Citation Nr: 21068278 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-26 524 DATE: November 9, 2021 ORDER A rating of 30 percent, but no higher, for the service-connected right foot status post fracture of the great toe, second, third, and fourth toes is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran's service-connected right foot disability is severe, but does not result in actual loss of use of the foot. CONCLUSION OF LAW The criteria for a rating of 30 percent, but no higher, for the service-connected right foot status post fracture of the great toe, second, third, and fourth toes have been met. 38U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5283, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1969 to October 1989. In December 2014, he testified at a hearing before a Veterans Law Judge who is no longer employed at the Board of Veterans' Appeals (Board). See March 2021 notice letter to the Veteran. In a March 2021 written response, the Veteran indicated that he did not wish to appear at another Board hearing and asked that the Board consider his appeal based on the evidence of record. In December 2019, the Board remanded this appeal for further development. In addition, the Board notes that, in an effort to offer more expedient hearings to claimants, in October 2020, the Board sent out 1,500 letters to appellants with purported pending Travel Board hearing requests to ask if they would like to convert to a virtual hearing. Due to a technical issue, many of these letters were sent to appellants who had actually already had their hearing and then had their cases remanded by the Board. The record reflects that the Veteran in this appeal received such a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Although he initially responded indicating that he wished to have such a hearing, he clarified in a written statement submitted in September 2021 that he did not wish to appear at another Board hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher 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. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Also, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran has been assigned a 10 percent rating under DCs 5284-5283 for his service-connected right foot disability. Hyphenated diagnostic codes are typically used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. DC 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones. A 10 percent rating is warranted for moderate malunion or nonunion, a 20 percent rating is warranted when malunion or nonunion is moderately severe, and a 30 percent rating is warranted if the malunion or nonunion is severe. A 40 percent rating is assigned with actual loss of use of the foot. 38 C.F.R. § 4.71a, Note after DC 5283. DC 5284 pertains to other foot injuries. This diagnostic code directs that a 10 percent rating be awarded if such is moderate, a 20 percent rating be awarded if such is moderately severe, and a 30 percent rating if such is severe. A note states that a 40 percent rating should be assigned with actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. At an October 2012 VA foot examination, the Veteran reported having daily discomfort which he described as a mild ache in all four of the service-connected toes. He denied any weakness, stiffness, swelling, redness, or heat. There was no fatigability or lack of endurance, and the symptoms presented upon standing and walking. The examiner noted that the severity of the symptoms was mild and of a daily frequency. The Veteran experienced flares which increased with severity and lasted several hours. Precipitating factors were increased walking and standing, and alleviating factors were medication and rest. The Veteran had inserts in his shoes, but did not use crutches, braces, or canes, and his gait and walk were not affected. He described the functional limitation of this disability as preventing him from walking a half mile and only being able to stand for five minutes. He was unable to run, and avoided stairs with more than one flight. During flares or after repetitive use, he would decrease his walking and standing. He denied any subluxation, dislocation, instability, bony cancers, or ankylosing areas. On examination, the Veteran's right foot appeared normal and had no swelling or tenderness. Flexion of the great toe was from zero to 45 degrees and extension was from zero to 70 degrees. There were no abnormalities with weightbearing, and the achilles tendon insertion was normal. There was also no flatfoot abnormality present or tenderness on range of motion exercises. The examiner noted that X rays of the Veteran's right foot from 2008 revealed that the bone and joints were unremarkable except for plantar and posterior calcaneal spurring. At the December 2014 hearing, the Veteran testified having foot pain at a level eight out of ten, which would worsen at least once a week and would cause him to have trouble walking. He would have to sit down when the pain would get too unbearable. He reported having problems with standing and walking because he would have to shift his weight to his left foot and try not to walk too far because of the pain in his right foot. He experienced problems with climbing stains, running, and driving. When he would drive long distances, he would have to stop frequently to relax his foot. The pain was constant and would sometimes cause problems at night. He opined that his right foot symptoms were of a moderately severe level because he constantly experienced pain in the foot. In March 2015, the Veteran underwent another VA foot examination to assess the severity of his service-connected right foot disability. At that time, he reported that his toes would throb with pain. He did not report that flare-ups impacted the function of his right foot. He reported having functional impairment of his right foot in that his toes would throb with long walks. The examiner diagnosed residuals of a fracture of the first four toes of the right foot and noted that the Veteran did not have any other foot injuries and had not undergone foot surgery. On examination, there was right foot pain, but the examiner noted that the Veteran was not walking or standing long enough during the examination for pain to impair his right foot. The examiner noted that contributing factors of this disability were pain on weight-bearing and disturbance of locomotion of the right foot. Further, the Veteran would experience pain in his right foot toes on long walks greater than 100 yards which limited functional ability when the right foot was used repeatedly over a period of time. There was no other functional loss during flare-ups or when his right foot was used repeatedly over a period of time. The Veteran's service-connected right toes were normal without any deformity and displayed normal ranges of motion. He did not use any assistive devices to aid with locomotion. The examiner concluded that the Veteran's service-connected right foot and toes disability did not affect his ability to perform occupational tasks. The Veteran underwent another VA foot examination in December 2019, at which time the examiner acknowledged the Veteran's right toe fractures in 1976. The Veteran reported experiencing right foot pain and having been issued orthotics by the podiatry clinic at a VA Medical Center (VAMC) which made his feet feel much better and alleviated his pain. The Veteran also complained of throbbing pain in the dorsum of the foot and toes and sole of the toes. He stated that the pain was constant and aggravated by weight bearing. The average pain intensity was a level five out of ten and would worsen (flare-up) with weight-bearing and improve with sitting. The Veteran denied experiencing sores or ulcers of his feet. The examiner noted that the Veteran reported experiencing functional loss of his right foot because walking and standing would worsen his right foot pain. Overall, the examiner concluded that the Veteran's right foot condition was of a mild severity, did not chronically compromise weight bearing, or require arch supports, custom orthotic inserts, or shoe modifications. On examination, the Veteran did not have right foot pain, but the Veteran reported pain would be aggravated by weight-bearing. Contributing factors of the Veteran's right foot disability were disturbance of locomotion, interference with standing, and interference with sitting. There was no additional functional loss during flare-ups or when the Veteran's right foot was used repeatedly over a period of time. The examiner noted that the Veteran did not use assistive devices as a normal mode of locomotion. Imaging studies were performed and did not show degenerative or traumatic arthritis of the right foot. The examiner concluded that the Veteran's right foot disability did not impact his ability to perform occupational tasks. The Veteran underwent his most recent VA foot examination in October 2020, at which time the examiner noted that the diagnoses of right foot fracture-malunion of tarsal/metatarsal bones. The Veteran reported experiencing pain in his right foot which he described as constant and nagging. He reported experiencing flare-ups of his right foot pain, such that, at times, the pain would increase and throb. He also reported having functional impairment of his right foot in that he was unable to walk when the pain was severe. The examiner noted that the Veteran had moderate malunion or nonunion of the tarsal or metatarsal bones in his right foot. He also had mild right foot arthritis that chronically compromised weight bearing, but did not require arch supports, custom orthotic inserts, or shoe modification. The examiner noted that the Veteran's right foot conditions caused accentuated pain on use and on manipulation. The Veteran's right foot was painful on physical examination, and the examiner stated that the pain contributed to functional loss. The examiner stated that other contributing factors of the Veteran's right foot disability included less movement than normal; pain on movement; pain on weight-bearing; disturbance of locomotion; and interference with standing. Also, the Veteran's bilateral foot pain resulted in decreased movement and the inability to walk or stand. Notably, the examiner stated that the Veteran's right foot, alone, rendered him unable to stand and walk after repeated use over time or during flare-ups. He used a cane regularly to assist with locomotion due to his back, knee, hip, and foot conditions. The Veteran also had right foot plantar calcaneal spurring, but no other pertinent physical findings, complications, conditions, signs or symptoms related to his service-connected right foot disability. The examiner concluded that the Veteran's bilateral foot disabilities, combined, caused pain and flare-ups such that he was unable to walk for prolonged periods of time without increased pain. Right foot pain was noted during weight-bearing on dorsiflexion, but not during non-weight bearing. The examiner was unable to test whether the Veteran's right foot pain was noted during passive motion because it was not medically appropriate to test due to the movement causing severe pain. VA treatment records show that the Veteran treated for foot issues over the course of the appeal. They do not, however, reveal symptoms more severe for his service-connected right foot disability than those shown on concurrent VA examinations. In light of the above, and in affording the Veteran all benefit of the doubt, the Board finds that the evidence supports a 30 percent rating, but no higher, for the Veteran's service-connected right foot status post fracture of the great toe, second, third, and fourth toes. As the Regional Office assigned the Veteran's current rating for his right foot disability under DCs 5283-5284, the Board considered increased ratings under DCs 5283 and 5284. In Copeland v. McDonald, 27 Vet. App. 333 (2015), the United States Court of Appeals for Veterans Claims (Court) addressed the application of DC 5284, for other foot disabilities, when a veteran's service-connected foot disability was specifically provided for in the schedular rating criteria. In that case, VA argued that because pes planus is specifically addressed by DC 5276, and hallux valgus is specifically addressed by DC 5280, to rate those foot disabilities under DC 5284 would be rating by analogy, which is not permitted when there is a diagnostic code that is specifically labeled with the name of a particular condition. The Court agreed, holding that to rate under DC 5284, for "Foot injuries, other," would not be rating by analogy, as to do so would ignore the plain meaning of the term "other," and would make the remaining foot-related DCs redundant. DC 5283 is for malunion or nonunion of the tarsal or metatarsal bones. DC 5284 addresses non-specific foot injuries. A reasonable reading of the relevant diagnostic codes suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other diagnostic codes, which is not the case here. In any event, the Board notes that the rating criteria for DCs 5283 and 5284 are nearly identical. Therefore, because there are specific diagnostic codes to evaluate disorders of the metatarsal bones, consideration of other diagnostic codes (particularly Diagnostic Code 5284) for evaluating the disability is not appropriate. 38 C.F.R. § 4.20. In any event, the comparison is of no real impact, as the ratings under DC 5284 and 5283 are the same. As an initial matter, the Board notes that the Veteran's service-connected right foot disability has not resulted in actual loss of use of his foot. The Veteran has not asserted such, and the March 2015, December 2019, and October 2020 VA examiners stated that the Veteran's right foot disability did not have functional impairment so diminished that amputation with prosthesis would equally serve him. The October 2020 VA examination was completed using an older version of a VA examination report form which did not address the issue. Thus, all examiners who considered the issue found that some level of functioning remained in the Veteran's right foot despite the impairment from his disability. As such, a rating of 40 percent, the maximum level allowed under the applicable DC, is not warranted for the Veteran's right foot disability because actual loss of use of his right foot has not been shown. Turning to whether the Veteran's right foot disability would properly be considered "moderate," "moderately severe," or "severe," the Board notes that such terms are not defined in the regulations. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The weight of the evidence indicates that the Veteran's right foot disability has been so functionally limited to warrant a rating of 30 percent. Although the severity of this disability fluctuated during the appeal period, the Board finds the October 2020 VA examination to be the most complete assessment of the most severe functional limitation this disability causes, and included the most appropriate and complete findings regarding the severity during flare-ups and after repeated use over time. The examiner noted that, at those time, the Veteran's service-connected right foot disability would render him unable to stand or walk. The Board finds such functional limitation to be of the most severe level a foot disability can cause, other than one which amounts to actual loss of use of the foot. As such, finding that the Veteran's right foot disability is of a severe level, the Board assigns a 30 percent rating for the Veteran's service-connected right foot status post fracture of the great toe, second, third, and fourth toes. Accordingly, in affording the Veteran any benefit of the doubt, a 30 percent rating, but no higher, is awarded for his service-connected right foot status post fracture of the great toe, second, third, and fourth toes throughout the period on appeal. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.