Citation Nr: 21006441 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-25 030 DATE: February 4, 2021 ORDER Entitlement to a compensable rating prior to March 23, 2016, for plantar callus and bone spur, little toe of left foot, is denied. REMANDED Entitlement to a rating in excess of 10 percent for monoarticular arthritis with eosinophilic effusion right knee is remanded. Entitlement to a compensable rating for right knee limitation of extension is remanded. FINDING OF FACT During the relevant rating period prior to March 23, 2016, the Veteran’s plantar callus and bone spur, little toe of left foot, did not manifest in symptoms of at least a moderate severity. CONCLUSION OF LAW The criteria for entitlement to a compensable rating prior to March 23, 2016, for plantar callus and bone spur, little toe of left foot, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1958 to November 1962 and from November 1962 to May 1980. In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The claims were initially denied by the Board in a September 2016 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court granted a Joint Motion for Remand (JMR). The Board remanded both claims in December 2017 and the foot claim in September 2019 for further development. In a September 2019 decision, the Board denied an increased rating for the right knee arthritis and granted a separate noncompensable rating for limitation of extension. The Veteran appealed that decision to the Court. In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) regarding the denial of the increased rating for the arthritis and entitlement to a compensable rating for the limitation of extension. The Court did not disturb the grant of a separate rating for the limitation of extension. In a September 2020 decision, the Board denied an increased rating for the left foot disability after March 23, 2016 and remanded for further development of the claim for a compensable rating prior to that date. There has been substantial compliance with the remand in connection with the left foot claim and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating prior to March 23, 2016, for plantar callus and bone spur, little toe of left foot The Veteran seeks a compensable rating for plantar callus and bone spur, little toe of left foot prior to March 23, 2016. The applicable rating period is from April 22, 2010, one year prior to receipt of the claim for an increased rating, through March 22, 2016. See 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The plantar callus and bone spur of the left foot was previously rated under 38 C.F.R. § 4.118, Diagnostic Code 7819, which pertains to benign skin neoplasms and rates the disability on scars or impairment of function. In the May 2013 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) changed the diagnostic code under which the service-connected left foot disability is rated to 38 C.F.R. § 4.71a, Diagnostic Code 5284, which pertains to other foot injures. A change in diagnostic code is permissible as long as the change is explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Diagnostic Code 5284 is limited to disabilities resulting from actual injuries to the foot; however, the Board can rate closely related conditions by analogy under that diagnostic code. Yancy v. McDonald, 27 Vet. App. 484 (2016); Copeland v. McDonald, 27 Vet. App. 333 (2015). The Board finds that Diagnostic Code 5284 is the most appropriate as it considers impairment of the feet, whereas the previously used Diagnostic Code 7819 pertains to disabilities of the skin, but the evidence does not show skin impairment. Therefore, the Board will rate the Veteran’s service-connected left foot disability under Diagnostic Code 5284. 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 other 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 flareups 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). 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 relevant evidence of record, in a March 2011 statement, M. C., M.D., describes the Veteran’s left foot symptoms as “Ankle pain from chronic arthritic changes with episodic swelling,” and “Achilles tendon injury resulting in chronic pain [from] bone spurs, recurrent tendonitis, and talonavicular degenerative changes.” In his April 2011 claim for an increased rating, the Veteran described his left foot symptoms as “left ankle swelling and pain, and episodic swelling.” He also reported Achilles tendon problems, tendonitis, and talonavicular degenerative changes. At an October 2012 VA examination, the Veteran reported that Dr. C. found a bone spur on his left little toe on an X-ray, but that the bone spur does not cause him any problems. He also reported that an X-ray showed a small osteophyte in the talonavicular joint of the left foot. He denied current foot pain, but reported bilateral foot pain “if I do a lot of walking on the soles of my foot.” The Veteran did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or evidence of bilateral weak foot. He did not have a callus of the foot. He was noted to use heel cups occasionally, but “only maybe once a month if ankles are hurting”. On examination, the Veteran did not have definite or marked tenderness under the metatarsal heads, or very painful callosities, or any other pain or tenderness. In his July 2015 substantive appeal, the Veteran asserted, “I have pain when walking all the time if I step on it wrong then the pain increases to where I have to rear up like stepping on a sharp rock with no shoe on.” The Veteran’s representative essentially repeated that assertion in an August 2015 VA Form 646, Statement of Accredited Representative in Appealed Cased. At the December 2015 Board hearing, the Veteran testified that he has pain in both feet after walking. He assessed the pain as ranging from a 5 to a 7 out of 10 in terms of severity. He reported that he would go for walks with his wife for about a mile and usually for 45 minutes at a time, but sometimes for an hour. In his retrospective opinion, the October 2020 VA examiner described the Veteran’s medical history from July 1980, which is before the rating period on appeal, through March 23, 2016, as reflected in the evidence of record. The opinion provider noted that in August 2007, the Veteran reported left heel pain since January without a history of injury or trauma. The pain was located at the point of Achilles insertion. The examiner pointed out that the pain reported at that time was not at the forefoot where the Veteran’s service-connected left foot disability is, but rather at the heel. He concluded that that pain “is not attributable to any condition of the forefoot.” The examiner further noted the Veteran’s reports of pain at the talonavicular joint. He explained that the talonavicular joint is in the proximal foot and is anatomically distinct from, separate from, and unrelated to the fifth metatarsal where the Veteran’s service-connected left foot disability is located. He therefore found that the Veteran’s complaints of bilateral foot pain as described in the VA examinations and the clinical records prior to 2016 is not attributable to the service-connected left foot disability. Rather, the Veteran’s foot pain with prolonged walking is attributable to changes associated with aging, as the arthritis noted on X-rays obtained in 2007 is consistent with and attributable to the changes associated with senescence. The examiner concluded, “[g]oing back as far as 2008 the records do not reflect that the Veteran experienced any flare ups of his service-connected left foot condition. There is no evidence that the foot conditions for which he is service connected in 1980 has progressed either before or after 2016.” The Board affords the October 2020 VA examiner’s opinion probative value because it is based on an accurate understanding of the Veteran’s medical history, as shown in the evidence of record, and because it is supported by appropriate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The examiner essentially concluded that the Veteran’s foot pain and flareups in that pain during the relevant period prior to March 23, 2016, were due to a nonservice-connected disability of the left heel and not to the service-connected left foot disability. That conclusion is consistent with the record, as Dr. Caldwell’s March 2011 description of the Veteran’s disability and the Veteran’s descriptions of his pain indicate that the pain is in the left heel and the sole of the bilateral feet and not in the left little toe or left forefoot where the service-connected left foot disability is located. The Board therefore accepts the examiner’s opinion as probative evidence that the Veteran’s left foot pain and any flareups in that pain prior to March 23, 2016, is attributable to nonservice-connected disabilities and is not attributable to the service-connected left foot disability. Accordingly, that pain and any associated flareups are not for consideration in rating the service-connected left foot disability. Cf. Mittleider v. West, 11 Vet. App. 181 (1998). The Board notes that the Veteran is not service-connected for a disability of the left ankle or the sole of the left foot. In fact, the May 2013 rating decision on appeal denied the Veteran’s claim for entitlement to service connection for left Achilles tendonitis. The Board acknowledges the Veteran’s lay reports of symptoms of left foot pain that increases with walking and other activities. He is competent and credible in that regard. However, his descriptions of that pain do not contradict the October 2020 VA examiner’s statements. Specifically, as noted above, the Veteran’s descriptions of his left foot pain indicate that the pain is in the left heel and the sole and not in the left little toe or left forefoot where the service-connected left foot disability is located. To the extent that the Veteran seeks to attribute the described pain to the service-connected plantar callus and bone spur of the little toe of left foot, the Board finds that he is not considered competent to render such an opinion as it requires medical knowledge expertise as to the pathology of various musculoskeletal disabilities, the normal processes of aging, and how such factors relate to the production of pain in various parts of the body. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements in that regard are not entitled to probative value and do not weigh against the probative value of the October 2020 VA examiner’s retrospective opinion. The preponderance of the evidence is against assigning a compensable rating under Diagnostic Code 5284 during the relevant period prior to March 23, 2016. The probative evidence of record indicates that the Veteran’s reported foot pain that increases with walking and other activities is attributable to a nonservice-connected disability and not to the service-connected left foot disability. The record does not show that the Veteran had pain or other such symptoms attributable to the service-connected left foot disability during the relevant period prior to March 23, 2016. Therefore, during the relevant period prior to March 23, 2016, the Veteran’s plantar callus and bone spur, little toe of left foot, did not manifest in symptoms of at least a moderate severity, as is required for a compensable rating under Diagnostic Code 5284. The Board has also considered the other Diagnostic Codes pertaining to the foot. Here, the Veteran’s disability is unlisted and rated by analogy under Diagnostic Code 5284. Diagnostic Codes 5277 and 5279 through 5283 are not applicable in this case because the Veteran’s service-connected left foot disability has not been shown to manifest in the symptoms contemplated by those diagnostic codes. Diagnostic Code 5276, which pertains to acquired flatfoot, and Diagnostic Code 5278, which pertains to acquired claw foot (pes cavus), both provide compensable ratings for symptomologies that include callosities. In the case of Diagnostic Code 5276, a 20 percent rating is warranted where there is severe unilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. In the case of Diagnostic Code 5278, a 30 percent rating is warranted where there is marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. In this case, the record does not show that the service-connected left plantar callus and bone spur of the little toe manifested in characteristic callosities or in very painful callosities during the relevant period prior to March 23, 2016. The Veteran did not have calluses on either foot at the October 2012 VA examination. His medical treatment records do not show that he had a callus associated with the left foot disability at any time during that period. Moreover, the record does not show that the Veteran’s service-connected left foot disability manifested in any of the other symptoms required for a compensable rating under either Diagnostic Code 5276 or Diagnostic Code 5278. Therefore, such a rating is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for plantar callus and bone spur, little toe of left foot prior to March 23, 2016. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to an increased rating for monoarticular arthritis with eosinophilic effusion right knee Entitlement to a compensable rating for right knee limitation of extension are remanded. The claims must be remanded for actions consistent with the August 2020 JMPR. The parties to the JMPR noted that VA examinations provided in October 2012, August 2015, and March 2016 do not include all of the appropriate range of motion testing required under 38 C.F.R. § 4.59. In addition, the Veteran reported flareups in his right knee symptoms at each of those examinations, but the examiners did not opine as to any additional functional loss that the Veteran may experience during flareups. The parties agreed that an adequate medical opinion was needed, including a retrospective opinion as to any additional functional loss the Veteran might have on repetitive use over time or during flareups during the period prior to March 20, 2018. The issues are remanded so that the Veteran may be provided an examination as to the current severity of his service-connected right knee disabilities and for a retrospective opinion. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected monoarticular arthritis with eosinophilic effusion right knee and right knee limitation of extension. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flareups, and the degree of functional loss during flareups and on repetitive use over time. If it is not possible to provide a specific measurement of range of motion without speculation or if it is not possible to provide a specific measurement of functional loss during flareups or on repetitive use over time based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flareups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also provide a retrospective opinion as to the severity of the Veteran’s service-connected right knee disabilities for the period from April 22, 2010, to March 19, 2018. The examiner is asked to estimate the Veteran’s right knee range of motion on active and passive motion and in weight-bearing and nonweight-bearing positions during that period. The examiner is also asked to opine as to whether the Veteran had additional functional loss during flareups or upon repetitive use over time during that period. The opinions should be based on the evidence of record, to include the Veteran’s subjective reports at the October 2012, August 2015, and March 2016 VA examinations and in the medical treatment records. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. If additional information would allow an opinion, the examiner should identify the information needed. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.