Citation Nr: 21069788 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-33 288 DATE: November 19, 2021 ORDER Entitlement to a 20 percent rating for right fourth toe injury; status post dislocation right fourth metatarsophalangeal joint is granted. FINDING OF FACT The Veteran's right fourth toe injury results in moderately severe foot impairment. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating for right fourth toe injury; status post dislocation right fourth metatarsophalangeal joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1984 to March 1994. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. The transcript is of record. Entitlement to a 20 percent rating for right fourth toe injury; status post dislocation right fourth metatarsophalangeal joint The Veteran contends that she is entitled to a higher rating for her right fourth toe injury because she experiences constant pain that limits her walking routine and ability to wear shoes. See June 2018 VA Form 9. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 . Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected right fourth toe injury, is currently rated under Diagnostic Code 5284. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. 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 Diagnostic Code 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 words "moderate," "moderately severe," and "severe" are not defined in the VA Schedule for Rating Disabilities. Furthermore, the use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at an appropriate rating that would compensate the veteran for losses such as impairment in earning capacity and functional impairment. 38 C.F.R. §§ 4.2 , 4.6. In an October 2015 Disability Benefits Questionnaire (DBQ) report, the examiner noted dull achy pain in the right fourth toe. The Veteran reported flare ups noting that she would have to take off her shoes and wiggle her toes to relieve discomfort. The examiner observed evidence of pain on movement and pain on weight bearing. The examiner noted that pain during flare ups resulted in decreased movement and limited prolonged weight bearing activity. The Veteran did not report use of any assistive devices or medication for pain management. In a January 2019 DBQ report, the Veteran reported increased deep aching pain that was sometimes sharp with numbness and tingling around her toe. She rated her pain after activity at a 7 out of 10. The Veteran reported flare ups marked by immediate discomfort with any activity on her feet and an inability to walk more than 15 minutes. She denied the use of orthotics. The examiner observed evidence of pain on axial compression of the right fourth metatarsal phalangeal joint (MPJ), and pain with crepitus at the fourth MPJ with passive motion. The examiner noted decreased protective sensation of the right fourth toe and slight pain on palpation. The Veteran did not have hammer toe of the fourth toe. However, hallux valgus surgery was documented. The examiner noted the Veteran did not have hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or any other foot injuries or conditions. The Veteran exhibited pain on movement, pain on weight bearing, disturbance of locomotion and interference with standing. The examiner found no additional functional loss with flare-ups or repeated use. In March 2019, the Veteran was treated for complaints of pain and numbness in the right fourth toe. She rated the pain at a 6 out of 10. Again, she reported she was unable to walk for long periods of time and unable to wear dress shoes. In July 2019, the Veteran was treated for knee pain. She reported that she was walking differently because she steps so gingerly on her right foot. The physician noted that the Veteran was unable to tolerate closed toed shows and the middle joint of her right fourth toe was very tender to touch. She was prescribed a topical gel that did not help improve pain. She also tried toe sleeves without improvement. The doctor observed a hammertoe of the right fourth toe with pain and numbness. Full extension of the fourth toe was inhibited by position of the PIP joint and plantar skin bridge. The Veteran was scheduled for corrective surgery in September 2019. An October 2019 post-op follow-up note indicates the Veteran rated her pain at a 6 out of 10. The Veteran reported the pain was worse at night when she experienced throbbing. She was not prescribed any pain medication. VA treatment records from January 2020 indicate the Veteran continued to have swelling and pain in her fourth right toe, including on the bottom of the toe. The Veteran reported an incident in December 2019 where she had to pull over her car and take off her shoe because of severe pain in her toe. She again reported pain with walking in closed in shoes. At her February 2021 Board hearing, the Veteran testified that she had constant pain even when relaxing or laying down. She rated her pain between a 7.5 and 10. She stated that it hurt to stand and walk and that the pain was worsened by wearing closed toe shoes. She testified that she leaned to the left when standing or walking to avoid putting pressure on her right foot. Based on the above evidence, including VA examinations and treatment records, as well as the Veteran's own testimony of worsening symptoms and continued pain, the Board finds that a 20 percent rating indicative of "moderately severe" disability under Diagnostic Code 5284 is warranted. A review of the record detailed above demonstrates that the Veteran's disability has gradually increased throughout the appeal period and has resulted in pain on weightbearing, which impairs her ability to wear closed in shoes, stand, or walk for long periods of time. The Board finds that a higher rating is not warranted as the Veteran's pain and other functional impairments were not severe. The Veteran consistently described her pain to be constant and at least moderate in severity. Even considering the increased pain, the Veteran testified that she was able to walk and stand. Moreover, the evidence fails to suggest that the Veteran's right fourth toe injury is analogous to actual loss of use of the foot, as the Veteran's feet are present, and she can walk and stand. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. Thus, the Board finds that the symptoms have not more nearly approximated a rating greater than 20 percent under Diagnostic Code 5284. The Board has also considered whether a higher or separate rating is warranted under other potentially applicable Diagnostic Codes. The Veteran has not alleged, and the record does not show, severe malunion or nonunion of the tarsal or metatarsal bones, metatarsalgia or hallux rigidus. Therefore, a higher or separate rating under Diagnostic Codes 5279, 5281 and 5283 is not warranted. The Veteran has been diagnosed with hallux valgus and hammer toe of the right fourth toe. Initially the Board notes that the highest rating available under DC 5280 for hallux valgus or 5282 for hammer toe is 10 percent. As the Veteran is entitled to a higher rating under DC 5284, a rating under that diagnostic code has been awarded. As noted above, pyramiding is generally prohibited by 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The record indicates that the only symptoms associated with the Veteran's hallux valgus and hammer toe of the right fourth toe are pain and numbness for which she is compensated under DC 5284. Therefore, a separate rating under DCs 5280 or 5282 is not warranted. (Continued on the next page) For these reasons, affording the Veteran the benefit of the doubt, the evidence supports the assignment of a 20 percent rating for residuals of a fracture to the right calcaneus and the appeal is granted to that extent. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.