Citation Nr: 21067733 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-40 799 DATE: November 5, 2021 ORDER A rating higher than 20 percent for residuals of a fractured left big toe is denied. From June 2, 2021, a separate 10 percent rating for left foot plantar fasciitis is granted. FINDINGS OF FACT 1. The Veteran's residuals of a fractured big toe are manifested by no more than moderately severe symptoms. 2. From June 2, 2021, the Veteran had plantar fasciitis related to his left big toe fracture residuals with no associated surgical treatment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for residuals of a left big toe fracture 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 (DC) 5284. 2. From June 2, 2021, the criteria for a separate 10 percent rating for left foot plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5285. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from October 1967 to December 1970, and received the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2021. The matter was then remanded for additional development in May 2021. Residuals of a fractured left big toe The Veteran's left big toe fracture residuals are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. The Board finds that the preponderance of the evidence is against a rating higher than 20 percent. The primary evidence supporting this conclusion is from February 2017 and June 2021 VA examinations which characterized the severity of the Veteran's condition as "moderately severe" and "moderate," respectively. This is consistent with no more than a 20 percent rating. During both examinations, and again in VA treatment records from April 2021, the Veteran reported pain at the site of his old fracture. He was noted to have compromised weight-bearing and difficulty with prolonged standing or ambulation. He also testified that he ambulated with a cane or walking stick. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss associated with his disability. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not otherwise result in symptoms more nearly approximating a "severe" level of symptomatology. That is, the pain, compromised weight-bearing, and difficulty with standing or ambulating is adequately contemplated by a "moderately severe" level of impairment. In conclusion, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for residuals of a left big toe fracture. However, as discussed below, a separate rating is being assigned. Left foot plantar fasciitis (Continued on the next page) Effective February 7, 2021, the Rating Schedule was amended to include plantar fasciitis as a disability rated under 38 C.F.R. § 4.71a, DC 5285. It provides a 20 percent rating when unilateral plantar fasciitis is not relieved by both non-surgical and surgical treatment. A 20 percent rating could also be assigned if surgery is recommended for a veteran who is not a surgical candidate. Otherwise, a 10 percent rating is assigned. The June 2021 VA examiner diagnosed left foot plantar fasciitis, and indicated that it was a progression of the Veteran's service-connected residuals of a left big toe fracture. However, the record does not show that the Veteran underwent surgery for his plantar fasciitis, or that surgery was ever recommended for that disability. Therefore, a separate 10 percent rating, but no higher, is appropriate from June 2, 2021, the date the condition was diagnosed. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.