Citation Nr: 21021961 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-61 880 DATE: April 14, 2021 ORDER An initial rating in excess of 20 percent for calluses of the bilateral feet prior to September 30, 2020 is granted. From September 30, 2020, an increased rating in excess of 20 percent for calluses of the bilateral feet is denied. An initial compensable rating for bilateral hammertoes is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Service connection for bilateral Achilles tendon condition is remanded. Service connection for bilateral calcaneal plantar posterior spurs is remanded. FINDINGS OF FACT 1. The probative evidence of record (including the findings of a November 2012 VA examination and the Veteran’s testimony and statements) indicates that, prior to September 30, 2020, the Veteran’s calluses of the bilateral feet were characterized by moderately severe symptoms. During this period, the Veteran’s symptoms included foot pain and difficulty with ambulation which required the use of a cane, a boot and golf cart. 2. The probative evidence of record (including the findings of a September 2020 VA examination) indicates that, from September 30, 2020, the Veteran’s calluses of the bilateral feet were characterized by moderately severe symptoms. 3. There is no evidence that the Veteran had bilateral hammertoes of all of his toes during the appellate period. 4. The Veteran was gainfully employed from the beginning of the appeal period until March 2020 when he was laid off due to the COVID-19 pandemic. The Veteran was able to obtain gainful employment the following month which he has sustained. CONCLUSIONS OF LAW 1. Prior to September 30, 2020, the criteria have been met for a disability rating of 20 percent for bilateral foot calluses. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5284. 2. From September 30, 2020, the criteria have not been met for a disability rating in excess of 20 percent for bilateral foot calluses. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5284. 3. The criteria have not been met for an initial compensable rating for bilateral hammertoes. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5282. 4. The criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to May 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019 a hearing was held before the undersigned; a transcript is of record. Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which 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. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s service-connected foot conditions are currently rated under Diagnostic Code 5282-5284. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. Under DC 5284, moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a , DC 5284. The terms “slight,” “moderate,” 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 use of descriptive terminology such as “mild” by examiners, although an element of evidence to be considered, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. 1. An initial rating in excess of 20 percent for calluses of the bilateral feet prior to September 30, 2020 is granted. Factual Background At a November 2012 VA examination, the conducting physician indicated that the Veteran experiences “great pain” while walking due to his calluses. The physician indicated that the Veteran did not require the use of a cane. VA treatments from October 2012 and June 2013 indicate that the Veteran had normal gait. See VA treatment records. In a November 2017 statement, the Veteran reported that he requires the usage of a cane and boot when his foot pain is severe. The Veteran also reported that he had to take time off of work due to his foot pain. At the Board hearing, the Veteran testified that being on his feet too long at work causes him pain. The Veteran further testified that he was provided a golf cart at work for ambulation for periods when he is unable to walk due to the pain. The Veteran testified that he requires the use of a cane. At a February 2020 urgent care treatment, the Veteran reported that he could not walk and he was in a lot of pain. The Veteran described his pain as severe and sharp. The attending physician explained that the Veteran’s left foot was swollen. Analysis After reviewing the record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the symptoms associated with the Veteran’s service-connected right and left foot calluses are best described as moderately severe, and therefore a rating of 20 percent is warranted prior to September 30, 2020. 38 C.F.R. § 4.71a, DC 5284. This is based primarily on the November 2012 VA examination and the Veteran’s testimony and statements which indicate that the Veteran experiences foot pain and difficulty with ambulation which requires the usage of a cane, a boot and golf cart. A higher rating of 30 percent is not warranted because the Veteran’s calluses of the bilateral feet has never been described as “severe” during this specific portion on appeal. Additionally, the Veteran’s gait was not reported to be abnormal or altered during this specific period on appeal. 2. From September 30, 2020, an increased rating in excess of 20 percent for calluses of the bilateral feet is denied. Factual Background At a September 2020 VA examination, the conducting physician explained that the Veteran had chronic callus formation into both feet. The physician indicated that the Veteran’s symptoms are moderately severe. The Veteran displayed pain of both feet during the examination. The physician also explained that the Veteran’s symptoms resulted in functional loss including pain on movement, pain on weight-bearing and non-weight-bearing, swelling, disturbance of locomotion and interference with standing. Finally, the physician indicated that the Veteran’s calluses of the bilateral feet impede his ability to stand and walk for more than 5 to 10 minutes and he is unable to wear stiff, narrow shoes that compress the calluses. The Veteran reported at the examination that he can hardly walk during flare-ups. The Veteran explained that because of his feet he cannot stand and walk for more than 5 to 10 minutes at a time. Analysis After reviewing the record, the Board finds that the symptoms associated with the Veteran’s service-connected right and left foot calluses are best described as moderately severe and accordingly a higher 30 percent rating is not warranted. The Board assigns probative weight to the September 2020 VA examiners opinion because the examiner reviewed the claims folder and supported their findings with a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered other potentially applicable diagnostic codes but does not find any that they assist the Veteran in this case. The competent evidence of record does not demonstrate flatfoot, weak foot, claw foot, hallux rigidus, malunion or nonunion of the tarsal or metatarsal bones. Thus, DCs 5276, 5277, 5278, 5281, and 5283 are not for application. Further, a rating in excess of 10 percent is not available for metatarsalgia (Morton’s disease) and hallux valgus, even if DCs 5279 and 5280 were applicable. In this case, the Board finds that the Veteran’s right and left foot disorders are appropriately evaluated under DC 5284 for other foot injuries. 3. An initial compensable rating for bilateral hammertoes is denied. Legal Criteria Under DC 5282, a 10 percent rating is warranted when the evidence shows hammertoe of all toes, unilateral without claw foot. A noncompensable rating is warranted when evidence shows hammertoe of single toes. 38 C.F.R. § 4.71a, DC 5282. Factual Background At a November 2012 VA examination, the conducting physician indicated that the Veteran had hammertoes of the little toes of both feet. At an April 2014 VA examination, the conducting physician indicated that the Veteran had bilateral fifth toe surgery and hammertoe correction in 1986 and that he does not presently have hammertoes of either feet. At an October 2020 VA examination, the conducting physician indicated that the Veteran is status post bilateral fifth hammertoe repair without recurrence and that he did not presently have hammertoes of either feet. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to an increased 10 percent rating for bilateral hammertoes at any point during the appellate period. There is no evidence that the Veteran had hammertoes of all the toes during the appellate period. At worst, the Veteran had bilateral hammertoes of the little toes on both feet which had resolved by the time of the April 2014 and October 2020 VA examinations. Accordingly, an increased rating for the Veteran’s service-connected bilateral hammertoes must be denied. 4. A TDIU rating due to service-connected disabilities is denied. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Eligibility The Veteran does not have a single service-connected disability rated at 60 percent or more nor does he have one disability rated at 40 percent or more with additional service-connected disabilities bringing the combined rating to 70 percent or more so he does not meet the schedular criteria for a TDIU rating. However, the Veteran reported in his application for a TDIU rating that, due to his service-connected foot conditions, he was fired from his job. This raises the issue of eligibility for a TDIU rating on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Board notes the record reflects the Veteran is currently employed in a full-time capacity in the sales field. Nevertheless, the Board must also note that he was unemployed for a period of time during the pendency of this appeal. For example, as noted in his TDIU application he reported that he was let go on March 22, 2020. VA’s General Counsel has held that TDIU could be awarded based on a temporary (i.e., non-permanent) inability to follow a substantially gainful occupation. Factual Background The Veteran’s TDIU application indicates that he has been employed in the car sales industry since June 2007 and earns $5,000 per month. The Veteran indicated that he was let go on March 22, 2020 because he was considered the least productive employee up to that point in his employment. The Veteran provided his termination letter from his employer which indicated that he was being laid off “due to the sudden and unprecedented downturn in business resulting from the closures and policies put in place to contain the spread of COVID-19.” The Veteran’s former employer indicated in the termination letter that they hoped the layoff would be temporary and they would like to stay in contact with the Veteran. The Veteran indicated in his TDIU application that he was hired by a different car dealership on April 2, 2020 and he makes the same monthly income working the same position. A November 2020 buddy statement indicates that the Veteran is still employed in this position. Analysis The Board finds that the Veteran is not entitled to TDIU for the period he was temporarily unemployed. The evidence of record suggests that the Veteran was gainfully employed until he was rendered unemployed by mass closures in his industry due to the novel COVID-19 coronavirus pandemic. In other words, the Veteran’s service-connected disorders in and of themselves did not render him unable to obtain or maintain substantial gainful employment. Indeed, the Veteran was able to obtain employment at a separate car dealership working the same position for the same wages less than a month later. The Board acknowledges that the Veteran had difficulties performing his job duties and has had to request time off of work due to his foot pain. Nevertheless, the Veteran has maintained gainful employment for practically the entire appeal period. The Board also acknowledges that the record reflects that accommodations have been made by the Veteran’s past employer in light of the limitations imposed by his service-connected disabilities. These accommodations appear designed to minimalize the amount of prolonged standing and walking; however, the Veteran is still able to perform the essential aspects of his job. Ultimately, the Veteran was employed despite his disabilities and the evidence suggests that he is not incapable of obtaining and maintaining substantial gainful employment. On balance, the weight of the evidence is against the claim. Accordingly, the claim for TDIU must denied. REASONS FOR REMAND 1. Service connection for bilateral Achilles tendon condition is remanded. In accordance with the February 2020 Board remand instructions, the Veteran was provided a September 2020 VA examination during which the conducting physician indicated that the Veteran does not have a bilateral Achilles tendon condition. However, a September 2020 VA treatment note indicates that the Veteran has a current diagnosis of achilles tendonitis. Additionally, an April 2019 VA treatment indicates that there are plantar calcaneal spurs and moderate sized enthesophytes posterior calcaneus at the insertion of the Veteran’s Achilles tendons. The Board notes that a medical opinion based on an inaccurate factual premise cannot be assigned significant probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Under these circumstances, the Board finds that another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). 2. Service connection for bilateral calcaneal plantar posterior spurs is remanded. In accordance with the February 2020 Board remand instructions, the Veteran was provided a September 2020 VA examination during which the conducting physician indicated that the Veteran did not have bilateral calcaneal plantar posterior spurs. However, an April 2019 VA treatment indicates that there are plantar calcaneal spurs and moderate sized enthesophytes posterior calcaneus at the insertion of the Achilles tendons. Additionally, at a March 2014 VA examination, the conducting physician indicated that in the late 1980s/early 1990s, the Veteran developed bone spurs in the back of his heel and the pain from the bone spurs has only gotten worse over the years. The Board notes that a medical opinion based on an inaccurate factual premise is not probative. See Reonal supra. Under these circumstances, the Board finds that another remand is required. See Stegall supra. The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for a VA examination with a podiatrist to determine the nature and cause of his diagnosed bilateral Achilles tendon condition and bilateral calcaneal plantar posterior spurs. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: a. Is it at least as likely as not (50 percent or greater disability) that the Veteran’s bilateral Achilles tendon condition is related to his active duty service or either of his service-connected foot conditions? b. Is it at least as likely as not (50 percent or greater disability) that the Veteran’s bilateral calcaneal plantar posterior spurs is related to his active duty service or either of his service-connected foot conditions? A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.