Citation Nr: 21023273 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-18 749 DATE: April 20, 2021 ORDER Entitlement to an increased disability rating of 30 percent for service-connected residuals of left foot strain with arthritis, on an accrued basis is granted. FINDING OF FACT The Veteran’s left foot disability more nearly approximated severe foot injury for the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating of 30 percent for service-connected residuals of left foot strain with arthritis, on an accrued basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to February 1971. The Veteran died in December 2018, and the substitute appellant is his surviving spouse. These matters were initially before the Board in December 2017, where it was remanded for additional development. The Board determined that the Veteran should be afforded a VA examination to determine the nature and severity of his left foot disability, in compliance with the holdings set forth in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also determined that the Veteran should be afforded a VA examination to determine the nature and etiology of his low back condition. The matter returned to the Board in November 2020, where it was remanded again as the Board concluded that his left foot and low back examinations were inadequate for adjudicative purpose. The Board notes that, prior to certification for appeal, a January 2021 rating decision granted service connection for lumbar epidural lipomatosis with lumbar spinal stenosis, facet hypertrophy, and chronic low back pain, effective August 16, 2010. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to an increased disability rating of excess of 30 percent for service-connected residuals of left foot strain with arthritis, on an accrued basis. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has been assigned a 10 percent rating for his service-connected left foot disability under hyphenated Diagnostic Code 5010-5284. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes indicate that the Veteran’s foot disability is rated, by analogy, under the criteria for traumatic arthritis (Diagnostic Code 5010) and other foot injuries (Diagnostic Code 5284). Under Diagnostic Code 5284, other foot injuries are rated as 20 percent disabling when moderately severe and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a. The terms “moderate,” “moderately severe,” and “severe” are not defined in the Rating 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. 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. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Historically, the Veteran incurred a left foot injury in service resulting in a sprain and early minimal arthritic changes. Diagnostic Code 5284 specifically applies to “other” foot injuries and is the appropriate diagnostic code for application. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board acknowledges that medical record reflects that the Veteran had pes planus in the left foot (Diagnostic Code 5276), for which service connection was originally denied in October 1971. However, according to the January 2021 retrospective opinion, the examiner opined the following: Due to the overlapping and similar effects posterior tibialis tendinitis, pes planus, calcaneal spur and peripheral neuropathy can have on the feet, this examiner is unable to delineate which symptoms are associated with what diagnosis and it is not medically possible to determine. The Board finds that a rating under Diagnostic Code 5284 is more beneficial to the Veteran, as the Veteran’s residuals of the left foot is most appropriately rated under Diagnostic Code 5284. See Copeland, 27 Vet. App. at 337. Furthermore, a separate rating under Diagnostic Code 5276 would not be warranted as this would amount to impermissible pyramiding as the symptoms considered in an evaluation under 5276 would also be considered in the evaluation under 5284. 38 C.F.R. § 4.14. To the extent the Veteran has had such symptoms, they would be considered under an evaluation provided under 5284 and will be addressed below. Turning to the evidence, the Veteran filed a claim for an increased rating in August 2010. On VA examination in September 2010, the Veteran described constant left foot pain and stiffness with rest, standing and walking. He had flares of disability occurring with rainy weather or prolonged standing requiring rest for relief. He used a cane for ambulation. He could walk for 200 yards and stand for 20 minutes. Examination was significant for painful motion, tenderness of the mid-foot and tenderness on the anterior aspect of the ankle. The Veteran’s gait was abnormal and antalgic. There was an abnormal shoe wear pattern with increased wear on the medial aspect of the left shoe. There was limitation of motion of the ankle in dorsiflexion and plantar flexion. The Veteran was afforded another VA examination in July 2017. The Veteran reported pain to the left dorsum of his foot. He stated that “certain shoes aggravate the pain and he [cannot] tie [his] shoes too tight due to the pain in the dorsal foot.” However, the examination did not report flare up of the left foot, which is inconsistent with the Veteran’s lay statements and prior medical evaluations. In August 2017, the Veteran submitted a private DBQ, dated July 26, 2017. He reported pain with ambulation and increased pain since 2015. The examiner stated that the Veteran had marked pronation, pain on use, pain on ambulation, pain that results in functional loss, and swelling in his left foot. The examiner listed the following contributing factors of his disability: weakened movement; excess fatigability; pain on movement; pain on weight bearing; pain on non-weight bearing; disturbance of locomotion; interference with sitting. Additionally, the Veteran used a cane for assistance on a regular basis. The Veteran was afforded a VA examination in January 2018. He reported pain in his left foot. From a scale of 1-10, he rated his pain at 7/8. He also reported having functional loss or impairment, which consisted of being unable to walk for more than 15 to 20 feet. The examiner determined that the Veteran’s left foot pain was mild and he did not have marked pronation. He opined that he was unable to determine without speculation whether pain, weakness, fatigability, or incoordination could significantly limit functional ability or range of motion during flare ups or with repetitive use over a period of time. The Veteran was afforded a retrospective opinion in January 2021. The examiner opined the following: Due to the overlapping and similar effects posterior tibialis tendinitis, pes planus, calcaneal spur and peripheral neuropathy can have on the feet, this examiner is unable to delineate which symptoms are associated with what diagnosis and it is not medically possible to determine. Relevant treatment records report pain in his left foot, arthritis, numbness, and an antalgic/impaired gait. See e.g., March 2015 Treatment Records; April 2015 Treatment Records. His left foot pain interfered with general activity, his mood, walking, and work. Lay statements from the Veteran reported chronic pain in his left foot. In his August 2017 Hearing Transcript, the Veteran stated that he has swelling in his left foot and he “wears his shoes out about every two or three months from walking on the side.” Upon review of the evidence of record, the Board finds that the Veteran is entitled to an increased evaluation of 30 percent. There is medical evidence for and against warranting a severe disability rating due left foot residuals. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. There is medical opinion that there is overlapping and similar effects from the service-connected left foot arthritis to the nonservice-connected posterior tibialis tendinitis, pes planus, calcaneal spur and peripheral neuropathy. In such a situation, the Board attributes the functional effects of these separate disabilities to the service-connected left foot arthritis. See Mittlieder v. West, 11 Vet. App. 181 (1998). As such, the Board finds that the Veteran met the criteria for the maximum rating for severe foot disability since the inception of the appeal period. Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the foot. See 38 C.F.R. § 4.124a, Diagnostic Codes 5276-5283. However, no other applicable diagnostic code results in a superior outcome for the Veteran. In sum, the Board finds that the symptoms discussed above are most consistent with the assigned 30 percent rating for severe symptomatology. A 40 percent rating is not warranted as the evidence does not show that the Veteran has actual loss of use of the foot. The lay and medical evidence established functional use of the left foot for the entire appeal period. There is no doubt of material fact to be resolved in the Veteran’s favor regarding a 40 percent rating. 38 U.S.C. § 5107(b). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.