Citation Nr: 21069026 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 06-07 544A DATE: November 17, 2021 ORDER A rating in excess of 20 percent prior to March 30, 2009 for a right foot disorder is denied. A 30 percent rating from March 30, 2009 to November 6, 2019 for a right foot disorder is granted, subject to the rules and regulations governing the award of monetary benefits. A rating in excess of 30 percent from November 6, 2019 for a right foot disorder is denied. FINDINGS OF FACT 1. For the period prior to March 30, 2009, the preponderance of the evidence is against a finding that the Veteran's right foot disorder with tenderness and pain resulted in more than moderately severe symptomatology. 2. For the period from March 30, 2009 to November 6, 2019, the evidence is at least in equipoise as to whether the Veteran's right foot disorder resulted in more severe residuals consisting of severe pain, impaired gait (with use of cane), swelling, tenderness, and cramping. 3. For the period from March 30, 2009, the Veteran's is in receipt of the maximum rating available under Diagnostic Code 5284 for his right foot disability (without evidence of actual loss of use of the foot), and no other applicable diagnostic code results in a higher disability rating for the Veteran. CONCLUSIONS OF LAW 1. For the period prior to March 30, 2009, the criteria for entitlement to a disability rating in excess of 20 percent for a right foot disorder 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. For the period from March 30, 2009 to November 6, 2019, the criteria for entitlement to a 30 percent rating, but no higher, for a right foot disorder have 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, DC 5284. 3. For the period from November 6, 2019, the criteria for entitlement to a disability rating in excess of 30 percent for a right foot disorder 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, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to October 1992. The Board notes that the Veteran also has a separate appeal regarding multiple issues to include increased ratings for fibromyalgia, IBS, sleep apnea, incontinence, bilateral knees, left foot, and chronic fatigue; entitlement to an earlier effective date for the 40 percent rating for chronic fatigue, the separate rating for incontinence, the grant of service connection for the right knee, and the grant of service connection for sleep apnea. The Veteran is represented by a private attorney in this appeal and, as such, these issues will be addressed in a separate Board decision at a later date. Entitlement to an increased disability rating for the right foot disorder. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected right foot disorder has been rated under DC 5284 for other foot injuries. Under DC 5284, moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. The rating schedule does not define nonspecific words such as "moderate" or "severe." Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's service-connected right foot disorder has been assigned a 20 percent rating prior to November 6, 2019, and a 30 percent rating from that date. As will be discussed more fully below, the Board finds that a higher 30 percent rating is warranted for the period from March 30, 2009 to November 6, 2019. Higher ratings are not warranted for the periods prior to March 30, 2009 and from November 6, 2019. In August 2003, the Veteran underwent a VA examination to evaluate his bilateral foot disorders. The examiner noted the Veteran had a painful right foot, that hurt more with ambulation. However, his symptoms were totally relieved with rest. There was no additional limitation of motion or functional impairment during flareups. The Veteran did not use crutches, a brace, or a cane. The examiner diagnosed the Veteran with bilateral plantar spurs and hallux valgus. In April 2004, the Veteran had large, bulky calcaneal and achilles tendon spurs and he complained of bilateral mild tenderness over his heels and achilles. He also demonstrated discomfort on plantar flexion and dorsiflexion of the ankles. In July 2008, the Veteran saw a private podiatrist and he demonstrated painful heels, right worse than left. The podiatrist noted that the Veteran's pain sometimes limited his ability to perform everyday activities. The podiatrist indicated that this disability may be 50 percent disabling. VA treatment records from March 30, 2009 document that the Veteran walked with a slight limp on the right side, and he utilized a cane. In May 2009, the Veteran was evaluated by a VA physician who documented symptoms consisting a lot of foot and heel pain with an antalgic gait. The physician also indicated that the Veteran utilized a cane for ambulation. VA treatment records from May 2009 through November 2010 document the Veteran's continued reports of heel and foot pain. The Veteran had tenderness to palpation in both feet around the heel area, pain on weight bearing, and abnormal gait. In July 2009 and September 2010, the Veteran reported that his right heel spur caused severe pain and he had a severe gait. He also reported that his foot swelled more than 60 percent of the time, he walked slowly, he was unable to run or play sports, and he could not walk or stand for more than a few minutes without rest. In December 2011, the Veteran underwent a VA examination to evaluate the severity of his foot disorder. The examiner diagnosed the Veteran with bilateral calcaneal spur and documented the Veteran's reports of foot pain. The examiner also noted that the Veteran utilized a cane for his back, knee, and foot issues. Functionally speaking, the examiner indicated that the Veteran's production was slowed down by his foot and he had to stay off his foot due to pain and fatigue. In November 2012, the Veteran underwent another VA examination to evaluate his foot disorder. The Veteran reported constant right heel pain characterized as throbbing/stabbing pain with pins. He also reported that his right foot cramped, he had tenderness to plantar palpation, and he could not rise to his toes without pain. The examiner diagnosed a right foot calcaneal spur, documented symptoms of right foot tenderness, and indicated that the Veteran could not engage in prolonged standing and walking. The examiner also noted that the Veteran utilized assistive devices consisting of a wheelchair occasionally and crutches, cane, and heel inserts regularly. VA treatment records in January 2014 document the Veteran's continued reports of bilateral foot pain. In March 2014, a VA examination was provided to evaluate the Veteran's foot disorder. The Veteran reported right heel pain, worse since his last VA examination and his heel injections and inserts were ineffective. He also reported weakness and difficulty with prolonged walking and standing. The examiner diagnosed a right heel calcaneal spur and documented symptoms of right foot tenderness. A VA examination was conducted in February 2016 to ascertain the severity of the Veteran's foot disorder. This examination, however, only evaluated the Veteran's left foot. Therefore, it is not pertinent to the current claim seeking a higher rating for the right foot. On November 6, 2019, the Veteran was most recently afforded a VA examination to evaluate his right foot disorder. The Veteran reported he had daily 7 out of 10 pain for his feet, could not walk short distances, was prevented from doing almost all daily activities, and had constant pain. He also reported his feet were swollen and numb. The examiner diagnosed the Veteran with bilateral flat foot, metatarsalgia, and hallux valgus and documented symptoms consisting of flare-up pain that was 10 out of 10 (from walking or standing longer than 10 minutes), pain on manipulation of feet, pain accentuated on manipulation, swelling on use, characteristic calluses, extreme tenderness of plantar surfaces of the feet, and inward bowing of achilles tendon. The examiner indicated the Veteran's symptoms were somewhat relieved by orthotic inserts. The examiner also documented that the Veteran had mild or moderate hallux valgus and functional loss consisting of pain on movement, pain on weight bearing/non-weight bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance. The examiner clarified that the new diagnoses of metatarsalgia, hallux valgus, and plantar fasciitis were a result of the change in foot mechanics due to service-connected bone spurs. Based on the foregoing, the Board finds that, for the period prior to March 30, 2009, the Veteran's right foot disorder has been manifested by no more than moderately severe symptomatology (i.e., the criteria for a 20 percent rating). As indicated above, during that time, the Veteran's right foot disorder resulted in chronic pain, tenderness to palpation, pain on weight bearing, and discomfort on plantar flexion and dorsiflexion of the ankles. This symptomatology, however, is not commensurate with more severe residuals such that a higher 30 percent rating is warranted under DC 5284. As noted during the August 2003 VA examination, the Veteran's right foot was totally relieved with rest. Although, in July 2008, the Veteran's private podiatrist indicated the Veteran's right foot disorder may be 50 percent disabling, the assignment of a disability rating is the responsibility of the adjudicator and not the private podiatrist. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (noting that adjudicators are responsible for interpreting reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). The Board further finds the private podiatrist's statement to be speculative and not supported by the other evidence of record. This is because although the examiner stated the Veteran's right foot disorder may be 50 percent disability, he also noted that the Veteran's pain only sometimes limited his ability to perform activities of daily living. Moreover, for this period, record does not reflect that the Veteran's right foot disorder affected his ability to ambulate. Accordingly, for the period prior to March 30, 2009, the criteria for a higher 30 percent rating for a right foot disorder are not met. From March 30, 2009 to November 6, 2019, the evidence is at least in equipoise as to whether the Veteran's right foot disorder has been manifested by more severe residuals (i.e., the criteria for a 30 percent rating). In that regard, the record reflects that as of that date, the Veteran developed a limp and utilized a cane for ambulation. In May 2009, it was indicated the Veteran's antalgic gait was due to his right foot disorder. The Veteran contemporaneously reported symptoms of severe pain with pins, swelling, tenderness to palpation of the feet around the heel area, pain on weight bearing, foot cramping, and abnormal gait. These symptoms also do not appear to have been relieved by heel injections or inserts. The Board finds that such symptomatology represents an increase in the Veteran's disability picture as of March 30, 2009, when the Veteran required the use of a cane, and such symptoms are commensurate to severe residuals. Accordingly, for the prior from March 30, 2009 to November 6, 2019, the Board finds that the criteria for a higher 30 percent rating for a right foot disorder are met. For the period from March 30, 2009, the Board finds that the criteria for a higher rating for the right foot disorder are not met. The Board notes that the Veteran's foot disability is indicated to be severe. However, there is no evidence the Veteran's foot disability is shown to cause disability whereby he would be as equally well served by amputation with prosthesis in place. Thus, as loss of use of the right foot has not been demonstrated, there is no basis for a rating in excess of 30 percent. Likewise, for this period, absent loss of use of the foot, the Veteran already has already been assigned the maximum schedular disability rating. Accordingly, from March 30, 2009 a higher rating in excess of 30 percent for a right foot disability is not warranted. As discussed above, no other applicable diagnostic code results in a superior outcome for the Veteran, and 38 C.F.R. § 4.14 prohibits separate ratings for these disabilities due to the rule against pyramiding. Accordingly, for the period from August 23, 2020, the claim for an increased rating for a right foot disability is denied. 38 U.S.C. § 5107(b). The evidence shows additional diagnoses of pes planus, metatarsalgia, hallux valgus, and plantar fasciitis. In spite of this, however, separate ratings for these disabilities are prohibited due to the rule against pyramiding. 38 C.F.R. § 4.14. This is because the symptoms contemplated under the separate diagnostic codes 5269, (for plantar fasciitis), 5276 (for flatfoot), 5279 (for metatarsalgia), and 5280 (for hallux valgus) are contemplated under diagnostic code 5284 and would overlap. A higher rating for the right foot is also not available under any other diagnostic code. Under DC 5269, a maximum 20 percent rating is assigned for a single foot disability, to warrant a 30 percent rating, the Veteran's left and right foot disabilities would need to be combined and considered together, which would result in a worse outcome for the Veteran's combined evaluation, as he would only receive one 30 percent disability rating. Under DC 5276, a maximum 30 percent rating is assigned for a single foot based on severe symptoms. [Parenthetically, the Board notes that the question of whether a higher disability rating is warranted under DC 5276 for the period prior to March 30, 2009 is not consider because there is no evidence of flatfoot (pes planus) for that period. Under DCs 5279 and 5280, only maximum 10 percent ratings are assigned. The Board acknowledge that the last VA examination was conducted in November 2019 (over two years ago). Significantly, however, there is no indication that the Veteran's service-connected right foot disability worsened since the November 2019 VA examination. The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, the Board finds that the current evidence of record is adequate for adjudication purposes. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.