Citation Nr: 20009789 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 15-02 895 DATE: February 5, 2020 ORDER Entitlement to a disability rating greater than 20 percent for post-operative residuals of right triple arthrodesis secondary to a fracture of the right tarsal navicular bones with arthritis is denied. FINDING OF FACT The Veteran’s post-operative residuals of right triple arthrodesis secondary to a fracture of the right tarsal navicular bones with arthritis, is manifested by no more than moderately severe symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for postoperative residuals, of right triple arthrodesis secondary to fracture of right tarsal navicular bones with arthritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1960 to November 1963. The issue was previously before the Board. In October 2018, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in September 2019. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran has been assigned a 20 percent rating under Diagnostic Code 5284 for the entire initial rating period on appeal. Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167. Diagnostic Code 5284 refers to “other” foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code, such as in this case. The United States Court of Appeals for Veterans Claims (Court) has held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are “equitable and just as contemplated by the requirements of the law.” 38 C.F.R. § 4.6. 1. Entitlement to a disability rating greater than 20 percent for post-operative residuals of a right triple arthrodesis secondary to a fracture of right tarsal navicular bones with arthritis The Veteran contends that his service-connected right foot injury residuals have deteriorated with time. Factual Background In July 2006, the Veteran received treatment for an infection of his right foot from an accident while working on his boat. He accidentally cut his right ankle while grinding “some metal.” In September 2009, the Veteran reported chronic lower extremity pain since he had polio as a child. An imaging study was done in October 2009 as the Veteran complained of chronic right foot pain. In April 2012, the Veteran submitted a claim for a higher rating for his service-connected right foot, contending that the injury has “deteriorated with time.” The Veteran was afforded a VA examination in May 2012. The examiner diagnosed the Veteran as having “status post triple arthrodesis, right foot secondary to fracture; residual pain, healed scar.” The examiner did not find any other disabilities. The Veteran reported a history of right foot triple arthrodesis with right iliac crest bone graft in January 1992, but no new injuries or surgeries. He complained of right foot pain, mostly in the toes, clicking and swelling. He denied being on any treatment and has decreased his walking. The examiner found that the Veteran’s foot condition impacted his ability two ork, with the Veteran reporting difficulty climbing on a ladder and with kneeling. The Veteran also reported difficulty driving due to pain, walking over half an hour, and that he could not stand for more than a half hour when doing chores. In an August 2012 rating decision, the RO continued the 20 percent evaluation, stating that a “disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon showing that such rating was based on fraud.” The denial was continued in a December 2014 SOC, as the RO did not find the Veteran’s disability to be “severe.” In the July 2018 hearing, the Veteran testified that he had “a lot of pain” with his foot. He testified that his foot felt much better after his surgery in 1992, but that his pain worsened and could not walk as much. The Veteran, however, refused to take pain medication. He described his pain as “periodically kick[ing] up,” and that it would ease off after “five minutes or so.” He wanted a higher rating because he was suffering pain from what happened in the military. He also stated that the condition worsened since the May 2012 VA examination, with the pain being more frequent. Following the Board’s remand in October 2018, the Veteran was afforded another VA examination in May 2019. The examiner reviewed relevant evidence of record and observed “mild-to-moderate pain with prolonged standing and walking.” Flare-ups were described as an increase in pain with activity, and the Veteran reported limited walking and climbing due to his disability. The examiner also noted that the Veteran had a “right foot navicular fracture status post fusion” and indicated that the Veteran’s foot injury was “moderate” in its severity, below “moderately severe” and “severe.” The Veteran’s disability was found to chronically compromise weight bearing and to require “arch supports, custom orthotic inserts or shoe modifications.” Pain on movement and weight-bearing was noted on examination and the examiner stated that the pain contributed to functional loss. The Veteran’s remaining function was not found to be so severe that it would be equally well served by an amputation with prosthesis. In August 2019, the RO issued a SSOC denying a rating greater than 20 percent for the Veteran’s service-connected right foot injury residuals. Analysis Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating greater than 20 percent. There is no basis for increasing the rating beyond the 20 percent level for the Veteran’s service-connected right foot injury residuals as there is no evidence of record indicating that the Veteran’s disability meets the criteria for a “severe” rating under Diagnostic Code (DC) 5284. The May 2019 VA examiner found that the Veteran’s disability to be “moderate,” a rating that is meaningfully distinct from the “severe” rating sought by the Veteran and would only support a 10 percent rating under DC 5284. The Veteran also testified in the July 2018 hearing that the pain would subside after five minutes, that he could walk, and that he “refused” to take pain medication, indicating that he did not need pain medication even during flare-ups when the pain is at its worst. The 20 percent rating under DC 5284 contemplates the Veteran’s pain upon prolonged walking and prolonged standing, as noted generally in the medical and lay evidence described above. Some of the Veteran’s foot symptoms are analogous to the criteria for flatfoot under DC 5276, such as pain on manipulation and use and indication of swelling on use. Those symptoms allow for a 20 percent rating for a unilateral disability, but do not support a rating greater than the Veteran’s current 20 percent rating. 38 C.F.R. § 4.71a, DC 5276. In certain circumstances, a separate disability rating for arthritis may be warranted. That is, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also 38 C.F.R. § 4.14. If the Veteran had a foot disability with manifestations inherently different than the symptomatology of arthritis, and there was also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Such is not the case here. The Veteran’s complaints of pain and tenderness on movement and manipulation are already part of the criteria for his current rating and a separate disability rating would constitute pyramiding. Id. According to the medical evidence of record, the Veteran also does not have any other disabilities that provide a basis for assigning a separate rating greater than 20 percent for his right foot injury residuals. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277–5283. The evidence also does not show that the Veteran’s disability approximates actual loss of use of the foot. Id. at DC 5284, Note. Accordingly, the evidence does not support a rating greater than 20 percent for the Veteran’s right foot injury residuals, and the Veteran’s claim of entitlement to a rating greater than 20 percent for his service-connected postoperative residuals, of right triple arthrodesis secondary to fracture of right tarsal navicular bones with arthritis, is denied. 38 C.F.R. § 4.3. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.