Citation Nr: 21024033 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-02 904 DATE: April 21, 2021 ORDER A disability rating in excess of 10 percent for residuals of a right fifth toe fracture of the proximal phalangeal joint is denied. FINDING OF FACT For the entire appeal period, the Veteran’s residuals of a right fifth toe fracture of the proximal phalangeal joint do not more nearly approximate a moderately severe foot injury. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a right fifth toe fracture of the proximal phalangeal joint are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1970 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2018 by a Department of Veterans Affairs (VA) Regional Office. The claim was initially before the Board in March 2020, at which time an increased disability rating was denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in its March 2020 decision when it failed to disclose its standard for assessing the terms “moderate” and “moderately severe” in the context of Diagnostic Code 5284. The Court then vacated that part of the March 2020 decision which addressed the claim, and it was remanded to the Board. Increased Disability Rating The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected residuals of a right fifth toe fracture of the proximal phalangeal joint (hereinafter, right toe disability). The disability has been rated under Diagnostic Code 5299-5284, which indicates that residuals of the toe fracture have been rated by analogy. See 38 C.F.R. §§ 4.20,4.27. Under Diagnostic Code 5284, the Veteran’s current 10 percent rating is for a moderate foot injury, and the next higher rating of 20 percent is assigned where there is a moderately severe foot injury. A maximum rating of 30 percent is assigned where there is a severe foot injury. Further, a Note following the Diagnostic Code indicates that when the foot injury is accompanied by actual loss of use of the foot, a 40 percent rating should be assigned. 38 C.F.R. § 4.71a. Importantly, the terms “mild,” “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. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent a VA foot examination in October 2018. At that time, the Veteran reported symptoms of pain that was “sharp” in nature, as well as spasms. He reported occasional flare-ups after being on his feet for extended periods of time. The Veteran also noted that he was unable to walk for long distances. The VA examiner indicated that the Veteran did not have symptoms due to hallux rigidus and assessed the severity of the residuals as moderate in nature. While the examiner noted that the Veteran’s foot disability chronically compromised weight bearing, the disability did not require arch supports, custom orthotic inserts, or shoe modifications. Upon physical examination, the Veteran displayed pain. The examiner determined that this pain contributed to the functional loss of disturbance of locomotion. The examiner further noted that there was functional loss due to flare-ups and repeated use and reiterated the Veteran’s reports of an inability to tolerate walking for extended distances. The Veteran did not use any assistive devices as a normal mode of locomotion, and his functioning was not so diminished such that amputation with prosthesis would equally serve him. The examiner concluded that the Veteran’s toe disability impacted his ability to perform any type of occupational task and referenced the Veteran’s reports of pain at his prior job which required him to walk long distances at job sites. Based on the foregoing, the Board finds that the evidence does not show that the Veteran’s right toe disability more nearly approximates a moderately severe foot injury, thereby warranting the assignment of the next higher rating of 20 percent. In this regard, the Board finds that, while the disability results in pain and limitation of motion, the Veteran’s functional impairment—which affects but does not preclude his ability to climb stairs, walk and stand—results primarily from his subjective complaints of pain and tenderness. Furthermore, the October 2018 VA examiner considered the totality of the Veteran’s subjective complaints, objective findings, and resulting impairment, and found that such disability resulted in no more than a moderate foot injury. Therefore, the Board finds that, as the Veteran’s residuals of a right fifth toe fracture of the proximal phalangeal joint does not more nearly approximate a moderately severe foot injury, a rating in excess of 10 percent is not warranted. In reaching such determination, the Board acknowledges the Veteran’s subjective symptoms and resulting functional impairment, but finds that such do not provide a basis for awarding a rating in excess of 10 percent, especially in light of the fact that that the VA examiner, who is a medical professional with the expertise necessary to assess the overall severity of his right toe disability in light of the rating criteria, found that such disability resulted in no more than a moderate foot injury. See Mitchell, supra (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Furthermore, the Board finds that such symptomatology and resulting functional impairment are contemplated in the currently assigned 10 percent rating. 38 C.F.R. § 4.59 (painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). The Board has also considered whether a higher or separate rating is warranted under any other potentially applicable Diagnostic Code; however, the evidence does not show that the Veteran’s right toe disability results in any additional toe or foot disabilities. Thus, higher or separate ratings are not warranted under Diagnostic Codes 5276 to 5283. The Board acknowledges the Veteran’s competent lay statements describing his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even with consideration of the Veteran’s statements, the Board finds the preponderance of the evidence does not demonstrate the Veteran’s right toe disability was more severe in nature as to warrant a higher disability rating. Here, the Board finds the Veteran’s impairment from his toe disability is adequately compensated by the 10 percent disability rating assigned for a moderate foot disability throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Accordingly, on this record, the evidence weighs against a finding the Veteran’s right toe disability warrants a higher rating. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.