Citation Nr: 21069804 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-14 290 DATE: November 19, 2021 ORDER Service connection for osteoporosis and arthralgia of the right hip is granted. A 10 percent rating is granted for right foot fracture, status post open reduction and internal fixation, with residuals (hereinafter, "right foot disability") from December 1, 2014 to May 12, 2021, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has osteoporosis and arthralgia of the right hip as secondary to her service-connected hysterectomy. 2. For the period from December 1, 2014 to May 12, 2021, the Veteran more nearly approximated than not the criteria of moderate impairment of the service-connected right foot; moderately severe impairment was not shown. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for osteoporosis and arthralgia of the right hip have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial rating of no more than 10 percent for service-connected right foot disability from December 1, 2014 to May 12, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1984 to April 1988, and from May 2000 to September 2000. She also had service in the United States Navy Reserve. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2016 and January 2017 rating decision decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2016 decision, the RO granted service connection and a 0 (zero) percent (noncompensable) rating for the Veteran's right foot disability, effective September 12, 2014. In the January 2017 decision, the RO declined to reopen a previously denied claim for service connection for a right hip disability. In December 2017, while the current appeal was pending, the RO granted a temporary total rating for the right foot disability under the provisions of 38 C.F.R. § 4.30, effective from September 12 to November 30, 2014, with the prior noncompensable rating resuming after that. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that in May 2021, while the current appeal was pending, the RO granted a 30 percent rating for the Veteran's service-connected right foot disability, effective May 13, 2021. That rating is the maximum evaluation available under 38 C.F.R. § 4.71a, Diagnostic Code 5284. At the June 2021 hearing, the Veteran indicated that, following the May 2021 rating decision, the benefit she was seeking with respect to the right foot was a higher rating for the period on appeal prior to May 13, 2021. See hearing transcript, p. 2. Finally, the Board notes that the agency of original jurisdiction (AOJ) furnished the Veteran a statement of the case relative to the matters herein decided in December 2017. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). 1. Entitlement to service connection for a right hip disability Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In this case, service connection was previously denied for a right hip disability by a March 2015 rating decision. Following review of the claims file as it then existed, the RO concluded that the evidence did not show a relevant event, disease, or injury in service and that the service treatment records were negative for the claimed condition. The Veteran was notified of the March 2015 decision, and of her appellate rights, but did not appeal. Nevertheless, new and material evidence was constructively of record within one year of that decision which precluded it becoming final. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Specifically, a February 2016 VA examiner's opinion, although primarily directed toward the right foot, stated at the end of the report, "Additionally, the evidence in the Veteran's medical records and history DOES show that osteoporosis of the right hip was incurred/caused by SERVICE just as it was for the left hip." (Emphasis in original.) Therefore, the Board will proceed to address the merits of the service connection claim. The Board notes the Veteran's service treatment records contain no entries showing a diagnosis of or treatment for a right hip disability, nor was there medical evidence of such until years after service. The lack of such findings can be probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The Veteran has contended she has osteoporosis of the right hip, and that, similar to her already service-connected osteoporosis of the lumbar spine and left hip, it is secondary to her service-connected hysterectomy. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for Veterans Claims (Court) held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." Id. at 239. As noted, the February 2016 VA examiner essentially found that service connection was warranted for the right hip disability on the same basis as the already service-connected left hip disability. Simply stated, the examiner's opinion supports the Veteran's contentions. In addition, the Veteran submitted a July 2018 private medical statement and an October 2018 Disabilities Benefit Questionnaire (DBQ) from a Dr. S which diagnosed osteoporosis and arthralgia of the right hip. Moreover, while a September 2017 VA examination diagnosed the right hip condition as osteopenia and found she did not have osteoporosis, the examiner did provide an opinion to the effect that the right hip condition was secondary to the service-connected hysterectomy. Despite these positive etiology opinions, the AOJ denied the claim on the basis that the Veteran's right hip diagnosis of osteopenia was a laboratory finding and not a disability for VA purposes. Cf. Schedule for Rating Disabilities; Endocrine System Disabilities,61 Fed. Reg. 20440, 20,445 (May 7, 1996) (Supplementary Information (indicating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities). The Board notes the term "osteopenia" refers to any decrease in bone mass below normal. Dorland's Illustrated Medical Dictionary 1336 (30th ed. 2003). The United States Court of the Appeals for the Federal Circuit (Federal Circuit) has clarified that the term "disability" as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, the record reflects functional impairment of the right hip, which is consistent with loss of earning capacity. Moreover, as noted, the February 2016 VA examiner diagnosed the right hip condition as osteoporosis. Similarly, the private medical records from Dr. S, dated in 2018, reflect diagnoses of osteoporosis and arthralgia of the right hip. The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time she files her claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board finds no reason to doubt the qualifications of the February 2016 VA examiner or Dr. S to provide competent medical diagnoses. The Board further notes the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Pursuant to the benefit of the doubt provisions, an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Alemany v. Brown, 9 Vet. App. 518 (1996). In light of the foregoing and resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not she has osteoporosis and arthralgia of the right hip secondary to her service-connected hysterectomy. Therefore, service connection is warranted. In granting service connection for osteoporosis and arthralgia of the right hip, the Board notes that this contemplates the impairment associated with the findings of osteopenia including on the September 2017 VA examination. The Board finds osteoporosis and arthralgia is the most appropriate diagnosis in this case based upon the medical records from Dr. S, as well as the fact that service connection has already been established for osteoporosis of the lumbar spine and left hip. 2. Entitlement to a compensable rating for service-connected right foot disability prior to May 13, 2021 Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected right foot disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under that diagnostic code, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injury warrant a 30 percent evaluation. 38 C.F.R. § 4.71a. As already noted, the Veteran has been assigned a 30 percent rating for her service-connected right foot disability from May 13, 2021. As this is the maximum rating available under Diagnostic Code 5284, a higher rating is not warranted for that period as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Further, as noted, she indicated at the June 2021 hearing that the benefit she is now seeking is a compensable rating for the period prior to May 13, 2021. In this regard, the Board notes that service connection was established for the right foot disability from September 12, 2014. A temporary total rating was assigned from that date pursuant to 38 C.F.R. § 4.30, with a noncompensable (zero percent) rating assigned effective December 1, 2014. The matter for the Board's present consideration is whether a higher rating should be assigned from December 1, 2014 to May 13, 2021. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that common definitions for "mild" include not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. It is also noted that the term "moderately severe" indicates impairment that is considered more than "moderate" but not to the extent as to be considered "severe." VA General Counsel noted in a precedent opinion dated August 14, 1998, that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 9-98. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Here, the Veteran's service-connected right foot disability has been manifested by complaints of pain. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. Further, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Board notes that VA examinations in February 2016 and September 2017 found the Veteran's service-connected right foot disability to have mild severity, while a subsequent November 2018 foot DBQ from Dr. S found it to have moderate severity. Although the Board is not bound by these descriptions of the right foot impairment, it is probative evidence for consideration. With respect to the right foot impairment during the pertinent period, the February 2016 VA examination noted weakened movement, pain on movement, pain on weight-bearing, swelling, and disturbance of locomotion of right foot. Both the September 2017 VA examination and November 2018 DBQ noted the Veteran had pain on use and manipulation of the right foot. The November 2018 DBQ also noted pain on weight bearing and non-weight bearing, swelling, disturbance of locomotion, and interference with standing. The Board further notes the Veteran reported increased pain and swelling of the right foot with prolonged use at the February 2016 VA examination. In addition, she reported she was unable to run and skate as she had done previously. At the September 2017 examination, she reported occasional spontaneous right foot pain 3 to 4 times per week with pain lasting up to 5 to 6 hours. She also reported that she could walk up to 1/4 mile, ride an exercise bike for 15 minutes and climb up to 7 flights of stairs with occasional right foot pain. The November 2018 DBQ noted pain with prolonged walking and standing. The Veteran also emphasized pain, swelling, and tenderness of the right foot at the June 2021 hearing. In addition, she reported problems with walking as part of her pertinent February 2018 VA Form 9. This contention is supported by the fact the February 2016 VA examination noted occasional use of a cane and walker. Although no assistive devices were noted on the September 2017 VA examination, the November 2018 DBQ noted regular use of a brace. In light of the foregoing, the Board finds that the impairment indicated by these examinations and other evidence of record more nearly approximates than not moderate functional impairment, i.e., impairment that is of average or medium quantity, quality, or extent. Thus, the Veteran is entitled to a 10 percent rating under Diagnostic Code 5284 for the period from December 1, 2014 to May 13, 2021. The Board finds that the Veteran's service-connected right foot disability was not manifested by moderately severe impairment during the pertinent period. For example, even with her complaints of pain, the September 2017 VA examination noted foot range of motion, motor exam, and sensation were all normal. In addition, treatment records from October 2019 note that examination of the foot was within normal limits. Other treatment records from December 2018 and December 2019 found no evidence of sensory loss, diminished circulation, foot deformity, ulceration, or history of ulceration or amputation following evaluation of the feet. The record does not otherwise reflect, nor does the Veteran explicitly contend, she would have moderately severe impairment during the pertinent period to include during flare-ups and/or but for the use of medication. As such, the preponderance of the evidence is against a rating in excess of 10 percent under Diagnostic Code 5284. No other Diagnostic Code adequately contemplates the impairment associated with the Veteran's service-connected right foot disability. For example, she does not have findings to warrant consideration of the criteria for plantar fasciitis, pes planus, pes cavus (clawfoot), metatarsalgia, hallux valgus, hammer toe(s), or nonunion or malunion of the tarsal or metatarsal bones. In fact, the February 2016 and September 2017 VA examinations, as well as the November 2018 DBQ, indicates that she did not have any such conditions of the right foot. For all these reasons, the Board finds that the Veteran is entitled to a rating of no more than 10 percent for the right foot for the period from December 1, 2014 to May 13, 2021. In making this determination, the Board is cognizant that there were multiple changes to the VA rating criteria for evaluating orthopedic disabilities that were made effective from February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). However, there were no significant changes to Diagnostic Code 5284, nor to the other criteria for evaluating disabilities of the foot that would affect the outcome of this claim. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.