Citation Nr: 21005534 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-21 679 DATE: February 1, 2021 ORDER Before October 16, 2015, a rating in excess of 10 percent for a right foot disability on the basis of other foot injuries, is denied. On and after October 16, 2015, a rating in excess of 20 percent for a right foot disability on the basis of other foot injuries, is denied. Before October 15, 2019, a compensable rating for pes planus of the right foot is denied. On and after October 15, 2019, a rating in excess of 20 percent for pes planus of the right foot is denied. REMANDED Service connection for left Achilles tendonitis is remanded.   FINDINGS OF FACT 1. Before October 16, 2015, the Veteran’s right foot disability manifested, at worst, with moderate symptoms of foot injury. 2. On and after October 16, 2015, the Veteran’s right foot disability has manifested, at worst, with moderately severe symptoms of foot injury. 3. Before October 15, 2019, the Veteran’s pes planus of the right foot manifested, at worst, with mild symptoms. 4. On and after October 15, 2019, the Veteran’s pes planus of the right foot manifested, at worst, with severe symptoms. CONCLUSIONS OF LAW 1. Before October 16, 2015, the criteria for a rating in excess of 10 percent on the basis of right foot injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 2. On and after October 16, 2015, the criteria for a rating in excess of 20 percent on the basis of right foot injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5284. 3. Before October 15, 2019, the criteria for a compensable rating for pes planus of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5276. 4. On and after October 15, 2019, the criteria for a rating in excess of 20 percent for pes planus of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to February 1973 and from April 1973 to April 1977. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). A December 2008 rating decision continued an existing 10 percent rating for recurrent calluses, scars, status post-surgical correction of the second and fifth hammertoes, and degenerative joint disease of the second metacarpophalangeal joint of the right foot. A February 2010 rating decision denied service connection for left Achilles tendonitis. In March 2019, the Board issued a decision that, in pertinent part, 1) denied a rating in excess of 10 percent before October 16, 2015, and in excess of 20 percent since October 16, 2015, for recurrent calluses, scars, status post-surgical correction of the second and fifth hammertoes, and degenerative joint disease of the second metacarpophalangeal joint of the right foot, and 2) denied a compensable rating for right foot pes planus. The Board additionally remanded the issue of entitlement to service connection for left Achilles tendonitis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, which, pursuant to an April 2020 Joint Motion for Partial Remand (Joint Motion), vacated the Board’s March 2019 decision to the extent that it denied ratings greater than those set forth above. The Joint Motion left undisturbed the Board’s March 2019 remand of the issue of entitlement to service connection for left Achilles tendonitis. The Board finds that there has been substantial compliance with its March 2019 remand directives, and it will proceed to a decision addressing this issue. The issues of entitlement to increased ratings for a right foot disability were most recently before the Board in August 2020, when it remanded the Veteran’s claims in order to effectuate the additional development required by the Joint Motion. More specifically, the Joint Motion found that the Board’s March 2019 decision erred by failing to discuss whether VA had fulfilled its duty to assist the Veteran in obtaining private medical records from the Tulane Medical Center. The Board finds that VA has indeed fulfilled this duty to assist the Veteran in the development of his claim. In September 2020, VA provided the Veteran with an authorization and release to allow VA to obtain records from Tulane Medical Center on his behalf. VA informed the Veteran that he had 30 days from the date of the letter to submit additional information. The Veteran has not provided VA with such an authorization or waiver; and, in October 2020, the Veteran stated that he had no other information or evidence to submit in support of his claim. The Board finds that there has been substantial compliance with its August 2020 remand directives, and it will proceed to a decision. When an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must then be timely filed to initiate appellate review of downstream issues such as the rating assigned for the disability or the effective date of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In September 2016, the Board remanded the issue of entitlement to service connection for hallux valgus of the right great toe. A March 2018 rating decision granted service connection for this disability. In March 2019, the Board remanded the issues of entitlement to service connection for bilateral knee disabilities. A November 2020 rating decision granted service connection for such disabilities. These grants of service connection have extinguished these issues before the Board. Therefore, the claims for service connection for hallux valgus of the right great toe and a bilateral knee disability are no longer on appeal. Increased Ratings The Veteran’s right foot disability is rated under four different Diagnostic Codes, though the ratings under only two of these Diagnostic Codes are on appeal before the Board at this time. More specifically, the Veteran’s right foot is rated 10 percent disabling under Diagnostic Code 5284, applicable to other foot injuries, before October 16, 2015, and 20 percent disabling thereafter. See 38 C.F.R. § 4.71a. The Veteran’s right foot is additionally rated noncompensably disabling under Diagnostic Code 5276, applicable to acquired flatfoot, before October 15, 2019, and 20 percent disabling thereafter. Id. While not on appeal, the Board notes that the Veteran’s right foot is additionally rated 10 percent disabling under Diagnostic Code 5280, applicable to unilateral hallux valgus, and 10 percent disabling under Diagnostic Code 5282, applicable to hammer toes. Id. As an initial matter, the combined rating for disability of an extremity cannot exceed the rating for an amputation at that elective level. See 38 C.F.R. § 4.68. Both the loss of use of the foot and amputation of the forefoot warrant a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5166, 5167. Thus, compensation for the combined disability rating for the Veteran’s right foot disability cannot exceed 40 percent, which is the rating for an amputation of the foot. The combined rating for the Veteran’s right foot disability has been 40 percent or greater since November 18, 2016. In other words, since November 18, 2016, the rating of the Veteran’s right foot disability has been rated either equal to or greater than the rating of an amputation of the foot. As a result, no higher disability rating is available to the Veteran’s right foot since that time, and a discussion of greater ratings or ratings under other potentially applicable Diagnostic Codes is not warranted since that time. The Board will, however, analyze whether greater ratings are available to the Veteran under Diagnostic Codes 5284 and 5276 before the November 18, 2016 award of a 40 percent rating or greater. Turning to the facts in this case, the Veteran underwent a VA examination in November 2007, at which time he reported experiencing constant pain and stiffness in his right foot, but he denied weakness, swelling, and fatigue at rest, standing, or walking. The Veteran’s pain worsened with physical activity and improved with rest. Physical examination of the Veteran’s right foot showed painful motion and tenderness, but no edema, disturbed circulation, weakness, or atrophy. There was no active motion in the metatarsophalangeal joint of the right great toe. The Veteran’s gait was normal, and pes planus was not present. The Veteran had asymptomatic scarring of the second and fifth toes. The Veteran filed a claim for an increased rating in March 2008, and he underwent an additional VA examination in August 2008, at which time he reported pain with walking and standing, but he denied experiencing swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance, or other symptoms. The Veteran denied experiencing flare-ups of his symptoms. Physical examination of the right foot showed objective evidence of painful motion at the second metatarsophalangeal joint and tenderness. The examiner did not observe evidence of swelling, instability, weakness, or other objective evidence of painful motion. The right foot had evidence of abnormal weight bearing in the form of callosities. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy. The examiner noted that the second toe extensus did not “purchase the ground” because it overlapped the third toe. The Veteran had callus formation at submetatarsal head 5 of the right foot and mild degenerative joint disease at the second metatarsophalangeal joint. The Veteran’s surgical scars were asymptomatic, and the Veteran’s gait was normal. X-rays showed mild pes planus. The Veteran underwent a VA examination in December 2009 primarily addressing the symptoms affecting his left foot. With that said, the Veteran denied experiencing flare-ups of symptoms affecting his right foot. The Veteran reported that his right foot symptoms left him unable to stand for more than 10 minutes or walk more than 30 feet. The Veteran underwent a surgical correction of a hallux valgus deformity and second toe dorsiflexion contracture of the right foot on April 26, 2010, and he is in receipt of a 100 percent rating on the basis of convalescence from that date until June 1, 2010. The Veteran underwent an additional examination of his right foot in October 2015, at which time he reported that he could not bend the second toe of his right foot. The Veteran denied experiencing flare-ups of symptoms affecting his right foot. The examiner noted no pain upon physical examination of the right foot but noted that a lack of movement in the second toe of the right foot contributed to a functional loss. The examiner observed that the second toe of the Veteran’s right foot did not purchase the ground and had limited motion. The examiner did not otherwise observe calluses of the right foot, and the Veteran’s surgical scars were asymptomatic. The Veteran underwent an additional examination of his right foot in November 2016, at which time the Veteran reported daily pain in his right foot that flared up with activity. He described experiencing burning, throbbing, and sharp shooting pain in his toes at rest. He stated that he could not perform activities barefoot, such as walking, climbing stairs, squatting, and prolonged standing. The Veteran had to use a cane due to instability of the right foot. An assessment of the Veteran’s flatfoot indicated that he had pain with use of the right foot that was accentuated with increased use and manipulation. There was no indication of swelling on use or characteristic callosities of the right foot. The Veteran did not have extreme tenderness of the plantar surfaces of the feet, but he had decreased longitudinal arch height of the right foot with weight-bearing. There was objective evidence of a marked deformity of the right foot. There was not marked pronation of the right foot, the weight-bearing line did not fall over or medial to the great toe, and there was not a lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran did not have “inward” bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation of the right foot. The Veteran reported having metatarsalgia of the right foot with pain on palpation of the plantar metatarsal heads of the right foot. He endorsed pain upon physical examination of the foot, which resulted in functional loss in the forms of less movement than normal, pain on movement, pain on weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The examiner noted that factors such as pain, weakness, fatigability, or incoordination would not significantly limit functional ability during flare-ups or when the right foot was used repeatedly over a period of time. The right foot disability was not of such a severity that the Veteran would be equally served by amputation of the foot. Turning to an analysis of this evidence, the Board will first evaluate whether greater ratings are available to the Veteran under Diagnostic Code 5284, applicable to other foot injuries. Under Diagnostic Code 5284, a 10 percent rating applies to moderate foot injuries, a 20 percent rating applies to moderately severe foot injuries, a 30 percent rating applies to severe foot injuries, and a 40 percent rating applies to actual loss of use of the foot. 38 C.F.R. § 4.71a. The terms “moderate”, “moderately severe”, and “severe” are not defined in the VA Schedule for Rating Disabilities. Instead of applying a definition, the Board will evaluate the totality of the evidence in order to ensure a complete analysis of the facts in the Veteran’s case. See 38 C.F.R. § 4.6. With that said, clinicians’ use of terms such as “moderate” and “severe,” although an element that the Board will consider, is not dispositive of the issue. Before October 16, 2015, a rating in excess of the currently-assigned 10 percent evaluation is not warranted for the Veteran’s right foot under Diagnostic Code 5284. The symptom picture associated with the Veteran’s right foot disability showed pain, tenderness, and limitations with walking and standing. While these symptoms are consistent with a finding that the Veteran experienced a moderate foot injury before October 16, 2015, they are not consistent with a finding that the Veteran’s right foot injury was at least moderately severe in nature. Consistent with this finding, the Board notes that no clinician described the Veteran’s right foot injury as moderately severe or worse before this time. A rating in excess of 10 percent for the Veteran’s right foot disability before October 16, 2015, is therefore denied. Similarly, on and after October 16, 2015, a rating in excess of the currently-assigned 20 percent evaluation is not warranted for the Veteran’s right foot under Diagnostic Code 5284. As the Board noted in its March 2019 decision granting a 20 percent rating, the evidence shows that as of this date, the Veteran could no longer bend the second toe, and his functional impairment included less movement than normal, pain on movement, pain on weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The Board found these symptoms to be consistent with a moderately severe foot injury on and after October 16, 2015. With that acknowledged, the Veteran’s right foot symptoms are inconsistent with a finding that the Veteran’s right foot injury was severe in nature since that time. Consistent with this finding, the Board notes that no clinician described the Veteran’s right foot injury as severe in nature after this time. A rating in excess of 20 percent for the Veteran’s right foot disability on and after October 16, 2015, is therefore denied. With greater ratings unavailable to the Veteran under Diagnostic Code 5284, the Board will next evaluate whether a compensable rating of the Veteran’s right foot is warranted under Diagnostic Code 5276, applicable to acquired flatfoot. The Board’s analysis focuses on whether a compensable rating is available to the Veteran’s right foot before November 18, 2016, which, as the Board noted above, is the date when the Veteran’s right foot disability received the maximum 40 percent rating applicable to amputation of the right foot. Under Diagnostic Code 5276, applicable to acquired flatfoot, a 0 percent rating applies to mild symptoms that are relieved by a built-up shoe or arch support. A 10 percent rating applies to moderate symptoms, with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, or pain on manipulation and use of the feet. A 20 percent rating applies to severe symptoms, with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A 30 percent rating applies to pronounced symptoms, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. Before November 18, 2016, a compensable rating of the Veteran’s right foot pes planus is not warranted under Diagnostic Code 5276. Before this time, to the extent that clinicians indeed found the Veteran to have right foot pes planus, it was characterized as mild in severity, which is consistent with the existing noncompensable rating of the Veteran’s disability. For example, an August 2008 x-ray examination of the Veteran’s right foot showed a mild pes planus deformity. While the Board acknowledges that the Veteran’s right foot pes planus caused him to experience pain, the Veteran’s existing ratings under Diagnostic Code 5284 contemplate the Veteran’s complaints of painful motion. An additional compensable rating of the Veteran’s foot pain under Diagnostic Code 5276 would twice compensate the Veteran for the same symptoms and is therefore impermissible. In sum, a rating of the Veteran’s right foot disability in excess of 10 percent is unwarranted before October 16, 2015, on the basis of other foot injuries, and a rating in excess of 20 percent is unwarranted thereafter. A compensable rating of the Veteran’s right foot pes planus is unwarranted before October 15, 2019, and a rating in excess of 20 percent is unwarranted thereafter. REASONS FOR REMAND The Board must remand the claim for service connection for left Achilles tendonitis because the existing medical evidence addressing the etiology of the claimed disability is inadequate. The Veteran primarily argues that his left Achilles tendonitis is related to his service-connected right foot disability. He has undergone examinations addressing his left Achilles tendonitis in December 2009, October 2018, and October 2020. While the examiners have discussed the question of whether the Veteran’s left Achilles tendonitis is directly related to service, the examiners have not adequately addressed the question of whether left Achilles tendonitis is secondarily related to, or aggravated by, the Veteran’s service-connected right foot disabilities. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims has recently clarified that “aggravation” of a disability does not require a permanent” worsening of a condition and can be satisfied by showing an incremental increase in disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019); 38 C.F.R. § 3.310. On remand, the Agency of Original Jurisdiction should obtain an additional opinion addressing the secondary relationship, if any, between the Veteran’s left Achilles tendonitis and his service-connected disabilities of the right foot. This matter is REMANDED for the following action: Obtain an addendum opinion addressing the nature and etiology of the Veteran’s left Achilles tendonitis. After reviewing the claims file, the examiner should offer the following opinions: (a.) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran’s left Achilles tendonitis is proximately due to the Veteran’s service-connected disabilities of the right foot, to include as the result of any disturbances of gait associated with such disabilities. (b.) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran’s left Achilles tendonitis underwent an incremental increase in disability, regardless of its permanence, due to the Veteran’s service-connected disabilities of the right foot. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.