Citation Nr: 21062264 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-30 829 DATE: October 6, 2021 ORDER A disability rating greater than 10 percent for status-post removal of Morton's neuroma of right foot is denied. For the period from July 5, 2016, and prior to December 11, 2019, a 10 percent, but no higher, disability rating for right foot scar is granted. For the period from December 11, 2019, a disability rating greater than 10 percent for right foot scar is denied. FINDINGS OF FACT 1. Throughout the rating period, the Veteran's status-post removal of Morton's neuroma of right foot has been manifested by complaints of pain and swelling on standing and walking, extreme tenderness, pain on manipulation and use, flareups of pain, and functional loss due to pain. Neither right ankle limitation of motion nor ankylosis, nor marked deformity of right foot is demonstrated. 2. As of July 5, 2016, and prior to December 11, 2019, the Veteran's right foot scar has been manifested by pain and sensations of "pins and needles" at times. Neither three or more painful scars, nor a deep scar measuring 12 square inches or more, are demonstrated. 3. Throughout the rating period from December 11, 2019, the Veteran's right foot scar has been manifested by pain and sensations of "pins and needles" at times. Neither three or more painful scars, nor a deep scar measuring 12 square inches or more, are demonstrated. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for status-post removal of Morton's neuroma of right foot are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.44, 4.45, 4.59, 4.71a, Diagnostic Code 5279. 2. As of July 5, 2016, and prior to December 11, 2019, the criteria for a 10 percent evaluation, but no higher, for right foot scar are met or nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.118, Diagnostic Code 7804. 3. Throughout the rating period from December 11, 2019, the criteria for a disability rating greater than 10 percent for right foot scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 2000 to March 2005. She timely appealed these matters from a November 2010 rating decision. In May 2019, the Veteran testified during a hearing before the undersigned at the regional office of the Agency of Original Jurisdiction (AOJ); a transcript of the hearing is associated with the claims file. In October 2019, the Board of Veterans' Appeals (Board) remanded the matters for further developmentto include new examinations. At no time has the Veteran alleged that her service-connected disabilities prevented her from obtaining or maintaining substantially gainful employment. A claim for a total disability rating based on individual unemployability (TDIU) is not inferred as part of these claims for higher ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, substantial compliance with the Board's October 2019 remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). No further action regarding unemployability is required. All available records identified by the Veteran as relating to each of her claims have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. There is no evidence indicating a material change in severity of disabilities since last examination. Current examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran's appeal. 38 U.S.C. § 5103A (a)(2). Evaluations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Evaluating the same manifestations under a separate diagnosis would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14. Status-Post Removal of Morton's Neuroma of Right Foot Throughout the rating period, the service-connected status-post removal of Morton's neuroma of right foot [hereinafter, right foot disability] is rated as 10 percent disabling under Diagnostic Code 5279 for Morton's disease. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5279 was not changed. Pursuant to Diagnostic Code 5279, the 10 percent rating is the maximum disability rating available for metatarsalgia, anterior (Morton's disease), unilateral or bilateral. Alternatively, the overall regulatory scheme for foot disabilities contemplates a 10 percent rating in cases of ankylosis of the ankle in good weight bearing position; or problems so disabling that there is atrophy, disturbed circulation and weakness of the foot; or where there is inward bowing of the tendo Achillis with pain on manipulation and use of the foot; or definite tenderness with dorsiflexion of the great toe and limitation of dorsiflexion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5276, 5277, 5278. A 20 percent rating is contemplated by the overall regulatory scheme in cases of ankylosis of the ankle in poor weight bearing position; or where there is unilateral marked deformity of the foot with pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; or where there is unilateral marked tenderness with dorsiflexion of the great toe and limitation of dorsiflexion of the ankle to right angle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5276, 5278. A 30 percent rating or more is contemplated by the overall regulatory scheme in cases of ankylosis of the ankle in plantar flexion or in dorsiflexion; or where there is unilateral marked pronation or extreme tenderness of plantar surfaces of the foot with marked inward displacement and severe spasm of the tendo Achillis on manipulation; or where there is unilateral marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5276, 5278. Historically, the Veteran developed a painful neuroma in her right foot, which was surgically excised from the foot in March 2005. Her right foot pain persisted. The report of a January 2006 VA (contract) examination revealed tenderness of both feet. The examiner noted Morton's metatarsalgia at base of each big toe on the plantar aspect. X-rays of each foot were within normal limits. The Veteran required foot supports. Synovitis of bilateral third metatarsophalangeal joint was noted in January 2008; she underwent steroid injections at the time, with several months of pain relief. VA records show no foot ulcers or lesions in December 2009; foot sensation was intact to light touch. A September 2010 examiner noted the specific history of pain in the ankle and foot, which occurred constantly. Pain was localized and described as squeezing, burning, and sharp; and was exacerbated by physical activity. The Veteran was able to function with medication. At rest, there was stiffness and swelling, but no pain or weakness or fatigue. Functional impairment consisted of painful ambulation. Examination of each foot in September 2010 revealed neither signs of abnormal weight bearing or breakdown, callosities, nor any unusual shoe wear pattern. Weight-bearing examination of Achilles tendon was normal. There was no limitation with standing and walking. The Veteran required foot supports, which relieved symptoms and pain. X-rays of right foot were within normal limits. Painful ambulation was noted. Right ankle examination in September 2010 revealed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement; ranges of motion of right ankle were within normal limits. Right ankle tenderness was noted in October 2011. X-rays revealed a metallic plate in distal fibula. The impression was negative right foot. In November 2011, the Veteran reported constant pain in right foot that affected all aspects of daily activities. She could not endure prolonged standing or walking, and pain impacted her ability to rest at night and resulted in fatigue during the day. She shifted her weight to left side when walking and standing. The Veteran underwent a podiatry consultation in April 2016. She described the pain as shooting, numbing, and tingling in most of the right foot. She took medication, which did not help. The Veteran reportedly broke her right tibia in May 2011, and a plate was inserted. She described locations of pain as the second inner space under the scar, along the dorsal foot under the scar, at the Achilles, and at the arch of foot. She also was concerned that the foot swelled at end of day. She worked full time at a desk job as a network engineer. Ankle ranges of motion were within normal limits. Muscle strength was 5/5 bilaterally. Her gait pattern was normal. The assessment was plantar fasciitis, and the Veteran was given stretching and icing instructions. X-rays of bilateral foot in April 2016 revealed no acute fracture or dislocation. Joint spaces in both feet were preserved. No significant productive changes were visualized. Screw and plate fixation hardware was visualized along the distal right fibula. Mild hammertoe deformity of lateral toes somewhat limited the evaluation of distal phalanges on some views. VA records, dated in January 2017, show an assessment of bilateral foot pain, for which a small component may be plantar fasciitis secondary to pes planus. Given symmetrical symptoms of numbness and tingling and complaints of feet feeling cold, the physician suggested that pain likely was neurological in origin and secondary to chronic and progressive lumbar radiculopathy. Mild foot swelling was noted in November 2018. In May 2019, the Veteran testified that following the surgery, she still had swelling and irritation of the right foot; and that a shooting pain went through her whole leg. She testified that she wore inserts in her shoes, and that right foot pain was intensive; it worsened in the morning and worsened when standing for prolonged periods. The Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran also testified in May 2019 that she tried to adjust her body to alleviate some weight from her feet. Her hips shifted; she developed a bulging disk in her spine, requiring injections. She testified that it all played a part with her feet and legs and pinching nerves. The Board finds such conditions are not part and parcel of the service-connected right foot disability and not for consideration for higher ratings in this decision. In June 2019, a private podiatrist opined that the Veteran has an anterior nerve injury on both feet and ankles in addition to what was diagnosed as Morton's neuroma. Her back issues were probably not related to this complaint because a local infiltration stopped her symptoms for several hours. The podiatrist speculated that it is quite possible that nerve damage was sustained by wearing boots. Examination in June 2019 revealed swelling on use of both feet. There were no characteristic calluses. There was extreme tenderness of plantar surfaces on both feet. There was decreased longitudinal arch height of both feet on weight-bearing, and the weight-bearing line fell over or medial to the great toe. There was "inward" bowing of the Achilles' tendon of both feet. There was no objective evidence of either marked deformity or marked pronation of each foot. Flare-ups were described as being very painful to walk, and the Veteran had to sit. There was pain on use of the feet, and pain was accentuated on manipulation. Both Morton's neuroma and metatarsalgia of each foot were noted. The podiatrist described constant and chronic nerve pain of each foot and ankle as contributing factors of disability. The Veteran was not able to stand on right foot for 15 minutes. During a March 2021 VA examination, the examiner noted a history of procedures for nerve blocks for treatment of foot pain over the past twelve months. The Veteran reported flare-ups of right foot pain occurring four times a month and lasting for a duration of three-to-four days. During flare-ups she cannot walk. Functional impairment due to right foot pain included not being able to stand for more than 15 minutes, not being able to walk for more than two blocks, foot swelling, and possible circulation problems. In addition to pain, there was indication of swelling on use of both feet and characteristic calluses. Mild or moderate symptoms of hallux valgus of each foot was noted. Pain of each foot contributed to functional loss. Pain was noted on passive movement of both feet and on weight-bearing. The Veteran had lost between two-to-four weeks of work time in the last twelve months due to pain and swelling of her feet. She was not able to walk, stand, or carry equipment due to foot pain and swelling; she regularly used a cane for walking. The March 2021 examiner opined that the diagnoses of bilateral flat foot, bilateral plantar fasciitis, bilateral metatarsalgia, bilateral hallux valgus, and Morton's neuroma of left foot were not related to the service-connected right foot disability. The examiner was unable to ascertain the extent to which symptoms were attributed to the service-connected right foot disability, as opposed to nonservice-connected bilateral foot disabilities. The Veteran continued to work as a network engineer at a desk job, and lost between two and four weeks from work due to right foot disability. In May 2021, a VA physician reviewed the medical records and opined that there was no specific evidence suggesting a neurologic or bony abnormality arising from the Veteran's right foot disability; and that it was more likely than not that the diagnoses of bilateral flat foot, bilateral plantar fasciitis, bilateral metatarsalgia, bilateral hallux valgus, and Morton's neuroma of left foot compromised the bulk of her symptoms and findings. The only symptoms attributable to the right foot disability were located at the site of excision. There was no evidence of neurologic compromise distal to that excision; and that the only plausible neurologic symptoms attributable to the prior excision would be distal to the excision site and isolated to the second and third toes. No such evidence was shown. For purposes of this evaluation, the Board has given the Veteran the benefit of the doubt and attributed all right foot symptoms other than residuals of fractured right tibia and neurologic or bony abnormalitiesi.e., pain, swelling, and functional impairmentto her service-connected right foot disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Here, throughout the rating period, the Veteran has consistently reported pain and swelling in the right foot. Examiners also noted limitations with standing and walking. The Board has considered the Veteran's lay assertions regarding severity and finds that her symptoms do not meet or approximate the criteria for a disability rating greater than the currently assigned 10 percent rating under any diagnostic code. While extreme tenderness of right foot has been noted, ranges of motion of right ankle are within normal limits. Ultimately, the Board places the most probative weight on the results of objective physical examination by medical professionals, which fail to show any evidence of right ankle ankylosis or marked deformity of right foot. Functional loss of right foot resulting from pain and swelling already is contemplated by the currently assigned 10 percent disability rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. The Board has also considered whether the right foot disability should be rated pursuant to Diagnostic Code 5284 pertaining to other foot injuries. However, in this case, the symptoms of disability are analogous to those of Morton's disease, as she has definite tenderness at the site of the excision. As her disability picture squarely fits within the criteria set forth for a 10 percent evaluation under Diagnostic Code 5279, this is the most appropriate code under which to rate the disability. Given that the Veteran already is in receipt of the maximum schedular rating for Morton's disease, there is no basis to award an increased rating for right foot disability under Diagnostic Code 5279. As no exceptional circumstance or unaccounted for symptom is raised, application of an extraschedular evaluation under 38 C.F.R. § 3.321 is not appropriate. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 10 percent rating for right foot disability. Right Foot Scar Here, the AOJ has assigned staged ratings for the right foot scar associated with excised Morton's neuroma: a 0 percent (noncompensable) rating under 38 C.F.R. § 4.118, Diagnostic Code 7804, for painful scar prior to December 11, 2019; and a 10 percent thereafter. Pursuant to Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Diagnostic Code 7800 pertains only to scars (including burn scars) that are located on the head, face, or neck; and is not applicable to the Veteran's appeal. Pursuant to Diagnostic Code 7801, a scar at a location other than the head, face, or neck that is deep or that causes limitation of motion would have to have an area exceeding 6 square inches (39 square centimeters) to warrant a 10 percent rating, 12 square inches (77 square centimeters) to warrant a 20 percent rating, 72 square inches (465 square centimeters) to warrant a 30 percent rating, or 144 square inches (929 square centimeters) to warrant a 40 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Pursuant to Diagnostic Code 7802, a scar at a location other than the head, face, or neck that is superficial and that does not cause limitation of motion would have to have an area exceeding 144 square inches (929 square centimeters) to warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1). Pursuant to Diagnostic Code 7805, disabling effects not considered in a rating provided under Diagnostic Codes 7800, 7801, 7802, and 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. VA records, dated in January 2008, revealed a well-healed incision over the third web space on the right foot. The Veteran was sensate to light touch at the time, with brisk capillary refill. Examination of the Veteran's right foot in March 2008 revealed that she was fully sensate to light touch in all dermatomal distributions. There was a well-healed 3-centimeters scar in the second web space on the dorsum of the foot; there was no sign of infection, no erythema, edema, or discharge. The scar was not fixed to underlying tissue, and there was no muscle loss. There also was a 1-centimeter scar on the plantar aspect of the midfoot, which was well healed and from a previous laceration the Veteran sustained. Examination of the Veteran's right foot in September 2010 revealed a linear scar precisely located on the right foot; the scar measured 1.5 centimeters by 0.5 centimeters. The scar was not painful on examination. There was no skin breakdown and no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation. The scar did not limit the Veteran's motion. There was no limitation of function due to the scar. In an October 2011 addendum, the VA (contract) examiner noted a linear scar located on the dorsum of the right foot (between 2nd and 3rd toes); the scar measured 1.2 centimeters by 0.3 centimeters. The scar was not painful on examination. There was no skin breakdown. This was a superficial scar with no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation. The scar did not limit the Veteran's motion, and there was no limitation of function due to the scar. There also was a linear scar located on the right lateral ankle; the scar measured 6 centimeters by 0.4 centimeters. The scar was a residual of her fractured right tibia; it was neither painful on examination, nor was there underlying tissue damage, nor skin breakdown. VA records, dated on July 5, 2016, show healed surgical scars on the dorsum right foot, right ankle, and right plantar midfoot. There was no interdigital maceration. There were no open lesions and no clinical signs of infection. There was no erythema or edema. Clinical evaluation at the time revealed pain on palpation of 3rd interspace of right foot; the assessment was stump neuroma of right foot. In May 2019, the Veteran testified that the scar was elevated; it did not peel, and at that time she had no feeling in the scar. A VA (contract) examiner in December 2019 noted a linear right anterior foot scar, as a residual of surgery; the scar was healed and measured 2.5 centimeters by 0.5 centimeters. There was sharp pain to touch of scar; it was tender to palpation, and not unstable. There was no underlying tissue damage. Neither limitation of motion nor limitation of function due to the scar was reported. The Veteran described the scar as very painful when lifting objects and walking long distances. Following the Board's December 2020 remand, the Veteran underwent a VA (contract) examination in March 2021. The Veteran was diagnosed with a right foot scar located between the 2nd and 3rd metatarsal. There was a "pins and needles" feeling in the incisional scar. The scar was not unstable. It measured 2.5 centimeters by 0.5 centimeters, and was tender to palpation. There was no underlying tissue damage. Neither limitation of motion nor limitation of function due to the scar was reported. The Veteran described the scar as hurtful when her foot swelled and when she was unable to walk due to pain. For the Period Prior to December 11, 2019 Here, the Veteran has a single residual scar due to her service-connected right foot disability. She submitted a claim for a higher rating on August 6, 2010. Examiners in September 2010 and in October 2011 found no evidence of a painful scar. The first evidence of a painful scar was during clinical evaluation on July 5, 2016. The evidence as a whole shows that the Veteran's disability first met the criteria for a 10 percent disability rating under Diagnostic Code 7804 on July 5, 2016. The Board has considered the Veteran's lay assertions regarding severity and finds that they support a 10 percent disability evaluation for right foot scar for the period from July 5, 2016, and prior to December 11, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. For the Period from December 11, 2019 As noted above, the Veteran has a single residual scar due to her service-connected right foot disability. Currently, a 10 percent rating is assigned under Diagnostic Code 7804, as that one scar is painful. As there are not three or more painful scars, no higher evaluation is warranted. The Veteran has reported that due to the right foot scar, she has feelings of "pins and needles" in the area where the scar is located; she also testified to having "no feeling" at times in the scar. Given the nature of the scar, the small and localized anatomical location, and a history of stump neuroma, the Board finds that the affected area makes rating by analogy, as a part and parcel of the single service-connected right foot scar, appropriate. The "other effects" of the scar, namely sensations of "pins and needles" at times in the scar, are therefore incorporated into the rating under Diagnostic Code 7804, where they may be recognized as meeting the criteria for the currently assigned 10 percent disability rating. No examiner has found that the service-connected right foot scar consists of three or more painful scars, or of a deep scar measuring 12 square inches or more. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 10 percent rating under Diagnostic Code 7804. There are no other ratable symptoms stemming from the right foot scar. Thus, the Board finds that the rating criteria adequately cover her symptoms. As such, referral for consideration for an extraschedular evaluation is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.