Citation Nr: 21074668 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-04 459 DATE: December 16, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for deformity of the distal end of the second metatarsal bone, right foot and malunion/nonunion of tarsal/metatarsal bones (right foot disability) is denied. FINDING OF FACT The Veteran's right foot disability does not result in, or more nearly approximate, loss of use of the right foot. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for deformity of the distal end of the second metatarsal bone, right foot and malunion/nonunion of tarsal/metatarsal bones have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to January 1968. The Veteran testified at a hearing before the undersigned in February 2019 at a Department of Veteran Affairs (VA) Regional Office (RO). A copy of the hearing transcript is associated with the claims file. In December 2019, the Board of Veterans' Appeals (Board) granted entitlement to a 30 percent disability rating, but no higher, for deformity of the distal end of the second metatarsal bone, right foot. This decision, in pertinent part, was appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board's decision that denied entitlement to a disability rating in excess of 30 percent for deformity of the distal end of the second metatarsal bone, right foot and remanding the issue to the Board. In May 2021, the Board remanded the Veteran's claim for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected right foot disability The Veteran contends that an increased rating is warranted for his service-connected right foot disability. The Veteran is currently assigned a 30 percent rating under Diagnostic Code 5284, "Foot injuries, other." Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Diagnostic Code 5284 provides a 10 percent rating for moderate symptoms, a 20 percent rating for moderately severe symptoms, and a 30 percent rating for severe symptoms. 38 C.F.R. § 4.71a, DC 5284. A note indicates that, where there is actual loss of use of the foot, a 40 percent rating is warranted. Id. While no noncompensable rating is specifically provided for by the diagnostic code, a noncompensable rating will be assigned if the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.30. Words such as "severe," "moderately severe," and "moderate," are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. "Loss of use of the foot" exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of the election below the knee with the use of a suitable prosthetic. This determination is made based on actual remaining function of the foot, meaning whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Having carefully reviewed the record, the Board finds that a rating in excess of 30 percent under Diagnostic Code 5284 is not warranted here, as the Veteran's right foot disability is not manifested by (and does not more nearly approximate) loss of use of his right foot. The Board notes the Veteran's reports during his 2019 Board hearing that he will often use his cane to operate the accelerator of his car and that a VA physician in Orlando suggested amputation of his foot. See Hearing Testimony, pp.5-6. However, the most probative evidence from the period on appeal indicates that the Veteran does not have actual loss of use of his right foot and a higher rating for loss of use of the right foot is not warranted. Here, the Veteran's VA treatment records from the relevant period on appeal do not support a finding that he would be equally well served by amputation of his right foot. January 2013 treatment records from the Lake Baldwin VA Clinic rather indicate suggestion of amputation of the left foot. Further, each of the VA examiners that evaluated his right foot condition (June 2011, May 2015, and June 2021) opined that the Veteran's right foot condition did not demonstrate functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The Board finds this aspect of the examination reports consistent with the Veteran's existing medical treatment records and, as a result, highly probative. Although the Veteran has consistently complained of symptoms such as pain on weight-bearing activities like standing or walking, and although his pain interferes with standing, he is nonetheless still able to perform activities such as walking and standing. While the evidence indicates that the Veteran requires constant use of a cane to walk, nonetheless, the Veteran can use his right foot to walk. The Veteran was reported to be ambulatory in a December 2017 Fall Risk assessment and a January 2020 Pulmonary Outpatient note. Use of a wheelchair due to the Veteran's right foot condition was not reported. In a December 2021 Appellant Brief, the Veteran's representative noted that the VA examiner who provided the June 2021 examination was not a podiatrist, and is not shown to have any particular expertise or competence in the field of podiatry. To the extent the representative is asserting that the examiner's opinion is not competent and/or probative because his background as a nurse practitioner, the Board notes that the representative has not provided any persuasive reason why a podiatrist is be required to perform an examination of the Veteran in this case. Further, the Board finds that the June 2021 examiner to be competent to provide an examination of the Veteran's foot condition. Once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications. The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. 38 U.S.C. § 7104(d). Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). The Board notes that the level of training, education, and experience of VA examiners, to include nurse practitioners, "fit[] squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions." See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007). The evidence indicates that the examiner was familiar with the Veteran's medical history, reviewed his conditions, and had medical training to evaluate the Veteran's musculoskeletal impairments and determine whether the Veteran had loss of use of his right foot. Having carefully reviewed the record, the Board finds that a rating in excess of 30 percent under Diagnostic Code 55284 is not warranted here, as the Veteran's right foot disability is not manifested by functional limitation that more nearly approximates loss of use of his right foot. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) but concludes that they are not warranted. As preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3, 4.7. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.