Citation Nr: 21007116 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-31 804 DATE: February 8, 2021 ORDER Entitlement to a rating in excess of 30 percent for left foot talipes varus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s left foot talipes varus is manifested by severe symptomatology; it has not been manifested by actual loss of use of the foot. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for left foot talipes varus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1950 to May 1951. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2018 and July 2020 when it was remanded for further development. Lastly, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. Left Foot Talipes Varus The Veteran contends he is entitled to a 40 percent rating for his service-connected left foot talipes varus. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s right foot disability has been rated using the criteria of Diagnostic Code 5284 (Foot Injury, Other). When a foot condition is specifically listed in the Rating Schedule, it must be rated under the Diagnostic Code that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Unlisted conditions, on the other hand, may be rated under Diagnostic Code 5284. Id. Under Diagnostic Code 5284, a 10 percent rating is warranted for a foot injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The words “moderate,” “moderately severe,” and “severe,” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Moreover, separate ratings may be assigned for separate periods of time, if applicable, based on a facts-found basis, a practice known as “staged rating.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). “Loss of use of the foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination is made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. When assessing the severity of a musculoskeletal disability that is at least partly 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 his symptoms are most prevalent (“flare ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see 38 C.F.R. §§ 4.40, 4.45, 4.59. While Diagnostic Code 5284 is not based on limitation of motion, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Turning to the evidence in this case, a review of the record reflects that the Veteran underwent a VA Foot Conditions examination in February 2015. The examiner noted a diagnosis of left foot talipes varus with degenerative joint disease, which was diagnosed in 1950. During the examination, the Veteran reported persistent pain in his left foot since a March 2013 surgery. He also reported use of a walker with wheels and a seat to prop his left lower leg, which he indicated he uses when he is in pain. He indicated that he takes a Hydrocodone tablet for pain three times daily and that he had a brace made (although it was uncomfortable to use). The Veteran reported left foot pain when walking and functional loss, noting that he uses a walker due to pain in his left foot and ankle with weight bearing. He denied experiencing flare-ups. The examiner noted that the Veteran reported undergoing surgery to his left foot due to an infection (osteomyelitis). The examiner also indicated that the Veteran’s condition was severe; chronically compromises weight bearing; and requires arch support, custom orthotic inserts, or shoe modifications. It was noted that the Veteran requested a brace for his left foot in October 2014 but did not wear the brace to the examination because it causes irritation to his foot. The examiner reported that the Veteran underwent an arthrotomy for septic arthritis of the left foot in March 2013 and that residuals, including pain, intermittent swelling, and deformity with hallux valgus of 10 degrees medially from the mid arch, were present. Physical examination of the left foot revealed pain that contributed to functional loss, pain on movement, pain with weight and nonweight bearing, swelling, deformity, atrophy of disuse, interference with standing, and lack of endurance. The examiner noted that there was also varus deformity of the left lower extremity with slight adduction of forefoot and that the forefoot is adducted to the rear foot. Pain, weakness, fatigability, or incoordination were noted to significantly limit functional ability in the left foot with repetitive use. Additionally, pain with and without weight bearing of the left foot caused functional loss with repeated use over time. Regarding pertinent physical findings, complications, conditions, signs, or symptoms, the examiner noted that the Veteran has peripheral vascular disease which affects the functional impairment of the left foot, that there were no open lesions or lacerations, and that pedal pulses were faintly palpable. The Veteran reported constant use of a walker to prop his left lower leg when walking to avoid weight bearing. The examiner indicated that functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Lastly, the examiner noted that the Veteran’s condition impacted his ability to work, noting that, although the Veteran is retired, he would have had difficulty performing physical activities due to his limitations with mobility. Private medical records from March 2015 indicate that the Veteran complained of left foot pain. He reported that his foot was aching, painful, and deformed; that he experienced tingling sensations on top of his foot; and that he had tried multiple braces that did not reduce his symptoms. He was diagnosed with neuropraxia secondary to his left foot arthritis and bursitis of the midfoot, rear foot, and ankle. Surgical option was discussed. In October 2015, the Veteran underwent an additional VA examination. The examiner noted the diagnosis of left foot talipes varus with degenerative joint disease. During the examination, the Veteran reported undergoing surgery in the 1980s and indicated that he got an infection, cadaver skin had to be removed, and that he was on long-term IV antibiotics. The Veteran also reported undergoing surgery on his left foot three years prior to the examination. The Veteran stated that he experiences constant pain in his left foot and indicated that he receives treatment for pain management. He also indicated that he is prescribed Vicodin and occasionally receives Cortisone injections in his left foot. He also reported receipt of a brace for his left foot and ankle. He denied experiencing flare-ups but endorsed functional loss, noting that he has pain in his left foot with weight bearing that causes him to use a walker for ambulation. The examiner indicated that the Veteran’s condition was severe; chronically compromises weight bearing; and requires arch support, custom orthotic inserts, or shoe modifications. It was also noted that the Veteran can walk a few steps without a walker but is unable to bear weight on the left foot for a long period of time due to pain in the left foot and ankle area. The Veteran reported undergoing an arthrotomy for septic arthritis in March 2013 and it was noted that residuals, including pain, intermittent swelling, and left foot hallux valgus of 10 degrees medially, were present. Physical examination of the left foot revealed pain, less movement than normal, pain on weight and nonweight bearing, swelling, deformity, atrophy of disuse, interference with standing, and lack of endurance. The examiner noted that the left foot was three centimeters shorter than the right foot, varus deformity, adduction of forefoot to the rear foot, and atrophy of the left lower leg. The examiner also noted pain, weakness, fatigability, or incoordination significantly limits functional ability, noting that the Veteran reported pain with repeated use of the left foot. Additionally, functional loss with repeated use over time was noted as the Veteran described pain with and without weight bearing. The examiner noted the presence of lateral scars on the left foot which measured three centimeters long by 0.1 centimeters wide and five centimeters long by 0.1 centimeters wide. It was noted that the scars were well healed, non-tender, and non-keloidal. The scars also were not painful or unstable; did not have a total area equal to or greater than 39 square centimeters; were not located on the head, face, or neck; and did not interfere with movement of the foot. The Veteran reported regular use of a walker. The examiner indicated that the functioning in the left foot was not so diminished that amputation with prosthesis would equally serve the Veteran. Lastly, the examiner noted that the Veteran’s condition impacted his ability to work, noting his mobility is dependent on the use of a rolling walker due to pain in the left foot and ankle when bearing weight. On the June 2017 Form 9, the Veteran reported use of a walker because of his left foot disability. He stated that he wears special shoes and has to pay a podiatrist to cut his toenails. He also reported that he has little functionality in his foot and has to seek help from outside experts to do anything besides routine care. VA treatment records also provide information regarding the Veteran’s condition. For example, an October 2014 record notes antalgic gait with the assistance of a rolling walker. It was also noted that physical examination revealed varus deformity to the left lower extremity with slight adduction of forefoot and muscle strength of 4/5. The Veteran was diagnosed with severe degenerative joint disease. A November 2015 note indicates the Veteran reported left foot tingling, burning, and pain. It was also noted that the Veteran was evaluated for diagnoses that place him at risk for lower extremity amputation and that it was determined the Veteran has a high risk non-diabetic diagnosis that elevates him to the highest risk level for lower extremity amputation. Disabilities noted during such treatment included arthritis, gout, and peripheral neuropathy. Another note reflects that the Veteran presented for left foot pain. It was noted that his foot is deformed and that he has a custom brace. It was also noted that sensation was intact, that his muscle strength was 5/5, that left foot cavovarus deformity was noted on x-ray, and that there was increased sclerosis and flattening of the talus. An October 2018 note reflects that the Veteran reported undergoing surgeries on his left foot, pain, taking hydrocodone, and using a walker. It was also noted that there was limited range of motion in the left foot. Private medical records from November 2018 indicate the Veteran had a wound on his left foot. It was noted that the area was excised and drained and that a lot of “white stuff” was taken out of the area. Another record indicates the presence of bacteria in his left foot wound and the use of a special shoe. A December 2018 note indicates part of the Veteran’s left foot was cut open due to a gout flare up. A January 2019 record notes an ulcer on the left foot. In July 2019, the Veteran was treated for the left foot ulcer and had 15 grafts placed. It was noted that there was mild drainage from the ulcer. In September 2019, the Veteran underwent an additional VA examination. The examiner noted diagnoses including bilateral hammer toes, degenerative arthritis of the left foot, and left foot talipes varus. During the examination, the Veteran complained of constant pain in his left foot and ankle that is aggravated by standing and walking. He reported use of a rolling walker due to pain with walking. He also reported the onset of a neuropathy feeling and indicated that his left foot started leaking on the top, noting that he just completed 17 skin grafts but still had a hole in his foot. He reported going to wound care and being turned over to infectious diseases, noting that the infectious disease doctor debrides his foot and that the hole was getting smaller. The Veteran reported pain and functional loss but denied flare ups. The examiner indicated that the Veteran’s left foot condition was moderately severe and chronically compromised weight bearing but did not require arch support, custom orthotic inserts, or shoe modifications. During physical examination of the foot, the Veteran reported experiencing pain. The examiner noted that less movement than normal, excess fatigability, incoordination, pain on weight and nonweight bearing, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with standing, and lack of endurance contributed to the Veteran’s disability. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability and did not cause any other functional loss during flare-ups or when the foot is used repeatedly over time. The examiner also noted that the Veteran uses a walker constantly and that functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner further noted that radiographic examination of the left foot completed in September 2014 revealed a hallux valgus with joint space narrowing and degenerative change of the first metatarsophalangeal joint, small metallic wires in the base of the first metatarsal, hammertoe deformity, severe deformity of the tarsal bones and the ankle joint medial angulation of the tarsal bones old calcaneal fracture with a staple in place, and old bony deformity of the talar dome and ankle joint. It was noted that the Veteran’s condition did not impact his ability to work. In October 2019, the Veteran underwent a VA Ankle examination. A review of the examination report reflects that, during the examination, the Veteran reported having an infection on his left foot, 17 skin grafts, and undergoing antibiotic treatment. He indicated that he was currently experiencing pain in his left foot and that the wound was not healing. Additionally, he reported increased pain with movement of his foot. The examiner noted that the plantar surface of the medial foot was at least three centimeters off the flat surface when the Veteran is standing. On a VA Foot examination conducted in September 2020, the examiner noted diagnoses including hammer toes, degenerative arthritis of the left foot, and left foot talipes varus and indicated that hammer toes and arthritis were related to the left foot talipes varus. The Veteran reported continued problems with his left foot, noting that he had undergone three surgeries and that the most recent surgery removed all cartilage. The Veteran complained of constant pain but denied flare-ups and functional loss. The examiner noted the Veteran’s condition was moderately severe; chronically compromised weight bearing; and did not require arch supports, custom orthotic inserts, or shoe modifications. Physical examination of the left foot did not show pain on examination. The examiner noted, however, that less movement than normal, excess fatigability, pain on weight and nonweight bearing, swelling, deformity, and lack of endurance contributed to the Veteran’s disability. The examiner also noted pain, weakness, fatigability, or incoordination limits functional ability with repeated use over time, noting that the Veteran’s condition limits endurance and mobility. It was noted that the Veteran’s condition caused regular use of a rolling walker to relieve weight on his left foot. The examiner indicated that functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner also reported that the Veteran’s condition impacted his ability to work because the condition limits his endurance and mobility. After review of the evidence, the Board concludes a preponderance of the evidence is against finding a rating in excess of 30 percent is warranted for the Veteran’s service-connected left foot talipes varus. As noted above, a 40 percent rating requires evidence of actual loss of use of the foot, which has been defined as no effective function remaining other than that which would be equally well served by an amputation. Here, the evidence indicates the Veteran’s left foot talipes varus has been manifested by severe symptoms including constant pain, deformity, atrophy of disuse, swelling, less movement than normal, excess fatigability, incoordination, pain on weight and nonweight bearing, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. Additionally, his condition requires use of a rolling walker to assist him with mobility. However, a preponderance of the evidence is against a finding that the service-connected left foot talipes varus is consistent with actual loss of use of his foot. Specifically, the February 2015, October 2015, September 2019, and September 2020 VA examiners indicated that functioning in the Veteran’s left foot was not so diminished that amputation with prosthesis would equally serve the Veteran. The Board acknowledges the November 2015 VA treatment record which indicated that the Veteran was determined to have a high risk non-diabetic diagnosis that elevates him to the highest risk level for lower extremity amputation. However, the record did not specifically identify his left foot talipes varus as the diagnosis that creates a high risk of amputation. Thus, the Board finds the reports of the February 2015, October 2015, September 2019, and September 2020 VA examiners more persuasive regarding this matter, as they specifically address whether the Veteran’s service-connected left foot disability would cause actual loss of use of the foot. Consequently, a 40 percent rating is not warranted. In addition, the Board has considered whether the Veteran is entitled to a separate or higher rating under any other applicable DC of the rating schedule. 38 C.F.R. § 4.71a, DCs 5276-5284. To this end, the Board initially notes that the Veteran is already in receipt of a noncompensable rating for left foot hammertoes (DC 5282) and that rating is not currently before the Board on appeal. The Veteran does not have a diagnosis of or symptoms approximating pes planus (DC 5276), weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux rigidus (DC 5281), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Regarding hallux valgus, radiographic examination of the left foot conducted in September 2014 showed hallux valgus. Additionally, February 2015 and October 2015 VA examination reports indicate the Veteran underwent a left foot procedure (arthrotomy for septic arthritis) in March 2013 and that the operation resulted in residuals, including deformity of the left foot with hallux valgus of 10 degrees medially. As it appears the hallux valgus is related to the left foot talipes varus with degenerative joint disease, the Board has considered whether the Veteran would be entitled to a separate compensable rating for hallux valgus under DC 5280. DC 5280 provides for a 10 percent rating for unilateral hallux valgus operated with resection of the metatarsal head or severe hallux valgus, if equivalent to amputation of the great toe. Although the evidence indicates the Veteran has hallux valgus of 10 degrees medially, the preponderance of the evidence of record is against a finding that there has been resection of the metatarsal head or that hallux valgus manifests in severe symptoms that are the equivalent of amputation of the great toe. Therefore, the Board concludes, that the evidence does not more nearly approximate findings for a separate compensable rating for hallux valgus under DC 5280. The Veteran and his representative contend the Veteran is entitled to a separate rating under DC 5003 for his left foot degenerative arthritis. In this regard, the record contains a diagnosis of left foot arthritis, as noted in February 2015, September 2019, and September 2020 VA examination reports. The September 2019 VA examiner specifically opined that the left foot arthritis was at least as likely as not due to his service-connected talipes varus as the talipes varus chronically compromises his gait, causing him to develop traumatic degenerative changes of his left foot. Therefore, the left foot arthritis is considered to be part of his talipes varus condition. However, the Board finds that a separate rating for arthritis is not warranted. The Veteran’s 30 percent rating under Diagnostic Code 5284 contemplates his symptoms of pain; therefore, assigning a separate 10 percent rating under DC 5003 would constitute pyramiding as he would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14. Similarly, a separate evaluation would not be warranted under DC 5003 based on X-ray findings, as the Veteran’s arthritis is already being compensated based on symptoms the arthritis causes, including pain and other factors in 38 C.F.R. § 4.59, such as functional impairment from less movement than normal, excess fatigability, incoordination, pain on weight and nonweight bearing, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. See Southall-Norman, 28 Vet. App. 346. Hence, evaluation of left foot arthritis based on X-ray findings would not be appropriate. See 38 C.F.R. § 4.71a, DC 5003, Note (1). The Board has also considered whether the Veteran is entitled to a separate rating for any left foot scar. An October 2015 examination report notes two lateral scars on the left foot area (one scar is three centimeters by 0.1 centimeters and the other is five centimeters by 0.1 centimeters) and that the scars were well-healed, non-tender, non-keloidal, and do not interfere with the joints of the foot. As there is no evidence that the scars were painful/tender, unstable, deep, nonlinear, covered an area of 144 square inches or more, or limited function of the left foot in any way, a separate, compensable rating for the left foot scars cannot be assigned. See 38 C.F.R. § 4.118, DCs 7801-7805.   Consequently, a rating in excess of 30 percent for left foot talipes varus is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 REASONS FOR REMAND Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, several VA examiners opined that the Veteran’s left foot talipes varus impacted his ability to work in that he would have had difficulty performing physical activities due to his limitations with mobility and that his endurance was affected. Thus, the issue of TDIU has been raised in the context of this appeal. However, the claim has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, a remand is required to allow the AOJ to consider the merits of the claim in the first instance. The matters are REMANDED for the following action: Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating, to   include consideration of whether referral for an extraschedular evaluation under 38 C.F.R. § 4.16(b) is required. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.