Citation Nr: 21064237 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-35 393A DATE: October 19, 2021 SUPPLEMENTAL ORDER Entitlement to an initial rating greater than 10 percent prior to July 24, 2015 for residuals of a fractured right foot, to include dorsal metatarsal sprain, plantar fasciitis, hallux valgus, and hammer toes, is denied. FINDING OF FACT Prior to July 24, 2015, the Veteran's right foot disability manifested as a moderate foot injury. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent prior to July 24, 2015 for residuals of a fractured right foot, to include dorsal metatarsal sprain, plantar fasciitis, hallux valgus, and hammer toes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5276, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on the Veteran's motion for reconsideration of the September 2020 Board decision that denied entitlement to an initial rating greater than 10 percent prior to July 24, 2015 for her right foot disability. In the September 2020 Board decision, the Board also denied entitlement to a rating greater than 30 percent from July 24, 2015, to include entitlement to a separate rating for nerve impairment of the right foot. The Veteran does not seek reconsideration of these matters. In the motion for reconsideration, the Veteran argues that the Board did not consider 38 C.F.R. § 4.71a, Diagnostic Code 5284, foot injuries, other, when determining whether a rating greater than 10 percent was warranted prior to July 24, 2015. The Board has reviewed the September 2020 decision and finds that while Diagnostic Code 5284 was mentioned, the Board did not analyze whether a higher rating prior to July 24, 2015 was warranted under this diagnostic code. Accordingly, the motion for reconsideration on this matter has been granted and the Board will address this matter herein. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Entitlement to an initial rating greater than 10 percent prior to July 24, 2015 for residuals of a fractured right foot, to include dorsal metatarsal sprain, plantar fasciitis, hallux valgus, and hammer toes, is denied. The Veteran's residuals of a fractured right foot, to include dorsal metatarsal sprain, plantar fasciitis, hallux valgus, and hammer toes ("right foot disability"), are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. As noted above, in the March 2021 motion for reconsideration, the Veteran seeks a rating greater than 10 percent for this period under 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran indicated that VA initially assigned a disability rating under Diagnostic Code 5284, a catch-all diagnostic code for foot injuries not specified in the Schedule or Ratings. 38 C.F.R. § 4.71a. She asserts that in June 2020, the Regional Office (RO) changed the Diagnostic Code from 5284 to 5276 for unspecified reasons and that the Board erred in continuing to apply Diagnostic Code 5276. Id. Regarding the application of specific diagnostic codes, in Scott v. Wilkie, the Federal Circuit expressly adopted the U.S. Court of Veterans Appeals (Court) holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. In this case, the Veteran's right foot disability is listed as residuals of a fractured right foot, to include dorsal metatarsal sprain, plantar fasciitis, hallux valgus, and hammertoes. Hallux valgus and hammertoes are specifically listed under Diagnostic Codes 5280 and 5282, respectively; however, as discussed in the September 2020 Board decision, the severity of the Veteran's hallux valgus and hammertoes do not warrant the assignment of separate compensable ratings during the pendency of the claim. Residuals of fractured right foot, dorsal metatarsal sprain, and plantar fasciitis are unlisted conditions under the rating criteria applicable prior to July 24, 2015, and as such, the conditions may be rated by analogy to diagnostic codes that address disabilities productive of similar symptoms. In September 2020, the Board rated the Veteran's right foot disability as analogous to flatfoot, acquired, under Diagnostic Code 5276 because some of the Veteran's symptoms are encompassed under these criteria; accordingly, consideration of the right foot disability under Diagnostic Code 5276 was proper. Since the Board already addressed entitlement to an increased rating for the right foot for this period under Diagnostic Code 5276, to include entitlement to separate ratings for dorsal metatarsal sprain, plantar fasciitis, hallux valgus, hammer toes, and nerve impairment in September 2020, the Board will address only whether a higher rating is warranted for the Veteran's right foot disability prior to July 24, 2015 under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. In this case, the evidence includes an August 2011 VA treatment record, which shows the Veteran reported pain of multiple joints, including the lower back, hand, and feet, and stiffness of the joints which improved throughout the day. On examination, her right foot was not tender to palpation and there was no effusion or laxity in the talocalcaneal or tibiotalar joints. No gait abnormality was noted and she was able to walk without an assistive device. Significantly, the Veteran remained active at home using a treadmill and Stairmaster. In an addendum note, the provider indicated that her primary active problems were back and hand pain. September 2011 VA x-rays of the right foot show minimal hallux valgus deformity of the right great toe with possible minimal degenerative joint disease changes of the first metatarsophalangeal joints. Also noted were mild bilateral hammertoes and a tiny spur of the plantar aspect of the right calcaneus. In January 2012, the Veteran indicated that she remained active using the treadmill and Stairmaster. A February 2012 VA treatment record shows the Veteran had no obvious gait abnormality while walking at a normal pace. She was able to run and ambulate on her toes, heel, and tandem without difficulty. In September 2012, the Veteran reported right foot pain rating a 4 out of 10 on the pain scale, with weight bearing. She reported that at work, she walked a few miles per week. She had right plantar lateral foot pain and orthotic inserts were ordered for her. In February 2013, the Veteran reported that her foot pain was most severe at work. She had pain on palpation and ambulation. The provider observed edema, right ankle inflammation, tendinitis, and osteoarthritis. The provider offered the Veteran an injection to the right ankle, but the Veteran deferred. She was instructed to wear her orthotics and ankle support daily and to avoid anything that increased her pain, such as wearing the wrong shoes. An August 2013 compensation and pension examination report shows a diagnosis of moderate foot conditions, including residuals of a right ankle fracture and dorsal metatarsal sprain of the right foot. The examiner noted metatarsalgia. The Veteran did not have hammertoes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or other foot injuries. The examiner indicated that the foot condition would impact the Veteran's ability to work because standing and walking for short periods elicited pain. The examiner noted an abnormal gait due to ankle pain. A September 2013 treatment record shows complaints of a painful bunion, pain in sinus tarsi, and pain in the second toe of the right foot. She reported that pain under the second metatarsophalangeal joint (MPJ) was the most bothersome. Bunion pain was tolerable as long as she did not wear high heels or wedges. The provider diagnosed bilateral foot pain secondary to hallux valgus, hammertoe deformity, and sinus tarsi syndrome. A January 2014 private treatment record from R.F., a podiatrist, shows the Veteran reported right ankle swelling, cramping, and painful bunions. R.F. noted that the range of motion of the subtalar and midtarsal joints were minimally decreased. The Veteran had moderate bunions, bilaterally. February 2014 VA treatment records show bilateral bunion pain, with left foot pain being worse than the right. Pain was mostly present with ill-fitting shoe gear. She had mild to moderate hallux valgus, with the left being worse than the right. The assessment was bilateral foot pain with the right worse than the left, 2/2 mild hallux valgus, hammertoe deformity, and sinus tarsi syndrome versus old injury. In April 2014, the Veteran had a VA examination and the examiner diagnosed metatarsalgia. The Veteran reported having right lateral foot pain ranging from dull to sharp pain. She indicated that flare-ups did not impact the function of her foot; however, her symptoms limited walking and climbing stairs. The examiner observed pain on movement and indicated that the disability prevented prolonged walking and climbing. In August 2014, the Veteran reported right foot pain. The assessment was inflamed bursa and tendinitis. The provider discussed foot care and right ankle bracing. In September 2014, the Veteran reported chronic foot pain. On examination, the provider observed some tenderness of the base of the right foot to palpation and noted a bunion. Her gait was within normal limits. In an October 2014 statement, the Veteran reported that her feet and ankle swelled, ached, and caused problems with wearing shoes. She could not pivot on her foot due to pain and had problems sleeping due to right foot pain, swelling, and throbbing. Based on the evidence, the Board cannot find that a rating greater than 10 percent is warranted for the Veteran's right foot disability under Diagnostic Code 5284 prior to July 24, 2015 because at its worst, it manifested as a moderate foot injury even with consideration of pain and functional impairment. 38 C.F.R. § 4.71a. Significantly, prior to February 2013, the Veteran's right foot disability was mild, as she had minimal symptoms on examination and was active at home on her treadmill and Stairmaster. Further, her pain was rated at a 4 out of 10 on the pain scale with weight bearing, which does not support the finding of a moderately severe or severe foot injury. In February 2013, the Veteran reported that her foot pain was most severe at work, but the provider did not indicate the degree of her pain. Describing pain as most severe is not the same as finding that pain was severe. Further, the primary symptoms in February 2013 concerned the right ankle disability, which has a separate rating and as such, the right ankle symptoms cannot be considered when rating the right foot disability. In support of the current rating is the August 2013 examination report showing moderate right foot conditions. While the Veteran had abnormal gait, the examiner attributed it to pain in the right ankle. The Veteran has a separate rating for the right ankle, and functional impact due to the ankle disability cannot be considered when rating the right foot. Regarding the April 2014 examination report, the examiner diagnosed metatarsalgia, manifesting as dull to sharp pain, without flare-ups, and which limited her ability to walk and climb stairs. Metatarsalgia is specifically identified under the rating criteria and has a maximum rating of 10 percent rating under 38 C.F.R. § 4.71a Diagnostic Code 5279. As such, this examination report does not support the assignment of a higher rating. Further, since pain was considered under Diagnostic Code 5276, a separate rating for metatarsalgia is not warranted. Finally, regarding the notations of hallux valgus, none of the providers indicated that the severity of the disability was severe, equivalent to amputation of the great toe, or that the toe was operated on. Thus, a separate or higher rating is not warranted under 38 C.F.R. § 4.71a Diagnostic Code 5280. The Board has considered the functional impact attributed to the right foot disability but finds that the disability picture does not more closely approximate the criteria for the next higher rating, moderately severe foot injury, even with consideration of pain and limitations with standing and walking. Again, as noted above, the Veteran's functional impairment has been attributed to both of her service-connected right lower extremity disabilities, the right foot, and the right ankle. Considering the impact of the right foot disability alone, the Board notes that her symptoms do not cause functional impairment equivalent to a moderately severe foot injury. The Board has considered the Veteran's arguments as well as the copies of treatment records that she submitted in support of a higher rating. In the March 2021 motion, the Veteran contended that VA treatment records dated in 2011 show she reported continued pain in her foot and that by that time, the pain radiated up her low back. She said records show she reported having routine stiffness in the mornings and was placed on temporary medical leave from work for backache, and "generalized body ache", including the right foot. The Board reviewed the records that the Veteran submitted, which are dated in September and October 2011, and reviewed her arguments in light of the complete copy of VA treatment records dated in 2011 but finds that the treatment records do not support the assignment of a higher rating for the right foot. Upon further inspection, treatment records dated August 2, 2011 show the Veteran reported having pain of multiple joints, including the lower back, hand, and feet, and had stiffness of the joints which improved throughout the day. However, on examination, her right foot was not tender to palpation and there was no effusion or laxity in the talocalcaneal or tibiotalar joints. No gait abnormality was noted and she was able to walk without an assistive device. Significantly, she remained active at home using a treadmill and Stairmaster. In an addendum note, the provider indicated that her primary active problems were back and hand pain. On August 17, 2011, the Veteran reported that her only complaint was right hand pain. September 2011 treatment records show the Veteran is a former kickboxer and that she still exercised but not as vigorously. The provider noted flat feet, or pes planus, and that her gait was within normal limits. Her x-rays showed osteoarthritis and degenerative joint disease. On September 9, 2011, she requested disability for two months based on backache and generalized body ache. She did not mention the right foot. In October 2011, the Veteran reported continued pain in multiple joints, including the back, hand, and feet, with stiffness that improved throughout the day. Her provider indicated that the primary active problem was low back pain. In January 2012, the Veteran continued to seek treatment for back pain and noted stiffness in the right hand, knees, and feet. No specific symptoms were attributed to the right foot. Further, she remained active using the treadmill and Stairmaster. Based on the Board's review, the treatment records from 2011 do not support a finding that the Veteran's right foot disability was moderately severe or severe in severity. At most she reported bilateral foot pain and stiffness, but she maintained a normal gait and participated in exercise, indicating at most, moderate functional impact. The Veteran also argued that in 2012, she reported that she had had foot pain for over a year and that it had worsened over time with her pain being most severe at work. A February 2013 VA treatment supports her statement; however, a report of "most severe" does not support a finding that her right foot disability was moderately severe or severe. As noted above, the provider did not indicate the degree of her pain. Further, the provider examined the right foot and right ankle. The provider stated that the Veteran had pain on palpation and ambulation, but he did not indicate whether the description referred to the right foot or ankle or both. The provider observed edema, inflamed right ankle, tendinitis, and osteoarthritis. The proposed treatment was an injection in the right ankle, which the Veteran deferred, and for her to wear the shoes and ankle support daily. Based on this treatment record, the Veteran's pain was attributed to two separate disabilities, right foot, and right ankle pain, and does not support the assignment of a higher rating based solely on right foot symptoms. The Veteran has already been service connected for the right ankle disability and it is not before the Board at this time. The Veteran also argues that the 2013 VA examination of her right ankle supports the assignment of a higher rating. She noted that the report shows pain on right ankle inspection and range of motion, and severe pain with temperature/seasonal changes. This argument is without merit because the right ankle is a separate joint with separate symptoms. The disability has a separate rating and the right ankle symptoms cannot support the assignment of a higher rating for the right foot. Here, the examiner diagnosed metatarsalgia and noted that it was a moderate right foot disability. While the examiner indicated that the Veteran's foot disability caused functional impairment, to include pain when standing or walking for short periods of time, in the following remarks, the examiner stated that the Veteran reported continued pain and swelling of the right ankle with over exertion. Further, her gait was abnormal with pain in the right ankle. Finally, the examiner concluded that the Veteran's right ankle was painful on palpation, was swollen on examination, and exhibited some damage on inspection. The examiner did not address the right foot or its specific symptoms other than metatarsalgia. Thus, without consideration of the right ankle symptoms, at most the Board finds that the examination report shows that the Veteran's right foot disability was moderate in degree. The Veteran also argues that the April 2014 examination report supports the assignment of a higher rating. She noted that at that time, she described her pain as dull to sharp, with functional impairment being limited ability to walk and climb stairs, and pain on movement. While her recitation of the facts is correct, at that time, her diagnosis was metatarsalgia, which would rate only 10 percent disabling under 38 C.F.R. § 4.71a Diagnostic Code 5279. Finally, the Veteran argues that her October 2014 statement supports the assignment of a higher rating. The Board considered this statement, and while the Board sympathizes with the Veteran's right lower extremity pain, her description included pain and symptoms related to the right ankle and right foot. Further, treatment records do not show a worsening of her right foot pain or additional diagnoses to warrant the assignment of a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284 for moderately-severe or severe "foot injuries, other." Considering the Veteran's right foot disability in its entirety, the Board finds that treatment records show various diagnoses, with the primary symptom being pain resulting in limited standing, walking, and climbing stairs. Without consideration of any other disability, the Board finds that prior to July 24, 2015, the Veteran's right foot disability was moderate in degree. As noted in September 2020, the Board considered whether a separate rating is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5279 for metatarsalgia; however, the Veteran's foot pain has already been considered in the current 10 percent rating assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Rating pain twice in this instance would constitute pyramiding and is prohibited. See 38 C.F.R. § 4.14. The Board also considered whether separate ratings are warranted for hallux valgus or hammer toes; however, the Veteran's hallux valgus was not documented as severe and has not been operated on. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Finally, the evidence also fails to indicate that she had hammer toes of all toes. 38 C.F.R. § 4.71a, Diagnostic Code 5282. As such, separate compensable ratings are not warranted for hallux valgus or hammer toes. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right foot disability prior to July 24, 2015 under 38 C.F.R. § 4.71a, Diagnostic Code 5284. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.