Citation Nr: 21069419 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-42 584 DATE: November 18, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right foot contusion is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is ¬¬¬denied. FINDINGS OF FACT 1. At worst, the Veteran's service-connected right foot contusion does not more nearly approximate a moderate right foot disability. 2. The Veteran's service-connected disabilities do not preclude the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right foot contusion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2021). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from March 2008 to July 2012 including service in Afghanistan. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. In April 2021, the Board remanded these matters for additional evidentiary development. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings The Veteran asserts that his right foot contusion warrants a rating in excess of 10 percent. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Right Foot Contusion Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO has rated the Veteran's right foot contusion under 38 C.F.R. § 4.71a, Diagnostic Code 5284 and assigned a 10 percent rating. This Diagnostic Code stipulates that severe hallux rigidus is to be rated as severe hallux valgus. 38 C.F.R. § 4.71a. Upon review of the applicable evidence, there are no competent diagnoses or lay complaints of left hallux rigidus. Consequently, Diagnostic Code 5381 is not for application in this case. Diagnostic Code 5282 provides the rating criteria for hammer toe. 38 C.F.R. § 4.71a. Under this Diagnostic Code, hammer toe that affects all toes unilaterally and without claw foot is awarded a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167. Diagnostic Code 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code, such as in this case. The Court has held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Evidence and Analysis In July 2012, the Veteran reported for a VA right foot examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The clinician indicated a current diagnosis of contusion, dorsum of the right foot. Also, the clinician reported mild tenderness to palpation on the dorsum of the right foot over the first and second cuneiform bones. The Veteran did not use any assistive device as a normal mode of locomotion. X-ray imaging did not disclose the presence of arthritis. The clinician indicated that this disability did functionally impact the Veteran's ability to work. In his November 2012 notice of disagreement (NOD), wrote that his right foot feels broken. He conveyed that it feels as if there were electrical shocks running up his right foot continually. Upon a November 2013 VA general examination, a clinician indicated that the Veteran had sustained and injury to the dorsum of the right foot. This clinician also reported that there was no tenderness to palpation (TTP) over the dorsum of the right foot. The Veteran reported that flare-ups occurred 365 days a year. The Veteran depicted flare-ups as pain in the right arch (for 30 minutes per occurrence.) Neither pain, weakness, fatigability, nor incoordination limited the Veteran's functional ability during flare-ups or upon repetitive use over time. The Veteran conveyed that he constantly used right foot inserts. X-ray imaging did not disclose the presence of arthritis. The clinician reported functional impact on the Veteran's ability to work. Specifically, the clinician opined that the Veteran must be allowed to wear enclosed shoes that will accommodate his orthotic, with proper padding, a stiff sole, and arch support. At the July 2017 Board hearing, the Veteran stated that he has lost a lot of sensitivity of the top of his right foot. Moreover, the Veteran also indicated that he needs to wear a right-shoe insole and sometimes feels as he drags his right foot. In November 2019, the Veteran reported for a VA foot examination. This clinician continued the diagnosis of right foot contusion. The Veteran conveyed that his right foot was painful near the inside of the foot. The Veteran endorsed flare-ups, depicted as an inability to walk very far. Likewise, the Veteran depicted functional loss this same way. The clinician reported that the disability chronically compromised weight bearing and required the use of arch support, custom orthotic inserts, or shoe modifications. Upon examination, right foot pain did contribute to functional loss. Such pain occurred on weight bearing and non-weight bearing. Upon repetitive use, the clinician indicates functional loss of decreased capacity for prolonged walking. The clinician reported that there was no functional loss during flare-ups. The Veteran did not use any form of an assistive device. X-ray imaging did not disclose the presence of arthritis; the right foot x-ray was normal. As to functional impact on the Veteran's ability to perform any type of occupational task, the clinician opined that this disability limited the Veteran's ability to perform prolonged walking without discomfort. In a November 2019 lay statement, the Veteran wrote that his right foot is one of his service-connected disabilities that causes discomfort and pain. Upon June 2021 x-ray imaging of the right foot, a clinician rendered an impression of no acute osseous or joint abnormality. In June 2021, the Veteran reported for a right foot examination. This clinician continued the diagnosis of right foot contusion. The Veteran endorsed pain at the top of his right foot. The Veteran also conveyed that he was unable to run and did not have full range of motion on a normal right foot examination. The Veteran indicated that he self-treats with ibuprofen. The clinician indicated that there was no evidence of a right foot deformity. The Veteran did not report that flare-ups impacted the function of his right foot. As to functional impact, the Veteran reported reiterated complaints about an inability to run and tenderness at the top of his foot. The Veteran indicated that he maintained employment as a sheet metal worker, effectively adjusting his sitting and standing on his right foot. The clinician indicated that the severity of his disability was mild. The clinician indicated that pain and fatigue contributed to the functional loss of his right foot. The Veteran did not use any form of an assistive device. X-ray imaging did not disclose the presence of arthritis; the right foot x-ray was normal. The clinician reported that the Veteran had a full range of motion in his right foot. Specifically, the clinician opined, [W]ith respect to range of motion testing, this [evaluation] was conducted on active and passive motion and weight bearing and non-weight bearing conditions and [the] measurement of the range of motion of the contralateral [left] foot. [Lastly] pain on repetitive use and flare-ups [were] evaluated in this exam. The Veteran believes that his service-connected right foot contusion warrants a rating in excess of 10 percent. The Board has considered these lay assertions/evidence carefully. 38 C.F.R. § 3.159(a)(2). The evidence of record does not disclose that either the Veteran or his representative possess the medical expertise to render an opinion as to the clinical severity of any complex medical matter, to include right foot contusion. 38 C.F.R. § 3.159(a)(1). The RO has rated the Veteran's right foot contusion under Diagnostic Code 5284. Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. The evidence articulated above discloses that, at worst, the Veteran's right foot contusion manifests as a mild disability. As such, this disability warrants a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5282 (wherein a moderate "other" foot injury warrants a 10 percent rating). The Board has considered whether Diagnostic Codes 5282 would lead to a higher rating. As there is no evidence that any hammer toe is at issue, Diagnostic Code 5242 is not for application. Moreover, the evidence of record fails to disclose that the Veteran has right hallux rigidus, so that a rating under Diagnostic Code 5381 is not warranted. And, the Veteran has not sustained the actual loss of his right foot, foreclosing the possibility of a rating under Diagnostic Code 5167. While the Veteran experiences right foot contusion pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of itself does not constitute functional loss. See Saunders, 886 F. 3d 1356. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss warranting an increased rating. Id.; see 38 C.F.R. § 4.40. Consequently, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must manifest by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. 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. As the medical evidence above shows, the Veteran experiences painful motion which results in functional loss. As such, the Veteran warrants the minimum compensable rating under the applicable rating for the right foot which is 10 percent. In sum, the Board finds that the weight of the evidence is against the claim for an initial rating in excess of 10 percent for the Veteran's service-connected right foot contusion. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Discussion The Veteran is service connected for the following disabilities: 1) posttraumatic stress disorder (PTSD) with anxiety, at 70 percent from July 10, 2012; 2) radiculopathy of the left lower extremity, at 10 percent from July 10, 2012 and at 20 percent from October 18, 2019; 3) lumbar spine degenerative disc disease (DDD), at 10 percent from July 10, 2012; 4) right foot contusion, at 10 percent from July 10, 2012; 5) tinnitus, at 10 percent from July 10, 2012; 6) right wrist strain, at a noncompensable rating from July 10, 2012 and ar 10 percent from October 18, 2019; and 7) radiculopathy of the right lower extremity, at 10 percent from October 18, 2019. Thus, the Veteran met the schedular requirements for entitlement to a TDIU from July 10, 2012. See 38 C.F.R. § 4.16(a). For the reasons set forth below, the Board finds that the evidence of record does not substantiate that the Veteran was unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). At the July 2017 Board hearing, the Veteran indicated that he worked as a diesel mechanic after service, then warehousing as a warehouse manager, and as a service mechanic. However, he testified that he was unemployed at the time of the hearing and it would be "very hard [...] to find something more accommodating for [him]." At the time of the Board hearing, the Veteran testified that he had been unemployed for approximately two-to-three months. See July 17, 2017 Hearing Transcript, pp. 4-5. However, as noted above, the Veteran reported that he maintained employment as a sheet metal worker, effectively adjusting his sitting and standing on his right foot during the June 2021 VA foot conditions examination. The Veteran has not submitted a completed VA Form 21-8940 to show his employment status; nevertheless, the Board will proceed with an analysis based upon the evidence of record. In his November 2012 NOD, the Veteran noted that he was unable to work for 8 hours standing. Upon a November 2013 VA general examination, the clinician reported that the Veteran's right wrist, right foot, lower extremity radiculopathy, and/or lumbar spine DDD, either singly or collectively, did not render the Veteran unable to obtain or sustain any gainful employment. As already discussed, the clinician identified the necessity of wearing a customized right shoe. Upon an October 2013 VA PTSD examination, a psychologist reported that the Veteran's PTSD (noted as an anxiety disorder) was productive of occupational and social impairment with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functionally satisfactorily, with normal routine behavior, self-care, and conversation. However, the psychologist did not report that PTSD rendered the Veteran unable to obtain or sustain any gainful employment. Upon an October 2013 VA tinnitus examination, a clinician did not report that this disability rendered the Veteran unable to obtain or sustain any gainful employment. Upon a November 2018 PTSD examination, a psychologist indicated that PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. However, the psychologist did not report that PTSD rendered the Veteran unable to obtain or sustain any gainful employment. Upon an October 2019 thoracolumbar spine conditions examination, a clinician indicated that the Veteran's lumbar spine DDD limited the ability to perform repetitive heavy lifting, heavy pushing, and heavy pulling. However, the clinician did not report that this disability rendered the Veteran unable to obtain or sustain any gainful employment. Upon an October 2019 VA wrist conditions, a clinician opined that the Veteran's chronic right wrist sprain and right wrist tendinitis did not functionally impact the Veteran's ability to perform any type of occupational task. Upon a November 2019 VA peripheral nerve conditions examination, a clinician opined that the Veteran's lower extremity radiculopathy did not impact his ability to work. The November 2019 VA clinician did not report that the Veteran's right foot contusion rendered the Veteran unable to obtain or sustain any gainful employment. In November 2019, the Veteran's spouse submitted a lay statement. In pertinent part, she reported that the Veteran's service-connected disabilities affect the Veteran's daily routines, to include his interactions with his children and the marital couple's personal life. This same month, the Veteran reported that he takes a great deal of medication for his left lower extremity radiculopathy. And the Veteran reported that this disability affects his sleeping, activities, and personal life. In a December 2019 lay statement, the Veteran noted that he experienced so much right wrist pain that every day is a challenge. The June 2021 VA clinician did not report that the Veteran's right foot contusion rendered the Veteran unable to obtain or sustain any gainful employment. The Veteran reported a loss of one week of work time in the past year. The Veteran has a high school education and attended post-secondary technology courses. Additionally, he earned 6 college credits. Professionally, the evidence of record shows that the Veteran has professional experiences in diesel mechanics, warehousing, sheet metallurgy, and service mechanics. The Veteran testified that he worked as a supervisor in warehousing that would include supervisory expertise managing, documenting, training, mentoring, and ensuring compliance with a host of applicable employment and safety regulations. Although the Veteran testified that he is unable to drive for long periods of time, he did not testify that he does not have the ability to drive at all. Indeed, this work suggest that he has the ability to drive short-to-moderate distances (plausibly to and from a workplace). While the Veteran insists that service-connected disabilities render him unable to obtain or retain employment consistent with his education and professional experiences, the record shows that the Veteran has completed high school and some college work the Veteran has professional expertise in the fields of diesel mechanics, warehousing, sheet metallurgy, and service mechanics. The Veteran has supervisory skill set managing, documenting, training, mentoring, and ensuring compliance with applicable employment and safety regulationstransferable to multiple employment settings and industries that require minimal climbing, walking, lifting, running, shifting about, and/or standing for extended periods of time. Furthermore, these supervisory tasks do not necessitate performance in an anxiety-laden work environment. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Collectively, the Board finds that this combination of education and work experiences are more than sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work experiences, to include supervisory work. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that the Veteran's psychological and orthopedic disabilities present mental health challenges and limit extended standing and walking. However, they do not preclude occupations performed in an office setting where there is an opportunity for breaks to gain psychological composure and limitations on extended standing or walking. The Veteran has supervisory skills that could be employed in training, mentoring, and ensuring compliance with employment and workplace laws and regulations. His physical limitations do not rise to the level of rendering the Veteran totally impaired occupationally. Many employers offer reasonable accommodations pursuant to the Americans with Disabilities Act (ADA), to allow for downtime due to disabilities. In the Veteran's case, it would be quite feasible for an employer to provide breaks in quiet settings where the Veteran could rest during periods/bouts of symptoms associated with his service-connected disabilities. The evidence of record fails to reveal that exceptional circumstances exist which warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, the grant of a TDIU is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.