Citation Nr: 21002967 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 190506-8777 DATE: January 19, 2021 ORDER A rating in excess of 10 percent for left foot sesamoiditis, status post bunionectomy, is denied. FINDING OF FACT The Veteran’s left foot sesamoiditis more nearly resembles that of a “moderate” foot injury than a “moderately severe” or “severe” injury. Sesamoiditis is not accurately rated by analogy to any of the enumerated foot disabilities. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left foot sesamoiditis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1993 to January 1994, and from November 1994 to April 2000. He filed a claim to increase the rating in excess of 10 percent for left foot sesamoiditis, status post bunionectomy, which was received by VA in January 2019. An April 2019 AMA rating decision under the he Veterans Appeals Improvement and Modernization Act (AMA) denied the increased rating claim. The Veteran then filed a timely AMA Notice of Disagreement, electing for Direct Review Lane, which was received by VA in May 2019. Under the direct review option, no additional evidence received after the appealed rating decision is to be considered; rather, review is limited to the evidence on record at the time of the April 2019 rating decision. A Board decision dated December 2019 denied a rating in excess of 10 percent for left foot sesamoiditis, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In September 2020, the Court issued an order vacating the December 2019 Board decision with regard to the portion of denying a rating in excess of 10 percent for left foot sesamoiditis, and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties agreed that the December 2019 Board decision failed to explain why the most appropriate Diagnostic Code (DC) for rating the Veteran’s sesamoiditis was DC 5280. Parties agreed that on remand, the Board should address whether any of the contemplated diagnostic Codes are more appropriate to rate the Veteran’s sesamoiditis. The Veteran’s left foot is currently rated as follows: • DC 5276- Bilateral Pes Planus (flat foot): 50 percent from November 2018; • DC5299-5280 – Sesamoiditis and residual scar, status post bunionectomy, left foot – 10 percent from April 2000; • DC 7802 – Residual scar, status post bunionectomy, left foot – 0 percent from March 2019 • DC 5003- DJD metatarsal-phalangeal joint (MTPJ)/left foot arthritis (claimed as pos surgical or avascular necrosis of the left foot and arthritis of the left foot) associated with sesamoiditis and residual scar, status post bunionectomy, left foot 0 percent from January 2019. Diagnostic Code 5299 indicates the disability is not listed in the Schedule for Rating Disabilities and it has been rated by analogy under a closely related disease or injury. 38 C.F.R. § 4.20. The Veteran was afforded a VA examination in March 2019 (associated with the claim’s file in April 2019), at which he was diagnosed with bilateral pes planus, degenerative arthritis (left foot) and sesamoiditis (left foot). The Veteran reported that he stated experiencing left foot pain after his left bunionectomy in 1996 and the pain was getting worse, such that he could not stand for too long. X-rays of the left foot in March 2019 showed no acute fracture; medial bunion repair noted, fully healed with good alignment; mild medial bunion swelling noted, and digit and midfoot alignment noted within normal limits. The examiner indicated that the Veteran’s sesamoiditis in the left foot was “moderate” with symptoms of pain with prolonged walking and standing. The VA treatment records during the allowed evidentiary period (from one year prior to the Veteran’s claim was received by VA to the date of the April 2019 AMA rating decision) do not show any symptoms that were worse than those reflected in the March 2019 VA examination. That is, while there are hundreds of pages of VA treatment records that were introduced into the record during the period on appeal, the fact is that the Veteran has not received much actual foot treatment during this time. There are few references to sesamoiditis, aside from foot pain. As noted, the Veteran is already being compensated for extreme tenderness of the foot. Despite the protestations about the appropriate rating, the Veteran has not received any treatment for sesamoiditis for a number of years. The Veteran did seek a podiatry appointment during the period on appeal, but it was for his right foot, not his left foot. DC 5276 evaluates pes planus. As the Veteran has already rated separately under DC 5276, the Veteran’s sesamoiditis will not be evaluated under DC 5276. DC 5277 evaluates weak foot, DC 5278 evaluates claw foot, DC 5279 evaluates metatarsalgia/Morton’s disease, DC 5281 evaluates hallus rigidus, DC 5282 evaluates hammer toe, DC 5283 evaluates malunion or nonunion of tarsal. As the March 2019 VA examination does not show that the Veteran left foot has these conditions, these Diagnoses Codes are not applicable and will not be discussed further. The Veteran’s sesamoiditis is currently rated under DC 5280 (unilateral hallux valgus) which provides a single and maximum rating of 10 percent. The evidence shows that the Veteran used to have rigidus hallus in the left foot and underwent a left bunionectomy in 1996. X-rays of left foot in March 2019 showed medial bunion repair fully healed with good alignment; and digit and midfoot alignment within normal limits. As such, DC 5280 is no longer the appropriate Diagnosis Code for evaluating his left foot sesamoiditis. Diagnostic Code 5284 evaluate other foot injuries not specifically contemplated under other Diagnostic Codes. As discussed above, the Veteran’s left foot sesamoiditis does not fit into the rating criteria of other Diagnostic Codes, as such, DC 5284 is the appropriate Diagnostic Code for evaluating sesamoiditis. Under Diagnostic Code 5284, a 10 percent evaluation is provided for a “moderate” foot injury. A 20 percent evaluation is provided for a “moderately severe” foot injury. A 30 percent evaluation is provided for a “severe” foot injury. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a. DC 5284. The words “moderate,” “moderately severe,” and “severe” are not defined in Diagnostic Code 5284. Again, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. The Board notes that the Veteran is already service connected for pes planus at a 50 percent level which contemplates, among other symptoms, extreme tenderness of the feet, and thus in assigning a separate rating for sesamoiditis, the Board must be careful to avoid rating the same symptoms twice. 38 C.F.R. § 4.14. Here, the March 2019 VA examination showed that the Veteran’s sesamoiditis caused pain after prolong walking or standing. The examiner indicated that the Veteran’s sesamoiditis was of “moderate” severity. The VA treatment records during the allowed evidentiary period did not show that the Veteran had actively sought treatment for his left foot sesamoiditis/pain caused by the 1996 bunionectomy. As such, the Board finds that the evidence does not support the finding of “moderately severe” or “severe” foot injury. It is noted that neither the JMR, nor the Veteran’s attorney has pointed to any evidence that would be supportive of a rating in excess of 10 percent or explained what they believed would be the appropriate Diagnostic Code. Accordingly, a rating in excess of 10 percent for left foot sesamoiditis is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.