Citation Nr: 21073044 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 10-42 662 DATE: December 7, 2021 ORDER Entitlement to an initial rating greater than 10 percent for residuals, fractures, great and second toes, left foot, is denied. REMANDED The claim of entitlement to an initial rating greater than 10 percent for degenerative disc disease (DDD), lumbar spine, with intervertebral disc syndrome (IVDS), is remanded. FINDING OF FACT Residuals of the Veteran's left foot injury, which include pain and stiffness in the great and second toes and decreased range of motion, are moderately disabling. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 10 percent for residuals, fractures, great and second toes, left foot, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 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 from May 1987 to May 2007. His claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision, in which the Agency of Original Jurisdiction (AOJ) granted the Veteran service connection for low back and left foot disabilities and assigned these disabilities initial 10 percent and 0 percent ratings, respectively. In an April 2017 Decision Review Officer decision, the AOJ increased the 0 percent rating assigned the Veteran's left foot disability to 10 percent. The AOJ also granted a separate rating for radiculopathy, left lower extremity, secondary to the Veteran's service-connected low back disability and assigned that disability an initial 10 percent rating, effective September 15, 2010. The Veteran did not timely appeal the rating or effective date assigned, and as such, that action is not before the Board for appellate consideration. In April 2021, the Veteran testified in support of these claims during a virtual hearing held before the undersigned Veterans Law Judge. The transcript of this hearing is of record. The Board remanded these claims to the AOJ in June 2011 and April 2021. Entitlement to an initial rating greater than 10 percent for residuals, fractures, great and second toes, left foot The AOJ has rated the Veteran's left foot disability 10 percent disabling pursuant to 38 C.F.R. § 4.71A, DC 5284, which governs ratings of foot injuries. During the course of the appeals process, VA amended the criteria for rating musculoskeletal disabilities, which includes disabilities affecting the feet, effective from February 7, 2021. See 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). However, as the amendments do not substantively change DC 5284, they are not pertinent to this claim. The Veteran claims that his left foot disability is more than 10 percent disabling. In April 2021, he testified that, during a surgical consultation years ago, he was advised to undergo surgery on one of his left toes; however, he opted not to do so. He further testified that, due to his left foot disability, he cannot jog or run, walk on hard surfaces, or stand on hard surfaces for an extended period of time. He can feel a clicking motion and soreness in his left foot when walking. He experiences shooting pain and occasional locking up, just for seconds. He testified that these symptoms demand that he be selective in his choice of footwear. He claims that the symptoms, predominantly the clicking, have progressed and impacted his fitness and that the pain has gotten worse in terms of standing. If he walks for an extended period of time, he continues to be sore after he stops. The preponderance of the evidence is against this claim. Disability ratings are determined by evaluating the extent to which a claimant's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating is to 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. Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran's left foot disability represents residuals of an in-service foot injury and is rated 10 percent under DC 5284 based on moderate symptomatology. According to August 2021 x-rays, the disability does not involve arthritis. To be assigned a greater rating for residuals of his foot injury, the evidence must show that the residuals are either moderately severe, warranting a 20 percent rating, or severe, warranting a 30 percent rating. 38 C.F.R. § 4.71A, DC 5284. This, the evidence does not show. According to treatment records, the Veteran has rarely sought treatment for left foot complaints. However, during treatment visits that occurred during the year the Veteran filed his claim, providers noted some symptomatology, including chronic toe pain, once described in 2008 as severe, painful ambulation, decreased range of motion of the second toe, and radiating pain to the left foot (separately service connected). During VA foot examinations conducted in August 2015 and August 2021, examiners recorded the Veteran's reports of pain and stiffness in two toes on weight-bearing, increased when standing on hard surfaces, an inability to stand or walk for prolonged periods, including during flare-ups, an inability to run, and a limited ability to climb stairs. The examiners confirmed painful left toes, accentuated on use and manipulation, and indicated that the left foot disability was disturbing the Veteran's locomotion, interfering with standing and limiting use of the lower extremity. Between the two examinations, during his hearing, the Veteran claimed that his left foot disability had worsened. However, the symptoms and associated functional limitations each examiner noted during the examinations were the same. During the most recent examination, the Veteran reported pain in two toes with weight-bearing, for which he was not receiving treatment, and indicated that it impacted his occupational functioning when prolonged standing and walking (greater than 30 minutes) were required. The Veteran reported the same problem during the first examination, after which the examiner characterized the symptoms as moderately disabling. As the 10 percent rating assigned the Veteran's left foot disability contemplates moderately disabling foot pain and decreased toe motion, and the Veteran has not exhibited other, more-than-moderate left foot/toe symptomatology, the criteria for entitlement to an initial rating greater than 10 percent under DC 5284 or any other DC pertinent to feet and/or toes may not be assigned the disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial rating greater than 10 percent for DDD, lumbar spine, with IVDS As noted in the Board's April 2021 Remand, during the course of this appeal, VA amended the criteria for rating musculoskeletal disabilities, effective from February 7, 2021. See 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). The Board therefore remanded this claim to the AOJ for consideration of the criteria's applicability, but in readjudicating this claim, which involves IVDS, the AOJ considered only the former criteria for rating spine disabilities. As the amended criteria for rating IVDS are different than the former criteria, the AOJ's failure to consider the amended criteria violates Stegall v. West, 11 Vet. App. 268 (1998) and demands correction. This matter is therefore REMANDED for the following action: Readjudicate this claim, considering the applicability of VA's recently amended criteria for rating disabilities of the musculoskeletal system, to include IVDS, pursuant to 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.