Citation Nr: 21001303 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-05 090 DATE: January 7, 2021 ORDER Entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD, is denied. Entitlement to an initial compensable rating prior to March 7, 2016 for residuals of a right foot injury is denied. Entitlement to a 20 percent rating from March 7, 2016 for residuals of a right foot injury is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current disability of hypertension which is related to service. 2. Prior to March 7, 2016, the Veteran’s displayed mild symptoms relating to his in-service right foot injury with no additional functional impairment. 3. From March 7, 2016, the Veteran's right foot injury symptoms have been, at most, moderately severe when considering functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, claimed as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial compensable rating for residuals of a right foot injury prior to March 7, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code 5284. 3. The criteria for a rating of 20 percent, but no more, for residuals of a right foot injury from March 7, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to December 2001 and from January 2004 to November 2004. These matters come before the Board of Veteran's Appeals (Board) on appeal from January 2013 and June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded for additional development in October 2018 and May 2020 Board decisions. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Right Foot Injury Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When the appeal is from the initial rating assigned with an award of service connection, the entire period of time from the effective date of the award to the present is for consideration, and separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Any reasonable doubt, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Residuals of fracture are rated under Code 5284 (for foot injuries), which provides for a 30 percent rating for severe foot injury, a 20 percent rating for moderately severe injury; and a 10 percent rating for moderate injury. 38 C.F.R. § 4.71a. The words "moderate," "moderately severe," and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). The 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 evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran’s service-connected right foot injury is currently rated utilizing 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5284. DC 5284 provides rating criteria for other foot injuries. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. The Veteran contends he is entitled to a higher rating for his foot injury. The October 2013 VA examiner determined the severity of the Veteran’s symptoms were mild. The Veteran reported his in-service injury when he fractured his second metatarsal at the midshaft location and that he had a “little trouble” with his right foot since. There were no specific symptoms other than the 2nd toe slightly overlaps the third toe. This was not rigid and had not caused any disability or problems with the foot. The Veteran’s injury was determined to not impact his ability to work nor was there functional impairment. The examiner determined that there is no objective evidence of loss of range of motion, pain, weakness, and fatigability during reported flare-ups and the examiner would have to resort to mere speculation to provide an opinion. X-rays indicated mild angulation of the second metatarsal; physical examination indicated that the third toe was easily moved back into position and would not cause any problems. Therefore, the severity was indicated by the physician as mild. The March 2016 VA examiner diagnosed the Veteran with pes planus, hallux valgus, and 2nd metatarsal fracture. The examiner determined that theses diagnoses are not directly or secondarily related to service-connected 2nd metatarsal fracture based on the examination and bilateral x-rays of the feet. The Veteran indicated that he had not had any treatment of the foot since separation from service. The Veteran reported that he walks for exercise and his foot hurt at night; after the physical training for the police, he will be in pain for several days after. The examiner indicated that the severity of the Veteran’s right foot service-connected disability was moderate. The examiner indicated that there was pain on physical examination which contributed to functional loss. The examiner indicated that there was pain on movement, pain on weight-bearing, deformity, disturbance of locomotion and lack of endurance. The examiner indicated the deformity of the second toe overlapping the great toe resulted in pain with prolonged/sustained walking and/or running. The physician indicated that the Veteran’s foot deformity impacted his occupation in that he should wear comfortable footwear at all times; and should engage in only infrequent climbing, jumping, or running on level surfaces 30 to 45 minutes per hour followed by at least 15 minutes of seated activity. In the November 2019 VA examination, the examiner determined that the Veteran symptoms were moderate. The functional impairment was indicated with flare-ups with pain worse with prolonged standing greater than 20 minutes or walking three miles. The Veteran reported daily foot pain, inability to stand or walk long distance, and cannot wear dress shoes. The physician indicated no general functional impairment of the right lower extremity. A March 2020 statement from the Veteran indicates that the Veteran is unable to walk barefoot and must wear special sandals with padding; he has swelling and soreness at the end of the day; when he walks for his job his foot pain can go to a 5 out of 10; and he cannot run like he used to be able to do. In a July 2020 addendum, the examiner determined that the severity of the right foot injury was mild. The Veteran reported that he only wears a specific Nike brand shoe and that he doesn’t really have any problems unless his is walking all day then his right foot begins to hurt a little bit. When that happened, he took over the counter medication and he was back to baseline. He is also unable to walk barefoot so he has a slider shoe which he reported works great for him. The Veteran indicated that he could not wear a dress shoe without it irritating his right foot disability. The examiner stated that there is no functional loss and the Veteran did not describe any flare-ups. The Veteran described only increased pain with repetitive use (prolonged standing) or when not following medical advice to use proper support/footwear, which the examiner determined that neither are considered a flare-up. Prior to March 7, 2016, the Veteran’s had mild symptoms related to the residuals of his right foot injury. These symptoms have been contemplated and a noncompensable rating has been assigned. In the October 2013 VA examination the examiner determined that the overlapping toe can easily be moved back into place, is not expected to cause any related problems, and the condition was determined by a medical professional to be mild. The Veteran received no treatment for the condition since the in-service injury. There was no objective evidence of loss of range of motion, pain, weakness, fatigability, or incoordination during reported flare-ups or after repeated use. Hence, a compensable rating is not warranted prior to March 7, 2016. The Board finds that a rating of 20 percent under 5284 from March 7, 2016 is warranted when taking into account VA examiner’s indication that the disability is moderate coupled with the Veteran’s statements regarding flare-ups and functional limitations. However, those symptoms are not shown by competent objective evidence to have been so disabling as to warrant the next higher 30 percent rating for a severe foot disability under Diagnostic Code 5284. In this regard, the Board notes that the most recent VA examinations have determined the Veteran’s disability to be only mild and the Veteran’s problems apparently have abated with the use of good shoes. He apparently only has pain with prolonged standing. See DeLuca v. Brown, 8 Vet. App. at 207; see also Mitchell v. Shinseki, 25 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. at 26. The Board has considered the other foot diagnostic codes in 38 C.F.R. § 4.71a, to include DCs 5276-5283, but the lay and medical evidence of record demonstrates that the Veteran does not have the disabilities contemplated in these DCs or such manifestations are already contemplated, and thus compensated, in the current 50 percent rating assigned under DC 5284. The Board additionally notes that other foot diagnoses of record, namely pes planus and hallux valgus, are not associated with the Veteran’s service-connected foot injury for which he is service-connected. In sum, the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating prior to March 7, 2016. However, a 20 percent rating from that date is warranted for residuals of a right foot injury. Consequently, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55. Hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Establishing service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends he is entitled to service connection for hypertension, secondary to service-connected PTSD. In a July 2020 VA examination, the examiner determined that the Veteran does not have a diagnosis of hypertension. The Veteran reported that he does not has a diagnosis of hypertension and that he checks his blood pressure multiple times a day. The Board finds that evidence of a present disability has not been established in the case of the Veteran’s claimed hypertension; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, here, no residuals of a chronic disability have been identified. The Board acknowledges that the July 2020 VA examination was held over the phone. However, the Board notes that the examiner relied on the Veteran’s statements with regard to the fact that he had never been diagnosed with hypertension. Thus, the Board finds the examination report sufficient with regards to whether the Veteran has been diagnosed with hypertension. As described, the criteria for service connection have not been met and the Veteran’s claim of hypertension, secondary to service-connected PTSD, is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Aniya J. Escott, 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.