Citation Nr: 21012393 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-29 843 DATE: March 4, 2021 ORDER A compensable rating for residuals of a fracture of the 2nd and 3rd metatarsal heads of the right foot is denied. A total disability by reason of individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2014, is denied. FINDINGS OF FACT 1. Residuals of a fracture of the 2nd and 3rd metatarsal heads of the right foot have been productive of no more than mild impairment of the right foot. 2. Prior to October 1, 2014, service connection was in effect for an anxiety disorder, rated 50 percent disabling from January 25, 2012; residuals of a fracture of the left medial malleolus, rated 10 percent disabling; cluster headaches, rated 10 percent disabling; and bilateral hearing loss and residuals of a fracture of the 2nd and 3rd metatarsal heads of the right foot, both rated noncompensable. 3. The Veteran reports having four years of college education as well as three masters’ degrees, work experience in planning and operations with the Department of the Army, and that he last worked in 2010. 4. Prior to October 1, 2014, the service-connected disabilities, standing alone, were not shown to be of such severity as to render the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a fracture of the 2nd and 3rd metatarsals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. The criteria for TDIU were not met prior to October 1, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to July 1964, from June 1967 to August 1970, and from November 1984 to January 1998. The appellant, the Veteran’s spouse, has been substituted for the Veteran who died in May 2019. In a May 2019 decision, the Board denied a compensable rating for residuals of the Veteran’s right foot metatarsal head fractures. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Joint Motion for Partial Remand (JMR) by the parties which vacated and remanded the May 2019 board decision for further adjudication consistent with the JMR. The Board’s May 2019 decision also remanded the issue of entitlement to TDIU prior to October 1, 2014, for additional development. That was accomplished and this issue has now been returned for further appellate consideration.   Entitlement to a compensable rating for residuals of a fracture of the 2nd and 3rd metatarsals of the right foot As discussed above, in May 2019, the Board issued a decision that denied a compensable rating for residuals of the Veteran’s right foot metatarsal head fractures. The June 2020 JMR found, however, that the Board should have evaluated the findings of an April 2011 VA examination in making the determination and discussed the applicability of 38 C.F.R. § 4.59. The Board will, therefore, readjudicate the issue on appeal with these instructions in mind. Review of the record shows that service connection for the Veteran’s residuals of a fracture of the 2nd and 3rd metatarsals of the right foot was granted in a November 2011 rating decision. The noncompensable rating was assigned under the provisions of Diagnostic Code 5284, as it was found that moderate symptoms necessary for a compensable rating under the Code were not demonstrated. An examination was conducted by VA in April 2011. At that time, it was reported that the Veteran had sustained a right foot fracture in August 1996. The Veteran complained of pain in his feet, the left more than the right. Symptoms identified included pain and lack of endurance while standing and walking. The pain was located on the lateral side of the foot. On examination of the right foot there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. There was no evidence of hammertoes, hallux valgus or rigidus, skin or vascular foot abnormality, pes cavus, malunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy or other foot deformity. X-ray studies from August 1996 showed fractures of the 2nd and 3rd metatarsal heads of the right foot that were well aligned. The examiner summarized the effects of the Veteran’s bilateral foot disabilities. (The Board notes that service connection is also in effect for left foot injury residuals, the evaluation of which is not currently before the Board for appellate consideration.) The bilateral foot disabilities had a moderate impact on chores, shopping, exercise and traveling. There was a severe impact on recreation and sports were prevented. The foot disabilities had no impact on feeding, bathing, dressing, toileting, grooming, or driving. An examination for pension purposes was conducted in July 2012; the pertinent diagnosis included residuals of a fracture of the 2nd and 3rd metatarsal heads of the right foot. On examination, the Veteran denied current symptoms or treatment of his right foot fracture residuals. He stated that the fractures were healed and did not cause him problems. An examination was conducted by VA in September 2012; the diagnosis was fracture of the 2nd and 3rd metatarsals. The examiner stated that the Veteran’s condition was considered stable since the last evaluation. The Veteran reported having sharp pain in the mornings. The Veteran’s spouse also reported that right foot swelling had been noted during an emergency room visit in August 2012. The Veteran’s current pain level was 0 out of 10. Examination found no metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal or metatarsal bones, or any other foot injury residuals. There was degenerative or traumatic arthritis of the right foot. The examiner described the impact of the Veteran’s foot condition on each of his activities having a mild effect on his chores, shopping, exercise, sports, recreation, and traveling. There was no effect on any other activities and the Veteran did not require any assistive devices. The most recent examination conducted by VA was in December 2018. At that time, the diagnosis remained foot fractures of the right 2nd and 3rd metatarsals. On examination, the Veteran did not report pain or flare-ups of the foot and no functional loss was noted. There was no pain on use or manipulation of the feet. There was no swelling on use or characteristic calluses. There was no tenderness of the plantar surface. There was no decrease of the longitudinal arch height on weight bearing. There was no evidence of marked deformity or marked pronation. The examiner stated he was unable to assess the current severity of symptoms due to the Veteran’s inability to verbally communicate. The examiner indicated that the feet were not affected by foot injuries. There was no impairment on weight bearing. There was no right foot pain on examination. There was no functional loss and no flare-ups. There were no other findings. The Veteran’s right foot metatarsal fractures have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries, a 20 percent rating is warranted for moderately severe other foot injuries, and a 30 percent rating is warranted for other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board notes that as of February 7, 2021, many of the regulations pertaining to evaluations of the musculoskeletal system were amended. While a new Diagnostic Code 5269 was added for evaluation of plantar fasciitis, this is not applicable to the Veteran’s foot disability. Diagnostic Code 5284 was unchanged by the amendments. 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. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. 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 Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s 2nd and 3rd metatarsal head fracture residuals. The record shows that moderate symptoms have not been described at any time during the period of the appeal. While the April 2011 examination report did indicate that the Veteran had moderate impairment of several activities, including chores, shopping, exercise and traveling; the examination itself found no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. Moreover, it is worth noting that both of the Veteran’s feet were examined during this examination, with the Veteran describing his symptoms to be worse in the left than in the right, and therefore these findings refer to the impact of the symptoms from both of his feet. The 2012 evaluations as well as the 2018 evaluation document that the Veteran’s right foot residual fractures were stable, without impairment by foot pain, flare-ups, or functional loss. While it has been argued that a compensable rating should be warranted under 38 C.F.R. § 4.59, the Board notes that this regulation pertains to painful motion, which has not been demonstrated on any of the examinations in the record. On examination in April 2011, there was no evidence of painful motion; in July 2012, the Veteran denied having any symptoms, including pain; in September 2012, his pain was found to be 0 on a scale from 0 to 10; and in 2018, there was no pain found on manipulation of the foot. As such, the Board finds that the Veteran’s right foot fracture residuals have never been productive of moderate impairment. As such, the criteria for a compensable evaluation have not been met in the record. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, but, even considering such lay reports of symptoms and functional loss, the degree of additional limitation reflected by these statements are not shown to result in symptoms more nearly approximating moderate impairment. In conclusion, the Board finds that the preponderance of the evidence is against a rating of 10 percent for residuals of fractures of the 2nd and 3rd metatarsal heads. 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. TDIU prior to October 1, 2014 Prior to his death, the Veteran had a claim for increased rating of his psychiatric disorder, which was shown to interfere with his employability. As such, it was found that he had a pending claim for TDIU at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU was granted by rating decision dated in September 2015, effective October 1, 2014. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. Prior to October 1, 2014, service connection was in effect for an anxiety disorder, rated 50 percent disabling from January 25, 2012; residuals of a fracture of the left medial malleolus, rated 10 percent disabling; cluster headaches, rated 10 percent disabling; and bilateral hearing loss and residuals of a fracture of the 2nd and 3rd metatarsal heads of the right foot, both rated noncompensable. The Veteran’s combined evaluation was 60 percent. In an application for TDIU, the Veteran indicated that he had had four years of college education and master’s degrees in three areas, including in management and architecture. He stated that he last worked for the Department of the Army in planning and operations in 2010. The record shows that the Veteran did not meet the criteria for consideration for TDIU on a schedular basis prior to October 1, 2014. As such, consideration must be given to eligibility on an extraschedular basis. As such, the Board remanded the issue so that an eligibility determination could be made by the Director of the Compensation and Pension service (C&P) in accordance with regulations. 38 C.F.R. § 3.321. In a December 2020 memorandum, the Executive Director of C&P found that, after review of the record, the evidence failed to support the contention that any of the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, prevented gainful employment prior to October 1, 2014. The Board has reviewed the medical evidence prior to October 1, 2014 and similarly finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow a gainful occupation. In this regard, it is noted that the examinations of the Veteran’s feet in 2011 and 2012 showed mild or moderate impairment of the feet as a result of his service-connected disability. On psychiatric examination in July 2014, the Veteran’s anxiety was shown to be associated with symptoms of anxiety, easy fatigability, excessive worry, difficulties with decisions and nightmares. He had depressive symptoms of being withdrawn and depressed; with low energy and feelings of helplessness, hopelessness, and worthlessness that were stated to be differentiated with those symptoms of anxiety. His anxiety symptoms were stated to cause occupational and social impairment with reduced reliability and productivity. At that time, the examiner noted that the Veteran was not capable of managing his financial affairs due to significant symptoms of Alzheimer’s disease. On examination for aid and attendance benefits, conducted in July 2014, the Veteran was noted to be in need of aid and attendance of another by reason of Alzheimer’s dementia, post traumatic stress disorder (PTSD), and Chronic myelogenous leukemia (CLM). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran may well have been unable to engage in substantially gainful employment prior to October 1, 2014, but the record does not demonstrate that this was solely the result of service-connected disabilities. The record does not demonstrate any appreciable impairment in the Veteran’s ability to work as a result of his headaches, foot disorders or hearing loss. While he did have significant impairment from his anxiety disorder, this was not shown to be so impactful that he was unable to engage in all forms of substantially gainful employment. The Board is persuaded that his relatively high levels of academic achievement made him able to perform many types of work so that his service-connected psychiatric disorder did not take his combination of disabilities outside the norm. It is further noted that the Alzheimer’s disease and CLM are not service connected such that any disability associated with those diseases may not be considered in this determination. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for TDIU prior to October 1, 2014, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.