Citation Nr: 21066398 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-28 348 DATE: October 29, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, from June 12, 2009 through March 29, 2016, for right foot calcaneus, status post trauma with tenosynovitis, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, from March 30, 2016, for right foot calcaneus, status post trauma with tenosynovitis, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From the June 12, 2009 effective date of service connection through March 29, 2016, the Veteran's right foot calcaneus, status post trauma with tenosynovitis, was manifested by right foot pain. 2. Since March 30, 2016, the Veteran's right foot calcaneus, status post trauma with tenosynovitis, has been manifested by right foot pain, swelling, and flare ups that interfere with his ability to stand and ambulate and require the use of an assistive device. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, from June 12, 2009 through March 29, 2016, for right foot calcaneus, status post trauma with tenosynovitis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5284. 2. The criteria for an initial 20 percent rating, but no higher, from March 30, 2016, for right foot calcaneus, status post trauma with tenosynovitis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to January 2005. His awards include the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2016 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for right foot calcaneus, status post trauma with tenosynovitis, and assigned an initial noncompensable (0 percent) disability rating, from June 12, 2009 through March 29, 2016, and a 10 percent rating, from March 30, 2016. In May 2021, the Board remanded this matter for further development. Specifically, the Board instructed the AOJ to, among other things, obtain any outstanding relevant treatment records and afford the Veteran a VA examination to assess the severity of his service-connected right foot disability. Pursuant to the Board's remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a May 2021 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Also, the Veteran was afforded an examination to assess the severity of his service-connected right foot disability in August 2021. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for left foot disability, and the Board remanded this issue in May 2021 for further development. The AOJ awarded service connection for left foot disability (left heel) by way of an August 2021 rating decision, and thereby resolved the appeal as to this issue. Higher Initial Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Entitlement to a higher initial rating for right foot calcaneus, status post trauma with tenosynovitis, rated noncompensable, from June 12, 2009 through March 29, 2016, and 10 percent disabling, from March 30, 2016 The Veteran's right foot calcaneus, status post trauma with tenosynovitis, is rated under 38 C.F.R. § 4.71A, DC 5284, as a foot injury, other. Under both the old and the revised musculoskeletal rating criteria, DC 5284 provides a 10 percent rating for moderate foot injury, a 20 percent rating for moderately severe foot injury, and a 30 percent rating for severe foot injury. 38 C.F.R. § 4.71A, DC 5284 (in effect prior to and since February 7, 2021). In claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complains of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton, supra; Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, for the following reasons, the Veteran's right foot calcaneus, status post trauma with tenosynovitis, warrants an initial 10 percent rating, but no higher, from the June 12, 2009 effective date of service connection through March 29, 2016, and a 20 percent rating, but no higher, from March 30, 2016. The Veteran reported during a January 2010 VA examination that he experienced localized right heel pain approximately 3 times per month for approximately one hour at a time. The pain was aching in nature, 4/10 in severity, exacerbated by physical activity and stretching, and relieved by rest. The Veteran was able to function without medication while experiencing pain. There was no pain, weakness, stiffness, swelling, or fatigue while at rest, standing, or walking. The bone condition had never been infected, the Veteran was never hospitalized for his foot disability, he had not undergone any surgery, and he was not receiving any treatment. There was functional impairment due to the right foot disability in that the Veteran experienced discomfort going up and down a ladder on a consistent basis. Examination revealed that the Veteran's posture and gait were normal, that there were no signs of any abnormal weight bearing or breakdown, callosities, or unusual shoe wear pattern, and that he did not require any assistive devices for ambulation. There was no right foot tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation, and there was active motion in the metatarsophalangeal joint of the right great toe. Palpation of the plantar surface of the right foot revealed no tenderness, alignment of the Achilles tendon was normal on both weight bearing and non weight bearing, and there was no pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus. The Veteran did not have any limitation with standing or walking and did not require any type of support with his shoes. X-rays of the right heel were normal. The Veteran was diagnosed as having status post trauma, right calcaneus, with no current residuals. This disability did not impact his usual occupation or daily activities. The report of a VA foot examination dated on March 30, 2016 indicates that the Veteran experienced pain at the bottom of his foot while standing for prolonged periods. Flare ups of pain occurred while running and playing basketball for 30 to 45 minutes. There was functional loss/impairment of the foot in that jumping caused problems and the Veteran experienced pain with activity. Overall, there was a moderate right foot injury. The foot condition chronically compromised weight bearing and required arch supports, custom orthotic inserts, or shoe modifications. The Veteran had not undergone any foot surgery. There was no pain during physical examination of the foot and the Veteran was not experiencing a flare up at the time of the March 2016 examination. There were contributing factors of disability in terms of pain on weight bearing, disturbance of locomotion, and interference with standing. There was pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare ups or when the foot was used repeatedly over a period of time, but the examiner was unable to test over time and commenting on the extent of such functional impairment would require resorting to mere speculation. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran occasionally used a brace on his right heel to play ball or run, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays did not reveal arthritis or any other significant findings. A diagnosis of right foot tenosynovitis was provided. This disability impacted the Veteran's ability to work in that jumping caused problems. The Veteran reported during a September 2018 VA foot examination that he experienced right foot pain which was characterized as numbness, was 6/10 in severity, and was aggravated by prolonged standing and running. There was foot pain in the morning upon taking his first step and the pain improved throughout the day. Running also caused foot swelling. The Veteran used inserts and double socks to treat his symptoms. Flare ups occurred "on and off" and the most recent flare up occurred a few months prior to the September 2018 examination and lasted for 1.5 days. The Veteran did not report any functional loss or functional impairment of the foot and he had not undergone any foot surgery. There was no foot pain on physical examination. There were contributing factors of disability in terms of pain on weight bearing, disturbance of locomotion, and interference with standing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups or when the foot was used repeatedly over a period of time and there was no other functional loss during flare ups or when the foot was used repeatedly over a period of time. There were no scars related to the Veteran's foot disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran regularly used shoe inserts, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays of the foot were normal. The Veteran's right foot disability impacted his ability to work in that he experienced difficulty with prolonged walking and running. An August 2019 VA foot examination report indicates that the Veteran experienced right heel pain/numbness in the morning and throbbing pain by lunch time. Intermittent pain was 5/10 in severity early in the week, but intensified to 6-7/10 in severity by late week. He used over the counter medication as needed to treat his pain. Flare ups did not impact function of the foot. There was functional loss/impairment in that the Veteran was unable to run on a treadmill, he avoided running, and his cardio activities had decreased since he developed pain. He was able to ride his bike and walk. He had pain on use of his feet which was accentuated on use. There was no pain on manipulation of the foot, indication of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight bearing, objective evidence of marked deformity of the foot, or marked pronation of the foot. Also, the weight bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight bearing line, there was no inward bowing of the Achilles tendon, and the Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot. Moreover, the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or any other foot injuries. He had not undergone any foot surgery. There was right foot pain on physical examination and the pain contributed to functional loss. There were contributing factors of disability in terms of pain on movement and pain on weight bearing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups or when the foot was used repeatedly over a period of time and there was no other functional loss during flare ups or when the foot was used repeatedly over a period of time. There were no scars related to the Veteran's foot disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices as a normal mode of locomotion and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays of the foot were normal. The Veteran was diagnosed as having right foot plantar fasciitis and status post trauma with tenosynovitis of the right foot. This disability impacted his ability to work in that he was only able to stand for 2 hours at a time and walk for 30 minutes at a time. The report of an April 2020 VA foot examination (which was conducted for purposes of assessing the Veteran's claimed left foot disability) indicates that there was pain on use of the right foot which was not accentuated on use. There was no pain on manipulation of the foot, indication of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, objective evidence of marked deformity of the foot, or marked pronation of the foot. Also, the weight bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight bearing line, there was no inward bowing of the Achilles tendon, and the Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot. There was decreased longitudinal arch height of the right foot on weight bearing. The Veteran used arch supports for the right foot. Moreover, the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or any other foot injuries. He had not undergone any foot surgery. There was no right foot pain on physical examination and the pain was "subjective only." There was no functional loss of the right lower extremity. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups or when the foot was used repeatedly over a period of time and there was no other functional loss during flare ups or when the foot was used repeatedly over a period of time. There were no scars related to the Veteran's foot disability and, other than onychomycosis, there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices as a normal mode of locomotion and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays of the foot were normal. The Veteran was diagnosed as having right foot plantar fasciitis and status post trauma with tenosynovitis of the right foot. This disability impacted his ability to work in that he was only able to stand for 2 hours at a time and walk for 30 minutes at a time. Moreover, the examiner who conducted the April 2020 examination noted that there was no objective evidence of pain on the right foot during active range of motion, passive range of motion, weight bearing, or non weight bearing. Also, the Veteran did not experience any symptoms of plantar fasciitis and no diagnosis of this disability was warranted. The Veteran reported during an August 2021 VA foot examination that he experienced right foot numbness when getting out of bed and pain/soreness as the day progressed. He used over the counter medications (Ibuprofen and Acetaminophen) and walked on the side of his foot to get symptom relief. Moderate flare ups of soreness occurred approximately once per week, lasted for 5 to 10 minutes at a time, were precipitated by stair use and standing for prolonged periods of time, and were alleviated by rest and medication. There was functional loss/impairment due to the Veteran's service-connected right foot disability in that he was unable to stand for prolonged periods or use the stairs. Also, he was unable to stand for prolonged periods of use stairs due to plantar fasciitis, but had not undergone any non-surgical or surgical treatment for plantar fasciitis. Overall, the Veteran experienced a moderate right foot injury on a daily basis which chronically compromised weight bearing and required the use of arch supports, custom orthotic inserts, or shoe modifications. He had not undergone any foot surgery. Moreover, there was no right foot pain on physical examination because it was difficult to reproduce prolonged standing during an examination. There were contributing factors of disability in terms of less movement than normal and interference with standing (e.g., the Veteran was unable to stand for prolonged periods or use stairs). Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups or when the foot was used repeatedly over a period of time, and there was pain on weight bearing. The examiner did not indicate that there was any pain with passive motion, active motion, non weight bearing, or rest/non-movement. There were no scars related to the Veteran's foot disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran regularly used shoe inserts for his right foot disability, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. Diagnoses of right foot plantar fasciitis and calcaneus, status post trauma with tenosynovitis, were provided. These disabilities impacted the Veteran's ability to work in that he was unable to stand for prolonged periods or use stairs. The above evidence indicates that during the claim period from the June 12, 2009 effective date of service connection through March 29, 2016, the Veteran's service-connected right foot disability was manifested by occasional foot pain which was aggravated by physical activity and limited his ability to perform some physical activities (e.g., using a ladder). In light of the evidence of actual right foot pain which resulted in functional impairment, and the Court's holding in Petitti, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the minimum, compensable rating for the foot (i.e.,10 percent) is warranted for right foot calcaneus, status post trauma with tenosynovitis, from the June 12, 2009 effective date of service connection through March 29, 2016. See Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5 ; 38 C.F.R. § 4.71A, DC 5284. The Board also finds, however, that a rating higher than 10 percent under DC 5284 is not warranted at any time during the claim period prior to March 30, 2016. Specifically, the only symptom of the Veteran's right foot calcaneus, status post trauma with tenosynovitis, was occasional foot pain with physical activity which occurred approximately 3 times per month and lasted for approximately one hour at a time. He was able to function without medication while experiencing pain, his posture and gait were normal, there were no signs of any abnormal weight bearing or breakdown, callosities, or unusual shoe wear pattern, and he did not require any assistive devices for ambulation. Overall, the Board finds that the symptoms of the Veteran's right foot disability reflected at most a moderate foot injury/condition during the claim period prior to March 30, 2016. Therefore, an initial 10 percent rating, but no higher, from June 12, 2009 through March 29, 2016, under DC 5284, is warranted. With respect to the claim period since March 30, 2016, the above evidence reflects that the Veteran has experienced right foot disability manifested by pain and swelling. The pain is aggravated by physical activities, chronically compromises weight bearing, causes disturbance of locomotion and interference with standing, and results in an inability to stand for prolonged periods or use stairs. Flare ups of pain occur with physical activity and occur up to once per week, and the Veteran uses shoe inserts to alleviate his symptoms. In light of the Veteran's reported symptoms, the presence of flare ups with physical activities, and the fact that the foot symptoms interfere with his ability to stand and ambulate, and require the use of an assistive device, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the symptoms of his service-connected right foot calcaneus, status post trauma with tenosynovitis, have more closely approximated the criteria for a 20 percent rating under DC 5284 during the entire claim period from March 30, 2016. This contemplates moderately severe right foot injury. 38 C.F.R. § 4.71a, DC 5284. It is unclear exactly when the Veteran's right foot symptoms worsened following the January 2010 examination, but the earliest that it is factually ascertainable that his symptoms more closely approximated the criteria for a 20 percent rating is March 30, 2016 (the date of the March 2016 VA examination). The Board also finds that a rating higher than 20 percent under DC 5284 is not warranted at any time during the claim period since March 30, 2016. Specifically, although the Veteran's foot symptoms interfere with weight-bearing and he uses an assistive device for ambulation, he is nonetheless able to bear weight and ambulate. Also, there is functional impairment of the foot during flare ups and with repeated use over time, but the Board finds that the reported functional impairments following repeated use over time and during flare ups have not been so severe, frequent, and/or prolonged to warrant a rating higher than 20 percent. In other words, even considering functional impairment due to pain and other factors, the Veteran's symptoms have not been shown to be so disabling as to actually or effectively result in more than moderately severe limitation of foot function. Therefore, an initial 20 percent rating, but no higher, from March 30, 2016, under DC 5284, is warranted. Moreover, there has been no evidence of any weak foot, claw foot (pes cavus), metatarsalgia, hallux valgus, hallux rigidus, hammertoes, or malunion/nonunion of the tarsal or metatarsal bones during the claim period. The Veteran has been diagnosed as having pes planus and plantar fasciitis during the claim period, but he is not service-connected for these disabilities and there is no evidence that these disabilities are associated with his service-connected right foot calcaneus, status post trauma with tenosynovitis. Therefore, higher and/or separate ratings are not warranted under either the old or revised versions of DCs 5269 or 5276-5283 at any time during the claim period. Also, the Veteran has not contended, and the evidence does not otherwise reflect, that he has completely lost all functional use of the right foot, with no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. This finding was specifically made during the March 2016, January 2018, August 2019, April 2020, and August 2021 VA examinations and the Veteran has retained the ability to ambulate. Thus, a higher rating of 40 percent under DC 5284 for loss of use of the foot is also not warranted at any time during the claim period. In sum, the Veteran's service-connected right foot calcaneus, status post trauma with tenosynovitis has resulted in impairments that most closely approximate the criteria for a 10 percent rating, but no higher, from June 12, 2009 through March 29, 2016, and a 20 percent rating, but no higher, from March 30, 2016. (CONTINUED ON NEXT PAGE) As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for right foot calcaneus, status post trauma with tenosynovitis, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.