Citation Nr: 21011322 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-04 893 DATE: March 1, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for degenerative joint disease of the left foot with plantar fibroma (left foot disability) is granted. From July 1, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s left foot disability is manifested by pain on use and on weight bearing and is productive of no more than a moderate impairment of the left foot. 2. Resolving all reasonable doubt in his favor, the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation, from July 1, 2015. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for the Veteran’s left foot disability have 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 Codes 5003, 5269-5284. 2. From July 1, 2015, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1989 to January 1995. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2018 and April 2020, the Board remanded this claim for additional development. In an October 2019 rating decision, the Veteran was granted entitlement to a TDIU, effective June 6, 2019. As a TDIU was not granted for the entire period on appeal, the RO’s decision resulted in only a partial grant of benefits. Therefore, the Veteran’s claim for entitlement to a TDIU remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). 1. Entitlement to an initial compensable rating for the Veteran’s left foot disability. The Veteran seeks entitlement to an initial compensable rating for his left foot disability. Initially, the Board notes that it has recharacterized the issue on appeal. When a claimant makes a claim, he is seeking compensation for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran submitted a claim seeking a compensable rating for his painful left foot, which is currently service connected as degenerative joint disease of the left foot. The medical evidence indicates that the pain in his left foot is due to a plantar fibroma; although the exact etiology of plantar fibromas is unknown, they are related to alcohol consumption. See October 2019 and April 2020 VA examinations. The Veteran’s representative argued in February 2021 that his alcohol consumption was due to his service-connected posttraumatic stress disorder (PTSD). On review of the evidence, a November 2010 VA examination for PTSD diagnosed the Veteran with PTSD with alcohol dependence, explaining that the Veteran’s anxiety symptoms are due to PTSD and his chronic alcohol abuse has been related to his attempts to reduce anxiety. As such, the Board finds the Veteran’s left foot plantar fibroma is attributable to a service-connected disability and therefore, the issue is recharacterized as degenerative joint disease of the left foot with a plantar fibroma. Service connection for a left foot disability was granted in a June 2010 rating decision, at which time a noncompensable rating was assigned, effective December 2009. A notice of disagreement with the rating assigned was received in June 2011. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran’s left foot disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5283. 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. 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Veteran’s foot disability has been rated analogously to Diagnostic Code 5283, for nonunion or malunion of tarsal or metatarsal bones, as x-rays demonstrated degenerative changes of the first metatarsophalangeal joint with some hypertrophic spurring medially. Under Diagnostic Code 5283, a 10 percent rating is warranted for moderate nonunion or malunion of tarsal or metatarsal bones. A 20 percent rating is warranted for moderately severe nonunion or malunion of tarsal or metatarsal bones. A 30 percent rating is warranted for severe nonunion or malunion of tarsal or metatarsal bones. A Note to Diagnostic Code 5283 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Additional Diagnostic Codes pertaining to the foot are Diagnostic Code 5276 for pes planus, Diagnostic Code 5277 for weak foot, Diagnostic Code 5278 for pes cavus, Diagnostic Code 5279 for metatarsalgia (Morton’s disease), Diagnostic Code 5280 for hallux valgus, Diagnostic Code 5281 for hallux rigidus, Diagnostic Code 5282 for hammer toe. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, as it pertains to this appeal, these changes only affect Diagnostic Code 5269, which evaluates plantar fasciitis. The Board will also consider Diagnostic Code 5284, which evaluates other foot injuries. See Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (if a given foot disability is not a listed disability under another Diagnostic Code, the Board must consider whether to rate the foot disability by analogy under Diagnostic Code 5284). As a matter of law, Diagnostic Code 5284 does not apply to the eight-foot conditions specifically listed in § 4.71a, and so listed conditions cannot be rated under that Diagnostic Code as it would constitute an impermissible rating by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injury. A 20 percent rating is assigned for moderately severe foot injury. A severe foot injury warrants a 30 percent rating. A Note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See 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. 38 C.F.R. § 4.45 requires consideration also 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.”). 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). 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.” 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 was afforded a VA examination in March 2010. The Veteran reported left foot pain on the arch where there was a bump, and he stated the pain can occur when walking or standing. He reported no flare-ups, and that he did not use assistive devices or corrective devices to walk, and there was no fatigability with repeated use of the foot. There were no reported effects on usual occupation or daily activities except limitations on walking more than 200 yards and standing for more than two minutes. On examination, the Veteran’s gait was steady. There was no tenderness of the toe joints, no pain with range of motion or additional range of motion due to pain, fatigue, weakness, lack of endurance, or in-coordination following repetitive use, and there was no joint instability of the toes. The foot had no edema, no skin breakdown but some dry skin, callosities on the heels were non-tender, no pes planus (flat foot) was noted, and his shoe wear pattern was lateral heel wear of both feet. The examiner indicated that the x-ray taken of the Veteran’s left foot in the service demonstrated degenerative changes of the first MTP joint and hypertrophic spurring medially. The Veteran testified before the Board in August 2017. He testified that he has pain on motion of the feet between a 5-6 on a scale of 1 to 10. He indicated he had complete range of motion of the ankle and foot and did not use any walking devices or supportive devices. The Veteran asserted that he experiences discomfort and a constant pain in motion. In August 2017, a foot condition Disability Benefits Questionnaire was received from the Veteran’s private treatment provider. The Veteran was diagnosed with bilateral acquired pes cavus, arthritis of the left first MTP joint, left plantar fibroma, and left porokeratosis. The examiner noted that the left plantar fibroma was 2 centimeters (cm) by 6 cm on the medial plantar band and was the area of the Veteran’s pain. It was also noted that the Veteran’s left foot pain was not a recent injury, but he had pain for years with walking on the left medial side. The Veteran did not report flare-ups but indicated that pain limits his activity. The Veteran was noted to have very painful callosities of the left foot and that he had limitation of dorsiflexion at the ankle to right angle, bilaterally due to pes cavus. The examiner indicated the Veteran had left foot pain with mild discomfort, but pain was activity related. He was noted to have pain on movement, pain on weight bearing, disturbance on locomotion, and pain prevented the Veteran from walking and activity. The examiner also noted the Veteran’s left foot disability limits weight bearing activity. The Board remanded this claim in June 2018 to afford the Veteran a new VA examination and for the examiner to attempt to distinguish the symptomatology associated with the left foot disability from the symptomatology caused by any nonservice-connected disorders. The Veteran was afforded a VA examination in October 2019. The Veteran reported he was last seen by podiatry in 2017 for evaluation of foot pain. At that time, he was diagnosed with bilateral pes planus, left plantar fibroma, left foot porokeratosis and arthritis of the left foot. He stated he saw a podiatrist for the purposes of filling out a DBQ for his disability claim. He denied any treatment thereafter. He stated he had not returned for podiatric evaluation since 2017. Currently, the veteran complained only of pain in the medial arch of his left foot. He stated the pain was intermittent, stabbing pain that was worse with excessive walking. He stated resting alleviated his symptoms. He did not wear shoe inserts and indicated that he was offered customized orthotics but refused. He did not take medication for foot pain. He endorsed occasional tingling between the toes of the great toe, second and third. The Veteran reported that when he did work his left foot would swell throughout the day after working 12 hours on his feet, requiring him to soak his feet in Epsom salt baths, but that since retiring he no longer has foot swelling. The Veteran stated he recently had a left hip total arthroplasty and following that surgery he was able to walk 2 miles a day without any issues with his feet. He denied any functional limitation regarding his service-connected left foot condition. The Veteran reported he did not have flare-ups, but that he had functional impairment in the form of pain to the left medial arch with prolonged walking. Examination revealed pain accentuated on use of the left foot, no pain on manipulation of the foot, no swelling on use, and no characteristic callouses. The examiner indicated the Veteran had extreme tenderness of the plantar surface of the foot, but then later clarified that he had a palpable plantar fibroma of the left medial arch, which was mildly tender to palpation. The remainder of the foot exam was normal. The examiner stated there was no evidence of pes cavus of the bilateral feet, explaining that the Veteran stated at the time of this diagnosis he was experiencing cramping in his feet which would cause his toes to draw up like a claw. The symptoms have since resolved. The examiner reported there was pain on weight-bearing, disturbance of locomotion, and interference with standing. Pain, weakness, fatigability, or incoordination does not significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. The Veteran does not use any assistive devices. The examiner stated that prolonged standing and walking exacerbate the Veteran's left foot pain. In conclusion, the examiner stated that the Veteran’s only complaint of foot pain was to the medial arch of the left foot, which is attributable to the left plantar fibroma. The Veteran denied any joint pain to the toes and MTP joints of the left foot and there was no evidence of claw foot/pes cavus on exam. As noted, the Veteran stated he was diagnosed with pes cavus during examination while toes and feet were cramping in 2017 but stated the issue had resolved. There were no skin changes noted on exam to reflect a diagnosis of porokeratosis and the Veteran reported he receives regular pedicures. After considering the medical findings and lay contentions of record, the Board finds the Veteran is entitled to a rating of 10 percent for a moderate foot disability. The disability causes pain on use and on weight bearing and causes functional limitations such as disturbance of locomotion, and interference with standing. In addition, the Veteran indicated the pain from his left foot disability limits his activity. Resolving reasonable doubt in the Veteran’s favor, the Board finds that an initial disability rating of 10 percent is warranted under Diagnostic Code 5283. The Board, however, finds that the functional limitations reported by the Veteran due to this disability do not more nearly approximate “moderately severe” or “severe” limitation to warrant a rating higher than 10 percent. The Veteran’s medical evaluations indicate that he denied flare-ups throughout the course of the appeal. He reported that he did not use a cane or wheelchair, and although he was offered a custom orthotic, he indicated that he did not accept it. Additionally, the Veteran indicated in 2019 that he was not receiving treatment for his foot and was not taking medication for his foot symptoms. Accordingly, the Board finds that the Veteran’s symptoms are no more than moderate in severity, and a rating of 10 percent is appropriate. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s disability is unlisted and rated by analogy. In this regard, Diagnostic Codes 5269 (under the revised criteria) or 5276-5282, 5284, are not applicable, as there is no evidence of plantar fasciitis, flat foot, bilateral weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, or hammer toe attributable to service connected disability. As discussed, although the Veteran was noted to have a diagnosis of pes cavus in 2017, the Veteran indicated in 2019 that at the time of the diagnosis his toes were cramping, and the October 2019 VA examiner explained that the Veteran did not have any evidence of pes cavus. The Board has considered Diagnostic Code 5284; however, the evidence of record does not reflect that the Veteran has any other distinct manifestations that would warrant a separate rating under a different Diagnostic Code from those that are already being compensated. See 38 C.F.R. § 4.14. The Veteran’s disability is manifested by pain and functional limitation, which is contemplated in the 10 percent rating granted by this decision under Diagnostic Code 5283. The October 2019 VA examiner specifically noted that the Veteran’s only complaint was of pain in the medial arch of his foot, due to the plantar fibroma. There are no separate and distinct manifestations that would warrant assignment of separate ratings under additional Diagnostic Codes. Granting separate ratings under additional diagnostic codes for the same manifestation, specifically symptoms of pain, would constitute impermissible pyramiding. 38 C.F.R. § 4.14. In conclusion, resolving reasonable doubt in his favor, a rating of 10 percent, but no higher, is granted for the Veteran’s left foot disability. 2. Entitlement to a TDIU, prior to June 6, 2019. The Veteran seeks entitlement to a TDIU. As noted, the RO granted entitlement to a TDIU, effective June 6, 2019, the date his claim for a TDIU was received. The Board notes, however, by virtue of Rice v. Shinseki, the TDIU claim was part and parcel of the Veteran’s increased rating claim for his service-connected left foot which has been pending prior to June 6, 2019 and stems from a June 2010 rating decision. Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Total disability ratings for compensation may be assigned when a Veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran indicated on his VA Form 21-8940 that he became too disabled to work, and last worked, on June 30, 2015. From June 30, 2015, the Veteran is service connected for the following disabilities: (1) PTSD rated at 50 percent; (2) lumbosacral disc disease at 20 percent; (3) left knee degenerative joint disease at 10 percent; (4) right knee degenerative joint disease at 10 percent; (5) right wrist fracture at 10 percent; and (6) degenerative joint disease of the left foot at 10 percent. The Veteran’s combined evaluation is 70 percent or more, effective April 2010. Thus, the Veteran meets the schedular criteria for a TDIU, from at least the date he became too disabled to work. See 38 C.F.R. § 4.16 (a). As noted in the October 2019 rating decision granting entitlement to a TDIU, evidence submitted by the Veteran’s previous employer shows that the Veteran retired when he was 60 years old in August 2015. The RO indicated that private medical evidence a year earlier in August 2014 documented that his service-connected knee conditions would prevent him from performing work functions and that it was medically necessary for him to be absent from employment. The RO stated that while the private records were prepared by a rheumatologist, the evidence is directed or focused on the knee disorders. Based on this evidence, the RO granted entitlement to a TDIU, effective the date of the TDIU application. However, as noted, based on Rice v. Shinseki, the TDIU claim was part and parcel of the Veteran’s increased rating claim for his service-connected left foot which has been pending for the entire period the Veteran has been unemployed. Accordingly, the Board finds entitlement to a TDIU is warranted, effective the date following his last day of employment. As noted, the Veteran indicated on his VA Form 21-8940 that he last worked on June 30, 2015; however, the Veteran’s employer reported that he last worked on August 31, 2015. The Board resolves all reasonable doubt in his favor and finds entitlement to a TDIU is granted the day following the last day of employment as reported by the Veteran, or July 1, 2015. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.