Citation Nr: 20004844 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 15-37 452 DATE: January 22, 2020 ORDER A rating in excess of 20 percent for crush injury of the left great and second toes is denied. Entitlement to TDIU is granted. FINDINGS OF FACT 1. Crush injury of the left great and second toes is manifested by moderately severe disability of the left foot and does not approximate severe disability of the left foot. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for crush injury of the left great and second toes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5284. 2. The criteria for entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1964 to December 1968. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. 1. Increased rating for residual of crush injury of the left great and second toes Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). DC 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated as 40 percent disabling. 38 C.F.R. § 4.71a. In Yancy v. McDonald, 27 Vet. App. 484 (2016), the Court held that the plain meaning of the word "injury" limits the application of Diagnostic Code (DC) 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions. The words "moderately severe," "severe," and "pronounced" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Although an element of evidence to be considered, the use of terminology such as "severe" by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Service connection for residuals of a crushing injury to the left great and second toes, chip fracture, was granted in an April 1971 rating decision. A 10 percent rating was in effect from December 1968. Since March 2009, a 20 percent rating has been assigned for residuals of crush injury to the left great and second toes with chip fracture and deformity of toenails. The current claim for an increased rating was received in May 2015. Service connection is also in effect for degenerative arthritis of the interphalangeal joint of the left great toe and left foot deep peroneal nerve neuritis. The disability ratings for degenerative arthritis of the interphalangeal joint of the left great toe and left foot deep peroneal nerve neuritis are not currently on appeal. The Veteran had a VA examination in July 2015. The examination noted a history of residuals of left foot crush injury and left first and second toenail deformity. The examiner characterized the disability as “moderately severe.” It was noted that the Veteran’s foot condition chronically compromises weight bearing. His foot conditions require arch supports, custom orthotic inserts, or shoe modifications. The Veteran reported that his left foot and toe pain occurred at rest and with weight bearing. He reported that flare-ups impacted the function of his foot. He had increased pain and swelling with prolonged weight bearing, kneeling, and when pivoting his feet. There was no history of surgery on the left foot. On physical examination of the left foot, there was physical pain, which contributed to functional loss. Contributing factors of foot disability included pain on movement, pain on weight-bearing, swelling, deformity, disturbance of locomotion, and interference with standing. The functional loss during flare-ups or when the foot was used repeatedly over a period of time included increased pain and swelling with prolonged weight bearing, kneeling, and when pivoting the feet. The examination noted that the Veteran regularly used orthotics. The examiner described the functional impacts of the Veteran’s foot disability. The examiner noted that the Veteran’s service-connected foot conditions caused left foot pain with weight bearing (standing, walking), left foot range of motion (ambulation), kneeling, and pivoting. The examiner opined that the symptoms would impair the performance of physical occupations and employment. The examiner opined that the symptoms would not affect sedentary (deskwork) employment activities, involving mainly sitting. The Veteran had a VA examination of his left foot in November 2017. The Veteran reported constant foot pain, which occasionally interrupted his sleep. The pain was described as constant and occurred with both weight-bearing and non-weight-bearing situations. The Veteran denied flare-ups of the left foot. The examiner noted a “moderate” disability of the left foot. The examiner indicated that the Veteran’s foot condition did not result in impairment of the extremity such that no effective use of the extremity remained, other than that which would be equally well served by amputation with prosthesis. The Board finds a rating in excess of 20 percent is not warranted, as severe foot injury is not shown. VA examiners have assessed the Veteran’s foot disability as moderate to moderately severe. The examinations considered objective findings, functional impairment, and the symptoms reported by the Veteran. A higher rating is not warranted based on loss of use of the foot, as the VA examinations show that the Veteran has effective use of the left foot. For these reasons, the Board finds that the preponderance of the evidence is against the claim for a higher rating for crush injury of the left great and second toes. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3. 2. Entitlement to TDIU The Veteran asserts that he is unemployable due to his service-connected disabilities. At the Board hearing, the Veteran testified that he previously was employed as a letter carrier and had to walk 10 miles a day on his route. The Veteran retired from the U.S. Postal Service on disability due to his left foot injury. The Veteran testified that he had several jobs after working at the postal service. He indicated that he last worked at a Target store and stopped working in 2015. The Veteran testified that he cannot walk without pain. He stated that his left foot bothers him so much that it affects his concentration and prevents him from performing sedentary work. The Veteran reported that he had a college education. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). Service connection is in effect for PTSD (50 percent); residuals of crush injury to the left great and second toes with chip fracture and deformity of the toenails (20 percent); diabetes mellitus (20 percent); tinnitus (10 percent); osteoarthritis of the left knee (10 percent from March 14, 2018); osteoarthritis of the right knee (10 percent from March 14, 2018); superficial gunshot wound of right posterior thigh (0 percent); bilateral sensorineural hearing loss (0 percent); residuals of stress fracture of the left hand (also claimed as left thumb) (0 percent); degenerative arthritis of the interphalangeal joint of the left great toe (0 percent); and left foot deep peroneal nerve neuritis (10 percent from November 15, 2017). The schedular requirements for TDIU have been met for the entire appeal period. The current claim for a TDIU was received in May 2015. In the claim, the Veteran reported a history of employment as a postal worker and a stock clerk. He reported that he was last employed as a stock clerk in a Target store, where he worked from October 2013 to February 2015. The Veteran indicated that he became too disabled to work on March 15, 2015. An August 2002 letter from the Office of Personnel Management reflects that the Veteran’s application for disability retirement was approved. In a December 2015 statement, the Veteran reported that he was let go from a part-time job at Target. He asserted that he was unemployable due to constant foot pain. In April 2015, a private physician, Dr. L.W., opined that the Veteran is unable to work due to his physical disabilities. Dr. L.W. noted that the Veteran’s difficulties regarding his arthritic problems include limitation of lifting, standing, and walking. Dr. L.W. opined that it is difficult for the Veteran to be enrolled in any position that would afford him gainful employment. In July 2015, a VA physician opined that left foot crush injury and arthritis would impair the performance of physical occupations and employment. The examiner opined that these conditions would not affect sedentary employment (deskwork) involving mainly sitting. A VA examination dated in April 2017 noted that the functional impact of the Veteran’s left foot disability included an impaired ability to walk over one-half mile due to his left foot condition. The Board accords probative weight to the April 2015 private opinion which found that the Veteran’s disabilities render him unemployable. It is established that the Veteran’s disabilities preclude physical work. There is conflicting evidence with regard to his ability to perform sedentary employment. The July 2015 examination did not specify what type of sedentary employment the Veteran would be able to perform. The July 2015 VA examination did not consider the impact of foot pain in a sedentary work environment. The Veteran credibly testified that left foot pain results in impaired concentration, which would also affect sedentary employment. Thus, the Board finds that that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. Accordingly, a TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.