Citation Nr: 20034036 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 10-10 731 DATE: May 15, 2020 ORDER Service connection for undiagnosed right foot numbness as due to a qualifying chronic disability is granted. An initial 10 percent disability rating for right great toe tendonitis, prior to June 21, 2017, is granted, subject to the laws and regulations of monetary payments. Entitlement to a disability rating in excess of 10 percent of right great toe tendonitis, from June 21, 2017, is denied. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has a current qualifying chronic disability characterized by symptoms of right foot numbness that has manifested to a compensable degree during a six-month period since service. 3. Prior to June 21, 2017, the Veteran’s right great toe tendonitis has been manifested by painful motion. 4. The Veteran’s right great toe tendinitis has been manifested by overall symptomatology of a moderate impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for undiagnosed right foot numbness as due to a qualifying chronic disability have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317. 2. Prior to June 21, 2017, the criteria for a disability rating of 10 percent for right great toe tendonitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5284. 3. From June 21, 2017, the criteria for a disability rating in excess of 10 percent for right great toe tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to September 2005. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). A hearing was held in June 2017 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. The Board, in pertinent part, remanded the case to the AOJ for additional development in September 2017. As to the issue decided in this decision, the Board finds that there has been substantial compliance with the Board remand directives. This matter has now been returned to the Board for appellate review. 1. Entitlement to service connection for right foot/leg numbness. The Veteran contends that he has lower right leg numbness that he relates to a bicycle accident in service. Generally, to establish service connection a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Objective indications of a chronic disability include both ‘signs,’ in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a) (3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i)(B). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. The Veteran’s military personnel records confirm that the Veteran served in the Southwest Asia theater. The Veteran was awarded the Southwest Asia Service Medal with a Bronze Star that denotes service in-country. Therefore, the Veteran is a qualifying Persian Gulf Veteran. In the Veteran’s June 2005 service separation examination, the Veteran reported numbness in his right foot when he drove. The Veteran reported he had no treatment for the numbness. In May 2006 the Veteran underwent a VA examination. During the examination, the Veteran complained of intermittent paresthesias and some numbness of the right foot, usually covering the dorsum of the right foot. The Veteran stated that it occurred when the Veteran sat for long periods of time or drove a car. The examiner noted that at the present, there was no neurological finding or symptoms. The examiner stated the problem had never been evaluated and had not worsened in the past year or so. Upon examination, the examiner found that there was no neurological findings or consequence to account for the Veteran’s numbness. In October 2019, the Veteran underwent a VA nerve examination. The examiner diagnosed the Veteran with numbness of the right foot. The examiner found the Veteran had symptoms of moderate paresthesias and/or dysesthesias and moderate numbness in the lower right extremity. The examiner found moderate incomplete paralysis of the right sciatic nerve. The examiner noted that while the Veteran had numbness of the right foot which is not attributable to a known clinical diagnosis, the disorder nonetheless was less likely as not 50 percent probability or greater an undiagnosed illness resulting from the Veteran’s service in the Persian Gulf because etiology cannot be determined and exposure in the Persian Gulf is not known to cause right foot numbness. No further rationale was provided. In October 2019, the Veteran also underwent a Gulf War examination. The examiner indicated the Veteran had neuropathy. The examiner also found that the Veteran had a diagnosis of right foot numbness for which no etiology was established. As for relevant lay evidence, the Veteran testified at a June 2017 Board hearing. The Veteran stated he was involved in a bicycle accident that caused his numbness in his right foot. The Veteran testified that he had not received a diagnosis for any disability related to his foot numbness but it had persisted since service. As detailed above, throughout the course of this appeal and to health care professionals, the Veteran has consistently reported right foot numbness and paresthesias. The Veteran is competent to report any symptoms that come to him through the senses including numbness in his right foot. The Board also finds his statements and testimony not only to be competent but credible as well. As to service connection as due to claimed undiagnosed illness from Southwest Asia service, the most probative evidence of record does support finding that the Veteran has right foot numbness due to an undiagnosed illness. As to the medical opinions of record, the Board acknowledges the October 2019 VA examiner’s opinion that the Veteran’s right foot numbness, for which an etiology cannot be determined, is less likely as not an undiagnosed illness resulting from the Veteran’s service in the Persian Gulf because etiology cannot be determined and exposure in the Persian Gulf is not known to cause right foot numbness. However, this opinion is problematic in that the examiner does not account for the Veteran’s consistent competent and credible statements of right foot numbness in service and since then. Further, although the examiner reasoned that exposure in the Persian Gulf is not known to cause right foot numbness, the examiner does not provide further explanation in light of the governing legal criteria which clearly provides that signs or symptoms which may be manifestations of an undiagnosed illness, in pertinent part, include, but are not limited to, neurologic signs or symptoms. The Board therefore, gives little probative weight to the examiner’s conclusions in that regard. Finally, the Board notes that the Veteran’s symptoms of numbness and paresthesias are neurological symptoms. The Board finds that the Veteran symptoms of moderate paresthesias and/or dysesthesias and moderate numbness in the lower right extremity, as rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, have manifested to a degree of 10 percent or more. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for right foot numbness as due to a qualifying chronic disability, is warranted. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran argued that his right foot numbness is directly related to an in-service bicycle injury. However, as the Veteran’s appeal has been granted in full based upon his Gulf War service any direct service connection claim is moot. 2. Increased disability rating for tendinitis of the right great toe The Veteran contends that his right great toe tendonitis is more severe than initially rated. The Veteran’s right great toe tendinitis is rated noncompensable prior to June 21, 2017 and 10 percent thereafter. Prior to May 11, 2015, the Veteran’s noncompensable disability rating for his right great toe tendinitis was rated under Diagnostic Code 5024 (tenosynovitis). Thereafter, the Veteran’s right toe was rated under Diagnostic Code 5284 (other foot injuries). For the reasons set forth below, the Board finds that the Veteran’s right great disability warrants a disability of 10 percent throughout the entire appellate period, but no higher. Tendonitis of the toe is not expressly listed in the Rating Schedule pertaining to rating the feet. See, 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. However, the Veteran’s great right toe tendonitis is best encompassed by Diagnostic Code 5024 for tenosynovitis as the criteria includes the “limitation of motion of the affected parts,” as for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Disabilities of the feet are governed by the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. As noted, the AOJ previously determined that the most closely analogous diagnostic code pertaining to the Veteran’s toe disability prior to May 2015 is 38 C.F.R. § 4.71a, Diagnostic Code 5024, which pertains to tenosynovitis. In this regard, the Board notes that 38 C.F.R. § 4.20 provides that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Disabilities under Diagnostic Code 5024 will be rated on limitation of motion of affected parts, as degenerative arthritis (5003). Diagnostic Code 5003 provides ratings for degenerative arthritis. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. There are also two relevant note provisions associated with Diagnostic Code 5003. Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). If the Veteran’s right great toe disability does not warrant a compensable rating under the appropriate diagnostic code based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injury, a 20 percent rating is warranted for a moderately severe foot injury, and a 30 percent rating is warranted for a severe foot injury. 38 C.F.R. § 4.71a. The words “moderate” and “severe” as used in the various diagnostic codes are not defined in the Rating Schedule. 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. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All the pertinent evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The most recent VA examination of the foot in December 2019 is responsive to the guidance provided in Correia and Sharp and is adequate in that regard. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In June 2006, the Veteran underwent a VA general examination. The examiner diagnosed the Veteran with chronic tendinitis of the great right toe. The Veteran reported rare episodes of aching, particularly when exposed to weather conditions. The examiner found no swelling, acute flares, limitation of motion, instability, or fatigability. Upon physical examination, the Veteran had a right foot that was completely within normal limits. The right great toe had full range of motion with 40 degrees flexion of the MTP joint and 70 degrees extension. In March 2015, the Veteran underwent a VA foot examination. The examiner diagnosed the Veteran with chronic tendinitis of the right great toe. During the examination, the Veteran reported that he had intermittent pain in the right big toe. The pain was triggered in cold weather and rainy condition. The Veteran reported episodes of pain during winter months and with running. The Veteran denied pain with walking or standing. The Veteran noted that the frequency of the pain had increased since his last VA examination. The Veteran reported that flare-ups did not impact the function of the foot. The Veteran did not report any functional loss of functional impairment of his right foot. The examiner found the severity of the Veteran’s right foot was mild. The Veteran’s foot condition did not chronically compromise weight bearing. The foot condition did not require arch supports, custom orthotic inserts or shoe modifications. The examiner did not find any pain on physical examination. The examiner found no functional loss of the right lower extremity attributable to the right great toe tendonitis. The examiner there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time. The examiner found there was no other functional loss during flare-ups or when the foot is used repeatedly over time. The examiner noted that the Veteran did not use any assertive device as a normal or occasional mode of locomotion. The examiner noted that the Veteran’s foot condition did not cause functional impairment that no effective function remained other than that which would be equally served by an amputation with a prosthesis. The examiner found the Veteran’s right great toe tendinitis did not impact his ability to perform any type of occupational task. In December 2019, the Veteran underwent a VA foot examination. The examiner diagnosed the Veteran with chronic foot tendonitis. The Veteran reported that his current foot condition had symptoms of pain and immobile. The Veteran reported the condition affected daily activities. The examiner found the severity of the right foot disability was moderate. The examiner found the Veteran had pain on examination of his right foot. The examiner found the Veteran had pain on weight bearing. The Veteran did not have pain weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner found there was no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. The examiner did not find any other pertinent physical findings, complications, signs, or symptoms related to his right foot tendonitis. The examiner found the Veteran did not require an assistive device. The examiner noted that the Veteran’s foot condition did not cause functional impairment that no effective function remained other than that which would be equally served by an amputation with a prosthesis. The examiner found that the Veteran’s foot disability impacted the Veteran’s ability to perform any type of occupational tasks. Specifically, the examiner found the Veteran had reported pain with daily activities. As for lay evidence, the Veteran testified in a June 2017 Board hearing. The Veteran testified that he had swelling and pain in his right great toe. The Veteran stated that he had pain upon walking. The Veteran stated that he had a limp due to his toe and that he had pain in his toe in the morning. The Veteran stated that he took both over-the-counter and prescribed Tylenol for his toe. The Veteran stated that he could walk less than a city block and had difficulty driving due to his toe. The Veteran stated that during a flare-up, the Veteran was unable to wear a shoe. The Veteran noted that his toe caused difficulty sleeping. The Veteran stated that he had flare-ups every two weeks. The Veteran noted that the Veteran had pain and limited range of motion due to swelling during a flare-up. The Veteran stated he did not wear special shoes; however, he wore more open toe shoes or tennis shoes. The Veteran stated that when he stood for prolong periods of time and pain would occur. The Veteran stated he avoided activities that would cause his toe to flare-up. The Veteran stated that his toe hurt worse in bad weather. The Veteran stated he believed he had arthritis. Based upon the evidence the Board finds that evidence prior to June 2017 (the date of an increase to 10 percent which the AOJ found was the date of the Veteran’s hearing in which he described a worsening of the disability), the Veteran experienced flare-ups, which caused pain on movement and swelling. As provided above, pain on movement under 5003 warrants a 10 percent disability rating. Although, the Veteran’s great right tendonitis was rated under 5284 from May 2015, the Board finds the it more beneficial to continue to rate the Veteran under Diagnostic Code 5024 until June 2017. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). The facts in this case warrant the Diagnostic Code changes from DC 5824 to DC 5024 from May 2015 to June 2017 for the right toe to maximize available benefits. The Board finds that throughout the entire appellate period a disability rating in excess of 10 percent is not warranted. Under Diagnostic Code 5003, the Veteran’s disability must be rated on limitation of motion on the affected parts. Foot and toe disabilities are not explicitly or necessarily rated on limitation of motion, and therefore, a 10 percent rating is the highest rating under 5003. The Board further finds that throughout the appellate period the Veteran’s disability is no more severe than moderate. The December 2019 VA examiner found the severity of the Veteran’s right foot disability was moderate; and the March 2015 VA examiner found the severity mild. In addition, the guidance in Correia and DeLuca as well as the regulations that those cases interpret is meant to ensure that Veterans are compensated at the actual levels of disability that their conditions manifest during active phases of their conditions after repeated use, during flare ups, on weight bearing or non-weight bearing conditions, or other circumstances. Correia, 28 Vet. App. 158; DeLuca, 8 Vet. App. 202. The Board notes that the Veteran had complaints of difficulty with pain and swelling in his toe and the pain caused difficulty with daily activities such as walking, standing for prolong periods, and driving. However, this evidence does not demonstrate that Veteran’s limitation resulted in a moderately severe foot disability. The Board has considered the applicability of other Diagnostic Codes related to the foot and ankle. However, there is no evidence or allegation that the Veteran’s right toe of the foot disability is productive of any other higher ratable conditions such as weak foot, pes cavus, malunion or nonunion of the tarsal or metatarsal, or an ankle disability. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s right great toe tendinitis throughout the entire appellate period. In sum, the Board finds that the Veteran’s right great toe tendonitis is entitled to a 10 percent disability rating throughout the entire appellate period, but no higher. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.