Citation Nr: 21006541 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-18 476 DATE: February 4, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for right foot myofascial syndrome (also diagnosed as right foot pes planus) prior to November 25, 2019, and in excess of 20 percent thereafter is denied. REMANDED 1. Entitlement to service connection for a left ankle disability as secondary to the service-connected right foot disability is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to November 25, 2019, the Veteran’s service-connected right foot disability manifested as symptoms and impairments approximating no worse than a moderate right foot injury, as shown by subjective reports of severe tenderness with very light and soft touch over right plantar fascia. 2. Thereafter, the Veteran’s service-connected right foot disability manifested as symptoms and impairments approximating no worse than severe with sharp pain, pain on manipulation, and extreme tenderness of plantar surfaces. CONCLUSION OF LAW The criteria for a disability rating for a service-connected right foot disability greater than 10 percent prior to November 25, 2019, and greater than 20 percent thereafter have not been met. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276-5284 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to July 1975, from January 1976 to July 1977, and from July 1979 to February 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were previously before the Board in September 2018 when they were remanded for procedural and evidentiary development. For reasons explained more fully herein, the Board finds that there has been only partial compliance with its remand directives, in violation of Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). However, the Board also finds that based on the additional evidence now contained in the record, the Board has sufficient information to accurately decide the claim of increased evaluation for right foot myofascial pain. The remaining claims will be remanded. This matter has been advanced on the Board’s docket. 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). Entitlement to an increased rating in excess of 10 percent for right foot myofascial syndrome (also diagnosed as right foot pes planus) prior to November 25, 2019, and in excess of 20 percent thereafter is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The AOJ assigned disability ratings of 10 percent prior to November 25, 2019 under DC 5284-5310, and 20 percent thereafter under DC 5276 for the Veteran’s service-connected right foot disability. The Veteran seeks higher staged ratings. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Initially, the Board finds that rating the service-connected right foot disability under DC 5284 only by analogy is appropriate here, prior to November 25, 2019. This disability primarily has manifested as severe tenderness over right plantar fascia. Such symptoms are not associated with a specific DC in the Rating Schedule. Therefore, the Board must consider an appropriate DC by analogy that best represents his overall disability picture. Accordingly, the most appropriate DC for the Veteran’s service-connected right foot disability is 5284. DC 5310 is not an appropriate code because the Veteran’s right foot disability did not result in impairment in muscle functioning. With that, a higher, 20 percent rating under DC 5284 is warranted for a moderately severe foot injury, and a higher, 30 percent rating is warranted for a severe foot injury. 38 C.F.R. § 4.71a, DC 5284. The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule, and the Board must thoroughly evaluate the evidence to the degree that its decisions are equitable and just rather than applying a mechanical formula. 38 C.F.R. § 4.6. The adjudicator should consider examiners’ use of descriptive terminology such as mild, moderate, or severe; however, examiners’ use of such terminology is not binding. After a full review of the record, the Board finds that the evidence does not warrant an initial rating greater than 10 percent under DC 5284, at any point prior to November 25, 2019. During this period, the Veteran’s service-connected right foot disability manifested as symptoms and impairments approximating no worse than a moderate right foot injury, as shown by subjective reports of severe tenderness over right plantar fascia, and functional impairments on activities such as prolonged standing and walking. See April 2016 VA examination. The Board recognizes that the Veteran subjectively feels his service-connected right foot disability was of great severity during this period. However, the Board affords more probative value to the 2016 VA examiner’s description of the right foot disability as moderate. The Board finds that a medical professional is more competent than a lay person to assess the overall clinical severity of an orthopedic disability based on a comprehensive assessment of both subjective symptoms and objective medical evidence. On balance, at no point prior to November 25, 2019, did the Veteran’s service-connected right foot disability approximate a moderately severe foot injury. Thus, a higher staged rating than 10 percent under DC 5284 is unwarranted during this period. The Board considered whether any other DCs apply prior to November 25, 2019 to warrant higher and/or separate disability ratings, and finds that they do not. Specifically, there was no competent medical evidence, during this period, of symptoms or impairments approximating unilateral flatfoot (5276), bilateral weak foot (DC 5277), claw foot (pes cavus) (DC 5278), anterior metatarsalgia (Morton’s disease) (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toes (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). See April 2016 VA examination. In summary, a higher staged rating than 10 percent under DC 5284 is unwarranted at any point prior to November 25, 2019. From November 25, 2019 forward, the Veteran’s right foot disability is rated as 20 percent disabling under DC 5276. Under DC 5276, acquired flatfoot which is moderate, with weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, warrants a 10 percent rating for bilateral or unilateral disability. When it is severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, a 30 percent rating is warranted for a bilateral disability. When it is pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances, a 50 percent rating is warranted for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. The November 2019 VA examination reveals the Veteran’s complaints of foot bed pain which affected ambulation tolerance. He reported periods of flare weekly which he rated 9/10 for intensity, fatigability, pain on movement, pain on weight bearing, and lack of endurance. He further reported utilizing orthotics without relief. Upon examination, the Veteran was noted to have right foot pes planus, with pain on use and manipulation, and extreme tenderness of plantar surfaces. There was no swelling, callouses, decreased longitudinal arch of the right foot, marked deformity, marked pronation, inward bowing of Achilles tendon, nor inward displacement and severe spasm of achilles tendon. Lastly, the weight bearing line was not noted to fall over or medial to the great toe. The examiner concluded that the Veteran’s foot disabilities had no significant effect on his occupation. The evidence is against a finding that the Veteran’s right foot disability warrants a rating in excess of 20 percent under DC 5276, from November 25, 2019 forward. Although the Veteran was noted to have extreme tenderness of plantar surfaces not improved by orthopedic shoes, there is no evidence of marked pronation, marked inward displacement, or severe spasm of the tendo achillis on manipulation. Turning to other potentially applicable DCs, the Veteran does not have service-connected weak foot, claw foot, anterior metatarsalgia (Morton’s disease), hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. Therefore, DCs 5277 through 5283 are not applicable. Accordingly, a staged rating higher than 20 percent for the Veteran’s right foot pes planus from November 25, 2019 forward is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability as secondary to the is remanded. Pursuant to the September 2018 remand, the Veteran was afforded a VA examination to determine the nature and etiology of his left ankle disability. See November 2019 VA Examination. According to the 2018 remand directives, the examiner was required to state whether any diagnosed left ankle condition was either caused or aggravated by the Veteran’s service-connected right foot disability. During the examination, the Veteran reported injuring his left ankle during a fall down a stairway due to his right foot pain. The 2019 examiner provided diagnoses of left ankle lateral collateral ligament sprain, and tendonitis. The examiner opined that the Veteran’s left ankle disabilities were less likely than not proximately due to or the result of his service-connected right foot condition. The rationale stated that there is no anatomic, biomechanical, or pathophysiologic relation among the Veteran’s right foot and his left ankle injury which was caused by a fall in 2014. He explained that the Veteran’s fall is unrelated to his right foot disability, and to say so would be speculative, and not based on any anatomic or physiological foundation. He further found no aggravation beyond natural progression. No rationale for the aggravation opinion was provided. The Board thus finds that an addendum with rationale should be obtained. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to a TDIU is intertwined with the claim being remanded. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who conducted the November 2019 VA examination, if reasonably available. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide a rationale for the opinion that the Veteran’s left ankle injury was not aggravated by his service-connected right foot disability. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.