Citation Nr: 21063376 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-47 507 DATE: October 14, 2021 ORDER Entitlement to an initial, 30 percent rating, but no higher, for left diabetic Charcot arthropathy, first metatarsophalangeal (MTP) joint osteoarthritis, calcaneal spur, and tendonitis ("left foot disability") for the entire period on appeal is granted. FINDING OF FACT For the entire period on appeal, the Veteran's left foot disability has been manifested by severe symptoms, especially when considering functional loss during flareups and with repeated use over time, but loss of use of the foot has not been shown. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 30 percent, but no higher, for a left foot disability, have been met or approximated for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 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 December 1985 through December 1988 and from April 1989 through April 2006. This matter is on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for left diabetic Charcot foot and assigned a 20 percent rating, effective from December 21, 2015. The Veteran did not submit an explicit notice of disagreement with the rating assigned for his left foot disability in the February 2016 rating decision. However, in April 2016, the Veteran filed a VA Form 21-8940 seeking entitlement to a TDIU due, in part, to his left foot disability. In connection with that claim, the RO obtained an updated VA examination regarding the Veteran's left foot disability. See May 2016 VA Examination Report. In an August 2016 rating decision, the RO, in pertinent part, continued the rating for the Veteran's left foot disability. The Veteran timely perfected an appeal as to the rating assigned for his left foot disability. See August 2016 Notice of Disagreement; July 2017 Statement of the Case; September 2017 VA Form 9. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156 (b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that 38 C.F.R. § 3.156 (b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim). In this case, although the Veteran did not express disagreement with the rating assigned for his left foot disability in the February 2016 rating decision, new and material evidence regarding the claimed disability was received within the appeal period after the initial, February 2016 rating decision, and thus, that rating decision did not become final. See 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.201 (2019). Therefore, despite the RO's prior characterization of this issue as arising from an August 2016 rating decision, the Board finds that the issue of an increased rating for the Veteran's left foot disability is properly characterized as an appeal of the initial rating assigned in the February 2016 rating decision, and the issue has been recharacterized accordingly. In April 2019, the Board remanded this matter for additional development. Increased Rating The Veteran seeks an increased rating for his service-connected left foot disability, which is currently assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 5284, other foot injuries are rated 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. Diagnostic Code 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code, such as in this case. The Court has held that when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76543, 76463 (Nov. 30, 2020). However, the rating criteria for Diagnostic Code 5284 (for residuals of foot injuries) was not affected by those regulatory changes. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). B. Factual Background Turning to the evidence of record, an October 2015 private treatment record shows that the Veteran underwent surgery for left foot diabetic Charcot arthropathy. The Veteran was afforded a VA examination in January 2016. He reported that he was in a CAM boot and off crutches post-surgery. He indicated that he currently had left foot pain with walking more than 15 minutes and weightbearing more than 30 minutes. He also reported that his foot swelled at the end of the day. The Veteran reported functional impairment due to an inability to walk more than 15 minutes and weight bear more than 30 minutes. The examiner indicated that the Veteran had a moderately severe left foot injury that chronically compromised weight bearing and required orthotic inserts. The examiner also noted that the Veteran had edema over the dorsum and that the Veteran's incision was not fully healed from his foot surgery. The examiner also noted that there was a reduction of the arch compared to the other side. There was pain on physical examination, and the pain contributed to functional loss. The examiner indicated that excess fatigability, pain on movement, pain on weight-bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance were contributing factors of disability. The examiner also indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups or with repeated use over time because the Veteran has increased pain and swelling when standing or walking more than 15 to 30 minutes. The examiner opined that there was not such functional impairment due to the Veteran's left foot disability that he would be equally well served by amputation. X-rays showed stable fusion across the medial foot from calcaneus to first metacarpal and extensive degenerative changes of the foot with diffuse demineralization. The Veteran was afforded a VA examination in May 2016. He reported that his left diabetic Charcot foot had worsened after using several casts. He reported burning pain, tingling, and swelling. He also reported daily flare-ups of swelling, discomfort, and pain. He reported functional impairment of difficulty walking up and down stairs and hills. The examiner indicated that the Veteran had a moderately severe left foot injury that chronically compromised weight bearing and required orthotic inserts. There was pain on physical examination, and the pain contributed to functional loss. The examiner indicated that pain on movement and pain on weight-bearing were contributing factors of disability. The examiner also indicated that pain would significantly limit functional ability during flare-ups or with repeated use over time because the Veteran had pain with walking and standing, as well as difficulty ambulating. The examiner opined that there was not such functional impairment due to the Veteran's left foot disability that he would be equally well served by amputation. A May 2016 treatment record shows that the Veteran reported increasing pain and swelling of his left foot. On examination, there was swelling throughout the left foot localized over the hallux and tenderness to palpation over the hallux MTP. Radiographs showed that the fusion backed out into the MTP, as well as a fracture at the base of P1. Charcot changes were also visible. The Veteran underwent surgery to remove hardware in his left foot. A December 2016 private treatment record shows that the Veteran had full muscle strength, with edema in the left foot and ankle. Muscle tone was normal, but there was pain with forced inversion of the left ankle and STJ. The left foot was in moderate inversion, with some pes planus noted. Touch, pinprick, and vibratory sensations were diminished, and the Veteran had loss of protective sensation as measured by the Semmes-Weinstein monofilament. The Veteran received a steroid injection. Subsequent treatment records show similar findings to the December 2016 private foot treatment. The Veteran was afforded a VA examination in July 2017. He reported progressive pain, stiffness, deformity, swelling, and weakness. He also reported moderate to severe daily symptoms with limited relief from his current treatment of pain medications, activity modification, and steroid injections. The Veteran reported daily flare-ups of severe pain, stiffness, and weakness. He also reported functional impairment due to limitations on prolonged walking, standing, lifting, and carrying. The examiner noted pes planus symptoms, including pain accentuated on use. There was no pain with manipulation of the left foot, but there was indication of swelling on use. There was no evidence of characteristic calluses. The examiner indicated that orthotics relieved the Veteran's symptoms. There was no evidence of extreme tenderness of plantar surfaces, but there was decreased longitudinal arch height of the left foot with weight bearing. There was no evidence of marked deformity or marked pronation. The examiner indicated that Charcot arthropathy caused alteration of the weight bearing line. The examiner indicated that the Veteran had a moderate to severe other left foot injurynamely left Charcot arthropathy that chronically compromised weight bearing and required orthotic inserts. There was pain on physical examination, and the pain contributed to functional loss. The examiner indicated that pain on movement, pain on weight-bearing, deformity, disturbance of locomotion, interference with standing, and interference with sitting were contributing factors of disability. The examiner opined that there was not such functional impairment due to the Veteran's left foot disability that he would be equally well served by amputation. The Veteran was afforded a VA examination in April 2020. The examiner noted diagnoses of diabetic Charcot foot, first MTP joint osteoarthritis, and calcaneal spur. The Veteran reported swelling and stinging pain of his left foot. He also reported difficulty walking and going up stairs. He reported daily flare-ups of severe left foot pain and functional impairment due to no movement or mobility and difficulty walking and going up stairs. The examiner indicated that the Veteran had a moderate other left foot injurynamely left Charcot arthropathy that chronically compromised weight bearing. There was pain on physical examination, and the pain contributed to functional loss. There was pain with active and passive range of motion, and there was pain with weight bearing and non-weight bearing. The examiner indicated that pain on movement and pain on weight-bearing were contributing factors of disability. The examiner also indicated that pain with standing and walking would significantly limit functional ability during flare-ups or with repeated use over time. The examiner opined that there was not such functional impairment due to the Veteran's left foot disability that he would be equally well served by amputation. X-rays showed "completely disorganized mid foot area," osteoarthritis of the first MTP joint, and plantar calcaneal spur. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the preponderance of the evidence supports a 30 percent disability rating for a severe left foot disability, especially when considering functional loss during flare-ups and with repeated use over time. Although the January 2016 and May 2016 VA examiners indicated that the Veteran's left foot disability was moderately severe and the April 2020 VA examiner indicated that the Veteran's left foot disability was moderate, the July 2017 VA examiner noted moderate to severe symptoms. Moreover, all of the examiners also indicated that the Veteran's left foot disability chronically compromises weight bearing, requires arch supports, and results in pain on movement and pain on non-weight-bearing. Further, the Veteran experiences flare-ups of severe pain with standing and walking, has increased pain with activity, has swelling, and he limits his walking and climbing. Based on the objective findings of record and the subjective complaints of the Veteran, the Board finds that the evidence of record support a disability rating of 30 percent for the entire appeal period. A 40 percent rating is not warranted as the objective and subjective evidence of record does not support a finding of a disability that approximates actual loss of use of the left foot. As noted above, all of the VA examiners opined that there was not such functional impairment due to the Veteran's left foot disability that he would be equally well served by amputation, and these findings are supported by the evidence of record showing that despite the Veteran's severe left foot injury, he still retained significant ability to use his foot. Finally, the Board has considered whether a higher rating is warranted under any other Diagnostic Codes pertaining to disabilities of the feet. However, no higher rating is permitted for unilateral involvement without evidence showing actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Codes 52775283. Moreover, while the record reflects symptoms of pes planus, osteoarthritis, and calcaneal spur, all of these symptoms are contemplated by the increased, 30 percent rating for severe foot injury. Accordingly, to separately rate them would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Finally, the Board notes significant neurological symptoms related to the Veteran's left lower extremity. However, the Veteran is already separately service connection for left lower extremity diabetic peripheral neuropathy, and that issue is not on appeal. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 30 percent schedular disability rating for severe other foot injury for the entire period on appeal. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.