Citation Nr: 20005293 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 14-35 629 DATE: January 23, 2020 ORDER Entitlement to an initial compensable rating for service-connected residuals of a right foot fracture is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected right foot disability was not shown to have been manifested by moderate symptoms. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial compensable rating for residuals of a right foot fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from November 1970 to November 1973. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal was most recently before the Board in May 2018 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial compensable rating for service-connected residuals of a right foot fracture The Veteran seeks entitlement to a higher initial rating of his service-connected residuals of a right foot fracture. His service-connected residuals include status post fracture of the 2nd, 3rd, and 4th metatarsals on his right foot and are rated as noncompensable from March 1, 2013 under 38 C.F.R. § 4.71a Code 5284. The Board concludes that an increased rating for residuals of a right foot fracture is not warranted for any period on appeal. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. § Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under Code 5284, a moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating, and a severe foot injury warrants a 30 percent rating. A note following Code 5284 provides that a 40 percent rating is warranted with actual loss of use of the foot. 38 C.F.R. § 4.71a, Code 5284. Words such as “severe,” “moderate,” and “mild” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. In a December 2012 statement, the Veteran reported that he had not been receiving treatment for his right foot, but he continued to have problems with his right foot since service. On May 2013 VA contract examination hallux valgus and plantar heel spur right, status post fracture right foot in his 2nd, 3rd, and 4th metacarpal were diagnosed. While the Veteran had hallux valgus, he had no symptoms in either foot. He did not have hallux rigidus, claw foot, malunion or nonunion of tarsal or metatarsal bones, or any other foot injury. The examiner found there was no evidence of bilateral weak foot. The examiner also found the Veteran had no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his diagnosed foot disorders. The examiner noted the Veteran did not use any assistive devices to aid in locomotion. A review of a May 2013 x-ray reflected plantar heel spur right foot and bunion right foot. The examiner opined that his foot condition did not impact his ability to work. In his October 2013 notice of disagreement, the Veteran reported that he had pain and instability in his right foot and that he acquired a limp, which he asserted was due to his right foot injury. In a letter received in October 2013, private provider Dr. C.P.S. reported that the Veteran had severe osteoarthritis of the right ankle, left hip, and pelvis. He attributed the Veteran’s significant limp and unstable gait to his injury to his right ankle. In a letter received in October 2014, Dr. C.P.S. clarified the prior statement; that he incorrectly referred to the Veteran’s right ankle instead of his right foot injury. After a March 2014 private examination, the provider noted the Veteran had pain in his feet. The Veteran reported that his foot pain since the early 1970’s when he fell and fractured his right ankle, and since then he had continued to have pain in his foot, mostly right. He also reported that he had no current plans to treat his foot pain. In his October 2014 VA Form 9 substantive appeal, the Veteran reported that he had pain and instability of his right foot and an abnormal gait caused by his foot condition. At the November 2017 videoconference hearing the Veteran testified that his right foot would get swollen if he overused it. He described that he had a loss of feeling in his foot, where he would trip on things, especially if walking backwards. He testified that he would wear boots because his ankle would feel flimsy if he wore tennis shoes. He also testified that he was not receiving any treatment, he would just take over-the-counter pain medication. On May 2019 VA examination, the Veteran reported that since his last VA examination he has had more pain in his right foot and experienced cramps. He reported that he had pain when he walked, which caused him to limp. He also reported that his foot swells at times. The examiner noted the Veteran reported no pain at rest, but pain rated 8 out of 10 when walking. The Veteran did not have any current treatment and did not report having flare-ups. On physical examination, he reported having sharp pain in the top of the foot which radiated to the bottom. He pointed to his 1st metatarsal when asked to point where the pain was. The Veteran reported functional limitation of his foot; that right foot pain caused him not to walk as far or stand as long. The Veteran had no functional loss or limitation in his range of motion in either his right or left lower extremity related to his foot condition. The examiner noted he occasionally used a cane for leg cramps. The examiner noted their review of the May 2013 x-rays did not reflect degenerative or traumatic arthritis. The examiner opined the Veteran’s right foot condition impacted his ability to perform occupational tasks in that while he was currently retired, the Veteran reported that the pain in his foot caused him not to be able to walk as far or stand as long. The examiner opined that the Veteran’s complaints of right foot pain were out of proportion to the injury of over 40 years ago, what was seen on x-ray, and on physical examination. She noted that the slight hallux valgus on x-ray was an incidental finding and not related to his history of metatarsal fracture. The examiner noted his reports of pain, swelling, and loss of feeling in his right foot are subjective. He had good sensation of his foot on examination and there was no objective evidence of foot diagnosis that would cause loss of feeling. There was no swelling noted on examination, and no objective evidence of a foot diagnosis that would cause swelling. The examiner opined that the Veteran’s antalgic gait was exaggerated and not related to his foot fracture over 40 years ago. She noted that he exaggerated his antalgic gait walking back to the examination room, and a slight antalgic gait was noted when he walked in from his vehicle to the clinic. The examiner opined that she believed the private provider’s opinion that his gait had been affected from a resolved without complications right foot metatarsal fracture over 40 years ago was erroneous. VA psychiatric treatment records from November 2018 through August 2019 reflect his gait was within normal limits and without assistance. Based on a review of the record, the Board finds that an initial compensable rating is not warranted for the service-connected residuals of a right foot fracture at any point during the period on appeal. Throughout the period on appeal, the Veteran’s residuals of a right foot fracture have manifested subjective symptoms of pain and swelling. Both the May 2013 and May 2019 VA examiner did not find any objective findings, loss of function, or loss of range of motion. The May 2019 examiner specifically noted there was no objective evidence of a diagnosis that would result in swelling or loss of feeling. Additionally, while the Veteran and his private provider indicated he had an unstable gait due to his right foot disability, the May 2013 examiner found their opinion to be erroneous and specifically noted the Veteran had exaggerated his antalgic gait on examination. Further, VA treatment psychiatric treatment during the period on appeal noted the Veteran had a gait within normal limits and he did not use any assistance. Accordingly, the Board finds that a higher rating is not warranted as the evidence does not reflect that the Veteran’s residuals of a right foot fracture were moderate in nature at any point during the period on appeal. The Board has also considered the Veteran’s lay statements that his disability is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which residuals of a foot fracture are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.