Citation Nr: 21004568 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-19 255 DATE: January 27, 2021 ORDER A rating in excess of 10 percent for residuals of stress fracture right third metatarsal (right foot disability) is denied. A 40 percent, but no higher, rating for post phlebitic syndrome right femoral vein is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right foot disability has manifested in no worse than moderate symptomatology. 2. The Veteran’s post phlebitic syndrome right femoral vein is characterized by signs and symptoms most nearly approximating persistent edema and stasis pigmentation with intermittent ulceration.   CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right foot disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2020). 2. The criteria for a 40 percent, but no higher, rating for post phlebitic syndrome right femoral vein are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7121 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from May 1985 to December 1986. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in July 2019. A transcript of the hearing is of record. Subsequently, in July 2019 the Board remanded the case for further development. Thereafter, in a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his right foot disability to 10 percent, effective October 3, 2011. As for the issue of entitlement to TDIU, the Veteran has not filed an application for TDIU. However, based on the Veteran’s June 2014 written statement that the symptoms of his post phlebitic syndrome right femoral vein interfere with his ability to maintain work, the issue of entitlement to TDIU due to service-connected disabilities has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Therefore, the issue is included as part of the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).   1. Entitlement to a rating in excess of 10 percent for right foot disability is denied. The Veteran and his representative generally contend the Veteran is entitled to a rating in excess of 10 percent for his right foot disability. See Board Hearing Transcript, dated July 16, 2019. The Veteran has been assigned a 10 percent rating for his service-connected right foot disability throughout the appeal period under Diagnostic Code 5284. 38 C.F.R. § 4.71a. Under Diagnostic Code 5284, other foot injuries are rated as 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167. 38 C.F.R. § 4.71a. The terms “moderate,” “moderately severe,” and “severe” 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. Use of terminology such as “severe” by VA examiners and others, although 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. Diagnostic Code 5284 does not apply to the eight-foot conditions specifically listed in the rating schedule under Diagnostic Codes 5276-5283. Specifically, Diagnostic Code 5284 refers to “other” foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code. The Court has held that when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Veteran’s right foot disability, diagnosed as residuals of right third metatarsal fracture, is not one of the eight conditions specifically listed under Diagnostic Codes 5276-5283; therefore, Diagnostic Code 5284 is the applicable diagnostic code here. The Board acknowledges that the record shows evidence of pes planus (Diagnostic Code 5276) and hammer toes (Diagnostic Code 5282); however, a September 1987 rating decision found that pes planus with pronation and hammertoes preexisted the Veteran’s service and was not aggravated during service and denied service connection for those conditions. As such, those conditions are not part of the Veteran’s service-connected residuals of right third metatarsal fracture and cannot be considered in evaluating the service-connected right foot condition. Therefore, the residuals of right third metatarsal fracture are most appropriately rated under Diagnostic Code 5284. See Copeland, 27 Vet. App. at 337. A preponderance of the evidence of record is against a finding that the Veteran is entitled to a rating in excess of 10 percent. At a September 2013 VA examination, the examiner diagnosed the Veteran with fracture third metatarsal, now healed. The examiner indicated that the Veteran did not have weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. The Veteran was noted to be using insoles constantly. The examiner noted the Veteran’s gait was abnormal and that the functional impact of the Veteran’s right foot disability is the Veteran is unable to sit or stand for any significant length of time, and that he needs to change position frequently and elevate the extremity. The Veteran attended an additional VA examination in February 2020 for an evaluation of his right foot disability. The examiner diagnosed the Veteran with residuals of stress fracture right third metatarsal. The examination report indicates the Veteran did not have weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner noted that the Veteran had mild to moderate pain in the right foot which contributed to functional loss, and that the contributing factor of disability is pain on movement. The examiner described the functional loss as that the Veteran cannot do prolonged standing or walking due to right foot pain. The Veteran was noted to use a walker to help him with ambulation. The examiner noted that the Veteran’s right foot disability caused no functional impact. The Veteran reported at the examination that he has discomfort in his right foot, he has symptoms of swelling and constant pain in the medial arch. He indicated that he did not have flare ups or any functional loss from the foot disability. The examiner reported using insoles that do not help relieve his pain, and that his pain is worse with walking. Furthermore, in a June 2014 written statement, the Veteran reported that he has constant pain in his foot with movement, walking, exercising, and when just lying there. In addition, the Veteran reported his foot causes pain throughout his body. The Board also acknowledges the Veteran’s testimony at the July 2019 Board hearing that his foot is swollen, deformed, and causes great discomfort and pain. VA treatment records also reflect the Veteran has been treated for pain and swelling in the right foot. For example, in October 2013 he was treated for right foot pain that he described as being constant and being an 8 on a 10-pain scale. He indicated that it was a throbbing, sharp pain that made it hard to walk. In December 2013, he reported his pain was at a level of 10. He characterized it as a dull pain that affected his ambulation and was aggravated by activity. January 2020 X-rays of the right foot revealed no acute fracture, dislocation or bone destruction. There was chronic first metatarsal-phalangeal joint space narrowing with small osteophytes and a posterior calcaneal spur. Although there is evidence of pain, discomfort, weakness, and less movement than normal, symptoms of the Veteran’s right foot disability have not been shown to more nearly approximate moderately severe symptoms. The Board has considered whether a higher rating is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and has concluded that such is not warranted. The limitations and functional impact the Veteran experiences due to pain, weakness, discomfort, and similar complaints are accounted for in the assigned rating. The evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating at any time during the appeal period. The Board has considered whether the Veteran’s right foot disability would warrant a higher rating under any other diagnostic code but has determined that none are applicable as no other foot conditions were noted at the Veteran’s VA examinations. In sum, the criteria for a rating in excess of 10 percent for residuals of a stress fracture of the right third metatarsal have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a 40 percent, but no higher, rating for post phlebitic syndrome right femoral vein is granted. The Veteran and his representative generally contend the Veteran is entitled to a rating in excess of 20 percent for his post phlebitic syndrome right femoral vein disability. See Board Hearing Transcript, dated July 16, 2019. The Veteran has been assigned a 20 percent rating for his service-connected post phlebitic syndrome right femoral vein disability throughout the appeal period under Diagnostic Code 7121. 38 C.F.R. § 4.104. Under Diagnostic Code 7121, a 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous indurations, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. A Note to Diagnostic Code 7121 directs that these evaluations are for involvement of a single extremity; if more than one extremity is involved, each extremity is evaluated separately and combined under § 4.25. 38 C.F.R. § 4.104. Here, the evidence of record illustrates that the Veteran’s right lower extremity is the sole extremity affected by his post phlebitic syndrome right femoral vein disability. The Board concludes that the evidence most nearly approximates manifestations of post-phlebitic syndrome right femoral vein warranting a 40 percent, but no higher, rating. At a July 2013 VA examination, the examiner diagnosed the Veteran with post phlebitic syndrome in the right lower extremity femoral vein. The examination report reflects that the Veteran had symptoms of aching and fatigue in his leg after prolonged standing or walking, the symptoms were relieved by compression hosiery, he had intermittent ulceration, and persistent edema that is incompletely relieved by elevation of extremity. The examiner noted the functional impact of the Veteran’s right lower extremity disability is that he cannot sit, stand, or lie down due to his leg becoming edematous and painful. A February 2014 VA treatment record reflects that the Veteran has right lower extremity stasis dermatitis. The right lower extremity was greater in size than the left, but there was no pitting edema. A May 2014 VA treatment record reflects that the Veteran had dry positive hyperpigmentation in the right lower extremity and on and off swelling in the lower extremity. He was provided with new compression hosiery. VA treatment records, including in October 2013 and June 2015, reflect that the Veteran has been treated with hydrophilic topical cream for stasis dermatitis. The Veteran attended an additional VA examination in February 2020 for an evaluation of his post phlebitic syndrome right femoral vein disability. The Veteran had symptoms of aching and fatigue in his leg after prolonged standing and walking. The Veteran did not have varicose veins. The examiner noted the Veteran had persistent edema that is incompletely relieved by elevation of the extremity and persistent edema. The examiner did not mark that the Veteran had stasis pigmentation, eczema, or ulceration. The examiner noted the functional impact of the Veteran’s right lower extremity disability is that he cannot walk around due to right leg pain and swelling. The Veteran reported that his right leg is persistently swollen and causes discomfort daily. An April 2020 VA treatment note reflects that the Veteran had no peripheral edema and had a normal gait during the physical examination. VA treatment records as recent as April 2020 reflect diagnoses of stasis dermatitis and hyperpigmentation. Aside from the medical evidence addressed above, in a June 2014 written statement, the Veteran stated that his post phlebitic syndrome right femoral vein disability causes constant pain and discomfort and is always swollen. Furthermore, the Veteran stated his disability causes problems with motion and when lying. In addition, he stated he cannot sit, lie, walk, or run for any amount of time. At the July 2019 Board hearing, the Veteran testified that his skin has drastically changed in color and severity and his right leg is anywhere from two to four inches bigger than his leg. Furthermore, the Veteran stated at his Board hearing that his right leg swells up so bad that he cannot move it to sleep due to his entire leg being tight. In addition, the Veteran stated that his disability causes problems when he has to walk or sit for any length of time. In December 2011 and December 2012 written statements, the Veteran’s mother stated that the Veteran gets extreme leg cramps, so he cannot stand for any length of time and can barely walk. When considering the balance of the medical and lay evidence during the appeal period, the Board finds that the Veteran’s post phlebitic syndrome right femoral vein has been manifested by persistent edema, including as noted on the February 2020 VA examination. The evidence also reflects that the Veteran has experienced stasis dermatitis, including hyperpigmentation, that has required treatment during the appeal period with a topical cream. The July 2013 VA examination also indicates that the Veteran has experienced intermittent ulceration. As such, the Board concludes that a higher 40 percent rating is warranted under Diagnostic Code 7121. The Board further finds that a preponderance of the evidence is against a finding that an even higher rating is warranted. Although the evidence reflects persistent edema and intermittent ulceration, there is no evidence that ulceration has been persistent. VA treatment records and examinations and the lay evidence at most reflect intermittent evidence of ulceration; thus, the evidence does not show statements or medical evidence that would more nearly approximate persistent ulceration. Additionally, although the Veteran experiences persistent edema, the weight of the evidence of record and as described above is against a finding that such edema more nearly approximates massive board-like edema with constant pain at rest. Thus, in considering the benefit of the doubt rule, the Board finds the evidence most nearly approximates the criteria for a 40 percent, but no higher, rating under Diagnostic Code 7121. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.104; Gilbert, 1 Vet. App. at 55.   REASONS FOR REMAND As noted above, the claim seeking entitlement to TDIU has been raised as part of the claim seeking an increased rating for post phlebitic syndrome, right femoral vein. Rice, 22 Vet. App. at 453. As the AOJ has not had an opportunity to complete development on this claim, it is remanded for such development. The matter is REMANDED for the following: Provide the Veteran with appropriate notice specific to a TDIU claim, complete any necessary development on the claim seeking entitlement to TDIU, and adjudicate the matter of entitlement to TDIU, including whether referral to the Director of Compensation Service is warranted for TDIU on an extraschedular basis under § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.