Citation Nr: 21020806 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-11 871 DATE: April 8, 2021 ORDER Entitlement to an initial compensable rating for old left foot 5th metatarsal fracture without sequela (hereinafter referred to as “left foot disability”) is denied. FINDING OF FACT The evidence does not show that the Veteran’s left foot disability is painful, unstable, or malaligned, due to healed injury, or that it is manifested by moderate foot injury symptoms. CONCLUSION OF LAW The criteria for an initial compensable rating for a left foot disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.59, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from November 1961 to November 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for a left foot disability and assigned a noncompensable rating, effective April 28, 2017. By way of procedural background, this matter was previously before the Board in September 2019, at which time the Board remanded the claim to seek further clarification. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial compensable rating for a left foot disability Disability ratings are determined by application of the criteria set forth in 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. 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). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. However, the diagnostic codes relevant to rating the instant Veteran’s foot disability were not changed. DC 5284 is applicable to other foot injuries and provides 10, 20, and 30 percent ratings for foot injuries that are moderate, moderately severe, or severe in degree. Here, the Veteran is currently in receipt of a noncompensable rating for his left foot disability for the entire period on appeal. It remains unclear whether the Veteran asserts that a compensable rating is warranted for his left foot disability. As noted in the Board’s September 2019 decision, the Veteran has repeatedly stated that the RO erred in rendering a decision regarding his left foot, since his right foot is the one that he claims to be symptomatic. Accordingly, the Board previously remanded the matter to seek clarification from the Veteran as to whether he intended to appeal the noncompensable rating assigned for his left foot disability, or whether he only intended to pursue a claim regarding his right foot disability. In a September 2019 Statement in Support of Claim, the Veteran wrote, “The board due to the Regional Office Mistakes of erroneous identify my injury been on my left foot instead of my right foot. The board had ask you to reevaluated the wrong foot. I respectfully ask the Regional Office to correct this mistakes and evaluated my right foot as should be.” While it appears that the Veteran may not be seeking an initial compensable rating for his left foot disability, to the extent the Veteran’s filings can be construed as such, the Board will proceed with its analysis of this appeal. As an aside, the Board notes that the Veteran’s claim for service connection for a right foot disability is being processed under the modernized review system – it was most recently remanded by the Board in a March 2020 decision. On review of the evidence, both lay and medical, the Board finds that the preponderance of the evidence weighs against the assignment of an initial compensable rating for the Veteran’s left foot disability. Specifically, there is no evidence that the Veteran’s left foot disability has been actually painful, unstable, or malaligned, due to healed injury, such that it would be entitled to at least the minimum compensable rating for the joint under 38 C.F.R. § 4.59. Additionally, there is no evidence that the Veteran’s left foot disability has been manifested by moderate foot injury symptoms at any point during the period on appeal, such that it would warrant a 10 percent disability rating under DC 5284. In a July 1962 radiographic report of the left foot taken after the Veteran’s in-service injury, the interpreting radiologist noted that the “[f]ilms demonstrate healing fractures in excellent position and alignment.” Throughout the period on appeal, and even before, the Veteran competently and consistently reported that his left foot is not painful, and multiple VA examiners have determined that the Veteran’s in-service left foot fracture had no sequela or resolved without residuals and that no pathology could be identified after examination. See VA examination reports dated August 2014, March 2019, and October 2019. Thus, the preponderance of the evidence is against the Veteran’s claim and an initial compensable rating is not warranted. Furthermore, the Board does not find that the Veteran’s left foot disability would be more appropriately rated under a different diagnostic code than 5284, as the Veteran has not been diagnosed with another left foot disability other than his in-service fracture. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) (holding that, as a matter of law, DC 5284 does not apply to the eight other foot conditions specifically listed in § 4.71a, and so listed conditions could not be rated by analogy under that DC). While the rating decision codesheets in the Veteran’s claims file indicate that the applicable DC for his left foot disability is DC 5283 (for malunion or nonunion of the tarsal or metatarsal bones), there is no medical evidence that the Veteran has been diagnosed with these conditions. Thus, neither DC 5283 nor any other foot diagnostic codes are applicable. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for his left foot disability. The appeal is therefore denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.