Citation Nr: 21008365 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-42 525A DATE: February 16, 2021 ORDER Entitlement to an initial compensable rating for fracture of the second metatarsal of the left foot (left second toe disability) is denied. FINDING OF FACT The Veteran’s left second toe disability has not been manifested by moderate symptoms involving the foot. CONCLUSION OF LAW The criteria for an initial compensable rating for left second toe disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1997 to July 2001. The claim for service connection for residuals of left foot fracture was granted in an April 2015 rating decision and assigned a noncompensable rating, effective, August 1, 2013, the date that is one year prior to the date of the claim which is allowable as an effective date under Public Law 112-154. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, § 506, 126 Stat. 1165 (2012). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. § Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion applies only when the limitation of motion is noncompensable under the applicable DC. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements. Entitlement to an initial compensable rating for left second toe disability The Veteran contends his residuals of left toe fracture warrants a compensable rating. The Veteran's left foot disability is rated under DC 5284 for foot injuries. A moderate disability warrants a 10 percent rating, moderately severe disability warrants a 20 percent rating, and severe disability warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for the left second toe disability. Specifically, the Board finds the preponderance of the evidence is against a finding that the Veteran’s left second toe disability was manifested by moderate symptoms. For example, the Veteran underwent a VA examination November 2015. During the examination, the Veteran reported occasional pain, but he did not report flare-ups or painful motion. The examiner noted the Veteran was previously treated for a left second toe fracture in 1997. The examiner marked “no” for the Veteran having any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the diagnosis section which documented only the previously treated left second toe fracture. The examiner noted pain on examination, but it did not cause functional loss. The examiner wrote there was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups or with repeated use. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. § 4.59, but the record does not reflect that the Veteran has complained of painful motion. At worst, he has reported occasional pain, which the November 2015 examiner found caused no functional loss. The examiner also documented the Veteran had no other pertinent physical findings, complications, conditions, signs or symptoms related to the left second toe disability. Since painful motion has not been raised by the record, 38 C.F.R. §§ 4.59 consideration for painful motion is not warranted. The Board has considered whether a compensable disability rating would be appropriate under alternative DC provisions. The Board notes that the rating criteria applicable to the foot was revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76464 (Nov. 30, 2020). When regulations are revised during the course of an appeal, as here, the Board is required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the claimant. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change; there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recent revision added DC 5269 (plantar fasciitis). The file does not demonstrate a diagnosis of, or treatment for, other disorders of the feet attributable to the service-connected left second toe disability, to include DC 5269 (plantar fasciitis), DC 5276 (acquired flatfoot), DC 5277 (bilateral weak foot), DC 5278 (acquired claw foot), DC 5279 (anterior metatarsalgia), DC 5280 (hallux valgus), DC 5281 (severe, unilateral hallux rigidus), DC 5282 (hammer toe), or DC 5283 (malunion or nonunion of the tarsal or metatarsal bones). For the reasons explained above, the Board finds that the preponderance of the evidence is against the claim for entitlement to a compensable rating for the Veteran's service-connected left second toe disability. As the preponderance of the evidence is against the claim for a compensable rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for a compensable rating for the left second toe disability is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.