Citation Nr: 21075262 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-41 101 DATE: December 20, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for proximal phalanx fracture, left 1st toe with osteoarthritis, is granted. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The Veteran's proximal phalanx fracture, left 1st toe with osteoarthritis more closely approximates that of moderately severe symptoms. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for proximal phalanx fracture, left 1st toe with osteoarthritis, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 1982 to September 1982 and on active duty from September 1983 to July 1987. The Veteran appeals an August 2016 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in March 2020. A transcript is of record. In March 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding the Veteran's left toe condition. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An August 2021 rating decision increased the Veteran's initial rating for his left toe condition to 10 percent. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under Diagnostic Code 5284, a moderate disability warrants a 10 percent evaluation, a moderately severe disability warrants a 20 percent evaluation, and a severe disability warrants a 30 percent evaluation. Actual loss of use of foot is rated at 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. The words "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just" under 38 C.F.R. § 4.6. The August 2016 examination report noted toe numbness, minor pain, periods of sharp pain, an inability to hike, and pain after walking for two hours. October 2016 treatment records noted numbness and moderate pain. The Veteran testified his foot goes numb when standing and that by the end of the day his pain is at a seven or eight. See March 2020 Board Hearing Tr. at 4, 6. The July 2021 examination report noted custom orthotics, pain, paresthesias, and that the Veteran is unable to walk on his left toes due to pain. As the Veteran's toe pain causes functional limitations with walking and he at times is unable to walk on his toes due to pain, the Board finds the Veteran experiences moderately severe symptoms. Nevertheless, the Veteran does not use a wheelchair, braces, crutches, a cane, or walker for locomotion. Furthermore, the Veteran can still generally ambulate and function. Additionally, there is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Thus, a 30 percent disability rating under Diagnostic Code 5284 is not warranted. As to other diagnostic codes, as noted in the March 2021 Board decision, separate ratings for the Veteran's various left foot conditions should be considered. A May 2016 Dr. J.C. letter noted degenerative joint disease and ostearthritis of the toes and left heel most likely sequalae from the in-service injuries. A December 2016 Dr. M.H. letter noted left foot problems likely a result of the injuries the Veteran received on active duty. The July 2021 examination report noted pes planus, hammer toes, and plantar spurs. The July 2021 opinion did not find the Veteran's other variously diagnosed left foot conditions related to service or the Veteran's service-connected left toe condition. Importantly, the examiner noted the Veteran's right foot has the same conditions as the left foot. Therefore, the variously diagnosed left foot conditions are separate conditions and not a progression of the Veteran's service-connected left toe condition. The Board finds the July 2021 opinion probative and with adequate rationale. Although Dr. J.C. and Dr. M.H. seem to note a possible nexus, the letters do not identify a specific left foot injury and do not provide adequate detail or rationale. There is not another competent medical opinion of record regarding the Veteran's left foot conditions. Therefore, the Board finds the Veteran is not entitled to a separate rating under any other relevant Diagnostic Code. REASONS FOR REMAND The March 2021 Board decision remanded the knee issues for an examination and to obtain etiology opinions for both direct and secondary service connection. Opinions were rendered in July 2021. However, the examiner did not provide an appropriate opinion regarding secondary service connection since the Veteran did not have a currently-diagnosed knee condition. In Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Here, as noted in the July 2021 examination, the Veteran's knee functionality is limited when climbing stairs, he takes over the counter medication, and that he gets intermittent swelling. The Board considers the Veteran's complaints regarding his knees amount to such disabling functional impairment as contemplated in Saunders. Hence, remand is necessary for etiology medical opinions regarding the Veteran's functional impairment in his knees. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knees that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his bilateral knee condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all left knee and right knee conditions present. If any symptoms are not attributable to a diagnosis, any functional loss should be described. Then, for each identified condition and/or functional loss present, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's left knee condition and/or left knee functional loss, was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran's left knee condition and/or left knee functional loss, was CAUSED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran's left knee condition and/or left knee functional loss, was AGGRAVATED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran's right knee condition and/or right knee functional loss, was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran's right knee condition and/or right knee functional loss, was CAUSED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis? Is it at least as likely as not that the Veteran's right knee condition and/or right knee functional loss, was AGGRAVATED by his service-connected proximal phalanx fracture, 1st toe with osteoarthritis condition? The examiner is to consider Dr. J.C.'s April 2020 opinion. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.