Citation Nr: 21073140 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 11-15 712 DATE: December 7, 2021 ORDER Entitlement to a 30 percent rating, but not higher, for a right foot disability, effective December 11, 2009, but not earlier, excluding periods of temporary total rating, is granted. FINDING OF FACT A right foot disability is manifested by severe foot injury symptoms, but does not result in actual loss of use of the foot. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, but not higher, for a right foot disability, effective December 11, 2009, but not earlier, with the exception of periods of temporary total ratings for convalescence, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1998 to October 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In September 2020, the Board denied entitlement to a rating higher than 10 percent prior to April 7, 2016, and higher than 20 percent as of April 7, 2016, for a right foot disability, to include hammertoes. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In June 2021, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and vacated the September 2020 decision of the Board of Veterans' Appeals (Board) that denied entitlement to a rating higher than 10 percent prior to April 7, 2016, and higher than 20 percent as of April 7, 2016, for a right foot disability, to include hammertoes, and remanded those issues to the Board for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a 30 percent rating, but not higher, for a right foot disability, effective December 11, 2009, but not earlier. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Rating the same disability under different diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Status post stress fracture of the second metatarsal of the right foot, to include hammertoes, is currently rated under Diagnostic Code 5284. Diagnostic Code 5284 provides ratings for other foot injuries that are not specifically assigned criteria in the rating schedule. 38 C.F.R. § 4.71a, Diagnostic Code 5284. A 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. A 40 percent rating is warranted for loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board finds that a review of the medical record and VA examinations of record shows that the right foot disability, effective December 11, 2009, most closely resembled a severe foot injury. Therefore, an increased rating of 30 percent is warranted, effective December 11, 2009. December 11, 2009 is the date the increased rating claim was first filed. The evidence does not show a factually ascertainable increase in rating during the year prior to receipt of the claim. In a November 2009 statement, the Veteran stated that the pain in the right foot had been ongoing for one year. The Veteran stated that in March 2009, an X-Ray was done of the right foot, and he was informed that he had a possible stress fracture in the foot. The Veteran asserted that the pain in the foot was of such severity that he could hardly walk on it, and it was affecting his quality of life. He stated that he used an air cast. In a December 2009 VA treatment record, the Veteran reported experiencing unbearable right foot pain. In a December 2009 VA examination, the Veteran was marked as having a normal right foot. Radiographs of the right foot were marked as appearing normal. The examiner noted that the Veteran had some problems with standing for long periods of time. The Veteran, over time, reported the pain as getting increasingly worse until he underwent surgery in September 2010, July 2011, and May 2013. At a January 2010 VA examination, the Veteran reported experiencing constant pain that was worse with weight bearing. The examiner indicated that there was no swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance of the right foot. There were no flare-ups. The Veteran was able to stand for 45 minutes. The examiner indicated that there were no functional limitations on walking. It was noted that the Veteran had an antalgic gait and wore a rigid soled shoe on the right foot. There was no evidence of abnormal weight bearing. The examiner found no objective evidence of painful motion, swelling, tenderness, instability, or weakness of the right foot. Achilles alignment was normal with and without weight bearing. The Veteran reported that he was currently a full-time student, and stated that he lost his job because of foot problems in March 2009. The examiner indicated that the right foot condition had a mild effect on the Veteran's ability to do chores and no effect on shopping, exercise, feeding, bathing, dressing, toileting, or grooming. At a January 2012 VA examination, the Veteran reported experiencing constant pain. He used orthotics. The examiner indicated that the Veteran had an antalgic gait. The examiner found that the foot was tender to palpation over the heel and the Achilles tendon, and under the first and fifth metatarsals. The Veteran had calluses under the heel, on the medial aspect of the first toe, and under the first metatarsal head. The Veteran was not using any assistive devices. He was awaiting new orthotics. The examiner stated that the Veteran would not be better served by an amputation with prosthesis. The Veteran walked with a gait where he had diminished toe off on the right side. It was noted that the Veteran did landscaping work. The Veteran reported pain with walking and stated that he could not work more than 60 days in the past year because of foot pain. In an April 2013 VA treatment record the Veteran noted the pain from the toes rubbing together to be very painful. At an April 2016 VA examination, the examiner diagnosed right foot injury residuals of stress fracture repair. The Veteran reported constant pain and flare ups of pain. The Veteran stated that the foot did not flex and extend properly, that he stubbed his toe regularly, and that due to the brace, he could not qualify for most jobs. The Veteran's foot was noted as not being a condition that chronically compromised weight bearing, or a condition that required arch supports, custom orthotic inserts, or shoe modification. The examiner opined that the severity of the right foot injury was moderate. The Veteran used a brace constantly but also experienced flare ups of pain that made him unable to wear his brace. Function was not so diminished that amputation with prosthesis would equally serve the Veteran. A May 2016 addendum noted that the Veteran had hammertoes of the second, fourth, and fifth toes of the right foot. A May 2016 VA examination found that the Veteran's right foot disability caused moderately severe pain. The examiner diagnosed Morton's neuroma, metatarsalgia, hammertoes, acquired pes cavus, and status post stress fracture of the second metatarsal of the right foot. The Veteran could not walk more than one quarter mile and could not stand for more than 30 to 45 minutes. The Veteran took medication and was diagnosed with chronic pain, which was reported as achy, throbbing, sharp, all the time, and worse with walking or standing. About seven times per month, the Veteran reported a severe increase of pain and was unable to walk for a few hours. The examination found pain on use and manipulation of the right foot. There was swelling on use and there were characteristic calluses. The Veteran used orthotics which improved the tenderness. There was not marked pronation or decreased arch height. There was marked tenderness under the right metatarsal heads with very painful callosities. The plantar fascia were shortened. There was some limitation of dorsiflexion of the ankle. The examiner opined that the right foot disability was moderately severe and required a custom-made brace constantly in the right shoe. There was decreased movement, excess fatigability, painful movement, pain on weight-bearing or nonweight-bearing, swelling, instability of station, disturbance of locomotion, and interference with standing. The Veteran was unable to walk more than a quarter mile or stand for more than a few minutes. The Veteran could not perform repetitive motion, such as going up or down stairs. Function of the right foot was not so diminished that amputation with prosthesis would equally serve the Veteran. In a September 2018 vocational assessment interview, the Veteran reported experiencing episodes of pain and extreme discomfort in the right foot. The Veteran reported an inability to perform prolonged walking or standing due to increased pain and weakness in his right foot. At a May 2019 VA examination, the examiner diagnosed right side hammertoes, and stress fracture of the right second metatarsal. The Veteran reported experiencing continuous pain in the right foot. The pain was exacerbated by weight bearing. The Veteran had difficulty walking barefoot. The Veteran rated the pain as a 4 on a 0 (low) to 10 (high) pain scale, but he had days where the pain would flare up to a 10. The Veteran could not be on his feet for long periods of time secondary to foot pain. The Veteran could not find safety boots that were comfortable enough for many jobs. The Veteran experienced pain on manipulation of the foot. The Veteran had swelling on use of the right foot. There were no characteristic callouses. The Veteran used orthotics. He had extreme tenderness of the plantar surfaces of the right foot that was not improved by orthopedic shoes or appliances. The Veteran did not have decreased arch height on weight-baring, and there was no objective evidence of marked deformity of the right foot. There was not marked pronation of the foot. The weight bearing line did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon. He did not have marked inward displacement or severe spasm of the Achilles tendon on manipulation of the feet. There was pain on palpation of the fourth and fifth metatarsals of the right foot. The Veteran did not have symptoms due to hallux valgus or hallux rigidus. The Veteran constantly used a right ankle and foot orthosis for stability of the right foot. The examiner specified that the functional impairment was not of such an extremity that no effective function would remain other than that which would be equally well served by an amputation with prosthesis. An X-ray of the right foot found soft tissue swelling involving the right fourth and fifth toes without evidence of acute fracture. There was no current evidence of hammertoes. The Board finds that the Veteran's disability is manifested by a severe foot injury as is required for a higher rating under Diagnostic Code 5284. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran has reported constant severe pain, flare-ups, and difficulty going up and down stairs, with limitation in standing and walking. Therefore, the Board finds that a 30 percent rating is warranted under Diagnostic Code 5284. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The evidence does not show actual loss of use of the foot such that no function remains other than that which would be equally well served with amputation and a prosthesis. Therefore, a higher rating is not warranted for loss of use. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board also finds that the Veteran was not diagnosed with flat foot, weak foot, hallux valgus, hallux rigidus, or malunion or nonunion of metatarsal bones. Therefore, the criteria for rating those disabilities are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5277, 5280, 5281, 5283. While the Veteran may have had metatarsalgia, unilateral metatarsalgia has a maximum rating of 10 percent. The Veteran is now already assigned a 30 percent rating based on the same symptomatology. Therefore, a higher or separate rating cannot be assigned, as that would constitute pyramiding. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5279. While the Veteran may have had hammertoes, a compensable rating requires all toes of the foot to be hammertoes, without claw foot, to warrant a compensable rating. That is not shown. The evidence shoes on three hammertoes on the right foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. The most recent VA examination found no evidence of current hammertoes while the April 2016 examination and May 2016 examination found only three hammertoes on the right foot. The Veteran was also diagnosed with claw foot or pes cavus of the right foot. For a unilateral claw foot disability, a 20 percent rating is warranted for all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal head. A 30 percent rating is warranted for marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5278. The Board notes that the April 2016 examination with May 2016 addendum found that only the second, fourth, and fifth toes were hammertoes. While there was marked tenderness under the metatarsal head and there were very painful callosities, the evidence does not show that all of the criteria for a higher rating were met. The May 2016 VA examination found shortened plantar fascia but did not find marked contraction of the plantar fascia with dropped forefoot. That examination found some limitation of dorsiflexion, but not marked varus deformity. Therefore, a higher rating cannot be assigned for unilateral claw foot of the right foot. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 30 percent rating, but not higher, effective December 11, 2009, but not earlier, for a right foot disability are met based on a finding of severe foot disability. Therefore, the claim for an increased rating is granted to that extent only. The Board finds that the preponderance of the evidence is against the assignment of any higher or separate ratings. Therefore, any claim for a rating in excess of 30 percent for a right foot disability is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.