Citation Nr: 21070089 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-00 488 DATE: November 23, 2021 ORDER For the entire period on appeal, entitlement to a disability rating of 30 percent, but no higher, for fracture of 2nd through 5th metatarsal bones, right foot (hereinafter "right foot disability") is granted. For the entire period on appeal, entitlement to a disability rating of 20 percent, but no higher, for right foot surgical scars is granted. REMANDED Entitlement to a separate compensable rating for numbness between the 4th and 5th toes of the right foot is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's right foot disability is manifested by severe symptoms, but actual loss of use of the foot is not shown. 2. The evidence is in equipoise as to whether the Veteran's three to four scars from his right foot surgeries are painful. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a disability rating of 30 percent, but no higher, for a right foot disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. 2. For the entire period on appeal, the criteria for a disability rating of 20 percent, but no higher, for painful right foot surgical scars are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in an April 2011 rating decision, the RO granted service connection for a right foot disability and assigned a 0 percent disability rating, effective January 19, 2011. In the October 2016 rating decision on appeal, the RO granted service connection for right foot surgical scars and assigned a 0 percent disability rating, effective September 21, 2016. The RO also denied entitlement to a compensable rating for the Veteran's right foot disability. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In February 2021, the Board remanded the matter for additional development. In a May 2021 rating decision, the RO awarded a 10 percent rating for the Veteran's right foot disability, effective April 9, 2021. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Claims Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to a compensable rating for a right foot disability prior to April 9, 2021 and in excess of 10 percent thereafter The Veteran is currently in receipt of a noncompensable rating for his right foot disability prior to April 9, 2021 and a 10 percent rating thereafter. He asserts that higher ratings are warranted. 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 and therefore, not be reflected on range-of-motion testing. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. 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. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, the diagnostic codes relevant to rating the instant Veteran's foot disability were not changed. DC 5284 is applicable to other foot injuries and provides 10, 20, and 30 percent ratings for foot injuries that are moderate, moderately severe, or severe in degree, respectively. Turning to the evidence, in September 2016, the Veteran was provided a VA examination to determine the severity of his right foot disability. The Veteran reported two surgeries following a fracture to his right foot in 2005. The Veteran stated that since the fracture, his right 5th toe has been elevated off the floor and he has had chronic pain rated as 4 out of 10 in severity. He reported flares several times daily with pain rated as 8 to 9 out of 10 in severity if he is standing or walking for any extended period. The Veteran reported that flare-ups impact the function of his foot and that he has functional impairment because he cannot walk or stand for a long time without significant pain. The VA examiner noted the Veteran's surgical history but determined that he did not have any residual signs or symptoms due to surgery. The VA examiner noted pain on physical examination of the right foot that contributed to functional loss. She determined that the Veteran had the following contributing factors of disability in his right foot: pain on weightbearing, interference with standing, and lack of endurance. The VA examiner opined that pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability during flare-ups or when the right foot is used repeatedly over a period of time, explaining, "Veteran reports pain which cause[s] functional loss, also flares of pain several times each day when walking or standing for extended periods of time at a level of 8-9/10." The VA examiner opined that the Veteran's right foot disability impacts his ability to perform any type of occupational task, noting that he is unable to walk or stand for extended periods due to pain. In an October 2016 VA primary care initial evaluation note, the Veteran endorsed right foot pain and reported that he cannot flatten his right 5th toe. In VA treatment records dated August 2017, December 2017, April 2018, August 2018, January 2020, and December 2020, the Veteran was assessed with chronic pain in his right foot post-surgery for the fracture. In a September 2020 VA surgery nursing outpatient note, the Veteran endorsed chronic, aching, constant pain in his right foot rated as 5 out of 10 in severity that onset years prior, is made better with repositioning, and is made worse with movement. In a September 2020 VA podiatry note, the Veteran complained of a painful right foot that swells and reported that he is more comfortable in slippers. On physical examination, the provider noted pain to the 4th and 5th metatarsal and pain to the 4th interspace. The Veteran was assessed with painful hardware in the right 4th metatarsal which the Veteran requested to be removed. In a September 2020 VA podiatry note, the Veteran complained of pain on the top and bottom of his right foot which he has experienced for more than 6 years and has continued to worsen. He reported that he developed pain and swelling on the dorsum of his right foot after his surgery in 2005 and had a subsequent surgery to remove most of the hardware in 2014. The Veteran explained that most of his pain occurs when he presses on the 4th metatarsal where the plate is but also under the 4th intermetatarsal space and under the 2nd and 3rd metatarsals after prolonged walking. He complained of continued right foot swelling and pain rated as 6 out of 10 in severity. On physical examination, the provider noted that the Veteran's right 5th toe "does not purchase the ground" and that "the right foot favors the medial side of foot during stance phase" of the gait examination. The provider assessed the Veteran with "1. Exostosis of bone, right 4th metatarsal - Benign and secondary to history of trauma - Likely impinging structions within the 4th intermetatarsal space 2. Painful orthopedic hardware - Hardware from prior surgery at Fort Hood 3. Metatarsalgia sub 2nd and 3rd metatarsals - compensatory from altered gait." In an October 2020 VA surgery H & P note, the Veteran endorsed persistent foot pain related to his prior fracture, and he was assessed with metatarsalgia with prior fracture and residual hardware. In an October 2020 VA nursing pre-procedure note, the Veteran endorsed chronic, constant pain in his right foot rated as 3 out of 10 in severity that onset after his injury in 2005, felt like tightness, is made better with medication, and is made worse with walking or standing too long. In an October 2020 VA podiatry note, the Veteran presented following his hardware removal surgery. He endorsed right foot pain rated as 7 out of 10 in severity. During the February 2021 Board hearing, the Veteran testified that the 5th toe on his right foot does not function like it should and he cannot use it for balance because "it just pretty much floats there. It doesn't even touch the ground." He testified that this has resulted in problems with his gait and balance and has caused him to lean on the inside of his foot, causing pain. The Veteran endorsed constant pain in his right foot. In April 2021, the Veteran was provided an additional VA examination to determine the current severity of his right foot disability. The Veteran reported that his right foot condition has worsened since its onset in 2005 and that he had current symptoms including difficulty walking, standing, jumping, driving, and carrying heavy weight, as well as his 5th toe always being elevated off the ground. He reported constant pain rated as 6 out of 10 in severity. The Veteran endorsed flare-ups impacting the function of his right foot, noting that they interfered with walking, driving, standing, and prolonged use, were 9 out of 10 in severity, and were precipitated by standing and applying pressure and alleviated by rest. The VA examiner determined that the Veteran had a moderate right foot injury which chronically compromised weightbearing and requires arch supports, custom orthotics, or shoe modifications. Physical examination revealed that the Veteran's 5th toe was lifted off the floor, the area around the toe was red and irritated, and pain was exhibited on palpation. The VA examiner noted the Veteran's surgical history and determined that his residual signs or symptoms of surgery included difficulty walking, standing, jumping, driving, and carrying heavy weight, feeling like his toe is bruised, losing balance, falling, and limping at times. Pain was noted on physical examination and contributed to functional loss. The VA examiner determined that the Veteran had the following contributing factors of disability in his right foot: less movement than normal, weakened movement, swelling, deformity, instability of station, interference with standing, pain, fatigue, weakness, lack of endurance, and incoordination. The VA examiner opined that pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability during flare-ups and repeated use over time of the right foot. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right foot symptoms and level of impairment more nearly approximate the criteria for a 30 percent disability rating under DC 5284. Specifically, the evidence is in equipoise as to whether the Veteran's right foot has been manifested by severe symptoms. Throughout the entire period on appeal, the Veteran has endorsed constant, chronic pain in his right foot that is exacerbated by weightbearing and prolonged use, flaring up to 9 out of 10 in severity. He has also reported swelling in his right foot, and because his right 5th toe does not meet the floor, he has had issues with his balance and has fallen. The Board finds it highly significant that the September 2016 and April 2021 VA examiners found additional contributing factors of disability in the right foot, to include less movement than normal, weakened movement, swelling, deformity, instability of station, interference with standing, pain, fatigue, weakness, lack of endurance, and incoordination. For these reasons, the Board finds that a disability rating of 30 percent is warranted for the entire period on appeal. However, a higher rating of 40 percent is not warranted for the Veteran's right foot disability, as this requires actual loss of use of the foot. In this case, the evidence does not show any foot disability equivalent to loss of use of a foot the Veteran's ability to stand and walk on the foot, although limited by pain, reflects more function than would be served by amputation of the foot. See September 2016 and April 2021 VA foot examination reports. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a compensable rating for right foot surgical scars The Veteran is currently in receipt of a noncompensable rating for his right foot surgical scars for the entire period on appeal. He asserts that a compensable rating is warranted. DC 7804 provides for a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent disability rating is warranted for the Veteran's right foot surgical scars for the entire period on appeal. Specifically, the evidence is at least in equipoise as to whether the Veteran's three or four surgical scars are painful. The Veteran had two surgeries on his right foot in 2005 and 2014, and he has three surgical scars related to these surgeries. In October 2020, the Veteran had a third surgery on his right foot which resulted in a fourth surgical scar. In a September 2020 VA podiatry note, the Veteran reported that his right foot incision sites were a little sensitive, and on physical examination, the provider noted mild hypersensitivity to the Veteran's dorsal scar. During the February 2021 hearing, the Veteran testified that all four of his right foot surgical scars are painful. The Board acknowledges that both the September 2016 and April 2021 VA examiners indicated that the Veteran's surgical scars were not painful. Nevertheless, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the Board finds that a 20 percent rating is warranted for the Veteran's right foot surgical scars. However, a higher rating of 30 percent is not warranted, as there is no evidence of five or more scars that are unstable or painful, or that any of the Veteran's surgical scars are unstable. The Board acknowledges that in an October 2020 VA care coordination home telehealth note following the Veteran's right foot surgery, he reported that he went to urgent care for an infection at the surgical site and that he was placed on antibiotics to address the infection. Despite the antibiotics, the Veteran reported that the surgical site was still swollen, red, and with minimal drainage. The Veteran was scheduled for a follow up appointment 6 days later, but he did not appear for the appointment. See October 2020 VA "No Show" note. There is no further mention of any infection at the right foot surgical site. Note (1) under DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Based on the guidance provided by Note (1), the Board does not find that this single, resolved episode of infection more nearly approximates frequent loss of covering of skin over the scar. Accordingly, a higher rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a separate compensable rating for numbness between 4th and 5th toes of the right foot is remanded. During the February 2021 Board hearing, the Veteran testified that he is experiencing numbness in the 4th toe of his right foot. At the April 2021 VA foot examination, the Veteran reported numbness between the 4th and 5th toes of his right foot. The Board requires further information to determine whether a separate compensable rating is warranted for any neurological symptoms of the Veteran's right foot disability. On remand, an addendum medical opinion should be obtained from the April 2021 VA foot examiner to identify which nerve(s) or nerve group(s) are affected and to opine as to the severity of the Veteran's symptoms. 2. Entitlement to a TDIU is remanded. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a request for a TDIU is part and parcel of an increased rating claim when raised by the record. Here, both the September 2016 and April 2021 VA examiners opined that the Veteran's right foot disability impacted his ability to work because it interfered with his ability to walk and stand. Based on the foregoing, the Board finds that the issue of unemployability has been raised by the record. However, the Board lacks sufficient information regarding the Veteran's current employment, earnings, and educational history. While the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in November 2017, records suggest that he has obtained further education and employment since that time. See September 2018 VA physical medicine rehabilitation consultation record (Veteran reported he was a student studying history); October 2018 VA psychiatry note (Veteran reported he was attending school online); December 2018 VA psychiatry note (Veteran reported he has been trying to work more hours driving for Uber); January 2021 VA primary care telephone encounter note (Veteran reported he started working with SuddenLink). Therefore, on remand, the Veteran should be given proper notice regarding the evidence and information necessary to substantiate a TDIU claim and provided a VA Form 21-8940, for completion. Accordingly, the matters are REMANDED for the following action: 1. Provide proper notice to the Veteran regarding the evidence and information necessary to substantiate a TDIU claim and request that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain an addendum VA medical opinion regarding the nature and severity of the Veteran's numbness between the 4th and 5th toes of his right foot, preferably from the VA examiner who completed the April 2021 VA foot examination report, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Identify which nerve(s) or nerve group(s) are affected. (b) Provide an opinion as to the severity of the Veteran's symptoms. 3. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.