Citation Nr: 21066177 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 13-08 613 DATE: October 28, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for right foot spondylo-arthralgia prior to May 31, 2016 is granted. Entitlement to an initial rating of 20 percent, but no higher, for left foot spondylo-arthralgia prior to May 31, 2016 is granted. Entitlement to a rating in excess of 20 percent for right foot spondyloarthralgia from May 31, 2016 is denied. Entitlement to a rating in excess of 20 percent for left foot spondyloarthralgia from May 31, 2016 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right foot spondyloarthralgia has manifested with moderately severe symptomatology throughout the entire appeal period. 2. The Veteran's left foot spondyloarthralgia has manifested with moderately severe symptomatology throughout the entire appeal period. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a 20 percent, but no higher, rating for right foot spondyloarthralgia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284. 2. Throughout the appeal period, the criteria for a 20 percent, but no higher, rating for left foot spondyloarthralgia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to March 2008. This matter is on appeal from a June 2008 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in March 2012, January 2013, January 2016, and June 2017 when it was remanded for further development. In September 2018, the Board denied entitlement to increased ratings. The Veteran appealed the September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court vacated the September 2018 decision and remanded the matter for further adjudication. The Board thereafter remanded this matter in September 2020. Further, the issue of entitlement to TDIU has been raised by the Veteran because he stated in a March 2010 VA Form 9, Appeal to Board of Board of Veterans' Appeals, that the combination of his service-connected disabilities resulted in his retirement. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, the AOJ has not yet considered whether the Veteran is entitled to a TDIU. Thus, the issue must be remanded to the AOJ for initial adjudication. Increased Rating The Veteran contends that he is entitled an increased rating for his service-connected bilateral foot spondyloarthralgia. The Veteran's foot disabilities are currently assigned an initial 10 percent evaluation prior to May 31, 2016 and 20 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. When a foot condition is specifically listed in the Rating Schedule, it must be rated under the DC that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Unlisted conditions, on the other hand, may be rated under DC 5284. Id. Under DC 5284, foot injuries are rated as 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. The terms "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Further, use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see 38 C.F.R. §§ 4.40, 4.45, 4.59. While DC 5284 is not based on limitation of motion, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 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. 230 (Nov 30, 2020). However, the Diagnostic Code applicable to the Veteran's disability in this case was not altered by these amendments. Thus, the Board will not conduct a separate analysis for these amendments to the rating criteria. In both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. Id. The Board has therefore considered the claim on appeal with the potential for a staged rating in mind. Finally, the Veteran is currently service connected for bilateral pes planus, for which he is currently assigned a noncompensable rating. The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. However, as the Veteran's bilateral pes planus is currently assigned a noncompensable evaluation, there is no concern regarding potentially duplicative evaluations. Thus, the Board will not conduct a separate pyramiding analysis. In this case, the Veteran stated in a July 2008 Notice of Disagreement (NOD) that he experiences pain that occurs when walking that is not relieved by orthotics. He stated that orthotics provide relief for most of the pain in the soles of his feet if he does not stand for long. In the December 2008 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran stated that he has experienced pain in his feet since 2005. He reported that the pain is most prevalent on flexion. In June 2012, the Veteran was provided with a VA examination in which the Veteran reported the onset of pain in his hands in approximately 2004. The Veteran reported ongoing symptoms in his toes. He reported that in approximately 2006 he developed discomfort in the bilateral foot arches and was provided with orthotic shoe inserts which was helpful for the arch discomfort. The examiner stated that at present, the foot discomfort is two types, with daily discomfort in the arches due to standing which progresses to the end of the day and a second type of discomfort and toe pain at night. The examiner noted waking at night with toe pain two to three times a month. The examiner noted no malunion or nonunion for the tarsal or metatarsal bones. There was no evidence of bilateral weak foot. The examiner noted no painful motion, edema, swelling, weakness, instability, or pain to palpation of the feet. There was no hammertoe, high arches, or bunions. Weight bearing showed mild bilateral flat feet with mild bilateral arch collapse. There was no pronation. There was no abnormal calluses and no skin breakdown. His shoes did not show signs of abnormal wear. The Achilles tendons were non-tender to palpation and alignment was normal with no varus of valgus deformities with weight bearing. There was no pain with passive or active manipulation of the feet. The toes had no swelling, deformity, tenderness to palpation, heat, erythema, or swelling. All 10 toes had normal range of motion and no pain with passive or active range of motion. There was no loss of coordination and no change in active or passive range of motion upon repeated testing. The examiner noted no use of assistive devices. The examiner noted June 2012 bilateral foot X-rays which were unremarkable except for nonspecific bony prominence on the left first distal phalanx. The examiner noted that the Veteran's foot condition impacts his work activities because he works as a schoolteacher and reported that he can only stand or walk for 45 minutes before his feet start to hurt, and he then needs to sit down for a while. The Veteran reported that he is still able to teach because he can frequently sit down or lean against a wall while doing his teaching activities. In July 2013, the Veteran was provided with an additional VA examination in which the Veteran reported that he had not missed any time from work for the past 12 months and is able to perform his regular occupation. The Veteran reported daily pain on the tarsometatarsal joints and toes on the right and left foot. He reported that he now noticed swelling on the right and left foot for the past 6 months. The examiner noted "no functional limitation" and stated that the Veteran is able to walk. The examiner noted that the Veteran is able to walk for about 45 minutes, although with pain, and can stand for about 45 minutes before his feet start to hurt, and then he needs to sit down for a while. She noted that he is still teaching and able to function with his occupation. She noted no weakness or incoordination but stated that there is fatigability. In an October 2013 correspondence, the Veteran stated through his representative that he is a schoolteacher and can only stand or walk for 45 minutes before he needs to sit down and experiences pain in the toes at night. In May 2016, the Veteran was provided with an additional VA examination in which the Veteran reported daily constant pain in both feet primarily affecting the tarsometatarsal joints. He described a constant feeling of dull aching pain at rest and a sharper more intense pain with weight bearing. He endorsed painful range of motion in both feet. He described the pain as sharper when he missteps or lands "a little too hard" when walking. He also reported a fairly constant lower intensity pain at rest that is sharper with weight bearing. The reported that this pain is intermittent. He stated that after being at work for about three hours of alternating between standing, sitting, and walking he noted the onset of significant foot pain. He reported flare-ups a few times a year with random onset. During flare-ups he reported increased level of pain in the feet. He reported that he had not missed any work in the past due to flare-ups and that the level of pain does not alter his level of activity, but he does need to rest more and avoid prolonged walking and standing. He reported fatigability after a half mile of walking or after three hours at work alternating between sitting, standing, and walking. The Veteran described this as his "feet are spent and would prefer to sit down with feet elevated or lie down." The examiner noted no incoordination and some weakness when trying to grip objects with his toes. The examiner noted pain on movement, weight-bearing, and non-weight-bearing and disturbance of locomotion, interference with standing, and lack of endurance. In an August 2017, VA received a VA Form 21-4138, Statement in Support of Claim, in which the Veteran stated that he disagreed with the rating evaluation and not the medical findings. In May 2021, the Veteran was provided with an additional VA examination in which the Veteran reported worsening since the onset in 2004. He reported his current symptoms as dull pain, occasional swelling, and redness. The Veteran reported flare-ups which occur once yearly and last for a few days to a week with mild and dull pain that results in decreased walking duration. The Veteran reported being unable to walk long distances. The Veteran had decreased longitudinal arch height on weight-bearing. The examiner noted mild joint space narrowing of the first MTP joint of the right foot and spondyloarthrophy of both feet. The Veteran reported no use of an assistive device. The examiner noted that the Veteran would be able to stand for a couple without increased pain and is able to walk a couple of miles but climbing into an aircraft is painful. In July 2021, VA obtained an additional opinion in which the clinician noted that the Veteran can perform sedentary work exerting up to 10 pounds of force occasionally and a negligible amount of force frequently to lift, carry, push, and pull. The clinician defined sedentary work as work that involves sitting most of the time but may involve walking or standing for brief periods. The clinician noted that the evidence reflects that the disability limits the function of standing and walking. Upon review of the record, the Board finds that the Veteran's disability has manifested with moderately severe symptomatology throughout the entire appeal period. As explained by the July 2013 examiner, the Veteran generally experiences little to no functional limitation. However, when considering the DeLuca factors, particularly excess fatigability and during flare-ups, the record reflects that the Veteran is unable to stand after 45 minutes and must sit or lean against a wall. The record also reflects that the Veteran has experiences such symptomatology since as far back as 2008, when the Veteran competently and credibly reported his inability to stand for extended periods of time. Further, the Board finds that the Veteran's disabilities have not manifested as severe at any point during the appeal period. Notwithstanding the functional impairment discussed above, the record reflects that the Veteran experiences no difficulty performing his activities of daily living (ADLs). For example, the Veteran has not reported difficulty stepping into a bathtub, dressing himself, or walking to the restroom. Further, the record reflects that even when considering the fatigability and flare-ups discussed above, the Veteran can sit and continue working during such episodes. The record also reflects that although the Veteran uses an orthopedic insert, he does not require the use of an assistive aid for ambulation. In summary, the Board finds that the evidence more nearly approximates moderately severe functional impairment bilaterally throughout the appeal period. The Board concludes that an evaluation of 20 percent, but no higher, is warranted for each foot throughout the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284. FINDINGS OF FACT Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As previously noted, the issue of entitlement to TDIU has been raised by the record because the Veteran stated in a March 2010 VA Form 9 that the combination of his service-connected disabilities resulted in his retirement. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the AOJ has not yet considered whether the Veteran is entitled to a TDIU, the issue must be remanded to the AOJ for initial adjudication. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the present. 2. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate the claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should be asked to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.