Citation Nr: 21072238 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-44 201 DATE: December 2, 2021 ORDER An initial rating in excess of 10 percent for numbness in the 4th and 5th toes of the left foot (left foot condition) is denied. FINDING OF FACT The probative evidence of record supports a finding that the Veteran's left foot condition was manifested by symptoms of mild, incomplete paralysis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a left foot condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, DC 8521. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2007 to January 2013. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and June 2021, the Board remanded this case for further development. In an August 2021 rating decision, the RO increased the Veteran's initial rating for the Veteran's left foot condition from a noncompensable rating to a 10 percent evaluation under DC 8521. Because this does not constitute a full grant of benefits, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) An initial rating in excess of 10 percent for a left foot condition is denied. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 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). DC 8521 provides for a 40 percent rating for complete paralysis of the external popliteal nerve (common peroneal) where there is foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; and anesthesia covers the entire dorsum of foot and toes. 38 C.F.R. § 4.124a. A 30 percent evaluation is warranted for severe incomplete paralysis. Id. A 20 percent evaluation is assigned where there is moderate incomplete paralysis, and a 10 percent evaluation is warranted for mild incomplete paralysis. Id. The Board observes that the words "mild," "moderate," and "severe" as used in the various DCs 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. Factual Background A September 2015 disability benefits questionnaire (DBQ) indicates that the Veteran had a diagnosis of plantar fasciitis. The conducting physician indicated that the Veteran had pain on use of and manipulation of the left foot. The Veteran explained that she had a left foot procedure in 2011 and that she has tingling and numbness in the 4th and 5th toes and sharp pains. The Veteran was afforded an October 2015 VA examination during which the conducting physician indicated that the Veteran had mild intermittent pain, mild paresthesias and/or dysesthesias and mild numbness of the left lower extremity. The Veteran had decreased sensation of the left foot. The physician opined that the Veteran's common peroneal nerve was normal. An October 2020 DBQ indicates that the Veteran was experiencing numbness and tingling of the left foot. The conducting physician indicated that the Veteran was experiencing mild paresthesias and/or dysesthesias and mild numbness of the left lower extremity. The physician did not evaluate the Veteran's common peroneal nerve but indicated that the Veteran had incomplete paralysis of the posterior tibial nerve which was mild in severity. A July 2021 DBQ indicates that the Veteran's left foot condition affects her ability to walk and the types of shoes she can wear. The conducting physician opined that the Veteran had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The physician indicated that the Veteran had decreased sensation of the left foot and toes. The physician further indicated that the Veteran had incomplete paralysis of the common peroneal nerve which was mild in nature. Analysis (Continued on the next page) The Board finds that the preponderance of the evidence is against a finding that the Veteran's left foot condition meets the criteria for an increased rating. The findings of the July 2021 DBQ indicate that the Veteran had no more than mild incomplete paralysis of the common peroneal nerve while an October 2015 VA examiner opined that the Veteran's common peroneal nerve was normal. Additionally, the evidence throughout the appellate period indicates that the Veteran had no more than mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. Therefore, the Board finds that the functional limitation of the Veteran's left foot condition is no more than mild, commensurate with a rating of 10 percent disabling. Accordingly, the Veteran's appeal for an initial rating in excess of 10 percent for a left foot condition must be denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.