Citation Nr: A21020534 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 201019-114075 DATE: December 27, 2021 ORDER Entitlement to an evaluation of 20 percent, but no higher, for right foot degenerative arthritis is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the right foot is manifested by pain, limitation of motion, more severe with flare-ups, commensurate with moderately severe foot injury. 2. The competent evidence does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating, but no higher, for degenerative joint arthritis of the right foot are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, DC 5284 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1968 to March 1969. The rating decision on appeal was issued in May 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In March 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2019 decision. In July 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2019 decision. In the October 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an evaluation of 20 percent, but no higher, for right foot degenerative arthritis 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. § 4.1. 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2019). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran's right foot disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran seeks a higher evaluation for the entire period on appeal. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. 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 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 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the record, the Veteran was afforded a VA examination in March 2019. A diagnosis of right foot degenerative arthritis was rendered. The Veteran reported that he cannot stand for longer than an hour before he starts to feel discomfort. He described his symptoms as tingling and burning dorsum of the foot near right foot toes 3-5. Further, the Veteran reported that he cannot bend the toes on his right foot. The Veteran reported constant discomfort in his right foot described as 7 to 8 out of 10. Physical examination revealed pain. Diagnostic testing revealed arthritis in the right foot. Next, In May 2019, a VA addendum opinion was obtained. The examiner clarified that the fractured toes on the Veteran's right foot were the 2nd and 3rd distal phalanx as per the radiographic report from April 1969. Further, the examiner indicated that the current severity of the Veteran's injury was moderate-severe with the Veteran reporting 7 to 8 out of 10 pain and limited ability to walk distances longer than a few blocks. Additionally, the examiner explained that radiographs of the right foot from October 2018 showed subchondral sclerotic changes to the distal interphalangeal joints on the 1st, 2nd, and 5th metacarpals. In addition to osteoarthritic changes of the first metatarsal/phalangeal articulation and hypertrophic degenerative changes involving the navicular/cuneiform articulation. This result indicated the Veteran's 1st, 2nd, and 5th toes have arthritis. In light of the evidence, as discussed above, the Board concludes that the Veteran's right foot degenerative arthritis is manifested by moderately severe progressive degenerative symptoms, with increased pain and limitation of motion. These moderately severe symptoms warrant the assigment of a 20 percent rating under DC 5284 as they are commensurate with moderately severe impairment under that code. A higher rating of 30 percent is not warranted as there was no evidence that the Veteran's degenerative arthritis of the right foot was manifested by continuous severe symptoms. Moreover, there is no medical evidence of record with findings consistent with loss of use of the right foot. Further, no other separate evaluations for the right foot are warranted. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (Holding generally that if a specific condition is in the schedule, it should be rated under that code, not DC 5284.) Therefore, resolving all doubt in the Veteran's favor, the Board finds that the level of severity of the Veteran's degenerative arthritis of the right foot satisfies the criteria for a higher disability evaluation under DC 5284 and the Veteran's claim for an increased 20 percent rating for his right foot disability is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to secure or follow substantially employment as a result of the collective impact of his service-connected disabilities for the time period on appeal. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran's disabilities meet this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. As noted above, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, which is May 2019. At that time the Veteran was service-connected for artherosclerotic cardiovascular disease and coronary artery disease at 60 percent disabling; posttraumatic stress disorder (PTSD) at 30 percent disabling; and degenerative arthritis of the right foot at 10 percent disabling. In this regard, the Veteran's combined evaluation is 80 percent from November 20, 2018. Thus, the Veteran meets the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran was afforded a VA examination in April 2015 for his heart disorder. At the time of the examination, the examiner noted that the Veteran's heart disorder impacted his ability to work because the Veteran could not do strenuous labor. In May 2015, a VA examination was conducted in connection the Veteran's PTSD. At the time of the examination, the examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Further, the examiner noted that the Veteran worked as a bank consultant selling financial services for 18 years. The Veteran reported that he sold that business and became involved with a company teaching human development to corporations. He then left that job and became a regional manager for an educational company. Next, the Veteran worked in life skills training for K-12 schools. The Veteran recalled that he has had difficulty finding employment later in life, and eventually he retired. He said that he has been unemployed three times since 2000; he described his career as up and down. Further, the examiner noted that the Veteran was able to maintain occupational pursuits until his self-reported retirement. Next, in January 2019, a VA examination for the Veteran's right foot disability was performed. The examiner noted that the Veteran was currently employed as a lecturer. The Veteran described that his right foot disability caused pain during prolonged standing. Likewise, at a March 2019 VA examination for the Veteran's right foot disability, the examiner remarked that the Veteran was employed as a senior project director and that the pain in his right foot made it difficult to stand for longer than an hour to give presentations or walk around at conferences. In light of the above, the Board finds that the cumulative effects of the Veteran's service-connected heart disorder, PTSD, and right foot disorder did not render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Thus, the Board finds that the evidence of record does not support the grant of TDIU. Notably, the competent medical evidence does not support a conclusion that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining gainful employment during this time. Importantly, the VA examinations of record indicate that although the Veteran's service-connected disabilities have an impact on his ability to work, none of the examiners found that the Veteran was rendered unemployable due to his service-connected disabilities. Rather, the examiners noted that the Veteran would not be able to perform strenuous labor and that the Veteran would not be able to stand for long periods of time. Likewise, the Veteran's mental health examination detailed the Veteran's employment history and also found that the Veteran experienced mild impairment from his PTSD that would manifest only during periods of significant stress. Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the more persuasive medical evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of service-connected disability. See, Davidson v. Shinseki, 581 F.3d 1313 (2009). Any probative value of the Veteran's own conclusions is far outweighed by that of the competent medical evidence that indicates his service-connected disabilities were not productive of impairment that would rise to the level of unemployability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board acknowledges the functional effects of the Veteran's service-connected disabilities as reflected by his overall 80 percent schedular evaluation as of November 20, 2018. The Board also acknowledges the Veteran's reported symptoms of right foot pain during this time. However, after considering the totality of the record, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation commensurate with his work and education history. While those disabilities which were service-connected did have functional impairment which affected his ability to work, they did not alone render him unemployable. Therefore, the Veteran is not entitled to a TDIU evaluation. In making its determination, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU, the doctrine is not applicable in the instant appeal and the claim must be denied. Id. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.