Citation Nr: 21064698 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 12-08 585 DATE: October 21, 2021 ORDER Entitlement to an effective date of March 17, 2009, but no earlier, for the 20 percent rating assigned for residuals, fracture left little toe, is granted. Entitlement to a rating in excess of 20 percent for residuals, fracture left little toe, is denied. Entitlement to an effective date of March 17, 2009, but no earlier, for the award of special monthly compensation under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. The Veteran's service-connected residuals, fracture left little toe, have at least as likely as not manifest as a moderately severe foot injury since the date of his March 17, 2009 increased rating claim for the disability, but there is no evidence that makes it factually ascertainable that a definitive increase in severity of the disability occurred in the one-year period prior to the date of his claim. 2. The preponderance of evidence is against a finding that the Veteran's service-connected residuals, fracture left little toe, have more nearly approximated a severe foot injury or have resulted in loss of use of the foot at any point in the appeal period based on his March 17, 2009 increased rating claim for the disability. 3. The Veteran has been entitled to a 100 percent schedular rating for intestinal malabsorption associated with tropical sprue since March 17, 2009 and has had additional service-connected disabilities, separate and distinct, to include, but not limited to, the residuals, fracture left little toe, that are independently ratable as 60 percent disabling or more since that date. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 17, 2009, but no earlier, for the 20 percent rating assigned for residuals, fracture left little toe, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. The criteria for a rating in excess of 20 percent for residuals, fracture left little toe, 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, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 3. The criteria for an effective date of March 17, 2009, but no earlier, for the award of special monthly compensation under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.350, 3.400, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that purported to adjudicate a July 2010 increased rating claim for the Veteran's service-connected residuals, fracture left little toe; however, since the July 2010 increased rating claim was received in the appeal period of a July 2010 rating decision that adjudicated a prior March 2009 increased rating claim for the disability, the Board finds this appeal relates back to the previously filed claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding a new claim for an increased rating filed during the appeal period of prior rating decision may constitute new and material evidence under § 3.156(b), in which case it relates back to the original claim). The Veteran appeared at a hearing before the undersigned in March 2015. A transcript of the hearing is of record. The Veteran's appeal was most recently before the Board in April 2021, when it was remanded for further development, which will be discussed in more detail, as necessary, below. 1. Entitlement to an effective date of March 17, 2009, but no earlier, for the 20 percent rating assigned for residuals, fracture left little toe, is granted. In April 2021, the Board remanded the Veteran's appeal of the rating assigned for his service-connected residuals, fracture left little toe, for a new examination due, in part, to inadequacies in previous examination reports. See also Board's November 2018 Remand. Subsequent to the Board's April 2021 remand, the Agency of Original Jurisdiction (AOJ) granted an increased 20 percent rating for the Veteran's disability, effective July 6, 2021, based on a post-remand examiner's report that the Veteran's service-connected residuals, fracture left little toe, manifests as a moderately severe foot injury. Given the inadequacy of the previous examination reports, the Board finds the July 2021 VA examination report probative with respect to the Veteran's level of functional impairment throughout the appeal period, as the July 2021 VA examiner's findings are generally consistent with the Veteran's lay reports throughout the appeal period. Accordingly, the Board finds an earlier effective date of March 17, 2009 for the 20 percent rating assigned for the Veteran's service-connected residuals, fracture left little toe, is warranted based on the date of his increased claim for the disability. The Board acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Here, the Veteran has not reported experiencing any definitive increase in disability in his service-connected residuals, fracture left little toe, in the year prior to his March 17, 2009 increased rating claim for the disability. There are no treatment records or examination reports documenting a specific injury or increase in disability in the one-year period prior to the Veteran's March 17, 2009 increased rating claim. As such, the Board finds there is not a factually ascertainable increase in disability in the one-year period prior to the Veteran's March 17, 2009 increased rating claim; therefore, an effective date prior to the date of claim is not warranted under the exception to the general effective date rules outlined in 38 C.F.R. § 3.400. In reaching this finding, the Board recognizes the Veteran appears to have stopped working in April 2008 based on the information contained in his Social Security Administration (SSA) records; however, it does not appear this was due to a factually ascertainable increase in disability in his service-connected residuals, fracture left little toe, but rather an increase in his service-connected shoulder and back disabilities. Although a total disability rating based on individual unemployability (TDIU) is an element of the Veteran's increased rating claim, the Board notes the Veteran is entitled to a 100 percent schedular rating from the effective date of service connection for his service-connected shoulder and back disabilities, March 17, 2009; therefore, consideration of TDIU from this date forward is not necessary. Prior to March 17, 2009, the Veteran was only entitled to service connection for residuals, fracture left little toe, and tropical sprue and associated anemia with a combined 20 percent rating, which does not meet the percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a). The evidence fails to establish these disabilities standing alone led to the cessation of the Veteran's employment activities in April 2008, as SSA records show the later service-connected shoulder and back disabilities are the primary drivers behind the Veteran's unemployability; therefore, referral for extra-schedular consideration of TDIU prior to March 17, 2009 as an element of the Veteran's March 17, 2009 increased rating claim for his service-connected residuals, fracture left little toe under the provisions of 38 C.F.R. § 3.400(o)(2) is not warranted. Nevertheless, the Board finds an earlier effective date of March 17, 2009 for the 20 percent rating assigned for residuals, fracture left little toe, is warranted, and, to that extent, the Veteran's appeal is granted. 2. Entitlement to a rating in excess of 20 percent for residuals, fracture left little toe, is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 for disabilities evaluated on the basis of limitation of motion. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability is manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's service-connected residuals, fracture left little toe, are rated under Diagnostic Code 5284 because this condition is not specifically listed in the VA Rating Schedule and falls within the catch-all category of other foot injuries. See Copeland v. McDonald, 27 Vet. App. 333 (2015). There is no evidence the Veteran's disability encompasses or is analogous to any other foot condition listed in the VA Rating Schedule, so consideration of alternate diagnostic codes is not warranted. Under Diagnostic Code 5284, a 10 percent rating is assigned for a moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "mild," "moderate," and "severe" are not defined in the VA Rating Schedule or in VA regulations. Consequently, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As previously noted, the Board finds a 20 percent rating is warranted for the Veteran's service-connected residuals, fracture left little toe, from the date of his March 17, 2009 increased rating claim for the disability; therefore, to warrant a higher rating, the evidence must establish the Veteran's disability manifests as a severe foot injury and/or results in loss of use of the foot. Upon review of the record, the Board finds preponderance of evidence is against a finding that the Veteran's service-connected residuals, fracture left little toe, have more nearly approximated a severe foot injury or have resulted in loss of use of the foot at any point in the appeal period based on his March 17, 2009 increased rating claim for the disability. VA has provided the Veteran six foot examinations during the appeal period. Although not all of these examinations reports include an explicit assessment of the severity of the Veteran's foot injury using the terms noted in Diagnostic Code 5284, i.e., moderate, moderately severe, or severe, the examination reports conclusively establish the Veteran does not experience loss of use of his left foot due to his service-connected disability, a finding which is supported by the Veteran's treatment records and lay reports, which provide no indication of loss of use of the left foot. In November 2018, the Board remanded the Veteran's appeal of the rating assigned for his service-connected residuals, fracture left little toe, because his prior examination reports did not include an assessment of the severity of his foot injury using the terms noted in Diagnostic Code 5284. As a result, the first examiner to provide an assessment in accordance with the Diagnostic Code 5284 criteria was a September 2019 VA examiner, who noted a "moderate" foot injury, describing symptoms of "left little toe and lateral foot pain with walking." The September 2019 VA examiner further noted the disability resulted in chronically comprised weight bearing and required arch supports, custom orthotic inserts or shoe modifications with additional factors such as pain when standing for extended periods of time and intermittent swelling, noting these same factors as the primary manifestations during flare-ups. In April 2021, the Board again remanded the Veteran's appeal, finding it was unclear whether the September 2019 VA examiner adequately considered the Veteran's medical history in conjunction with his examination of the Veteran. As a result, VA provided the Veteran a new examination in July 2021. The July 2021 VA examiner accurately described the Veteran's medical history in her report and included a detailed narrative of the Veteran's lay reports of symptoms, to include an adequate assessment of additional functional impairment on repetitive use and during flare-ups, ultimately arriving at an assessment of a "moderately severe" foot injury after considering the full and accurate picture of the Veteran's disability, constituting substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted in the discussion of the effective date of the 20 percent rating assigned for the service-connected residuals, fracture left little toe, the Board finds the July 2021 VA examiner's report probative with respect to the Veteran's level of functional impairment throughout the appeal period due to inadequacies in the previous examination reports; therefore, the July 2021 VA examination report is also the most probative evidence regarding the schedular rating that should be assigned for the Veteran's disability. Yet, even relying on the examination report most favorable to the Veteran, there is no evidence that suggests the presence of a severe foot injury as contemplated by Diagnostic Code 5284, as the expert evidence in this case supports a finding that the Veteran's disability could be described as a "moderately severe" foot injury at the most. There is no indication from the record, to include the Veteran's treatment records and lay reports, that there are aspects of the Veteran's disability that were not considered by the July 2021 VA examiner, as her report includes explicit references to relevant treatment records and a detailed narrative of the Veteran's lay reports. Thus, the "equitable and just" approach in the Veteran's case requires an assignment of a 20 percent rating for the service-connected residuals, fracture left little toe, throughout the appeal period; however, a rating in excess of 20 percent must be denied because the preponderance of evidence is against a finding that the Veteran's service-connected residuals, fracture left little toe, have more nearly approximated a severe foot injury or have resulted in loss of use of the foot at any point in the appeal period based, so, to that extent, the Veteran's appeal is denied. 3. Entitlement to an effective date of March 17, 2009, but no earlier, for the award of special monthly compensation under 38 U.S.C. § 1114(s) is granted. The Board notes the issue of entitlement to special monthly compensation under 38 U.S.C. § 1114(s) is an element of the Veteran's March 17, 2009 increased rating claim for his service-connected residuals, fracture left little toe, because he is presumed to be seeking the maximum benefits allowable by law. See Akles v. Derwinski, 1 Vet. App. 118 (1991). A February 2021 rating decision granted entitlement to special monthly compensation under 38 U.S.C. § 1114(s) effective February 28, 2013. Special monthly compensation under 38 U.S.C. § 1114(s), otherwise known as the housebound rate, is payable if a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct, from the 100 percent service-connected disability and involving different anatomical segments or bodily systems or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the February 2021 rating decision indicates the AOJ awarded special monthly compensation under 38 U.S.C. § 1114(s) based on the Veteran's 100 percent rating for intestinal malabsorption associated with tropical sprue, effective March 17, 2009, and the 60 percent rating assigned for tinea cruris, effective February 28, 2013; however, the Board notes it is not necessary for the 60 percent rating to result from a single disability as the applicable statute, as well as it implementing regulation, clearly contemplate additional service-connected disabilities independently ratable at a combined 60 percent, warranting special monthly compensation under 38 U.S.C. § 1114(s). The Veteran is entitled to service connection for a right shoulder disability, rated as 20 percent disabling; a left shoulder disability, rated as 20 percent disabling; residuals, fracture left little toe, rated as 20 percent disabling; a cervical spine disability, rated as 10 percent disabling; a lumbar spine disability, rated as 10 percent disabling; a left knee disability, rated as 10 percent disabling; and left lower extremity radiculopathy, rated as 10 percent disabling, all effective March 17, 2009, resulting well in excess of a 60 percent combined rating as of that date. Additionally, the Veteran is entitled to a 70 percent rating for post-traumatic stress disorder, effective July 22, 2010; therefore, it is unclear why the AOJ based the effective date of entitlement to special monthly compensation under 38 U.S.C. § 1114(s) based on the rating assigned for tinea cruris. The Board acknowledges the AOJ has associated some of the Veteran's service-connected orthopedic disabilities with tropical sprue, which is the primary disability that led to the 100 percent schedular rating assigned for intestinal malabsorption. Yet, these disabilities affect "different anatomical segments or bodily systems"; therefore, the Board finds they are "separate and distinct" for the purposes of special monthly compensation under 38 U.S.C. § 1114(s). Further, the association with tropical sprue was not added to the description of these disabilities until rating actions taken after the initial award of service connection, which would raise significant due process concerns if these disabilities were not considered "separate and distinct" for the purposes of special monthly compensation under 38 U.S.C. § 1114(s). In sum, the Board finds the Veteran has been entitled to a 100 percent schedular rating for intestinal malabsorption associated with tropical sprue since March 17, 2009 and has had additional service-connected disabilities, separate and distinct, to include, but not limited to, the residuals, fracture left little toe, that are independently ratable as 60 percent disabling or more since that date. Accordingly, an earlier effective date of March 17, 2009 for the Veteran's award of special monthly compensation under 38 U.S.C. § 1114(s) is warranted. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.