Citation Nr: 21076128 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 08-36 937A DATE: December 22, 2021 ISSUES Entitlement to an increased evaluation in excess of 10 percent for a right foot disability prior to July 19, 2016. Entitlement to an increased evaluation in excess of 10 percent for a left foot disability, exclusive of periods of temporary total evaluation, prior to July 19, 2016. Entitlement to an increased evaluation in excess of 20 percent for a right foot disability from July 19, 2016. Entitlement to an increased evaluation in excess of 20 percent for a left foot disability from July 19, 2016. ORDER Entitlement to an increased evaluation in excess of 10 percent for a right foot disability prior to July 19, 2016 is denied. Entitlement to an increased evaluation in excess of 10 percent for a left foot disability, exclusive of periods of temporary total evaluation, prior to July 19, 2016 is denied. Entitlement to an increased evaluation in excess of 20 percent for a right foot disability from July 19, 2016 to October 7, 2021 is denied. Entitlement to an increased evaluation in excess of 20 percent for a left foot disability from July 19, 2016 to October 7, 2021 is denied. Entitlement to an increased evaluation of 30 percent, but no higher, for a right foot disability from October 7, 2021 is granted. Entitlement to an increased evaluation of 30 percent, but no higher, for a left foot disability from October 7, 2021 is granted. FINDINGS OF FACT 1. For the Veteran's right foot disability prior to July 19, 2016, the symptoms included pain, pain on motion, and difficulty standing for long periods, and were characterized as moderate. 2. For the Veteran's left foot disability prior to July 19, 2016, exclusive of periods of temporary total evaluation, the symptoms included pain, pain on motion, and difficulty standing for long periods, and were characterized as moderate. 3. For the Veteran's right foot disability from July 19, 2016 to October 7, 2021, the symptoms included pain, swelling, limited range of motion, pain on motion, and difficulty standing for long periods, and were characterized as moderately severe. 4. For the Veteran's left foot disability from July 19, 2016 to October 7, 2021, the symptoms included pain, swelling, limited range of motion, pain on motion, and difficulty standing for long periods, and were characterized as moderately severe. 5. For the Veteran's right foot disability after October 7, 2021, the symptoms included pain, swelling, limited range of motion, pain on motion, and difficulty standing for any period of time, and were characterized as severe. 6. For the Veteran's left foot disability after October 7, 2021, the symptoms included pain, swelling, limited range of motion, pain on motion, and difficulty standing for any period of time, and were characterized as severe. CONCLUSIONS OF LAW 1. For the period prior to July 19, 2016, the criteria for the assignment of a disability rating in excess of 10 percent for the Veteran's right foot disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). 2. For the period prior to July 19, 2016, the criteria for the assignment of a disability rating in excess of 10 percent for the Veteran's left foot disability, excluding periods of temporary total evaluation, have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). 3. For the period from July 19, 2016 to October 7, 2021, the criteria for the assignment of a disability rating in excess of 20 percent for the Veteran's right foot disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). 4. For the period from July 19, 2016 to October 7, 2021, the criteria for the assignment of a disability rating in excess of 20 percent for the Veteran's left foot disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). 5. For the period from July 19, 2016 to October 7, 2021, the criteria for the assignment of a disability rating of 30 percent, but no higher, for the Veteran's right foot disability have been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). 6. For the period from July 19, 2016 to October 7, 2021, the criteria for the assignment of a disability rating of 30 percent, but no higher, for the Veteran's left foot disability have been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to July 1982 and from November 1988 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from April 2007, November 2007, and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In September 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing is of record. The Board remanded the issues on appeal for additional development in June 2014, May 2018, and June 2021. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran was awarded a TDIU in an August 2019 rating decision effective from August 1, 2009, the first date of his schedular eligibility. The Veteran has already been awarded multiple instances of SMC on the basis of his orthopedic disabilities and was awarded SMC housebound as well on that same August 2019 rating decision. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not further infer the issues of further entitlement to TDIU or additional entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's foot disabilities have a long and complicated history. By way of background, the Veteran's right foot and left foot disabilities were originally service connected together in a single 10 percent rating in a March 1993 rating decision based on a diagnosis of osteoarthritis in each foot, confirmed by X-ray from May 1992. The Veteran has undergone a cheilectomy with intra-joint tissue resection on the right foot in May 1992 and the left foot in November 1999. Further surgery was done on the metatarsal-phalangeal joint of the left foot in November 2004, with subsequent physical therapy that was not completely successful. Based in part on his hospitalizations for further foot surgery in March and April 2005, the Veteran filed a claim for an increased rating for his foot disabilities, and in a June 2005 rating decision, the RO split each foot disability into its own rating, with diagnoses of osteoarthritis for each foot leading to a separate evaluation of 10 percent for each foot under Diagnostic Code 5010, arthritis due to trauma, effective from the date of claim of May 1, 2005. In a November 2007 rating decision, the RO continued the 10 percent ratings for each foot based on osteoarthritis under Diagnostic Code 5010. The Veteran filed a notice of disagreement that same month with the November 2007 rating decision, asserting that the ratings did not correspond to the actual level of disability for each foot. In a November 2016 rating decision, the RO increased the rating of each foot to 20 percent effective from July 19, 2016, the date of the VA examination that found cause for the higher ratings. In addition, the RO now classified the Veteran's foot disabilities under Diagnostic Code 5284. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Here, as the previous rating decisions for the Veteran's foot disabilities had gone final without notice of disagreement, the Board will consider the Veteran's increased rating claims for each foot from that November 2007 rating decision. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). The Board notes previous appeals for temporary total evaluations for the left foot, which have been previously adjudicated and which are no longer on appeal. The Board notes temporary total evaluations pursuant to 38 C.F.R. § 4.30 for the left foot within some of the periods under consideration, but also notes the Veteran has not appealed those temporary total evaluations, and as such, they will not be discussed further. Throughout the period on appeal, the Veteran has endorsed persistent pain in the right foot and left foot, as well as pain on walking and trouble with weight bearing, which he is competent to report. Jandreau, 492 F.3d 1372. The Veteran's right foot and left foot disabilities are each currently rated under Diagnostic Code 5284, governing other foot injuries. See 38 C.F.R. §§ 4.20, 4.71a; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (Diagnostic Code 5284 only applies to foot disabilities for which there is not already a specific Diagnostic Code). The Board has considered and rejected other Diagnostic Codes for the feet such as flatfoot, weak foot, claw foot pes cavus, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, malunion or nonunion of tarsal or metatarsal bones, or plantar fasciitis, as those disabilities have not been found in this Veteran. Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. Descriptive words such as "moderate," "moderately severe," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally welly served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The Board is cognizant of the limit set forth by the amputation rule, which states that the combined rating for a disability shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Nevertheless, the Board will address the appropriate rating under the relevant Diagnostic Code, understanding that application of the amputation rule will limit the total combined evaluation. In addition, the Veteran's right and left foot each have been found to have arthritis, as diagnosed by X-ray during regular VA treatment in May 1992. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, traumatic arthritis, substantiated by X-ray findings, is rated on limitation of motion of affected parts, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate DCs, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. See also Petitti v. McDonald, 27 Vet. App. 415 (2015). Because DC 5003 requires that "satisfactory of evidence of pain" be "objectively confirmed," a Veteran's testimony, alone, is not enough. For the minimum compensable rating for motion which is painful but not actually limited to a compensable degree, a claimant's bare statement is not satisfactory evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (holding that painful motion may be "objectively confirmed" by either a clinician, including a claimant's assertion of painful joints that is confirmed by a clinician's statement there is a history of "recurrent" joint pain or a layperson who witnessed the Veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain). In other words, satisfactory lay evidence of painful motion also includes lay descriptions from other than the Veteran of painful motion; lay observations of witnesses of painful motion, lay statements of observed visible behavior or facial expressions during painful motion, as well as lay reports of difficulty walking, standing, sitting, or undertaking other activity. Id. at 429. Evidence and Analysis The pertinent record evidence reveals that the Veteran underwent three left foot surgeries, one in May 2006, hardware removal in January 2007, and another revision in October 2007. The first surgery was performed on May 9, 2006, due to failed left first metatarsophalangeal fusion. His VA podiatric surgeon wrote in May 2006 that the Veteran would be non-weight bearing for 6 to 8 weeks minimum, or until bony fusion was established. Thereafter, he would need 2 to 3 months physical therapy. The Veteran received his first VA examination for the two periods on appeal in August 2007. The examiner noted continuing osteoarthritis for each foot and summarized the symptoms as "moderate." Plantar flexion on the left foot was zero degrees and when standing the big toe does not touch the floor. The right foot had zero to five degrees of plantar flexion. The left foot and the right foot each were painful on manipulation. The examiner also noted pes planus and that the Veteran could not stand on his toes due to pain. The right foot could pronate and supinate, and there was no abnormal varus or valgus deformity of the heel or the Achilles tendon. No bunions or hammertoe deformities were noted. The Veteran underwent a VA examination in October 2009. The Veteran complained of constant pain on standing, walking, and at rest, and x-rays indicated arthritis of the metatarsophalangeal joints of both big toes. Examination of the right foot revealed pain in the first metatarsal phalangeal joint on dorsiflexion and plantar flexion. There was also tenderness on palpation of the first metatarsal phalangeal joint. There was an 8cm flat scar over the dorsal aspect of the phalangeal joint which was tender on palpation. Both feet could pronate and supinate, and there were no calluses or skin breakdown, with intact skin and circulation. Pes planus was noted but it was flexible in each foot. The achilles tendon was in good alignment and there were no hallux valgus deformities. The examiner considered the Veteran's foot symptoms as moderate. The Veteran received another VA examination in May 2010. Here, there was no evidence of swelling, instability, or weakness. There was evidence of painful motion in the first metatarsal phalangeal joint of each foot. There was good alignment of the toes with decreased range of motion. This examiner found no evidence of flat feet, muscle atrophy, or foot deformity, though the Veteran walked with a slight limp. This examiner also considered the Veteran's symptoms as overall moderate. In the September 2011 Board hearing before the undersigned VLJ, the Veteran testified to a worsening of his bilateral foot disabilities and related scar, stating that he has had multiple surgeries on the bones of his feet and currently has a sticking pain in his left foot since the last surgery, and he essentially has been told by medical personnel that he has a screw or similar piece of hardware in his foot causing the pain. It has been recommended to the Veteran that he have it removed. The Veteran testified he has to soak and massage his feet multiple times a week, sleep with his feet elevated, wear larger shoes and take pain medication. He cannot walk over a block and a half or stand more than 10 to 15 minutes. The Veteran received a VA examination for his feet in December 2015. This examiner continued the previous diagnoses of osteoarthritis in each foot based on x-rays taken. The Veteran reported pain in each foot, with flare-ups while wearing shoes, walking, and standing. No pes planus, Morton's neuroma, hammertoe, hallux valgus or rigidus, clawfoot, or malunion of the tarsal or metatarsal bones were noted. Less movement than normal was noted, along with excess fatigability, pain on weight bearing and non-weight-bearing, swelling, and disturbance of locomotion for each foot. VA provided another examination for the Veteran's feet in July 2016. This examiner noted bilateral degenerative joint disease but with moderately severe symptoms. X-rays again showed osteoarthritis in each foot. Constant bilateral pain was noted, but no pes planus, hammertoe, or hallux valgus/rigidus. Flareups were noted, causing increased levels of pain, which further limited the Veteran's mobility, and made climbing stairs very difficult. The examiner considered that the bilateral foot condition compromised weight-bearing. Less movement than normal, disturbance of locomotion, and pain and interference with standing were noted. The examiner noted the Veteran periodically used a cane for support in ambulation. The Veteran received a VA examination for his feet in June 2019. This examiner diagnosed osteoarthritis of each foot but no other foot condition. The Veteran reported increased pain in each foot, with swelling, with the pain locus near the ball of the foot for each. The Veteran noted that the pain affects his everyday life in that he can't walk long distances and cannot stand for long with pain. Pain on weight bearing, pain on movement, disturbance of locomotion, and interference with standing were noted. The Veteran reported occasional use of a cane held in the right hand to assist locomotion. With regard to Deluca and Sharp criteria discussed earlier, the examiner noted that during flare-ups that the Veteran would be unable to dorsally extend either foot more than 5 degrees and also not to be able to palmar flex bilaterally more than 5 degrees. This examiner considered the Veteran's bilateral feet symptoms to be moderately severe. The Veteran received another VA examination for his bilateral feet in October 2021. The examiner noted the Veteran's statements that he has a lot of pain in each of his feet when standing or walking for a long time, and flareups were noted for each foot several times a week. The VA examiner characterized the effects of flareups for each foot to be severe. The Veteran stated his right foot pain was 8 on a scale of 10, and his left foot was 10 on a scale of 10 during flareups. The examiner noted no signs of a Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, or malunion/nonunion of the tarsal or metatarsal bones. The examiner noted the residuals of the left great toe surgeries continue with symptoms of sharp pain with prolonged standing and walking, and requiring non-prescription analgesics on a regular basis to continue with the activities of daily living, equating to a moderate level of overall severity. This examiner characterized the Veteran's overall disability as "moderate" but also noted symptomatology as "severe" in another section of the examination form. Functional loss for the residuals of each foot were described as limitations on prolonged standing and walking. The Veteran frequently used a cane as assistance to ambulation. No arthritis was noted on x-rays taken for this examination, and no other pathology was observed via imaging. 1. Entitlement to an increased evaluation in excess of 10 percent for a right foot disability prior to July 19, 2016 is denied 2. Entitlement to an increased evaluation in excess of 10 percent for a left foot disability, exclusive of periods of temporary total evaluation, prior to July 19, 2016 is denied Based on the medical evidence, the Board finds that for the period on appeal for each the left foot and the right foot, prior to July 19, 2016, that an evaluation of 10 percent, but no higher, is warranted, under Diagnostic Code 5284. In that regard, the Board credits the Veteran's statements regarding the severity of his residual disabilities for the osteoarthritis for his right foot and his left foot. The Veteran has consistently reported painful, aching, and tingling in the right foot and the left foot, along with difficulty walking, difficulty bearing weight on standing, and limitation of motion. As noted above, DC 5284 provides a 10 percent rating for moderate disability. The regulations do not limit pain to objective or subjective pain. The Board finds that there is sufficient competent and credible evidence of pain. The Veteran is competent to report symptoms of pain as they are subject to his observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the Board notes that a compensable rating for arthritis can be awarded on the basis of X-ray findings and painful motion under 38 C.F.R. § 4.59 even without motion being compensable limited under the rating schedule, as here. VAOPGCPREC 9-98 (1998). The Board further finds that the Veteran is not entitled to a higher rating under DC 5284 for this period because the degree of disability does not reach a moderately severe level where greater pain or other symptoms might otherwise limit the Veteran to a greater degree or cause greater functional loss. The Veteran is capable of wearing shoes, albeit only those that can be comfortably put on and off his feet. Also, a higher evaluation of 20 percent is not warranted for degenerative arthritis unless medical evidence indicates x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As such, then, the Board finds that an evaluation of 10 percent, but no higher, for the Veteran's right foot and left foot each is warranted prior to July 19, 2016 under Diagnostic Code 5284. 3. Entitlement to an increased evaluation in excess of 20 percent for a right foot disability from July 19, 2016 to October 7, 2021 is denied 4. Entitlement to an increased evaluation in excess of 20 percent for a left foot disability from July 19, 2016 to October 7, 2021 is denied Based on the medical evidence, the Board finds that for the period on appeal for each the left foot and the right foot, from July 19, 2016 to October 7, 2021, that an evaluation of 20 percent, but no higher, is warranted, under Diagnostic Code 5284. In that regard, the Board notes the VA examiners of July 2016 and June 2019 in their findings of symptoms corresponding to "moderately severe" levels of disability for each the left and the right foot osteoarthritis for this period. The Veteran has reported increased levels of pain, and pain in standing and weightbearing in the right foot and the left foot, along with difficulty walking, difficulty bearing weight on standing, and limitation of motion. As noted above, DC 5284 provides a 20 percent rating for moderately severe disability. The regulations do not limit pain to objective or subjective pain. The Board finds that there is sufficient competent and credible evidence of pain. The Veteran is competent to report symptoms of pain as they are subject to his observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further finds that the Veteran is not entitled to a higher rating under DC 5284 for this period because the degree of disability does not reach a severe level where greater pain or other symptoms might otherwise limit the Veteran to a greater degree or cause greater functional loss. The Veteran is capable of wearing shoes, albeit only those that can be comfortably put on and off his feet, and he can move around with assisted ambulation. As such, then, the Board finds that an evaluation of 20 percent, but no higher, for the Veteran's right foot and left foot each is warranted from July 19, 2016 to October 7, 2021 under Diagnostic Code 5284. 5. Entitlement to an increased evaluation of 30 percent, but no higher, for a right foot disability from October 7, 2021 is granted 6. Entitlement to an increased evaluation of 30 percent, but no higher, for a left foot disability from October 7, 2021 is granted Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that in light of medical evidence from the October 2021 VA medical examination that the Veteran's right and left foot disability should be rated at 30 percent, but no higher, effective from the date of the VA examination where the appropriate medical symptoms and facts were observed and ascertained. Here, the Board notes an increase in severity of the Veteran's right foot and left foot disabilities above and beyond the previous periods prior to October 7, 2021. The Veteran's level of disability increased in each foot due to increased levels of pain, characterized by the Veteran as a 10 on a scale of 10, and higher degrees of functional impact, to include more difficulty walking and standing, and an inability to climb stairs. This October 2021 VA examiner noted that the Veteran's flareups, which occurred multiple times per week, resulted in severe disability for each foot. The Board further finds that the Veteran is not entitled to a higher rating of the maximum 40 percent under DC 5284 for this period. A 40 percent rating is assigned for actual loss of use of the foot. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally welly served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note; 38 C.F.R. § 4.63. The October 2021 VA examiner made no such finding, that the Veteran had lost the use of either foot, and that the Veteran retained use of each of his feet, albeit with severe levels of pain and functional loss. No other examiner, VA or private, has made such a finding where the Veteran was experiencing loss of use of either foot. The Board selected the dates of increase of October 7, 2021, the date his increased disability was "factually ascertainable" within the meaning of Harper, 10 Vet. App. at 126-127, and 38 C.F.R. § 3.400(o)(2). As such, the Board therefore finds that the Veteran's 30 percent evaluation of each the right and the left foot is effective October 7, 2021 based on the VA medical examination provided that date where the increased level of disability became factually ascertainable. The Board has also considered the effective date of increase in light of Swain v. McDonald, 27 Vet. App. 219 (2015). Under 38 C.F.R. § 3.400(o)(2), an increase in disability compensation is assigned from the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim." In Swain, the CAVC held assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase. Id. at 223-24. Rather, the Board must review all relevant evidence of record to determine when the increase in the disability can be ascertained. Id. The Board finds the assignment of October 7, 2021 as the effective date of the increased evaluations to 30 percent, but no higher, based on the date the increases became factually ascertainable, is consistent with the guidance of Swain. As such, then, the Board finds that an evaluation of 30 percent, but no higher, for the Veteran's right foot and left foot each is warranted from October 7, 2021 under Diagnostic Code 5284. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.