Citation Nr: 21063114 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-48 144 DATE: October 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of a left foot fracture is denied. FINDING OF FACT The Veteran's residuals of a left foot fracture were manifested by no worse than a moderate foot injury. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a left foot fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1991 to January 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in April 2014. The Veteran's claim was remanded for the issuance of a Statement of the Case. The case is now again before the Board for further appellate action. Entitlement to a rating in excess of 10 percent for residuals of a left foot fracture is denied. A January 2013 rating decision denied the Veteran's claim for a rating in excess of 10 percent for his service-connected left foot fracture residuals. The Veteran contends that his left foot residuals are more disabling than reflected by the 10 percent disability rating assigned. The Veteran's left foot disability has been rated as 10 percent disabling pursuant to Diagnostic Code 5284. 38 C.F.R. § 4.71a. Under Diagnostic Code 5284, a 10 percent rating is assigned for a moderate foot disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Moderately severe foot disabilities are rated as 20 percent disabling; and a 30 percent rating is assigned for severe foot disability. Id. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Because the rating schedule offers no further guidance on the issue, the Board will rely on Webster's definitions of the terms used. "Marked" means noticeable. Webster's II New College Dictionary, 670 (1995). "Moderate" means of average or medium quantity. Id. at 704. Turning to the evidence, a January 2011 private treatment record reported that the Veteran complained of pain on the dorsal and plantar regions of his left foot that radiate up to his toes. He described numbness, cramping, and tingling in his toes. The assessment was nerve impingement, possible Moton's Neuroma, as the second interspace of the left foot. He was also assessed to have a possible cortical fibrous defect causing a bulging of the lateral cortex of the second metatarsal. A May 2015 VA primary care note reported left foot pain with no tenderness on palpation. The assessment was left foot pain worse with plantar flexion. A June 2015 private treatment record reported the Veteran complained of dorsal left foot pain. The pain was described as achy, crampy, stabbing, radiation, able to bear weight. The Veteran reported the severity as "mild, affecting daily activities, and affecting sleep." Private examinations performed in December 2015 and January 2016 private reported no tenderness on palpation of the left foot. A November 2016 VA nursing note documented the Veteran's report of foot pain of "less than 4." A November 2016 VA podiatry note reported the Veteran experienced pain on the dorsum of his left foot that was worse when ambulating. There was pain on palpation of the second and third left metatarsals. There was no pain on range of motion of the digits. X-rays showed an old, healed fracture involving the second metatarsal, mild degenerative changes along the interphalangeal joints and first metatarsophalangeal joint, and posterior and plantar calcaneal spurs. The Veteran was afforded a VA examination of his left foot disability in August 2017. The Veteran reported that he had constant pain in his left foot, which he described as pain on the top of the left foot. He noted the foot pain worsened with increased walking. He reported he had tried arch supports without improvement. The examiner noted that the Veteran was not currently prescribed a medication for the foot. The Veteran did not report experiencing flare-ups the impact the functioning of the left foot. The Veteran reported functional loss/functional impairment of the left foot as "less motion, more pain." The examiner reported the following contributing factors of disability for the Veteran's left foot: pain on movement, pain with weight-bearing, and interference with standing. The examiner reported that pain, weakness, fatigability, or incoordination significantly limited functional ability when the foot is used repeatedly over a period of time. The examiner reported that she could not describe functional loss over a period of time without resorting to mere speculation. Upon examination, the Veteran had pain on the use of his left foot and on manipulation of his left foot. There was no swelling on use or characteristic callouses. The Veteran has tried arch supports for his left foot, but the foot remains symptomatic. The Veteran did not have extreme left foot tenderness of plantar surfaces or decreased longitudinal arch height of the left foot on weight-bearing. There was no objective evidence of marked deformity or marked pronation of the left foot. The weight-bearing line of the left foot did not fall over or medial to the great toe. The examiner described the Veteran's left foot condition as tenderness to palpation over the left foot dorsum along the 2-3 metatarsals. The examiner assessed that the severity of the left foot disability was moderate. According to the examiner, the condition does not chronically compromise weight bearing and did not require arch supports, custom orthotic inserts, or shoe modifications. The examiner reported that there was not functional impairment of the left foot that would be equally well served by an amputation with prosthesis. The examiner reported that the Veteran's left foot disability impacted his ability to perform occupational tasks, as he would have difficulty with prolonged standing, walking, and weight bearing. The Veteran was reported to walk with a normal gait in VA mental health treatment records compiled in October 2018, November 2018, July 2019, and October 2019. A September 2019 VA mental health note reported that the Veteran had tried working at a local marina but was told that it was not working out after 3 days of being there. A January 2020 vocational assessment report documented that, during a December 10, 2019 telephone call with the Veteran, he described having sharp stabbing pain in his left foot. He reported that he needed to elevate his left lower extremity frequently each day. According to the Veteran, he can only walk and stand for a maximum of five minutes. A December 19, 2019 VA podiatry note reported the Veteran had left foot pain that was worse at the end of the day. He had mild discomfort on direct palpation to the left medial calcaneal tubercle. He had mild discomfort on range of motion of the left subtalar joint. No swelling was observed. Having reviewed the evidence as reported above, the Board has determined that the Veteran's service-connected left foot disability does not warrant a rating in excess of 10 percent at any time during the course of the appeal. The Veteran has been rated as 10 percent disabling on the basis of moderate residuals of a left foot fracture. For a rating in excess of 10 percent under Diagnostic Code 5284, the foot injury residuals would have to result in moderately severe residuals. 38 C.F.R. § 4.72, Diagnostic Code 5284. In June 2015, the Veteran described the severity of his left foot pain as mild. In November 2016, the Veteran described the severity of his left foot pain as less than 4 on a 10-point scale. On examination in August 2017, the examiner assessed that the disability does not chronically compromise weight bearing and did not require arch supports. The examiner concluded that the severity of the left foot disability was moderate. On December 10, 2019, the Veteran reported that he can only walk and stand for a maximum of five minutes. However, at a December 19, 2019 podiatry consult, he reported having left foot pain that was worse at the end of the day. No swelling was observed, and he had mild discomfort on direct palpation to the left medial calcaneal tubercle and range of motion of the left subtalar joint. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating for his left foot disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board acknowledges that the August 2017 examiner failed to estimate the degree of additional range-of-motion loss after repeated use over time. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the August 2017 examiner made any attempt to ascertain adequate information from relevant sources to provide an estimate of the degree of additional range-of-motion loss after repeated use over time. Nevertheless, to the extent that the examination findings of record relative to the left foot disability are not completely in compliance with Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board notes that examination findings pertaining to the left foot would not be useful in evaluating the Veteran's left foot disability because the rating criteria for the Veteran's left foot disability does not require joint testing and/or range of motion testing. Accordingly, a remand to retrospectively correct any prior examination deficiency of the left foot disability that complies with Sharp would not be useful. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.