Citation Nr: 21009932 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-34 524 DATE: February 23, 2021 ORDER 1. Entitlement to an increased initial rating prior to May 30, 2012, in excess of 20 percent for a left-foot condition is denied. 2. Entitlement to an increased post-convalescent rating from December 1, 2012, in excess of 30 percent for the left-foot condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes that, prior to May 30, 2012, the left-foot condition manifested by moderately severe symptomatology. 2. The preponderance of the evidence establishes that, from December 1, 2012, the left-foot condition manifested by severe symptoms but has not presented an unusual disability picture. CONCLUSIONS OF LAW 1. Prior to May 30, 2012, the criteria for an increased initial rating in excess of 20 percent for the left-foot condition 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, 4.124a, Diagnostic Codes (DCs) 5284, 8525. 2. From December 1, 2012, the criteria for an increased post-convalescent rating in excess of 30 percent for the left-foot condition 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, 4.124a, DCs 5284, 8525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 2005 to April 2010. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, which assigned a 20 percent initial rating for the Veteran’s left-foot condition from the date of the award of service connection for this disability in April 2010 to the date of the Veteran’s left-foot surgery on May 30, 2012 (initial rating period), following which the Veteran’s disability was assigned a surgery-based total convalescent rating, upon the expiration of which the Veteran was assigned a 30 percent rating from December 1, 2012 (post convalescent period). In May 2018, the Board remanded these matters to the RO upon noting that, during “a May 2017 VA medical examination, the Veteran . . . indicated that he was receiving . . . treatment from Dr. Fishman for his left foot,” and – while the record “contains treatment records signed by Dr. Fishman,” these records had been “printed in March 2016 and are dated prior to that time.” The record demonstrates that, following the Board’s remand, the RO repeatedly requested the Veteran to provide information and the required forms to obtain his treatment records from Dr. Fishman. However, the Veteran neither provided the information nor executed the requested forms. Moreover, the Veteran’s VA treatment records associated with the claims file in November 2019 and July 2020 demonstrate that he is no longer treated by Dr. Fishman. Accordingly, the Board is without a basis to conclude that the RO failed to substantially comply with the May 2018 remand order within the meaning of Stegall v. West, 11 Vet. App. 268 (1998). The Board, therefore, proceeds with the substantive analysis of the Veteran’s claims. Generally, disability ratings are determined by comparing a 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. See 38 C.F.R. § 4.10. The disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, i.e., upon the industrial handicap that must be overcome and not from an individual’s success in overcoming it. 38 C.F.R. § 4.15. Where there is a question as to which of two disability ratings shall be applied, the higher disability rating is assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. All potential applicable diagnostic codes must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here, the Veteran’s left-foot condition is rated under DC 8525-5284. 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. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition, based on which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Here, the Veteran’s left foot condition presents a residual condition. Accordingly, the emphasis of the Board’s analysis is on the criteria set forth in DC 5284. However, out of an abundance of caution, the Board also factors DC 8525 into its analysis. The Board, however, notes that the Board’s careful review of evidence did not reveal that the Veteran’s left-foot condition warrants a rating under a DC other than DC 8525-5284. This is so because the Veteran’s disability at issue does not involve flatfoot, or a foot impairment contemplated by DCs 5277-5283. Thus, the most applicable DC for evaluation of the Veteran’s disability is DC 5284 that governs “other” foot injuries. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019). Under DC 5284, a 10 percent rating is assigned for a “moderate” foot injury. A 20 percent rating requires a showing of a “moderately-severe” foot injury. And a “severe” foot injury warrants a 30 percent rating. (A Note in DC 5284 explains that a 40 percent rating is assigned only for an actual loss of the use of the foot.) The Board is mindful that, while dictionaries define the term “moderate” as “tending toward the mean or average amount,” see, e.g., www.merriam-webster.com/dictionary/ moderate, and the terms “severe” is defined as that “of a great degree,” www.merriam-webster.com/dictionary/severe, such terms as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Thus, rather than applying a mechanical formula, the Board evaluates all the evidence so that its decision would be equitable and just. 38 C.F.R. § 4.6; Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Notably, DC 8525, which governs injuries of posterior tibial nerve, sets forth an analytically similar criteria in the sense that a 30 percent rating is warranted for complete paralysis of the nerve, while “severe” incomplete paralysis warrants a 20 percent rating, and “mild” or “moderate” incomplete paralysis warrants a 10 percent rating. Since, here, the record is not in dispute that the Veteran’s left-foot condition does not involve an actual loss of the use of the foot, the highest schedular rating available is that under DC 5284, i.e., a 30 percent rating applicable to “severe” symptoms. The foregoing, however, does not mean that a higher rating could not be assigned on an extraschedular basis, assuming such a rating is warranted. That said, the Board may not assign an extraschedular rating in the first instance: it must specifically adjudicate whether to refer a case for extraschedular evaluation if the issue is expressly raised by the claimant or reasonably raised by the record. Barringer v. Peake, 22 Vet. App. 242 (2008). Moreover, in considering whether an extraschedular rating may be warranted, the Board must first determine whether the available schedular rating criteria are inadequate and – if so – whether the Veteran’s left-foot condition exhibits an exceptional disability picture indicated by such factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). In his November 2020 Appellant’s Brief, the Veteran’s representative asserted that the Veteran’s left-foot condition warranted a rating in excess of 30 percent effective December 1, 2012. Given that, here, the highest schedular rating available is a 30 percent rating under DC 5284 (since the Veteran did not lose the use of his left foot), the Board construes the Veteran’s representative’s assertion as a claim for an extraschedular referral as to the post-convalescent rating period. Reflecting on that post-convalescent rating period, as well as on the initial rating period, the Veteran reported to a May 2017 VA examiner (who also conducted the March 2016 VA examination) that the Veteran had developed his left-foot condition in service, and – in 2009 – was diagnosed with neuroma. The Veteran also reported that he had a Morton’s neuroma surgical procedure in January 2010, i.e., prior to the initial period on appeal, and – after the January 2010 surgical pain subsided prior to the date of service connection – the level of pain in his left foot returned to that the Veteran had experienced prior to the January 2010 surgery. The Veteran further reported that he had another surgery on May 30, 2012, which triggered the total rating assigned during his convalescence period that expired on November 30, 2012. The Veteran opined that the May 30, 2012, surgery was unsuccessful since, after the surgical pain subsided, and the post-convalescent period was triggered on December 1, 2012, he began experiencing a markedly greater level of pain than that experienced prior to the May 30, 2012, surgery. The Veteran described the pain he has been experiencing since December 1, 2012, i.e., during the post-convalescent period, as “sharp,” “burning,” “throbbing,” “stabbing,” and “ripping,” and clarified that, throughout a day, the pain was steadily increasing, being at the level of three (on the scale from one to ten) in the morning, reaching the level of five to six in the afternoon, and then reaching the level of six to eight in the evening. The Veteran further pointed out that he has been experiencing two to three, and occasionally up to four or five, flareups per day, and the level of his flareup pain was at the level of nine to 10. The Veteran, however, stated that he was able to perform “the essential duties of his job as an automotive mechanic,” even though his duties required him to stand on his feet about 50 percent of the time. The Veteran explained that, during the periods of flareups, which usually lasted two to three minutes, he was stopping production and lifting his left foot off the ground, until the flareup subsided, or sitting down and applying ice for 15 to 20 minutes if the lifting was insufficient. The Veteran further reported that, by 2017, he lost the ability to hyperextend his left foot or walk barefoot due to the left-foot pain, and he began shifting his body weight to his right foot to accommodate his left-foot condition. The Veteran clarified that, on the average, he was taking about two days off work per month because of his left-foot pain. The Veteran, however, did not assert – and the record does not suggest – that he was hospitalized or bedridden during the days he was taking off work. (In July 2020, the Veteran was examined by his treating VA medical practitioner and reiterated the report he provided to the VA examiner.) The Board finds the Veteran’s reports to the VA examiner and the Veteran’s treating VA medical practitioner competent, credible, and highly probative. These reports demonstrate that, during his post-convalescent period, the Veteran’s left-foot condition manifested by symptoms that would be best described as “severe.” Therefore, under the Rating Schedule, the Veteran’s left-foot condition warrants the maximum 30 percent rating under DC 5284 during the post-convalescent period. Hence the Veteran’s claim for an increased rating during that period could be granted only following a referral for an extraschedular rating. However, the Board is without a basis to refer the Veteran’s left-foot condition for an extraschedular rating. While the Board is deeply sympathetic to the Veteran for his left-foot pain, the Veteran’s disability does not present a unique or unusual picture. Indeed, the record is void of any indication that the Veteran has been frequently hospitalized because of his condition, or at least frequently bedridden. Conversely, the Veteran is permanently employed and performs tasks that require him to remain on his feet for at least 50 percent of his workday. Moreover, the record reveals that, in addition to performing his work duties, the Veteran has been regularly engaging in extensive physical activities associated with execution of Unit Training Assemblies (UTAs), commonly referred to as “drill weekends,” a form of inactive duty for training (INACDUTRA). Specifically, the record shows that, being service connected for his left-foot condition after his initial surgery in 2010, the Veteran still executed 32 UTAs in the fiscal year (FY) 2010. (Because there are two UTAs in a single calendar day, the Veteran spent 16 calendar days, that is, eight weekends, executing UTAs in FY2010). In FY2011, the Veteran executed 64 UTAs, meaning that he spent 16 weekends, that is, four months of weekends, in INACDUTRA. During FY2012, i.e., the year of his second surgery, the Veteran executed 72 UTAs, meaning that he spent 18 weekends, i.e., four months of weekends in INACDUTRA. Further, even though the Veteran reported that his symptomatology increased in severity following his second surgery performed on May 30, 2012, he still executed 87 UTAs in FY2013, i.e., the Veteran spent 43 and a half days – or 23 weekends – engaging in INACDUTRA strenuous activities. In FY2014, the Veteran executed 78 UTAs, meaning that he was in INACDUTRA during every weekend for over four months. In FY2015, the Veteran executed 69 UTAs, meaning that he spent every weekend for almost four months in INACDUTRA. In FY2016, the Veteran executed 54 UTAs, and then 59 UTAs in FY2017, meaning that he spent every weekend in UNACDUTRA for over three months during each of these years. In FY2019, the Veteran executed 83 UTAs, i.e., he was in INACDUTRA during every weekend for about five months. Finally, in FY2020, the Veteran executed 102 UTAs, meaning that he engaged in the strenuous physical activities of INACDUTRA during every weekend for six months, i.e., half a year. Therefore, the Board is without a basis to find that the Veteran’s left-foot condition impacted his functionality in such a unique way as to present an unusual picture of disability requiring the Board to refer his increased-rating claim for an extraschedular evaluation. It follows that a 30 percent rating, which is the maximum rating applicable under DC 5284 to a foot disability other than a loss of the use of the foot is not inadequate to address the Veteran’s left-foot condition. Correspondingly, as to the Veteran’s post-convalescent period from December 1, 2012, his claim for an increased rating in excess of 30 percent is denied. The Board, therefore, turns to the initial rating period that preceded the Veteran’s May 30, 2012, second surgery. As to that period, the Veteran unambiguously reported to the May 2017 VA examiner and his treating VA medical practitioner that his symptoms had been markedly less severe than the symptoms the Veteran experienced during the post-convalescent rating period. Given the high credibility and probative value the Board allocated to the Veteran’s reports, to include his statement that his sharp, burning, throbbing, stabbing, and ripping pain, as well as his daily flareups, manifested only after his May 30, 2012, surgery, the Board is without a basis to qualify the Veteran’s left-foot symptomatology as “severe” during the initial rating period. Correspondingly, the highest rating applicable to the Veteran’s left-foot condition during the initial rating period under DC 5284 is that assigned for the symptoms that are less that “severe.” Such symptoms are “moderately severe,” and they warrant a 20 percent rating under DC 5284. Given that a 20 percent rating is already assigned for the Veteran’s left-foot condition during the initial rating period, his claim for a rating in excess of 20 percent for that period is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.