Citation Nr: 21009674 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-14 410A DATE: February 23, 2021 ORDER Entitlement to an increased rating of 20 percent, but not higher, for service-connected residuals status post pinning metacarpophalangeal joints of the 2nd through 4th toes (“left foot disability”), prior to November 1, 2018, is granted. Entitlement to a rating higher than 20 percent for service-connected residuals status post pinning metacarpophalangeal joints of the 2nd through 4th toes (“left foot disability”), since November 1, 2018, is denied. Entitlement to a separate compensable rating of 10 percent, but not higher, for left foot (unilateral) hallux valgus, under Diagnostic Code 5280, beginning February 5, 2013, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, throughout the entire appeal period, the Veteran’s left foot disability symptoms have manifested to, at most, a moderately severe severity level. 2. Resolving all reasonable doubt in favor of the Veteran, beginning February 5, 2013, the Veteran demonstrated left foot hallux valgus with resection of metatarsal head. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 20 percent, but not higher, for service-connected residuals status post pinning metacarpophalangeal joints of the 2nd through 4th toes (“left foot disability”), prior to November 1, 2018, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for entitlement to a rating higher than 20 percent for service-connected residuals status post pinning metacarpophalangeal joints of the 2nd through 4th toes (“left foot disability”), from November 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5276. 3. The criteria for entitlement to a separate compensable rating of 10 percent, but not higher, for left foot (unilateral) hallux valgus, under Diagnostic Code 5280, beginning February 5, 2013, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§§ 4.1, 4.2, 4.3, 4.21, 4.71a, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1980 to May 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The matter of an increased rating for left foot disability was previously before the Board in September 2018, where it was remanded for additional development. The Board notes that there was substantial compliance with its September 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to an increased rating of 20 percent, but not higher, for service-connected residuals status post pinning metacarpophalangeal joints of the 2nd through 4th toes (“left foot disability”), throughout the entire appeal period. The Veteran contends that, throughout the entire rating period on appeal, he is entitled to an increased disability rating for his service-connected left foot disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See id at 126. Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 37–38; see 38 C.F.R. § §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. § §§ 4.40 and 4.45 includes 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). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. § §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). The Veteran’s left foot disability is currently rated under DC 5284 (contemplates general foot injuries), to which he is in receipt of a 10 percent disability rating prior to November 1, 2018, and a 20 percent disability rating thereafter. 38 C.F.R. § § 4.71a, DC 5284. Pursuant to DC 5284, a 10 percent disability rating is assigned for foot injury symptoms of a moderate severity level; a 20 percent disability rating is assigned for foot injury symptoms of a moderately severe level; and a 30 percent disability rating is assigned for foot injury symptoms of a severe level. The Note to DC 5284 indicates that a maximum 40 percent disability rating will be assigned for actual loss of use of the foot. Id. “Loss of use of a 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 will be 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. Other potentially applicable diagnostic codes (5276 through 5283) allow for a separate compensable and/or increased rating for the Veteran’s left foot disability symptoms and must be also considered. However, as an initial matter, the Board notes that the evidence during the appeal period does not reflect diagnoses of weak foot, claw foot, anterior metatarsalgia, or malunion of the tarsal or metatarsal bones for consideration under DCs 5277, 5278, 5279, or 5283. Additionally, consideration under DC 5276 and 5282 is also not warranted, as the Veteran’s diagnosed bilateral pes planus and left foot hammer toe symptoms have already been separately rated and contemplated under their appropriate DCs 5276 and 5282, and thus consideration of these symptoms with respect to the Veteran’s current left foot disability claim would constitute pyramiding which is prohibited. See 38 C.F.R. § 4.14. After review of the record, the Board finds that a rating of 20 percent, but no higher, under DC 5284 is warranted throughout the entire period on appeal Medical treatment records throughout the appeal period reflect the Veteran’s complaints and treatment for left foot pain following his initial surgery in 2005, with another surgery on the left great toe occurring in 2010 where it was noted that the toe was not healing well. Evaluations of the left foot revealed pain on palpation at the first MP joint, and MRI/X-rays results revealed postsurgical degenerative changes; however, range of motion testing for the left foot was within normal limits and muscle strength was a 5 out of 5. Lay statements submitted by the Veteran from September 2011 note that his left foot toes are all fused together, which results in difficulty walking and wearing shoes; as well as, reports of him experiencing severe pain in the left foot due to standing and walking for a long time, and doing daily routines. In a February 2013 VA examination, the examiner noted the Veteran has fusion of the left great toe MTP joint, symptomatic (increases in rainy or cold weather), with pain while standing or walking for too long. Upon examination, the examiner found no evidence of left foot Morton’s disease or metatarsalgia, hallux rigidus, pes cavus, weak foot, or other foot injuries. However, the Veteran did have left foot hammer toes and hallux valgus surgery of resection of metatarsal head, but no symptoms due to this condition were noted. The Veteran used a cane for ambulation. See VA Examination, February 2013. In a May 2015 VA examination, the examiner noted the Veteran’s reports of pain of the foot, flare-ups that impact foot function, and functional loss/impairment. Upon examination, the examiner provided no response to a finding of left foot Morton’s disease or metatarsalgia, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or other foot injuries. However, the Veteran did have left foot hammer toes and hallux valgus surgery of resection of metatarsal head, with mild or moderate symptoms. Pain was noted on physical exam that contributes to functional loss, with contributing factors of pain on weight-bearing, disturbance of locomotion, and interference with standing; and weight-bearing was shown to significantly limit functional ability of the left foot during flare-ups. The Veteran did not use any assistive devices as a normal mode of locomotion. In a December 2015 VA examination, the examiner noted the Veteran’s complaints of worsening daily pain in the left foot with thick callus and increased cramping frequency in the toes; as well as, reported severe pain with standing and flare-ups that result in the inability to stand or walk without experiencing pain. Upon examination, the examiner provided no response to a finding of left foot Morton’s disease or metatarsalgia, left foot hammer toes, hallux valgus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or other foot injuries. However, the Veteran did have hallux rigidus of the left foot with symptoms that were of a mild or moderate severity. Pain was noted on physical exam that contributes to functional loss, with contributing factors of pain on weight-bearing, disturbance of locomotion, and interference with standing; and weight-bearing was shown to significantly limit functional ability of the left foot during a flare-ups. The Veteran did not use any assistive devices as a normal mode of locomotion. In a June 2016 VA examination, the examiner noted the Veteran has pain in the medial aspect of the left foot under the great toe that extends across the dorsal aspect of the second through fifth metatarsophalangeal joints, resulting in the use of a cane 3 to 4 times a week, with cold weather increasing left foot pain and decreasing activity; as well as, reported severe pain after standing for a period of time, flare-ups after carrying heavy weights and walking some distances, and functional loss of not being able to stand for more than 30 minutes or walk more than .25 miles without pain. Upon examination, the examiner provided no response to a finding of left foot Morton’s disease or metatarsalgia, left foot hammer toes, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or other foot injuries. However, the Veteran did have hallux valgus and hallux rigidus of the left foot with symptoms that were of a mild or moderate severity. Pain was noted on physical exam that contributes to functional loss, with contributing factors of less movement than normal (with no objective evidence of pain when weight-bearing or observed pain with walking, standing, or non-weight-bearing; and no instability of gait or station), pain on movement, and pain on weight-bearing. Weight-bearing was shown to significantly limit functional ability of the left foot during a flare-ups; with the Veteran having used a cane occasionally as an assistive device for normal mode of locomotion. In a February 2018 VA examination, the examiner noted the Veteran’s reports of experiencing frequent throbbing pain and swelling in the left foot and functional loss/impairment of the inability to stand or walk long without having pain and swelling on the foot. Upon examination, the examiner found no evidence of left foot Morton’s disease or metatarsalgia, left foot hammer toes, hallux rigidus, pes cavus, or malunion or nonunion of tarsal or metatarsal bones. However, the Veteran did have hallux valgus correction surgery of the left foot; with other foot injuries noted of a moderate severity level that does not chronically compromise weight-bearing, however, requires arch supports, custom orthotic inserts or shoe modifications. Pain was noted on physical exam that contributes to functional loss, with contributing factors of pain on weight-bearing. The Veteran used a cane constantly as an assistive device for mobility support. In a November 2018 VA examination, the examiner noted the Veteran’s reports of experiencing pain, aching, cramps with weather changes, and unexpected sharp pains; as well as, flare-ups described as having sharp pain from nowhere, and functional loss/impairment due to walking and standing for too long and carrying heavy stuff. Upon examination, the examiner provided no response to a finding of left foot Morton’s disease or metatarsalgia, left foot hammer toes, hallux rigidus, hallux valgus, pes cavus, or malunion or nonunion of tarsal or metatarsal bones. However, the Veteran did have left foot surgery (status post fusion toes) with residuals of pain, limited range of motion, and fused bones. Pain was noted on physical exam that contributes to functional loss, with contributing factors of pain on movement, pain on weight-bearing, pain on non-weight-bearing, deformity, interference with standing, and fused bones. Walking, standing, weight-bearing, and wearing footwear significantly limits functional ability during flare-ups and when used repeatedly over time. The Veteran did not use any assistive device for normal mode of locomotion. See C&P Exam, November 2018. Subsequently, in a June 2020 VA medical opinion in relation to the severity of the Veteran’s left foot disability during the November 2018 VA examination, the examiner noted that the Veteran’s level of severity was moderately severe. See C&P Exam, June 2020. Considering the foregoing, to include consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that a rating of 20 percent is warranted throughout the entire rating period on appeal. While the evidence of record prior to November 2018 reveals VA examiners assessing the Veteran’s left foot severity of a moderate nature, the Board finds that the evidence, in its totality, has consistently reflected that the Veteran’s left foot symptoms increased in pain and/or severity to warrant an increased evaluation commensurate of a moderately severe severity level under DC 5284. The evidence of record (to include VA examinations and the Veteran’s lay statements) reveals the Veteran has consistently and constantly experienced left foot pain and functional loss that interferes with his ability to stand, walk, and/or wear shoes; which results in him having to use a cane most times for ambulation. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased rating of 20 percent, but not higher, is warranted throughout the entire rating period on appeal. However, the Board notes that an increased rating exceeding 20 percent under DC 5284 is not warranted during any period on appeal, as the Veteran’s symptoms do not show manifestations commensurate of a severe level or manifestations of actual loss of use of the left foot. The Board has also considered other applicable DCs pertaining to the Veteran’s left foot disability claim, specifically DC 5280 and 5281, for evaluation of an increased and/or separate rating. In several VA examinations, the Veteran was diagnosed with hallux rigidus in the left foot which would warrant consideration under DC 5281 (pursuant to DC 5281, hallux rigidus is to be rated as hallux valgus, severe. 38 C.F.R. § 4.72, DC 5280); however, as the examiners did not note, nor does the record otherwise reflect, that this condition is of a severe severity level, the Board finds that an increased and/or separate rating for this condition under DC 5281 is not warranted. Nevertheless, the Board notes that the VA examiners of record, beginning February 2013, have consistently noted that the Veteran has hallux valgus of the left foot, which warrants consideration under DC 5280, unilateral. Pursuant to DC 5280, a 10 percent disability rating is warranted for hallux valgus operated with resection of metatarsal head; and the highest disability rating of 20 percent is warranted for several unilateral hallux valgus, if equivalent to amputation of great toe. 38 C.F.R. § 4.72, DC 5280. Here, the evidence reflects that the Veteran had left foot hallux valgus surgery with resection of the metatarsal head of mild or moderate symptoms, beginning February 5, 2013. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that criteria for entitlement to a separate compensable rating of 10 percent, but not higher, under DC 5280, beginning February 5, 2013, has been met. (Continued on the next page) Accordingly, based on the above, the Board concludes that an increased rating of 20 percent, but not higher, for service-connected left foot disability under DC 5284 is warranted throughout the entire period on appeal; and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § § 3.102, 3.310. The Board also concludes that a separate compensable rating of 10 percent, but not higher, for left foot hallux valgus, beginning February 5, 2013, is warranted; and the claim is granted. Id. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.