Citation Nr: 21066998 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-23 538 DATE: November 3, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to November 26, 2019 and a rating in excess of 20 percent thereafter for left great toe amputation is denied. REMANDED Entitlement to a rating in excess of 10 percent for left knee limitation of flexion is remanded. FINDINGS OF FACT 1. For the period prior to November 26, 2019, the Veteran's left great toe amputation did not involve removal of the metatarsal head and was manifested by no more than moderate symptoms. 2. For the period beginning November 26, 2019 and thereafter the Veteran's left great toe amputation was manifested by no more than moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to November 26, 2019 for left great toe amputation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. The criteria for entitlement to a rating in excess of 20 percent beginning November 26, 2019 and thereafter for left great toe amputation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 17, 1983 to July 18, 1986. These matters before the Board of Veterans' Appeals (Board) on appeal from February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in a May 2019 Board decision for further development. Upon review the Board finds that all remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that since the most recent February 2021 supplemental statement of the case (SSOC) additional evidence has been added to the record including VA examinations and VA treatment records. This evidence does not relate to the Veteran's claim for increased rating for his service connected left great toe amputation, as such remand for further consideration by the agency of original jurisdiction (AOJ) is not necessary. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's claim for a rating in excess of 10 percent for his right knee disability is addressed in the remand section below. INCREASED RATING General Rating Principles Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. The Veteran is service connected for left great toe amputation without metatarsal involvement with a history of osteomyelitis with a rating of 10 percent prior to November 26, 2019 under diagnostic code 5284-5171. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Under diagnostic code 5171, a rating of 10 percent is warranted for great toe amputation without metatarsal involvement; a 30 percent rating is warranted for great toe amputation with removal of metatarsal head. The Veteran's left great toe amputation is rated 20 percent beginning November 26, 2019 and thereafter under diagnostic code 5284. Under diagnostic code 5284 a rating of 20 percent is warranted for moderately severe foot injuries and a rating of 30 percent is warranted for severe foot injury. The note to diagnostic code 5284 indicates that a rating of 40 percent is warranted with actual loss of use of the foot. The terms "moderate", "moderately severe" and "severe" are not defined in the Rating Schedule. Thus, 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. 1. Entitlement to a rating in excess of 10 percent for left great to amputation prior to November 26, 2019 and a rating of 20 percent thereafter. By way of history the Veteran's left great toe amputation was initially service connected in a July 1986 rating decision with a 10 percent rating under diagnostic code 5171. Relevant here, the Veteran filed a claim for increased rating in May 2013. Following a February 2014 rating decision which continued his rating at 10 percent, the Veteran filed a notice of disagreement in October 2014 and subsequently appealed to the Board with a May 2016 form 9. Following a May 2019 Board remand, a July 2020 rating decision increased the Veteran's rating to 20 percent beginning November 26, 2019 under diagnostic code 5284. Entitlement to a rating in excess of 10 percent for left great toe amputation prior to November 26, 2019. In an April 2019 brief, the Veteran's representative asserts that the Veteran's left great toe amputation is entitled to a rating of 20 percent based on moderately severe symptoms. The Veteran was afforded a VA examination for his foot in October 2013. Subjectively the Veteran reported that his condition has worsened resulting in increased pain and swelling at the left foot. The Veteran reported that he can only wear a shoe on the left foot for a brief period and wears soft shoes and gym shoes. There was no evidence of Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, malunion of tarsal or metatarsal bones or bilateral weak foot. The examiner noted that the Veteran's left foot injury was moderate in severity and the Veteran did not require the use of an assistive device. Diagnostic testing indicated degenerative or traumatic arthritis of the left foot. Notwithstanding the Veteran's left great toe amputation, August 2014 statement from the Veteran's supervisor notes that the Veteran remained capable of performing his assigned work duties including indexing incoming mail, prioritizing mail, and assisting in the regional office's transition to a paperless environment. For the period prior to November 26, 2019 the treatment records do not support entitlement to a rating in excess of 10 percent for the Veteran's left great toe disability. Specifically, while the record contains VA treatment records during the period at issue, these records do not show any additional symptoms worse than the pain and swelling the Veteran reported during his October 2013 VA examination. Ultimately, the evidence does not establish entitlement to a rating in excess of 10 percent under diagnostic code 5171 as there is no evidence of removal of the metatarsal head. Similarly, the evidence of record does not suggest entitlement to a rating in excess of 10 percent under any other applicable diagnostic code. VA treatment records note the Veteran's left foot symptoms as moderate and there is no evidence of plantar fasciitis, flatfoot, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe or malunion of the tarsal bone. Further, despite his symptoms the Veteran remained able to perform his work duties. The Board has considered the Veteran's subjective statements and the argument of the Veteran's representative that he is entitled to a rating in excess of 10 percent based on moderately severe symptoms of his left foot. However, the Veteran's contentions are not supported by the evidence of record which show no treatment for his left foot for the period at issue, no use of assistive devices and no opinion that the Veteran's symptoms are more than moderate in nature. Entitlement to a rating in excess of 10 percent prior to November 26, 2019 is denied. Entitlement to a rating in excess of 20 percent beginning November 26, 2019 and thereafter. The Veteran does not allege, and the record does not establish entitlement to a rating in excess of 20 percent for left great toe amputation for the period beginning November 26, 2019 and thereafter. The Veteran was afforded a VA examination in November 2019 for his left great toe amputation. Subjectively, the Veteran reported flare ups three times a week with severe symptoms lasting up to a couple of days. He reported that his left toe disability impacts his ability to walk. The examiner opined that the Veteran's left foot symptoms were moderately severe with symptoms of pain when standing or walking too long. The examiner also noted pain on weight bearing, deformity, and disturbance of locomotion as well as pain with repeated use over time. VA treatment records do not note any treatment for the Veteran's left toe disability for the period beginning November 26, 2019 and thereafter. Additionally, the record contains no evidence of subjective complaints of worsening of the Veteran's left foot disability and no opinion that the Veteran's left foot disability is severe. The Board has considered all evidence of record including the Veteran's subjective statements. The Board has also considered the Veteran's reports of flare-ups with severe symptoms three times per week lasting a couple of days and impacting his ability to walk. However, these symptoms do not warrant a higher rating as they were considered by the examiner in determining that the Veteran's symptoms are moderately severe. Overall, the evidence even considering the Veteran's flare-ups and symptoms of pain does not establish entitlement to a rating in excess of 20 percent for his left great toe amputation during the period at issue. Entitlement to a rating in excess of 20 percent for left great toe amputation beginning November 26, 2019 and thereafter is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee limitation of flexion is remanded. Since the most recent February 2021 supplemental statement of the case (SSOC) additional evidence has been added to the record by the AOJ. This evidence includes VA treatment records which show ongoing treatment for the Veteran's knee and a VA examination for the Veteran's knee. This evidence has not been considered by the agency of original jurisdiction. In July 2021 the Board notified the Veteran of this additional evidence and afforded the Veteran the opportunity to waive AOJ consideration of this evidence. The Veteran did not respond to this letter within 45 days. As such, remand is warranted for issuance of a new supplemental statement of the case (SSOC). (Continued on the next page) The matters are REMANDED for the following action: Readjudicate the Veteran's right knee disability claim based on all evidence currently of record. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.