Citation Nr: 20032980 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-36 995 DATE: May 12, 2020 ORDER Entitlement to an initial rating of 20 percent, but no higher, for left great toe neuropathy is granted. FINDING OF FACT The Veteran’s left great toe neuropathy is manifested by moderate symptoms. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for left great toe neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to April 2012. In August 2018, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Rating Code Change As noted in the August 2018 Board remand, the AOJ initially rated the Veteran under DC 5000 for osteomyelitis at 20 percent disabling in the October 2012 rating decision. This was based on the diagnosis of osteomyelitis in the May 2012 VA examination report. The Veteran appealed that decision in August 2013. See August 2013 Notice of disagreement (NOD). Subsequently, the May 2015 VA examinations and August 2015 VA opinions found that this initial diagnosis was in error. Therefore, the AOJ changed the Veteran’s rating to DC 8520 for her neuropathy symptoms, but awarded only a 10 percent initial rating. See September 2015 Rating decision and Rating decision codesheet. As such, the Board has considered the issue of severance, as the DC was changed. In Hedgepeth v. Wilkie, 30 Vet. App. 318, 322 (2018), the appellant contended that the reduction of a 70 percent disability rating assigned to his service-connected posttraumatic stress disorder (PTSD) to a noncompensable rating was improper because it amounted to a de facto severance connection that was performed without application of the procedural protections for severance found in 38 U.S.C. § 1159 and 38 C.F.R. § 3.105(d). There, the reduction was based upon a change in diagnosis from PTSD to a personality disorder. Id. at 323. The United States Court of Appeals for Veterans Claims (Court) held that “the applicable law and regulations require[d] VA to initiate and conduct severance of service connection proceedings before eliminating service-connected VA benefits” and that a de facto severance “by attempting to apply regulations governing rating reductions while also finding that the ‘reduction’ is based upon a change of diagnosis rather than material improvement of symptoms” may not be performed without going through the proper channels. Id. at 328. Because a de facto severance had been performed without application of the rules regarding severance of service connection under 38 C.F.R. § 3.105(d), the Court concluded that the reduction of the Veteran’s rating was void. Id. at 329. However, here, the situation is not analogous to Hedgepeth. The Veteran’s rating code was changed due to a clarification of the appropriate diagnosis and was based on the same manifestations. There is no severance, as all symptoms originally service-connected are contemplated in the changed rating code. Consequently, the question of propriety rests entirely on whether the reduction was factually warranted based on the evidence then of record. There was no finding that the Veteran’s condition had improved, rather the original DC assigned was incorrect. The actual disability impairment had not changed and all manifestations of impairment remained the same, rather the nature of the current disability was clarified. The Board finds no fault with this determination by the AOJ, as it was based on more thorough VA examination and opinion. As clarified in the October 2019 VA examination report, the Veteran has neuropathy symptoms, she sustained no further treatment since service for her in-service infection, and that infection completely resolved without evidence of recurrent infection since separating from service. Although the Veteran contends her bone infection reoccurs, she is not competent to attest to the existence or diagnosis of osteomyelitis. See October 2015 VA Form 9. Furthermore, the Veteran states that her bone was infected. See September 2018 Veteran statement. However, a rating in excess of 10 percent under DC 5000 requires repeated episodes or extension into major joints. As noted above, the Veteran’s in-service infection fully resolved and the medical evidence does not demonstrate any repeat episodes. Therefore, rating under DC 5000 is not appropriate. Furthermore, the Veteran’s rating under DC 5000 was only in effect for less than four years before the AOJ changed the Veteran’s rating to DC 8520. Therefore, the Veteran’s rating is not a protected rating. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In Murray, the Court found that a change in diagnostic code for a protected disability rating that was in effect for 20 years or more could constitute an impermissible rating reduction under 38 C.F.R. § 3.951(b). 24 Vet. App. at 428. In Read, the Federal Circuit found service connection was not severed, as contemplated by 38 C.F.R. § 3.957 that protects service connection in effect for 10 years or more, simply because a diagnostic code associated with a disability was corrected to more accurately determine the benefit to which a Veteran may be entitled. 651 F.3d at 1302. There is no reduction or severance of service connection. Therefore, circumstance pertinent to Murray and Read are not violated. Furthermore, the Board is increasing the Veteran’s disability rating for her left great toe condition. The Board notes that the assignment of a particular DC is “completely dependent on the facts of a particular case” and the Board can choose the DC to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. It is permissible to switch DCs to reflect more accurately a claimant’s current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). In this case, the Veteran’s current symptoms and diagnosis renders DC 5000 inappropriate. Given the Veteran’s current neurological symptoms, it is more advantageous to the Veteran that she be rated under DC 8520. Therefore, the Board finds that the AOJ’s actions were proper. Increased Rating When, as here, a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Here, the Veteran is rated under DC 8520 for her neuropathy symptoms. As noted above, the Veteran’s initial rating was changed from DC 5000 to DC 8520 and the change was appropriate. Furthermore, the record does not demonstrate any current compensable orthopedic disability or dermatological condition. See October 2019 VA examination report. The Veteran is already service connected for post-operative scar of the left great toe. Throughout the period on appeal, the Veteran’s complaints were of symptoms relating to neurological issues. This specifically includes pain and numbness. As such, consideration of a higher rating for the Veteran’s left great toe condition is properly rated under DC 8520. DC 8520 provides that mild incomplete paralysis warrants a 10 percent evaluation, moderate incomplete paralysis warrants a 20 percent evaluation, moderately severe incomplete paralysis warrants a 40 percent evaluation, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent evaluation, and complete paralysis warrants an 80 percent evaluation. The May 2012 VA examiner noted the Veteran had complete numbness in her first three toes that causes her to trip and fall. The May 2015 VA examiner noted the Veteran’s first three toes are numb after standing. The October 2019 VA examiner noted constant numbness, and mild to moderate symptoms. The Veteran stated her condition impacts her ability to stand, do physical activity, and balance. See August 2013 NOD. Furthermore, the Veteran stated she cannot feel the length of her foot and has overbearing pain walking and standing. See September 2018. The Veteran is competent to attest to her symptoms. The Board finds the Veteran’s symptoms more closely approximate that of moderate symptoms. A medical professional found moderate symptoms and the Veteran’s symptoms impact her ability to ambulate. However, a higher rating is not warranted. The Veteran has not been found to have complete paralysis or marked muscular atrophy. Only the October 2019 VA examiner found moderate symptoms and only for numbness. However, overall the October 2019 VA examiner found the Veteran’s symptoms amounted to mild incomplete paralysis. The May 2015 VA examination report noted the Veteran had numbness in the toes “after running.” This suggests the Veteran is still able to ambulate appropriately despite some impact due to her symptoms. As such, the Board finds the Veteran’s symptoms do not amount to those contemplated under higher ratings in DC 8520. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 20 percent levels, staged ratings are not warranted. As such, entitlement to an initial rating of 20 percent, but no higher, is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.