Citation Nr: 20054067 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 13-11 445 DATE: August 14, 2020 ORDER For the period prior to September 17, 2015, entitlement to a rating in excess of 10 percent for residuals of an injury to the second right toe is denied. For the period starting September 17, 2015 and ending August 9, 2017, entitlement to a rating of 20 percent, and no higher, for residuals of an injury to the second right toe is granted. For the period starting October 1, 2017, entitlement to a rating of 20 percent, and no higher, for residuals of an injury to the second right toe is granted. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 17, 2015, the Veteran’s residuals of an injury to the second right toe caused moderate impairment. 2. From September 17, 2015 to August 9, 2017, the Veteran’s residuals of an injury to the second right toe caused moderately severe impairment. 3. Since October 1, 2017, the Veteran’s residuals of an injury to the second right toe has caused moderately severe impairment. CONCLUSIONS OF LAW 1. For the period prior to September 17, 2015, the criteria for entitlement to a rating in excess of 10 percent for residuals of an injury to the second right toe have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5284 (2019). 2. For the period starting September 17, 2015 and ending August 9, 2017, the criteria for entitlement to a rating of 20 percent, and no higher, for residuals of an injury to the second right toe have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5284 (2019). 3. For the period prior starting October 1, 2017, the criteria for entitlement to a rating of 20 percent, and no higher, for residuals of an injury to the second right toe have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5284 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form October 1974 to October 1977 and she received the National Defense Service Medal. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Rating for Residuals of an Injury to the Second Right Toe The Veteran’s residuals of an injury to the second right toe have been evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284, with the exception of a 100 percent disability rating for the period between August 9, 2017 and September 30, 2017. Under DC 5284, a 10 percent rating is assigned for a moderate foot injury; a 20 percent rating is assigned for a moderately severe injury; a 30 percent rating is assigned for a severe injury; and, a 40 percent rating is assigned for actual loss of use of the foot. The Board notes that words such as “moderate,” “moderately severe,” and “severe,” 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 to ensure that its decisions are “equitable and just as contemplated by the requirements of the law.” 38 C.F.R. § 4.6. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings for the disability on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. Prior to September 17, 2015, the Veteran’s disability was of a moderate severity. The Veteran underwent a VA examination in January 2014 at which time she reported that she experienced foot discomfort and tenderness. See January 2014 CAPRI, p. 2. The Veteran was working full-time in a position that required her to be on her feet and reported that she would remove her shoes when she sat down as well as on her drive home. Imaging studies showed mild degenerative changes with hallux rigidus and an old injury to the proximal phalanx of the right second toe. There are no treatment records related to the Veteran’s right toe injury from this time. For the period prior to September 17, 2015, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for residuals of an injury to the second right toe. To receive a higher evaluation, the evidence must demonstrate characteristics of a moderately severe injury, including symptoms such as reduced movement, weakened movement, excess fatigability, or incoordination. The evidence fails to demonstrate these characteristics but instead shows that the Veteran’s disability was characterized by pain and tenderness causing the Veteran to need to remove her shoes. The Board finds that the severity of these symptoms and the resultant impairment are adequately contemplated by the current 10 percent rating. Accordingly, a rating in excess of 10 percent for residuals of an injury to the second right toe is not warranted for the period prior to September 17, 2015. From September 17, 2015 to August 9, 2017, the Veteran’s foot condition caused moderately severe impairment. The Veteran underwent a VA examination in September 2015. At this time, the Veteran reported pain, throbbing and occasional numbness. See October 2015 VA Examination, pp. 5-12. She reported having to elevate her foot at work and difficulty with ambulating long distances. On examination, the Veteran had rigidity of the MIP of the second right toe with chronic pain. The examiner noted that the Veteran’s foot condition did not compromise her weight bearing but interfered with her ability to wear closed toe shoes. Contributing factors of disability included less movement than normal, pain on movement, pain on non-weight bearing and disturbance of locomotion. The examiner also indicated that repeated use over time and flare-ups can cause increased pain. The examiner described the functional impact of the Veteran’s disability as decreased range of motion, limited ambulation, inability to wear certain shoes, and a need to elevate her foot at work. Treatment records from this time show that the Veteran complained of foot pain that was alleviated with rest and aggravated by prolonged activity. See January 2019 CAPRI, pp. 246, 270, 275, 294, 325. The Veteran also reported difficulty wearing enclosed shoes. See January 2019 CAPRI, p. 325. At the June 2017 hearing, the Veteran stated that she experiences toe throbbing, aching, spasms and twitching. See June 2017 Hearing Transcript, pp. 3-4, 7. She further testified that she is unable to wear closed toe shoes and that she has fallen a couple of times when she has hit her foot or toe. The Board finds that the Veteran’s disability more closely approximates the disability picture contemplated by the 20 percent rating for the period starting September 17, 2015 and ending August 9, 2017. To warrant a higher rating, the evidence must show severe impairment demonstrated by significant interference with use and motion of the foot. The evidence fails to demonstrate that the Veteran experienced such interference as a result of her right toe disability. Rather, the Veteran’s disability was characterized by less movement than normal, pain on movement, pain on non-weight bearing, disturbance of locomotion, difficulty with prolonged ambulation, and an inability to wear certain types of shoes. These symptoms are adequately contemplated by the 20 percent rating for moderately severe impairment. Accordingly, a rating of 20 percent, and no higher, is warranted for the period starting September 17, 2015 and ending August 9, 2017 for residuals of an injury to the second right toe. Since October 1, 2017, the Veteran’s disability has been characterized by moderately severe impairment. The Veteran underwent a VA examination in May 2019 at which time she reported pain, cramping, spasms, burning, throbbing and aching. See May 2019 VA Examination, pp. 4, 8-9. She again reported that she had difficulty wearing closed toe shoes and increased pain with walking. Contributing factors of disability included pain on movement, pain on weight-bearing, pain on non-weight bearing, and interference with standing. Treatment records show that the Veteran primarily complained of pain, including on standing, and difficulty wearing closed toe shoes. See January 2019 CAPRI, pp. 49, 61, 75, 226, 229; April 2019 CAPRI, pp. 24-25; June 2019 Private Treatment Records, pp. 58, 64. The Board finds that the Veteran’s disability more closely approximates the disability picture contemplated by the 20 percent rating for the period starting October 1, 2017. To warrant a higher rating, the evidence must show severe impairment demonstrated by significant interference with use and motion of the foot. The evidence fails to demonstrate that the Veteran experienced such interference as a result of her right toe disability. Rather, the Veteran’s disability was characterized by pain on movement, pain on weight-bearing, pain on non-weight bearing, interference with standing, and an inability to wear certain types of shoes. These symptoms are contemplated by the 20 percent rating for moderately severe impairment. Accordingly, a rating of 20 percent, and no higher, is warranted for the period starting October 1, 2017 for residuals of an injury to the second right toe. REASONS FOR REMAND Service Connection for a Back Condition The Veteran underwent a VA examination in May 2019 in connection with her claim for service connection for a back condition. The examiner opined that it was less likely than not that the Veteran’s current back condition was incurred in or caused by the Veteran’s service and based this opinion on a lack of contemporaneous medical records corroborating the Veteran’s reports of a back injury or back strain. See May 2019 VA Examination, p. 2. While there are no contemporaneous medical records related to a specific injury, the Veteran’s 1977 report of medical history indicates that she experienced back pain in service. See April 2011 STR, pp. 18-19. Moreover, the Veteran has stated that she experienced back pain in service, and she is competent to report observable symptoms. See June 2017 Hearing Transcript, pp. 9-10; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). The May 2019 opinion does not address the Veteran’s noted in-service back pain or the Veteran’s competent and credible testimony of experiencing back pain in service and since her service. Accordingly, the claim is remanded for a new opinion that considers this evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Service Connection for an Acquired Psychiatric Disability In connection with her claim for service connection for an acquired psychiatric disability, the Veteran underwent an examination in May 2019. The examiner confirmed a diagnosis of unspecified depressive disorder and offered a negative nexus opinion on direct service connection because the Veteran’s depressive disorder diagnosis was 24 years after her service. See May 2019 VA Examination, p. 1. However, this rationale does not address why the Veteran’s current mental health complaints are not related to the various incidents that occurred during her active duty service. See June 2017 Hearing Transcript, pp. 19-25; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (without a medical opinion that clearly addresses the relevant facts, the Board is left to rely on its own lay opinion, which it is forbidden from doing). The examiner also opined that the Veteran’s depressive disorder is less likely than not due to the Veteran’s right toe disability. See May 2019 VA Examination, p. 2. The examiner’s rationale is that the Veteran reported that her disability caused problems with standing for long periods. However, the Veteran’s treatment records show that she has complained of chronic pain in the context of mental health treatment as well as anxiety and sleep impairment caused by her service-connected tinnitus. See March 2020 CAPRI, p. 75. Therefore, the Board remands the claim for nexus opinions that fully consider the Veteran’s reported history as well as the impact of her service-connected disabilities on her depressive disorder. TDIU The Veteran claims that her service-connected right toe disability and other disabilities, including a back condition, prevent her from maintaining substantially gainful employment. See Veteran’s Application for Increased Compensation Based on Unemployability, pp. 1-2. As such, the Board finds that the issue of TDIU is inextricably intertwined with the issue of service connection for a back condition, and it would be premature to decide the former issue before there has been a final adjudication of the latter. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As the claim for service connection for a back condition is remanded, the claim for TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain a VA opinion that addresses the etiology of the Veteran’s back condition. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner must consider the Veteran’s report of sustaining a back injury when a patient fell on her in service, her report of experiencing back pain as a result of lifting heavy objects in service, as well as her reports of continuous back pain since service. See April 2011 STR, pp. 18-19; June 2017 Hearing Transcript, pp. 9-10; August 2017 CAPRI, p. 36. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of the Veteran’s acquired psychiatric disability. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address the following: (a) Using the Diagnostic and Statistical Manual for Mental Disorders (DSM-5), identify all diagnoses that pertain to the Veteran’s acquired psychiatric disability. In providing this opinion, the examiner is asked to consider the Veteran’s treatment records which contain diagnoses of chronic PTSD, major depressive disorder, anxiety disorder, trauma-related anxiety, and sleep disturbance. See March 2020 CAPRI, p. 1; August 2017 CAPRI, p. 91. (b) If a diagnosis of PTSD is applicable, the examiner should identify any markers of an in-service stressor. (c) For any applicable diagnosis, is it at least as likely as not (a 50 percent probability or greater) that such disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this opinion, the examiner should consider the Veteran’s report of experiencing various personal assaults in service. See June 2017 Hearing Transcript, pp. 19-25. (d) For any applicable diagnosis, is it at least as likely as not that such disability is caused by, aggravated by, or is otherwise etiologically related to a service-connected disability? In providing this opinion, the examiner should consider the impact of chronic pain from her right toe disability and recurrent tinnitus on her mental health. The examiner is advised that the Veteran is competent to report her history and symptoms, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.