Citation Nr: 21021304 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-32 246A DATE: April 12, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran's residuals of a fracture to the left fifth toe (“left toe disability”) for the period prior to October 5, 2020, is denied. Entitlement to a 20 percent disability rating, and no higher, for the Veteran's left toe disability for the period beginning October 5, 2020, is granted. REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. For the period on appeal prior to October 5, 2020, the residuals of the Veteran’s left toe disability more closely approximated a moderate impairment due to pain. 2. For the period beginning October 5, 2020, the residuals of the Veteran’s left toe disability more closely approximated moderately severe impairment due to flare-ups of pain. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran's left toe disability for the period prior to October 5, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5284. 2. The criteria for establishing entitlement to a 20 percent disability rating, and no higher, for the Veteran's left toe disability for the period beginning October 5, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1990 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to appear for his June 2018 Board hearing; consequently, there are no outstanding hearing requests of record. In July 2018, the Board determined that new and material evidence had been submitted to reopen the previously denied claim of entitlement to service connection for left shoulder disability. The de novo claim for left shoulder disability, as well as the claims pertaining to the left knee, back, and toe disabilities were remanded for further development. In September 2019, the RO granted an increased 10 percent disabling rating for the left fifth toe disability effective March 29, 2010. As less than the maximum benefit was awarded, the claim remains in controversy. AB v. Brown, 6 Vet. App. 35 (1993). When this case was last before the Board in December 2019, the issues on appeal were once again remanded for additional development. Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Left Toe Disability The Veteran’s left toe disability is currently rated under Diagnostic Code 5284. Diagnostic Code 5284 provides a 10-percent rating for impairment of moderate degree, a 20-percent rating for moderately severe impairment, and a 30-percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40-percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. “Loss of use of a foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot and whether balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. The Board acknowledges that the terms “moderate”, “moderately severe”, and “severe” are not defined under VA law and appear to have no commonly accepted medical definition. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. The Board notes that while VA revised the criteria for evaluating musculoskeletal disorders effective February 7, 2021, there were no changes to the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5284. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). The Board is aware that there were changes made to Diagnostic Codes 5002, 5003, and 5010 affecting arthritis. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. At the outset, the Board finds that the criteria in effect prior to February 7, 2021, is more favorable to the Veteran. Notably, consideration was given to assigning a higher rating for arthritis; however, the Veteran’s left toe disability is not rated on limitation of motion and there has been no x-ray evidence of involvement of two or more joints affected. 38 C.F.R. § 4.7a, Diagnostic Code 5003, 5010 (2020); 38 C.F.R. § 4.7a, Diagnostic Code 5002, 5003, 5010 (2021). Analysis The Veteran is currently rated 10 percent disabling for his left toe disability residuals. For the reasons below, the Board finds that the Veteran is entitled to a 10 percent disability rating for the period on appeal prior to October 5, 2020, and no more than a 20 percent disability rating thereafter. The Veteran was initially afforded a May 2010 VA examination regarding his increased rating claim. During the examination the Veteran reported that he experienced pain with prolonged walking or running (about 30 minutes or running 2-3 miles). The Veteran reported flare-ups that occur several times a week which are moderate in severity and are alleviated with rest and medications. The Veteran reported no significant limitations. The Veteran denied weakness, stiffness, or swelling. The examiner noted that there was no gross deformity of the left foot, and no significant pain in manipulation of the Veteran’s toe. The Veteran was next afforded a June 2014 VA Foot Conditions examination regarding the severity of his left toe residuals. The Veteran reported that he experienced pain when he is on his feet too long or whenever he runs for a long period of time. The Veteran reported that he does not experience flare-ups or functional loss of his foot. The examiner reported that the Veteran’s foot looked normal on visual inspection with no obvious deformity, no erythema, no edema, no abnormal warmth, no evidence of inflammation, no tenderness, and no abnormal calluses. The Veteran’s gait was completely normal, he was able to walk on tiptoes, and his Romberg’s test was normal. There was no pain reported on the physical examination and imaging studies showed no traumatic arthritis present. In response to the Board’s July 2018 Remand, the Veteran was afforded a May 2019 VA Foot Conditions examination. The Veteran reported that standing on his foot for too long causes him pain and he no longer runs. The Veteran did not report flare-ups and the examiner found that he ambulated with a normal gait. There was no pain noted on the physical examination and no functional loss of the Veteran’s extremity attributable to the claimed disability. The examiner noted that there was no pain on passive range of motion and no evidence of pain when the joint was used in non-weight bearing. In response to the Board’s December 2019 remand, the Veteran was afforded an October 2020 VA Foot Conditions examination. The Veteran reported that he experienced worsening pain and was unable to walk, run, or stand for extended periods of time and that he takes Motrin as needed. The Veteran reported experiencing flare-ups of worsening pain whereby he is unable to run, walk, or stand. The examiner classified the severity of the Veteran’s flare-ups as moderately severe. The examiner noted that the Veteran had no hammer toes, no metatarsalgia, no Morton’s neuroma, no claw foot, and mild tenderness on palpitation of the left foot. The examiner noted that the Veteran had degenerative arthritis of the left foot and degenerative arthritis could develop post-trauma, such as the previous metatarsal fracture; however, his was of mild severity. There was no indication there was arthritis in the left fifth toe. The Veteran was able to move all toes without difficulty with no ankylosis reported. Pain on weight bearing was reported. No evidence of pain during active or passive range of motion, and no evidence of pain on non-weight bearing. Based on the symptomatology, diagnoses, and relevant medical history, the Board finds that the Veteran's left toe disability more closely approximates a rating of 10 percent for the period on appeal prior to October 5, 2020, and no more than a rating of 20 percent thereafter. This is based primarily on the medical evidence of record which showed that the Veteran experienced pain with walking, running, and standing. While the Veteran reported flare-ups of pain on examination in 2010, he reported no significant limitations. Thereafter, the Veteran denied flare-ups of pain on examination in 2014 and 2019. The evidence does not establish actual or the functional equivalent of more than a moderate impairment prior to October 5, 2020. Therefore, the totality of the evidence shows that prior to October 5, 2020, the Veteran’s left toe disability was no more than moderate in nature. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. It was not until VA examination on October 5, 2020, that the Veteran’s disability worsened. Notably, the Veteran’s left toe disability became moderately severe during his flareups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A higher rating of 30 or 40 percent is not warranted as there is no evidence that supports a finding that the Veteran's left toe disability is productive of severe impairment. As reflected by above examination reports, although he has pain with walking, he retains the ability to walk, and his disability caused at worst moderately severe functional limitations. A 40-percent rating is not warranted as the evidence does not suggest, nor does the Veteran contend, that he has loss use of his left foot. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Furthermore, the Veteran’s subjective complaints are fully contemplated by the currently assigned staged rating for a moderate to moderately severe foot condition rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); De Luca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered application of other diagnostic codes. Here, the Veteran does not have claw foot, Morton’s disease, hallux valgus, hammer toes, or hallux rigidus. The evidence shows that the Veteran would not be entitled to higher ratings under any applicable relevant diagnostic codes. In sum, a rating in excess of 10 percent, to include “staged” ratings, prior to October 5, 2020, is not warranted as the evidence does not show symptomatology consistent with moderately severe foot impairment. While a 20 percent rating is warranted from October 5, 2020, a higher rating is not warranted as the evidence does not show symptomatology consistent with severe foot impairment or loss of use of the foot. 38 C.F.R. § 4.71a; Hart, supra. Thus, the appeal is granted in part and denied in part. 38 U.S.C. § 5107(b). REASONS FOR REMAND Lower Back, Left Shoulder, Left Knee Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertinent part, the December 2019 Board remand instructed the AOJ to take appropriate steps to obtain potentially missing service personnel and treatment records. The Board’s review of the record indicates that no additional service treatment records or personnel records have been obtained. While the Board notes there were attempts to locate the Veteran’s service records, the claims file does not contain a formal finding of unavailability as required by the December 2019 remand orders. A March 2020 notice letter does state that the Veteran’s service treatment records are unavailable (no reference to personnel records) and that further efforts to obtain them would be unsuccessful. However, the Board notes that this letter was sent prior to a July 2020 response from the Records Management Center (RMC) regarding the Veteran’s outstanding records. As the attempts to obtain the records were not complete at the time of the March 2020 letter, it cannot serve as a final formal finding of unavailability. The December 2019 remand instructed the RO to make as many requests a necessary to obtain the Veteran’s records until it made a formal determination that the records either do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159. As a proper formal finding was not made, the issues on appeal must be remanded to ensure compliance with those orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran should be notified of all the actions taken to attempt to obtain potentially missing service personnel and treatment records from the appropriate locations, to include, but not limited to, the National Personnel Records Center (NPRC), the Army Reserve Personnel Center, and the RMC. The AOJ should ensure that all attempts to obtain such records are clearly documented in the claims file. Thereafter, the RO must issue a Formal Finding of Unavailability of service personnel and/or treatment records if they cannot be located or are otherwise unavailable. 2. Once completed, and after any additional development necessary, the AOJ should readjudicate the claims. If upon completion of the above actions the issues remain denied, the matters should be returned to the Board after compliance with appellate procedures. K. L. WALLIN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.