Citation Nr: 21014127 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-06 939 DATE: March 11, 2021 ORDER A disability rating in excess of 10 percent for a right foot disability is denied. A compensable disability rating prior to January 24, 2014 for headaches is denied. A disability rating of 30 percent for headaches from January 24, 2014 to June 6, 2016 is granted. A disability rating of 30 percent for headaches prior to August 29, 2018 and in excess of 50 percent thereafter is denied. A total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right foot disability does not manifest moderately-severe or severe residuals of a right foot injury. 2. The Veteran’s headaches did not manifest characteristic prostrating attacks and were not productive of severe economic inadaptability prior to January 24, 2014. 3. From January 24, 2015 to June 6, 2016, the Veteran’s headaches manifested characteristic prostrating attacks at least once per month on average but were not productive of severe economic inadaptability. 4. The Veteran’s headaches were not productive of severe economic inability ability prior to August 29, 2018. 5. The Veteran’s previously service-connected disabilities did not prevent the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5279-5280, 5284 2. The criteria for a compensable disability rating prior to January 24, 2014 for headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. The criteria for a disability rating of 30 percent for headaches from January 24, 2014 to June 6, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 4. The criteria for a disability rating of 30 percent for headaches prior to August 29, 2018 and in excess of 50 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 5. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to October 2005. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in June 2018, and a transcript of the hearing is of record. These matters were previously before the Board, and in November 2018 and September 2020, the Board remanded these matters for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. A disability rating in excess of 10 percent for a right foot disability is denied. At issue is whether the Veteran is entitled to a disability rating in excess of 10 percent for a right foot disability. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in November 2013, and, in February 2014, the RO granted service connection and assigned a noncompensable disability rating effective November 27, 2012. The Veteran appealed his initial disability rating. During the pendency of the appeal, the Veteran was assigned a disability rating of 10 percent throughout the period on appeal. See June 2020 Rating Decision Code Sheet. The Veteran’s disability rating is assigned pursuant to Diagnostic Codes 5269-5284. Diagnostic Code 5269-5283 list rating criteria for specific feet disabilities, and Diagnostic Code 5284 provides rating criteria for “other foot injuries.” 38 C.F.R. § 4.71a, Diagnostic Codes 5269-5284. If the Veteran has been diagnosed with one of the disabilities located in Diagnostic Code 5269-5283, then the Veteran must be assigned a disability rating based on that specific criteria; otherwise the Veteran may be granted a disability rating based on Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333 (2015). As discussed below, the Veteran was diagnosed with metatarsalgia, hallux valgus, right foot instability, and other foot injuries. Therefore, the applicable rating criteria are Diagnostic Codes 5279 (metatarsalgia), Diagnostic Code 5280 (hallux valgus), and Diagnostic Code 5284 (other foot injuries). 38 C.F.R. § 4.71a, Diagnostic Codes 5279-5280, 5284. The maximum disability ratings under Diagnostic Codes 5279 and 5280 are 10 percent. The Veteran has already been assigned a disability rating of 10 percent throughout the period on appeal. Therefore, Diagnostic Codes 5279 and 5280 do not provide an adequate basis for an increased disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5279-5280. Under Diagnostic Code 5284, a disability rating of 10 percent is assigned for moderate foot injuries, and a disability rating of 20 percent is assigned for moderately severe foot injuries; and a disability rating of 30 percent is assigned for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran’s treatment records indicates that the Veteran manifested right foot symptoms throughout the period on appeal. The Veteran underwent a VA examination in February 2014. The examiner noted that the Veteran injured his right foot during service, but the Veteran denied current right foot symptoms. The examiner opined that the Veteran manifested a nondescript foot injury that was moderate in severity. The Veteran testified at a personal hearing before the Board in June 2018. The Veteran reported that he had been placed on extended medical leave due difficulties at work including climbing up steps, working on ladders, and walking on scaffolding. See Transcript. The Veteran underwent another VA examination in August 2019. The examiner diagnosed the Veteran with hallux valgus, metatarsalgia, and an other foot injury. The Veteran reported right foot pain, instability, and swelling; as well as numbness and tingling in his toes. The Veteran reported difficulty playing sports and problems with standing, driving, and squatting. The examiner opined that the Veteran’s foot injury was moderate in severity. The Veteran underwent another VA examination in November 2020. The examiner diagnosed the Veteran with hallux valgus, right foot instability, and an other foot injury. The Veteran reported right foot pain, instability, numbness, and tingling. The Veteran reported that he had a physical job, and his right foot pain makes his job difficult. The Veteran also reported quit playing sports and going to the gymnasium. The examiner opined that the Veteran’s foot injury was moderate in severity. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent. In order to meet the criteria for a disability rating of 10 percent, the Veteran needed to manifest moderately-severe or severe residuals of a foot injury. Multiple VA examiners opined that the Veteran’s injury was moderate in severity. The Board notes that the Veteran provided competent reports of right foot symptoms including pain, numbness, tingling, and instability. Nevertheless, the Board does not find that this is sufficient to warrant an increased disability rating. VA examiners have consistently indicated that the Veteran’s injury is fully healed. Additionally, the Veteran is still able to walk and perform physical labor (albeit with some difficulty). Taken together, the Board is not convinced that the Veteran’s symptoms are severe enough to be evaluated as moderately-severe or severe. Therefore, the criteria for a disability rating in excess of 10 percent is denied. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The Veteran is not entitled to an increased disability rating even after taking additional functional impairment into consideration. The Board is cognizant that the Veteran has provided competent reports of functional impairment due to his right foot symptoms including difficulty working and avoidance of the gymnasium. Nevertheless, the Board is still not convinced that these reports are sufficient to characterize the Veteran’s right foot disability as moderately-severe or severe, because the Veteran is still able to walk and perform physical labor (albeit with some difficulty). Therefore, additional functional impairment does not provide an adequate basis for an increased disability rating. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating for a right foot disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 10 percent for a right foot disability is denied. 2. A compensable disability rating prior to January 24, 2014 for headaches is denied. 3. A disability rating of 30 percent for headaches from January 24, 2014 to June 6, 2016 is granted. 4. A disability rating of 30 percent for headaches prior to August 29, 2018 and in excess of 50 percent thereafter is denied. At issue is whether the Veteran is entitled to an increased disability rating for headaches. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 30 percent, but no more, from January 24, 2014 to June 6, 2016. The Veteran is not otherwise entitled to an increased disability rating at any other time during the period on appeal. The Veteran first filed for service connection for headaches in November 2012, and, in February 2014, the RO granted service connection and assigned a noncompensable disability rating effective November 27, 2012. The Veteran appealed the initial disability rating. During the pendency of the appeal, the Veteran was assigned a disability rating of 30 percent effective June 7, 2018 and a disability rating of 50 percent effective August 29, 2019. See June 2020 Rating Decision Code Sheet. The Veteran’s headaches are evaluated pursuant to Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable disability rating is assigned for less frequent attacks, and a disability rating of 10 percent is assigned for characteristic prostrating attacks averaging one in two months over several months. A disability rating of 30 percent is assigned for characteristic prostrating attacks occurring on average once per month over several months, and a disability rating of 50 percent is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran’s treatment records indicate that the Veteran sought treatment for headaches throughout the period on appeal. The Veteran underwent a VA examination on January 23, 2014. The examiner noted that the Veteran experience headache pain localized on one side of the right side of the head that typically lasts for less than one day. The examiner opined that the Veteran’s headaches could not be considered characteristic of prostrating attacks. The Veteran testified at a personal hearing before the Board in June 2018. The Veteran reported that he manifested prostrating headaches at least two and sometimes three times per month. The Veteran reported that due to his headaches he had lost four or five days in the previous three weeks. See Transcript. The Veteran underwent another VA examination in August 2019. The Veteran reported that his headaches had gotten worse and more frequent. The Veteran described his headaches with pain in the temples that goes to the back that also manifested the following symptoms: constant head pain; pulsating or throbbing head pain; pain localized to one side of the head; pain on both sides of the head; pain that worsens with physical activity; and sensitivity to light. The examiner opined that Veteran manifested characteristic prostrating attacks more frequently than once per month, and that these were productive of severe economic inadaptability. The weight of the evidence indicates that the Veteran is not entitled to a compensable disability rating prior to January 24, 2014. In order to meet the criteria for a compensable disability rating, the Veteran needed to manifest a characteristic prostrating attacks. On January 23, 2014, a VA examiner opined that the Veteran did not manifest such attacks, and, therefore, the criteria for a compensable disability rating have not been met. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 30 percent from January 24, 2014 to August 28, 2018. In order to meet the criteria for a disability rating of 30 percent, the Veteran needed to manifest characteristic prostrating attacks occurring on average once per month over several months. The Veteran testified at a personal hearing before the Board in June 2018 that the Veteran manifested characteristic prostrating attacks two to three times per month. The Veteran’s reports were corroborated by an August 2019 VA examination which indicated that the Veteran’s headaches were severe enough to be considered characteristic of prostrating attacks. This is sufficient to demonstrate that the Veteran meets the criteria for a disability rating of 30 percent. It is unclear exactly when this condition began. Therefore, the Board shall assign an effective date of January 24, 2014; the day after the January 23 VA examination indicating that the Veteran’s headaches did not manifest characteristic prostrating attacks. The Veteran is not entitled to a disability rating of 50 percent prior to August 29, 2018. In order to meet the criteria for a disability rating of 50 percent, the Veteran’s headaches needed to be productive of severe economic inadaptability. The Veteran testified at a personal hearing before the Board in June 2018 that he had only lost at most five days in the previous three weeks specifically due to his headaches. Although the Board notes that such absenteeism might be a bar to full time employment, it cannot be considered productive of economic inadaptability, because the Veteran would still be able to work on a part-time basis in spite of the severity of his headaches. Therefore, the Veteran’s headaches did not meet the criteria for 50 percent prior to August 29, 2018. Here, the weight of the probative evidence of record indicates that the Veteran is entitled to a disability rating of 30 percent but no more from January 24, 2014 to June 6, 2016, but the Veteran is not otherwise entitled to an increased disability rating. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating of 30 percent for headaches from January 24, 2014 to June 6, 2016 is granted. Increased disability ratings for the Veteran’s headaches are otherwise denied. 5. TDIU is denied. At issue is whether the Veteran is entitled to TDIU. In order to meet the criteria for TDIU, the Veteran’s previously service-connected disabilities needed to prevent the Veteran from securing and maintaining substantially gainful employment. 38 C.F.R. § 4.16. The evidence of record indicates that the Veteran was employed throughout the period on appeal. A July 2020 VA treatment record notes that the Veteran worked 7 days a week full time as a construction worker/repairman. Therefore, the Veteran’s previously service-connected disabilities do not prevent   the Veteran from securing and maintaining substantially gainful employment, and TDIU is precluded. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.