Citation Nr: 21070443 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-41 261A DATE: November 24, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent rating (other than the periods April 7, 2017 to August 1, 2017 and December 29, 2017 to April 1, 2018 when temporary total ratings were assigned) for fracture, left first metatarsal with degenerative changes and metatarsalgia, status post arthroplasty is denied. FINDING OF FACT When resolving the benefit of the doubt in favor of the Veteran, from the date of award of service connection, the Board finds that her service-connected fracture, left first metatarsal with degenerative changes and metatarsalgia, status post arthroplasty more nearly approximates a severe foot injury. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 30 percent (other than the periods from April 7, 2017 to August 1, 2017 and from December 29, 2017 to April 1, 2018 when a temporary total rating was assigned) for fracture, left first metatarsal with degenerative changes and metatarsalgia, status post arthroplasty 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Navy from April 1985 to May 1997. The Board most recently remanded this issue in June 2021. With respect to the issue decided herein, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. §1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned.38 C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. §4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the disability at issue. Schafrath v. Derwinski,1Vet. App.589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App.119(1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Entitlement to an initial evaluation in excess of 30 percent rating (other than the periods April 7, 2017 to August 1, 2017 and December 29, 2017 to April 1, 2018 when temporary total ratings were assigned) for fracture, left first metatarsal with degenerative changes and metatarsalgia, status post arthroplasty The Veteran contends that the pain and functional impairment caused by her current left foot disability warrants a higher rating. The Veteran's left foot disability has been rated as "Foot injuries, other" under 38 C.F.R. §4.71a, DC 5284. Under this code, a moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. The words "moderate", "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Based on review of the evidence and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 30 percent rating under DC 5284 is warranted from the date of award of service connection, October 5, 2009. The Board finds that the evidence of record shows that the Veteran's left foot disability more nearly approximates a severe foot injury. In this regard, at the October 2019 VA examination, the examiner noted that the Veteran experienced pain, swelling, inability to bear weight or walk for long periods of time. The examiner also noted arthritic changes of the MTP joint. Significantly, the examiner found that based on constant pain with weight bearing activities, the Veteran's left foot injury should be characterized as severe. The examiner continued that when used repeatedly over time pain, swelling, and stiffness limit weight-bearing and ambulatory function of her left lower extremity. Based on this examination, the AOJ awarded a 30 percent rating effective the date of the exam. However, review of the record shows that the Veteran's symptoms have been consistent since the award of service connection. In this regard, at the May 2010 VA examination, the Veteran reported pain and stiffness while standing and walking. On examination, range of motion was restricted both dorsally and plantarly. The Veteran's gait was non antalgic with genus valgum bilaterally and excessive pronation bilaterally. The examiner noted that the Veteran's disability impacted her occupational activities due to decreased mobility and pain. However, the examiner failed to characterize the severity of the Veteran's foot disability under DC 5284. Similar symptoms were described at the April 2011 and October 2014 VA examinations. Importantly, the October 2014 VA examiner found that pain contributed to functional loss and that there was pain on weightbearing. However, again, neither examiner addressed the criteria under DC 5284. Importantly, although none of the prior VA examinations addressed the criteria under DC 5284, the description of symptoms appears to be consistent with the symptoms described at the October 2019 VA examination where the Veteran's disability was characterized as severe. Nevertheless, the Veteran attended a VA Foot Conditions examination in May 2021. The examiner diagnosed left metatarsalgia and fracture, left metatarsal with degenerative changes and metatarsalgia status post arthroplasty. The Veteran did not report any flareups and noted functional impairment as "foot pain in ball of left foot radiates up the left calf". The examiner indicated moderate severity of the left foot. No actual loss of use was noted. The Board also finds it significant that the Veteran has undergone two surgeries on her left foot during the period on appeal; has complained of consistent chronic pain that interferes with walking and standing; and her movement is restricted. She also reported that she was unable to wear regular shoes. However, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's symptoms do not approximate actual loss of use of foot warranting a maximum 40 percent disability rating under DC 5284 from the date of award of service connection, October 5, 2009. Indeed, the entire record of evidence is silent for any indication that the Veteran suffered from actual loss of the use of her foot. In conclusion, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that an initial rating in excess of 30 percent for fracture, left first metatarsal with degenerative changes and metatarsalgia, status post arthroplasty, is not warranted. See 38 U.S.C. §5107(b) L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.