Citation Nr: 21014397 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-42 891 DATE: March 12, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for left foot deformity, malunion of metatarsal bone with hallux valgus (left foot disability) from August 27, 1982 to March 26, 2009, is granted. Entitlement to an initial 30 percent rating for left foot disability from March 26, 2009 to May 1, 2019 is granted. Entitlement to an initial rating greater than 30 percent for left foot disability from March 26, 2009, is denied. Entitlement to an initial compensable rating for left foot pes planus is denied. Entitlement to an initial compensable rating for scars, medial aspect of the 1st metatarso-phalangeal of the left foot associated with left foot deformity, malunion of metatarsal bone with hallux valgus (left foot scar) is denied. FINDINGS OF FACT 1. From August 27, 1982 to March 26, 2009, the Veteran's left foot disability symptomatology more nearly approximates moderate foot disability, but does not more nearly approximate moderately severe or severe disability. 2. From March 26, 2009 to May 1, 2019, the evidence is at least evenly balanced as to whether the Veteran’s left foot symptomatology more nearly approximates severe foot disability. 3. The Veteran has not lost the use of his left foot at any time during the appeal period. 4. The Veteran's left foot pes planus symptomatology does not more nearly approximate moderate weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. 5. The Veteran’s scar associated with his left foot disability measures less than an area or areas of 144 square inches (929 sq. cm.) or greater. CONCLUSIONS OF LAW 1. From August 27, 1982 to March 26, 2009, the criteria for an initial 10 percent rating, but no higher, for left foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5003-5283. 2. From March 26, 2009 to May 1, 2019, the criteria for a 30 percent rating, but no higher, for left foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5003-5283. 3. From May 1, 2019, the criteria for an initial rating greater than 30 percent for left foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5003-5283 4. The criteria for an initial compensable rating for left foot pes planus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.10, 4.71a, DC 5276. 5. The criteria for an initial compensable rating for left foot scar have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1982. These matters initially came before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left foot degenerative changes. During the pendency of the appeal, a September 2015 rating decision found clear and unmistakable error (CUE) and made the grant of entitlement to service connection for a left foot disability effective August 27, 1982, the day following the Veteran’s discharge from active duty service. As this represents a full grant of the benefits sought in regard to the Veteran’s claim for an earlier effective date, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In September 2013 the Veteran filed a notice of disagreement (NOD) and in September 2015 the RO issued a statement of the case (SOC). In November 2015 the Veteran filed a substantive appeal (via VA Form 9). In August 2018 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to provide the Veteran a VA examination to determine the current severity of his left foot disability. For the reasons stated in the discussion below, the Veteran was afforded an adequate VA examination and the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In July 2020, the RO increased the rating for left foot deformity, malunion of metatarsal bone with hallux valgus, which had previously been rated as left foot posttraumatic arthritis status post fractured 2d metatarsal, from 10 to 30 percent, effective May 1, 2019. The RO also granted service connection for left foot pes planus with plantar fasciitis, as secondary to the service-connected left foot post traumatic arthritis status post fractures 2d metatarsal, with a rating of 0 percent, effective May 1, 2019. Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Left foot disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. VA must, in some circumstances, consider functional loss in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. In determining if a higher rating is warranted, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's left foot disability is currently rated under 38 C.F.R. § 4.71a, DC 5003-5283. This hyphenated designation means that the residual condition upon which the rating is based is degenerative arthritis (designated by DC 5003). Under DC 5003, degenerative arthritis is to be evaluated on the basis of limitation of motion as per the diagnostic codes for the specific joint or joints. 38 C.F.R. § 4.71a. If, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating can be assigned where there is X-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Note (1) under DC 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Id. DC 5283 provides the criteria for malunion or nonunion of the tarsal or metatarsal bones. Moderate malunion or nonunion of the tarsal or metatarsal bones warrants a 10 percent rating. Moderately severe malunion or nonunion of the tarsal or metatarsal bones warrants a 20 percent rating. Severe malunion or nonunion of the tarsal or metatarsal bones warrants a 30 percent rating. A note to DC 5283 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot, which is not demonstrated in this case. 38 C.F.R. § 4.71a, DC 5283. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran contends that his left foot disability warrants a higher initial rating. The Veteran's left foot disability is currently rated noncompensable from August 27, 1982 to March 26, 2009; 10 percent from March 26, 2009 to May 1, 2019; and 30 percent thereafter. As this constitutes a partial grant of the benefits sought, this issue remains on appeal before the Board for all three time periods. See AB v. Brown, 6 Vet. App. 35 (1993). A May 2019 VA examiner diagnosed the Veteran with flat foot (pes planus), hallux valgus, plantar fasciitis, and left foot post traumatic arthritis status post fractured second metatarsal. The VA examiner noted that the Veteran’s initial left foot fracture resulted in a malunion which altered the alignment of the joints in the midfoot which led to his left foot deformity, pes planus, hallux valgus, and plantar fasciitis. The VA examiner noted that the Veteran experienced a dull ache with occasional sharp pain in his left foot along with pain on use, pain on manipulation, swelling on use, and characteristic calluses. A marked deformity was noted along with marked pronation. The VA examiner also noted the Veteran had mild or moderate symptoms due to hallux valgus. Importantly, the VA examiner noted severe malunion of, or nonunion of the metatarsal bones. The Veteran reported flare-ups with difficulty walking. The VA examiner noted that functional loss when walking more than 1 mile or 30 minutes, standing in place more than 15 minutes, difficulty climbing and descending stairs, and difficulty climbing ladders. A November 2018 VA treatment note indicates that the Veteran was fitted for a custom foot orthotic and that the pain in his left foot is mostly felt during the winter. An August 2018 VA treatment note indicates that the Veteran’s left midfoot collapses on weightbearing. At an August 2015 hearing with a decision review officer (DRO) the Veteran testified that the pain in his left foot had progressed since his previous VA examination and that he wears different sized shoes due to his deformity. A June 2015 VA examiner noted that the Veteran’s left foot demonstrated a medial bony deformity at the 1-2 tarsometatarsal joints which is affected on weight bearing. The Veteran reported that he experienced sharp achy pain with functional loss or impairment of his left foot as a result of his pain. As a result, his left foot affected his ability to perform any occupational tasks such as standing, walking, lifting, and sitting. The VA examiner noted the Veteran experienced symptoms of a hallux valgus condition. Importantly, moderate severity was noted by the VA examiner. The Veteran did not report flare-ups. A July 2011 VA examiner noted that the Veteran had been using a cane on and off and that his left disability had gradually worsened since his in-service injury. The VA examiner noted a hard, round swelling over the metatarsal area of the hallux and second toe with hallux valgus. The VA examiner found that there was no evidence of acute displaced fracture and/or dislocation. Significant irregularity is seen along the tarsometatarsal joints with subchondral sclerosis. Importantly, the VA examiner noted mild impairment in mobility. A July 2010 VA treatment note indicates that the Veteran attended left foot physical therapy and was experiencing pain when participating in weight-bearing activities. The VA physician noted that the Veteran rode a bike three times a week, walked, and worked as an engineer which required him to use his left foot extensively. A March 2009 VA physician diagnosed the Veteran with post-traumatic arthritis and noted that the Veteran’s left foot had deteriorated and that he had been experiencing pain for two years which was only partially improved with Advil or Naproxin. A June 1983 VA examiner diagnosed the Veteran with old fractures of the second and third cuneiform bones of his left foot. The VA examiner noted that the Veteran exhibited normal posture and propulsion, however, walking fast and running caused him pain. A. From August 27, 1982 to March 26, 2009 Because this appeal has been ongoing for a lengthy period of time, and because the level of a Veteran's disability may fluctuate over time, the VA is required to consider the level of the Veteran's impairment throughout the entire period. In this respect, “staged ratings are a sensible mechanism for allowing the assignment of a precise disability rating – one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O'Connell v. Nicholson, 21 Vet. App. 89 (2007). The Veteran's service-connected left foot disability is rated noncompensable effective August 27, 1982, the date after he was discharged from military service. The RO assigned a zero percent evaluation pursuant to 38 C.F.R. § 4.31, which allows for a noncompensable rating when the requirements for a compensable evaluation are not met. The RO increased the Veteran’s disability rating to 10 percent effective March 26, 2009, on the basis that this is the earliest date the medical evidence of record documents that the Veteran was diagnosed with arthritis. A June 1983 VA examiner noted old fractures of the second and third cuneiforms. The June 1983 VA examiner also noted that the Veteran experienced pain upon walking and running. In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. The plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Moreover, the criteria for such a rating can be satisfied with lay and other non-medical evidence. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). During the pendency of the appeal the Veteran has complained of left foot pain with motion and weightbearing activities. The Veteran’s complaints of left pain are competent and credible because it comes to him via his own senses and it is consistent with the nature of his service-connected disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the Veteran has experienced pain and painful motion due to his left foot disability throughout the appeal period, a 10 percent rating is warranted from August 27, 1982 to March 26, 2009. However, from August 27, 1982 to March 26, 2009 the record does not show that the Veteran's left foot disability more closely approximates a moderately severe or severe disability or result in actual loss of use of the foot. During this time, the record reflects that the Veteran exercised regularly and rode a bike three times a week. Also, the Veteran was an engineer and worked on his feet as part of his daily routine. Although the Veteran’s current level of disability is rated as severe, the medical evidence of record indicates that the Veteran’s disability has worsened over time. The July 2011 VA examiner noted that the Veteran’s disability had gradually worsened since his in-service injury. Additionally, at the August 2015 hearing the Veteran testified that his disability had worsened since his July 2011 VA examination in which his disability was described as mild. Moreover, the Veteran has not challenged the results of the VA physicians who examined him. In the present case there was a change in the severity of the Veteran’s left foot disability during the appeal period. The Board acknowledges that the Veteran's left foot disability almost certainly did not worsen on March 26, 2009 when the RO increased the Veteran’s disability rating to 10 percent or May 1, 2019, the date the RO increased the Veteran’s disability rating to 30 percent. However, there is no other probative evidence of record in the intervening period between the June 1983 VA examination and the March 26, 2009 private treatment note to demonstrate a worsening to the extent that a rating greater than 10 percent could be assigned prior to this date. Moreover, the Veteran has not offered evidence regarding the severity of his left foot disability that balances or outweighs the probative medical evidence provided during the relevant appeal period. See VAOPGCPREC 12-98 (In determining when an increase is "factually ascertainable," look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place). Therefore, an initial rating greater than 10 percent for left foot disability from August 27, 1982 to March 26, 2009 is denied. B. From March 26, 2009 to May 1, 2019 and thereafter The Veteran’s disability has been evaluated variously from March 26, 2009 to May 1, 2019. A July 2011 VA examiner described the Veteran’s disability as mild, a June 2015 VA examiner noted moderate severity, and a May 2019 VA examiner noted his left foot disability was severe. The Veteran has been diagnosed with multiple left foot disabilities from March 26, 2009 to May 1, 2019. The June 2015 VA examiner diagnosed the Veteran with hallux valgus and the May 2019 VA examiner diagnosed the Veteran with left foot pes planus and left foot plantar fasciitis. Furthermore, the Veteran testified at his August 2015 hearing that his left foot disability had worsened from his July 2011 VA examination, however, did not pinpoint a specific date when his disability worsened. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Although the RO increased the Veteran’s rating to 30 percent effective May 1, 2019, the evidence of record indicates that his left foot disability could be described as severe prior to this date. Therefore, resolving reasonable doubt in favor of the Veteran, a 30 percent rating is warranted from March 26, 2009 to May 1, 2019. The Board notes that despite the fact that a definitive diagnosis of arthritis was not provided until March 26, 2009, an effective date should not be assigned mechanically based on the date of a diagnosis, rather, all of the facts should be examined to determine the date that a veteran's disability first manifested. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). However, March 26, 2009 is the earliest factually ascertainable evidence of arthritis in the Veteran’s left foot and the first indication that his disability had worsened beyond moderate. Therefore, a staged rating from this date is proper and a 30 percent rating from March 26, 2009 to May 1, 2019 is warranted. The Veteran has now been assigned a maximum 30 percent schedular rating for left foot disability from March 26, 2009. A Note under DC 5283 states that a 40 percent rating will be assigned when there is actual loss of use of the foot. Regulations indicate that loss of use of the foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. This determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Id. As the Veteran still walks with a cane he has not lost of the use of his foot and a rating higher than 30 percent is not warranted at any time during the appeal period. 2. Left foot pes planus The Veteran is separately service connected for left foot pes planus under DC 5276. Under DC 5276, a 10 percent rating is warranted for moderate flat foot; weight-bearing over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted where the bilateral condition is severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is warranted where the bilateral condition is pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The RO assigned a noncompensable evaluation for the Veteran’s left foot pes planus because his symptoms were relieved by arch support which renders this diagnosis asymptomatic. The Board finds that the weight of the lay and medical evidence of record demonstrates that the criteria for a compensable disability rating have not been met or nearly approximated for any part of the initial rating period. The evidence of record does not reflect moderate weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. Thus, a higher initial rating for left foot pes planus is not warranted throughout the appeal period. 3. Separate foot ratings The Board has also considered whether separate ratings could be assigned under any other applicable DCs for which the Veteran is not currently receiving compensation. The Veteran is diagnosed with both plantar fasciitis and hallux valgus and could be separately rated under DC 5269 and 5280. Relevant to the present case, 38 C.F.R. § 4.71a was amended effective February 7, 2021, which assigns a new diagnostic code for plantar fasciitis under DC 5269. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Under DC 5269, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis, otherwise; a 20 percent rating is warranted when there is no relief from both non-surgical and surgical treatment; a 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, bilateral. Under DC 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus when the condition is severe and disabling to a degree equivalent to amputation of the great toe, or when there has been an operation with resection of the metatarsal head. The rating of the same disability under various diagnoses must be avoided. See 38 C.F.R. § 4.14. That does not necessarily preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994) In the present case, a separate rating for plantar fasciitis under DC 5269 or hallux valgus under DC 5280 is not warranted. Although the Veteran is diagnosed with plantar fasciitis and hallux valgus, the Veteran is already in receipt of the maximum 30 percent rating under DC 5283 and as indicated in the discussion above, this rating includes the minimum 10 percent rating for painful motion pursuant to 38 C.F.R. § 4.59. Southall-Norman, 28 Vet. App. at 354 (2016); Sowers, 27 Vet. App. at 480; Petitti, 27 Vet. App. at 428-29. Therefore, a separate rating under DC 5269 or 5280 would constitute prohibited pyramiding and is not warranted. 38 C.F.R. § 4.14. 4. Left foot scar The RO has assigned a noncompensable rating for the Veteran's left foot scar under 38 U.S.C. § 4.118, DC 7802. Under DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage warrant a 10 percent rating if the scar covers an ear of 144 square inches (929 sq. cm.) or greater. The evidence of record does not show that the Veteran's left foot scar is the size required for a compensable rating and there are no other symptoms noted that would warrant a compensable evaluation for any service-connected scar. Neither the Veteran nor his representative have identified a specific basis in the evidence for a compensable rating. Furthermore, neither the Veteran nor his representative indicated that the evidence currently of record is inadequate or that further development is needed. Thus, the evidence does not support a compensable rating under any potentially applicable code. 38 C.F.R. § 4.118. As the preponderance of the evidence is against a higher initial rating, the benefit of the doubt doctrine is not for application. (Continued on the next page)   The Board has considered the Veteran's rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.