Citation Nr: 21007853 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-22 701 DATE: February 10, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for service-connected residuals of a fracture of the left calcaneus prior to March 1, 2018 is denied. Entitlement to an increased rating in excess of 20 percent for service-connected residuals of a fracture of the left calcaneus from March 1, 2018 is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes that, prior to March 1, 2018, the residuals of a fracture of the left calcaneus manifested by no more than moderate symptoms. 2. The preponderance of the evidence establishes that, from March 1, 2018, the residuals of a fracture of the left calcaneus manifested by no more than moderately severe symptoms. CONCLUSIONS OF LAW 1. Prior to March 1, 2018, the criteria for an increased rating in excess of 10 percent for residuals of a fracture of the left calcaneus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. From March 1, 2018, the criteria for an increased rating in excess of 20 percent for residuals of a fracture of the left calcaneus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to August 1970 and from January 1971 to September 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated September 2014, which denied the Veteran’s request for a disability rating higher than 10 percent for residuals of a fracture of the left calcaneus under DC 5284. During the pendency of this appeal, in a rating decision dated April 2018, the RO increased the Veteran’s rating to 20 percent under DC 5284, effective March 1, 2018. However, the Veteran is presumed to still be seeking the highest possible rating. The Board notes that this matter was previously before the Board in January 2019 in which the case was remanded for further development and referred the issue of entitlement to service connection for a right knee condition as secondary to his service-connected left calcaneus fracture residuals to the RO, which is still being addressed by the RO. In the January 2019 Board decision, the Board directed the RO to schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran’s symptomatology and functional impairments relating to his left calcaneus fracture residuals. The examiner was requested to specifically measure and record the Veteran’s pertinent ranges of motion of his left foot and ankle and to provide an opinion as to whether a characterization of the Veteran’s limitation of motion of the left ankle (if any) as either “moderate” or “marked” is appropriate. The RO substantially complied with the Board’s January 2019 remand directives when it afforded the Veteran an August 2020 VA examination. Stegall v. West, 11 Vet. App. 268, 271 (1998). Board decisions shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake, supra. In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Disability Ratings Disability ratings are determined by comparing the symptomatology manifested by a particular service-connected disability at issue with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings assess the ability of the body as a whole, or a body system or organ, to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The Rating Schedule is a guide intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Where the question is which of the two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating is assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an increased rating in excess of 10 percent for service-connected residuals of a fracture of the left calcaneus prior to March 1, 2018 2. Entitlement to an increased rating in excess of 20 percent for service-connected residuals of a fracture of the left calcaneus from March 1, 2018 Here, the Veteran is in receipt of a 10 percent disability rating for service-connected residuals of a fracture of the left calcaneus prior to March 1, 2018, and a 20 percent disability rating from March 1, 2018. The Veteran contends that he is entitled to a higher rating based on the degree of pain in his left calcaneus. In the October 2018 informal hearing presentation, the Veteran’s representative asserted that the Veteran’s symptoms worsened when he stopped taking medication and VA recognized this worsening by increasing the Veteran’s disability rating. He contended that since DC 5284 does not consider ameliorative effects of medication, VA cannot consider the ameliorative effect of medication in evaluating the Veteran’s disability. As a result, the representative contends there is no adequate opinion that “discounts the ameliorative effects of pain medication.” The Veteran’s residuals of a fracture of the left calcaneus is rated under 38 C.F.R. § 4.71a, DC 5284. Under DC 5284, a 10 percent rating is warranted for moderate symptoms. A 20 percent rating is warranted for moderately severe symptoms. A 30 percent rating is warranted for severe symptoms. A Note to DC 5284 instructs that the maximum 40 percent rating is appropriate for an actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. According to Merriam Webster Dictionary, “moderate” means “tending toward the mean or average amount or dimension,” www.merriam-webster.com/dictionary/moderate, while “severe” means “of a great degree,” 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, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration 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.”). Further, 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). Moreover, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran underwent VA examinations in July 2014, July 2016, March 2018, and August 2020. The July 2014 examiner did not opine on the severity of the Veteran’s service-connected residuals of a fracture of the left calcaneus. A subsequent September 2014 clarification opinion stated that the Veteran reported left foot pain “mainly in the morning or if he drives > 1 hour (leaves it in one non weight bearing position too long).” He also reported that pain was relieved by moving around and walking. The examiner reported that there was no pain during the physical exam. The September 2014 opinion did not, however, determine the severity of the Veteran’s disability. At the July 2016 examination, the Veteran reported constant daily pain and stiffness, which was worsening with any physical activity; the Veteran also reported that he regularly used a cane. The Veteran reported that he used ibuprofen daily for the pain. He also reported that excessive walking or standing required resting, which alleviated the pain. While the examiner found no contributing factors with limitation of motion, he confirmed the presence of pain on movement and weight-bearing as well as disturbance of locomotion and interference with standing. The July 2016 examiner opined that the severity of the Veteran’s disability was moderate. In support of his finding, the examiner pointed out that the Veteran’s functional impact included being unable to walk distance, stand for prolonged periods or repeatedly use ladders/stairs, participate in impact sports or other impact exercise; able to perform sedentary work tasks; and drive with periodic breaks. Based on the examiner’s thorough review of the Veteran’s claims file, in-person examination, and consideration of the Veteran’s responses provided during the examination, the Board finds the July 2016 examiner’s opinion highly probative. At the March 2018 examination, the Veteran reported that since his July 2016 examination, his left foot “give[s] out,” which has resulted in two falls. The examiner noted that the Veteran described experiencing constant severe daily pain and stiffness. The Veteran reported that he stopped using ibuprofen for pain. The examiner noted that while the Veteran described his pain as “severe,” he uses nothing to alleviate symptoms. The Veteran also stated that he used a cane regularly, but clarified that he continues to work as an ordnance technician, without missing work even with increased foot pain with overuse and in cold damp weather. He reported that he had to take more frequent breaks due to pain. While the examiner found no functional loss during flare-ups or repeated use, he found less movement than normal, pain on movement and weight-bearing, disturbance of locomotion and interference with standing. The March 2018 examiner opined that the severity of the Veteran’s disability was moderately severe because the functional impact included being unable to walk distance, stand for prolonged periods, repeatedly use ladders/stairs, participate in impact sports/impact exercise; able to perform seated sedentary work tasks for prolonged periods of time without an interruption; and able to drive. The examiner’s opinion considered that the Veteran did not take pain medication when evaluating the severity of the Veteran’s symptoms; thus, addressing the Veteran’s representative’s October 2018 contention. Based on the examiner’s thorough review of the Veteran’s claims file, in-person examination, and considering the Veteran’s responses during the examination, the Board finds the March 2018 examiner’s opinion highly probative. At the August 2020 examination, the Veteran reported his ability to tolerate weight-bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising has decreased. The Veteran also reported that, while he continued to use a cane, his use of a cane became occasional. The examiner found the Veteran experienced left foot pain during weight-bearing and non-weight-bearing activities as well as on an active and passive motion. The August 2020 examiner opined the overall severity of the Veteran’s disability has become mild. Based on the examiner’s thorough review of the Veteran’s claims file, in-person examination, and considering the Veteran’s responses during the examination, the Board finds the August 2020 examiner’s opinion probative. The Board acknowledges that the August 2020 examiner observed that the Veteran has experienced certain functional impairment associated with his left foot. However, those symptoms have been rated in connection with the Veteran’s other service-connected left foot disability; and therefore, cannot be factored into the Board’s analysis. In November 2015, the Veteran provided October 2015 private treatment records from Dr. A.F., an orthopedist. During the examination with Dr. A.F., the Veteran reported that he was doing well until about 10 years ago. He stated he experienced sharp left foot pain at times, severe in intensity and not constant. He reported activity makes it worse while inactivity including rest makes it slightly better. Dr. A.F. opined that “[u]sing the AMA Guides to the Evaluation of Permanent Impairment Sixth Edition on page 506 Table 16-2 the patient has subtalar joint arthritis with no cartilage interval remaining. Rating for him would be 24 percent based on this guideline and his clinical examination today.” Since Dr. A.F. conducted an in-person examination and considered the Veteran’s responses during the examination, the Board finds the Dr. A.F.’s opinion probative. In October 2017, the Veteran provided a September 2017 follow-up opinion from Dr. A.F. stating that did he did not see any significant changes since his prior examination in October 2015. Notably, while the Veteran asserted that his pain was getting worse, Dr. A.F. opined that he would not change his prior impairment rating “based on my examination today.” Since Dr. A.F. conducted an in-person examination and considered the Veteran’s responses during the examination, the Board finds the Dr. A.F.’s opinion probative. In addition to the medical opinions, the Veteran provided several lay statements, specifically from himself, his wife, and four acquaintances. In his lay statement accompanying the Veteran’s September 2015 notice of disagreement, the Veteran opined that his symptoms were moderate to severe in light of limited mobility in the left foot due to pain after periods of inactivity (driving or sleeping) and that the limitation was most noticeable in the morning. At an October 2017 hearing before a Decision Review Officer, the Veteran testified that his job requires him to be on his feet, and that his left foot pain worsened as he got older. He pointed out that, if a person is on his/her feet, the feet would hurt, while they would not hurt when the person would be driving. The Veteran also clarified that he had to stop taking pain medication because it caused inflammation in his GI tract, which has resulted in him experiencing sporadic sharp pain. He also pointed out that he was careful walking on stairs and carrying heavy objects. The Veteran further testified that he used his cane occasionally, and mostly did not need it. The Veteran is competent to report his readily observable symptoms, his firsthand experiences, and report past recollections. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s September 2015 statements about his symptoms are credible even though the Board notes that the Veteran’s testimony that driving does not cause him left foot pain is inconsistent with his report to the September 2014 examiner that unlike walking, standing and climbing, driving does cause the Veteran pain. Accordingly, the Board finds the Veteran’s statements probative. In October 2017, the Veteran provided a May 2017 lay statement from his wife. His wife opined that the severity of the Veteran’s disability increased because he began to shuffle his left foot and, in the morning or after sitting, he had a problem walking. The wife is competent to report her firsthand knowledge and observations. Jandreau at 1377. See Layno at 469. The wife’s statement about her observations are credible because they are consistent with the other evidence of record. Accordingly, the Board finds the wife’s statement probative. Additionally, in October 2017, the Veteran provided a September 2017 statement from S.K., who stated the Veteran had “good days and bad days” since S.K. observed the Veteran struggling to keep up with others when “out and about.” S.K. stated that the Veteran could only stand or walk for short periods of time. He also stated that the Veteran uses a cane at times. S.K. recited statements told to him made by the Veteran. S.K. is competent to report his firsthand knowledge and observations. Id. S.K.’s statement about his observations are credible because they are consistent with the other evidence of record. However, the portion of S.K.’s lay statement that presents a mere recital of the Veteran’s statements are of low evidentiary value for the purposes of the Board’s analysis since that portion does not reflect S.K.’s observations and, as noted above, the Board has already found the Veteran’s reports competent, credible, and probative. Similarly, in October 2017, the Veteran provided a May 2017 statement from S.S., who stated she observed the Veteran experiencing a substantial limitation of mobility at the beginning and at the end of the day. S.S. is competent to report her firsthand knowledge and observations. Id. S.S.’s statement about her observations are credible because they are consistent with the other evidence of record. Accordingly, the Board finds the S.S.’s statement probative. Moreover, in October 2017, the Veteran provided an April 2017 statement from D.R., who opined that the Veteran’s quality of life deteriorated due to left foot pain and that he started using a cane. However, the D.R.’s statement was largely conclusory and cannot be reconciled with the Veteran’s report of his progressive reduced use of his cane. Accordingly, the Board allocates low probative value to D.R.’s statement. Likewise, in October 2017, the Veteran provided a June 2017 statement from R.P., who recited what the Veteran has told him without any firsthand knowledge or observation. Accordingly, the Board allocates low probative value to R.P.’s statement. In analyzing the medical and lay evidence regarding the severity and functional impairment of the Veteran’s disability on appeal, the Veteran’s September 2015 lay statement is consistent with Dr. A.F.’s October 2015 opinion. Critically here, Dr. A.F.’s October 2015 and September 2017 opinions of a 24 percent rating is less favorable to the Veteran than the July 2016 examiner’s opinion determining his disability as moderate since 24 percent is less than average, which is the meaning of the word moderate, as detailed above. The July 2016 examiner’s opinion constitutes a 10 percent rating under DC 5284. The probative October 2017 lay evidence describing the Veteran’s functional loss were addressed in the March 2018 examiner’s opinion. The March 2018 examiner opined the severity as moderately severe, which constitutes a 20 percent rating under DC 5284. The August 2020 examiner’s opined that the severity of his disability on appeal did not meet the criteria for a severe impairment or 30 percent rating, but found symptomatology for additional foot conditions as explained above. Based on the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for residuals of a fracture of the left calcaneus prior to March 1, 2018. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by probative lay statements would not result in symptoms more nearly approximating moderately severe prior to March 1, 2018. Further, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s disability on appeal from March 1, 2018. The Board notes the Veteran’s lay reports of symptoms and that there was functional loss due to constant pain and stiffness. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by probative lay statements would not result in symptoms more nearly approximating severe from March 1, 2018. Additionally, there is no evidence to support that the Veteran’s symptoms and function loss due to constant pain and stiffness demonstrates severe impairment constituting a 30 percent rating. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for residuals of a fracture of the left calcaneus prior to March 1, 2018, and a rating in excess of 20 percent from March 1, 2018. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.