Citation Nr: 21066589 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-23 956 DATE: November 1, 2021 ORDER Entitlement to a separate disability rating of 10 percent, but no higher, for degenerative arthritis of the left first metatarsophalangeal (MTP) joint (left toe disability) is granted. Entitlement to a separate disability rating of 10 percent, but no higher, for degenerative arthritis of the right first MTP joint (right toe disability) is granted. FINDING OF FACT For the entire period on appeal, the Veteran's bilateral great toe disabilities manifested in pain and decreased range of motion in the MTP joints, as well as tenderness to palpitation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate disability rating of 10 percent, but no higher, for a left toe disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5017-5283 (2020). 2. The criteria for entitlement to a separate disability rating of 10 percent, but no higher, for a right toe disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5017-5283. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1983, and from June 1984 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction (AOJ). This matter was remanded by the Board in September 2017, along with entitlement to increased ratings for bilateral ankle disabilities. However, following the issuance of a Supplemental Statement of the Case in June 2019, the Veteran opted to have the ankle disability claims considered in the modernized appeals system by submission of a July 2019 VA Form 21-0995, Supplemental Claim. As such, they are not currently before the Board. Relevant evidence has been added to the claims file since the last adjudication of the matter on appeal by the AOJ. In June 2021, the Veteran indicated that he wished to waive his right to have the case remanded for review of the additional evidence. June 2021 Correspondence. As such, the Board may proceed with adjudication. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). This appeal stems from a March 4, 2008, claim for an increased rating. The Veteran's bilateral toe disabilities are currently assigned a single 10 percent rating prior to August 16, 2016, and separate 10 percent ratings for painful motion of each great toe are assigned thereafter. Prior to October 31, 2016, the ratings were assigned pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5003 for degenerative arthritis. From that date, gout was service-connected and considered a part of the toe disabilities and the ratings are assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5017-5003. Diagnostic Code 5017 refers to gout, and directs the rater to rate gout as degenerative arthritis based on limitation of motion of the affected parts. Pursuant to Diagnostic Code 5003, degenerative arthritis should be rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint or joints involved. 38 C.F.R. § 4.71a. When limitation of motion is present but otherwise noncompensable, to include as due to pain, a rating of 10 percent is assigned for a group of minor joints, which includes the toes. A rating of 20 percent is available when two or more minor joint groups are involved and have occasional incapacitating exacerbations. Id. While there is not a specific code for limitation of motion of the great toe, other diagnostic codes are potentially applicable. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5171, a 10 percent rating is warranted for amputation of the great toe without metatarsal involvement, and a 30 percent rating is warranted for amputation with removal of the metatarsal head. Under 38 C.F.R. § 4.71a, Diagnostic Code 5283, a 10 percent rating is warranted for moderate malunion or nonunion of the tarsal or metatarsal bones, and 20 and 30 percent ratings are assigned for malunion or nonunion which is moderately severe or severe, respectively. Finally, 38 C.F.R. § 4.71a, Diagnostic Code 5284 address "other" foot injuries and assigns 10, 20, and 30 percent disability ratings for moderate, moderately severe, and severe disability. Upon review, the Board finds that separate 10 percent ratings, but no higher are warranted throughout the period on appeal based on painful motion of each great toe. The Veteran first underwent VA examination in connection with this claim in October 2008. He reported bilateral foot pain while walking, standing, or at rest and swelling and fatigability with walking and standing. He was able to stand for 15 to 20 minutes at a time and to walk one city block. Upon examination, there was objective evidence of painful motion of the first MTP joint of each foot, as well as on plantar flexion and dorsiflexion of the midtarsal joint. There was evidence of swelling and tenderness of the feet, and of abnormal weightbearing. The great toes were in hallux rectus at 10 degrees of dorsiflexion. There was no indication of skin or vascular abnormality, nor of nonunion or malunion of the tarsal or metatarsal bones. The Veteran next underwent VA examination in October 2010. He reported that his pain was progressively worse, but that he had a fair response to treatment. He used braces and inserts, and found partial relief from rest and elevation of the feet. He reported pain, stiffness, and swelling while standing, walking, and at rest, but did not report flare-ups. He was able to stand for 15 to 30 minutes, but could only walk for a few yards. The Veteran variously used corrective shoes, orthotic inserts, a cane, brace, and crutches with fair efficacy. Upon examination, there was evidence of painful motion, swelling, tenderness, and abnormal weightbearing. The examiner noted trace swelling along with objective evidence of tenderness at the plantar metatarsal heads. The Veteran had a slow, shuffling gait and the examiner opined that his disability manifest in decreased mobility and pain and could result in increased tardiness and absenteeism. However, the Veteran reported that he was employed and had missed no more than one week of work in the past 12 months due to foot pain. The Veteran again underwent VA examination in August 2016, and reported that his toe pain had become worse since he developed gouty arthritis. With respect to flare-ups, he stated only that the pain had become persistent, and that he had pain while walking. He had characteristic callouses and pain was accentuated on use and manipulation of the feet. He demonstrated extreme tenderness to the plantar surfaces of both feet, with no relief from orthopedic shoes or appliances. There was no objective evidence of marked deformity, although there was marked pronation. Pain on examination was noted to contribute to functional loss due to pain on movement, pain on weightbearing, and disturbance of locomotion. The examiner noted that the foot pain on examination was primarily related to the Veteran's non-service-connected pes planus, but that the Veteran's great toe disabilities would result in toe pain. The Veteran next underwent VA examination in December 2016, and reported a tearing-type pain. With respect to flare-ups, he indicated that the entire foot and ankle would swell, and he would experience "unbearable" throbbing that would take up to two weeks to resolve. He indicated that he had to remain off his feet for five days following a flare-up. With respect to functional loss or impairment, the Veteran was not able to stand on his toes and had a loss of range of motion in the great toe. He was not able to walk from heel to toe or propel off of his big toes, so he walked using the outside of his feet. The examiner noted pain accentuated on use and manipulation and decreased longitudinal arch height on weightbearing. The examiner noted objective evidence of deformity, marked pronation, and inward bowing of the achilles tendon. Pain contributed to functional loss due to less movement than normal, pain on weightbearing, swelling, instability of station, disturbance of locomotion, and interference with standing. The Veteran was unable to bend his great toes due to stiffness and pain. The examiner noted that there was no additional functional loss with flare-ups or with repeated use over time, and that the Veteran would not be equally well served by amputation of the great toes with prothesis. The Veteran again underwent VA examination in June 2017, and reported that his feet hurt all day every day and he was only able to walk briefly. Flare-ups made it difficult to walk even a short distance, and when his feet were "bumped" he had significant pain. Pain was accentuated on use and manipulation, and the Veteran's feet swelled on use. Orthotics did not relieve his symptoms. He demonstrated extreme tenderness to the plantar aspects of the feet as well as decreased longitudinal arch height. Pain contributed to functional loss due to pain on movement, pain on weightbearing and non-weightbearing, swelling, instability of station, disturbance of locomotion, and interference with standing. The Veteran next underwent VA examination in January 2018, and he reported throbbing and achy pain, but did not report flare-ups or functional loss or impairment. There was no indication of swelling on use, characteristic callouses, or extreme tenderness. There was no malunion or nonunion of the tarsal or metatarsal bones, and tenderness at the midfoot did not prevent function. Contributing factors of disability included pain on weightbearing, disturbance of locomotion, and interference with standing. The Veteran most recently underwent VA examination in October 2020, and reported daily pain made worse with prolonged walking and standing. He did not report flare-ups, but pain was accentuated on use and manipulation. There was no indication of swelling on use, and arch supports did not provide relief. The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups or after repeated use over time, but there was difficulty with prolonged walking and standing. He did not use assistive devices, and had lost one week or less of work due to pain in the past 12 months. Treatment records throughout the period on appeal reflect findings consistent with those noted on examination. For example, in October 2008, Dr. J.B. noted moderate tenderness over the joints of the great toes, with passive range of motion of the right great toe to 15 degrees of dorsiflexion and 20 degrees of plantar flexion, and 10 degrees of dorsiflexion and 15 degrees of plantar flexion in the left great toe. Extremes of range of motion caused increased complaints of pain. A July 2009 VA treatment record notes decreased range of motion in the left great toe and pain with passive range of motion, while range of motion of the right great toe was normal. In August 2012, a private treatment record notes constant pain of the top of the feet and toes. The Veteran reported that his pain was worse in shoes and with weightbearing. Lay statements also reflect the Veteran's complaints. In September 2010, he reported that everyday movement caused pain in the great toes and top of feet which increased on inclined or uneven surfaces. September 2010 VA 21-4138, Statement in Support of Claim. He stated that walking for less than half a mile caused swelling and marked limitation of motion. The same month, the Veteran's wife reported that his physical activities were limited to light walking and they had to hire someone to do all house maintenance. September 2010 Buddy / Lay Statement. She stated that, if he was on his feet for more than 30 minutes, the Veteran would need to use crutches for days. Upon review, the Board finds that separate 10 percent disability ratings, but no higher, are warranted for severe pain of the great toes on motion throughout the period on appeal. In that regard, while the Veteran is currently assigned a single 10 percent rating prior to August 16, 2016, the Board finds that separate ratings should be assigned in order to compensate for the Veteran's pain and loss of function. The Board also finds, however, that the preponderance of the evidence is against the assignment of higher or additional ratings. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, and flare-ups. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he has severe great toe pain is not sufficient to warrant a higher rating. In that regard, the Board has considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). 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)). 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). 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). As noted above, the Veteran's bilateral great toe disabilities are currently rated under the diagnostic codes for degenerative arthritis and gout based on his diagnosed conditions. These conditions direct the rater, when possible, to provide a rating based on diagnostic codes addressing limitation of motion of the relevant joint, here the first metatarsophalangeal joints of each foot. The Board finds, and the record supports, that Veteran's symptomatology related to this service-connected condition is predominately focused in the joints of the bilateral great toes. While there is no diagnostic code which directly address limitation of motion of the great toes, the Board finds Diagnostic Code 5283, related to disability of the metatarsal joints, most appropriately represents the Veteran's disability. This diagnostic code is more favorable to him because it allows for separate ratings to be given for each great toe. Resolving reasonable doubt in the Veteran's favor, the Board finds that separate ratings for each great toe under Diagnostic Code 5283, which rates tarsal or metatarsal bones, is appropriate and more favorable to the Veteran. 38 C.F.R. § 4.124a. The Board is not recharacterizing the Veteran's disability, only applying the code most favorable to the Veteran and more representative of his symptoms. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). The Board also considered other codes, including Diagnostic Code 5284. However, because that diagnostic code is more applicable to a general foot disability, the Board finds that Diagnostic Code 5283 is both more in line with the Veteran's symptoms. Throughout the applicable appeal period the Veteran's bilateral great toe disabilities were manifested by pain, tenderness to palpation, swelling, and reduced range of motion. While the Veteran had ankle symptoms, as well as symptoms attributable to pes planus and plantar fasciitis, the ankle symptoms are related to his service-connected ankle disabilities and service connection has been denied for pes planus and plantar fasciitis. Examiners have attributed many of the Veteran's foot symptoms to his other foot disabilities, both service-connected and non-service-connected, and opined that the primary manifestation of the Veteran's service-connected great toe disabilities is toe pain. See, e.g., August 2016 VA Examination. On balance, even considering the Veteran's reports of flare-ups with increased toe pain, the evidence does not demonstrate a disability picture that more closely approximates symptoms in either great toe more equivalent to amputation of the great toe, or moderately severe or severe malunion or nonunion of the metatarsal bones. (Continued on the next page) In conclusion, the Board finds that the preponderance of the evidence supports the assignment of separate 10 percent ratings, but no higher, for each great toe disability. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.