury. As such, the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability mostly closely approximate the criteria for the currently-assigned 20 percent disability rating under DC 5284. 38 C.F.R. § 4.71a. The Board acknowledges the Veteran’s assertion that his residuals, fracture calcaneal bones, right with degenerative spurring disability warrants a higher disability rating. The Board finds the examination reports more probative than the Veteran’s assertions in this regard because they were conducted by medical professionals necessarily more familiar with foot disabilities. The Board finds the opinion of the December 2018 VA examiner to be most probative evidence of record concerning whether the Veteran’s current residuals, fracture calcaneal bones, right with degenerative spurring disability is severe enough or have worsened enough to warrant a higher disability rating. The December 2018 VA examiner’s rationale is well-reasoned and based on consideration of the Veteran’s claims file, reported history, and medical records. Thus, the Board is satisfied that the December 2018 VA examiner’s opinion is competent, credible, persuasive, and probative for deciding this appeal. Based on the above, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran’s residuals, fracture calcaneal bones, right with degenerative spurring disability. Therefore, the Veteran’s claim of entitlement to an evaluation in excess of 20 percent for his residuals, fracture calcaneal bones, right with degenerative spurring disability must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Associate Counsel 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.