Citation Nr: A21020296 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200121-55910 DATE: December 21, 2021 ORDER Entitlement to an initial, 10 percent disability evaluation for right foot, status-post fracture, second metatarsal, is granted. FINDING OF FACT The Veteran's right foot, status-post fracture, second metatarsal, is productive of moderate symptoms. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, for right foot, status-post fracture, second metatarsal, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1989 to May 1990 and from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2019 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies. In a September 2019 rating decision, the Veteran was awarded service connection for right foot, status-post fracture, second metatarsal; a noncompensable disability evaluation was assigned, effective June 5, 2019. In October 2019, the Veteran submitted a VA Form 20-0996 (Request for Higher Level Review), wherein the Veteran indicated that he disagreed with the disability evaluation assigned for his right foot; he requested an informal conference, which was held in December 2019. A December 2019 Higher Level Review decision found that the Veteran was not entitled to an increased, compensable disability evaluation for his right foot. The Veteran timely appealed this decision to the Board in a January 2020 notice of disagreement (VA Form 10182) and requested direct review by the Board; the Veteran indicated that he continued to disagree with the disability evaluation assigned for his right foot disability. Under its review, the Board will now only consider all evidence of record at the time of the AOJ decision on appeal issued on December 19, 2019, as that is the most recent rating decision as to the issue of entitlement to an increased, compensable disability evaluation for right foot, status-post fracture, second metatarsal. 38 C.F.R. § 20.301. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an initial compensable disability evaluation for right foot, status-post fracture, second metatarsal. The Veteran was initially assigned a noncompensable disability rating for his right foot, status-post fracture, second metatarsal, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. See 38 C.F.R. § 4.20. Diagnostic Code 5284 refers to foot injuries. As such, the Veteran's right foot, status-post fracture, second metatarsal, is properly evaluated under Diagnostic Code 5284. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Diagnostic Code 5284 provides that moderate impairment is to be rated at 10 percent. Moderately severe impairment is to be rated at 20 percent. Severe impairment is to be rated at 30 percent. Id. A Note to Diagnostic Code 5284 provides that actual loss of use of the foot is to be rated at 40 percent, the maximum rating provided. Id. VA's General Counsel stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, the VA General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.59. After a thorough review of the evidence of record, the Board finds that, for the entire rating period on appeal, the Veteran's disability picture more nearly approximates the criteria for an increased 10 percent disability rating, but no higher, for his service-connected right foot, status-post fracture, second metatarsal. In this regard, the Board finds that the Veteran has experienced moderate symptoms throughout the appeal period. The record reflects that the Veteran has foot pain, with occasional disturbance of locomotion, lack of endurance, and difficulty standing for prolonged periods of time. The Board acknowledges that the August 2019 VA examiner noted that the Veteran also had tenderness of the right foot, and that the Veteran experienced pain on weight-bearing and nonweight-bearing. However, the examiner did not indicate that the severity of the Veteran's right foot, status-post fracture, second metatarsal, could be described as more than moderate. To this point, the Board observes that the VA examiner did not find that the Veteran experiences increased symptoms on repetitive use and the record reflects consistent reports of right foot pain, without swelling, weakness, limitation of motion, or fatigability of either the right foot or toes. Nor is there any indication that the Veteran's right foot, status-post fracture, second metatarsal, required any hospitalization. The August 2019 VA examiner noted that the Veteran did not require orthotics or inserts, did not experience flare-ups, and did not require any assistance with ambulation. As the record reflects that the Veteran's symptoms are generally limited to pain described as occasionally 4 out of 10 in severity, and requiring no more than occasional use of over the counter medication for relief, the Board does not find any evidence of record to support that his right foot, status-post fracture, second metatarsal, is moderately severe or severe. Nor is there any evidence, clinical or lay, indicating loss of use of the right foot. As such, a higher rating than 10 percent for moderate symptoms of the right foot is not warranted. The Board has considered additional limitation of motion per DeLuca v. Brown. The Board acknowledges that the August 2019 VA examiner indicated that the Veteran has functional impairment due to pain and resulting in decreased locomotion. The Board has also considered the Veteran's statements that his right foot, status-post fracture, second metatarsal, weakens his ability to stand for prolonged periods of time. However, as discussed, the Veteran's painful motion has been considered in determining that his symptoms are moderate. As such, the 10 percent disability evaluation adequately compensates the Veteran for functional loss due to right foot pain. The Board has also considered whether a higher or separate rating is warranted under other potentially applicable diagnostic codes. The Board acknowledges the additional diagnosis of a callous on the plantar aspect of the right forefoot, between the second and fifth metatarsal joints. However, the Board observes that the Veteran's complaints of pain and tenderness on examination encompass the tenderness to palpation as a result of the callous. As such, the Veteran is not entitled to a separate disability evaluation for the callous. Nor is a separate rating warranted for any additional conditions of the right foot. The record does not reflect, and the Veteran has not contended, that his right foot, status-post fracture, second metatarsal, has been manifested by weak foot, claw foot, metatarsalgia, or malunion or nonunion of the tarsal or metatarsal bones. As such, 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5279, and 5283 are not for application. The record also does not reflect, and the Veteran has not indicated, that he has any scars associated with his right foot, status-post fracture, second metatarsal. Thus, Diagnostic Codes 7800-7805 for scars are therefore not for application. 38 C.F.R. § 4.118. Nor does the record reflect amputation of the right foot. Diagnostic Codes 5160-5173 for lower extremity amputations are therefore not for application. 38 C.F.R. § 4.71a. Consideration has also been given to assigning staged ratings. Fenderson v. West, 12 Vet. App. at 119. However, the Veteran's symptoms were consistently pain, reduced locomotion, and reduced ability to stand for prolonged periods. Accordingly, the Board finds that a uniform rating is warranted. As such, the Board finds that the Veteran's service-connected right foot, status-post fracture, second metatarsal, is entitled to a disability evaluation of 10 percent, but no higher, for the entire rating period on appeal. 38 C.F.R. § 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.