Citation Nr: 21025016 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-24 414A DATE: April 27, 2021 ORDER Entitlement to an initial compensable evaluation for left foot hallux valgus with hammer toe of the second, third, fourth and fifth toes, status post stress fracture (left foot disability) prior to September 10, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for the period after September 10, 2019 is denied. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran’s left foot disability manifested as moderate foot injury symptoms prior to September 10, 2019. 2. The Veteran’s left foot disability comprised a moderate foot injury for the period after September 10, 2019. There is no evidence throughout the claim period of a moderately severe or severe foot injury, such as symptoms other than pain or any objective signs of disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a left foot disability prior to September 10, 2019 for a left foot disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5280-5284. 2. The criteria for a rating in excess of 10 percent for left foot disability for the period after September 10, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5280-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to October 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter has previously been before the Board, most recently in May 2020. At that time, the Board remanded the claim for service connection for increased ratings for left foot disability in order to obtain an adequate VA examination. As the record reflects that the Veteran was afforded a VA examination in August 2020, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings for a Left Foot Disability The Veteran has a noncompensable disability rating for his left foot disability from October 22, 2012 to September 10, 2019 and a rating in excess of 10 percent thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. 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 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 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. Diagnostic Code 5284 is applicable to other foot injuries and provides that a 10 percent rating is warranted for moderate foot injuries, a 20 percent rating is warranted for moderately severe foot injuries and a 30 percent rating is warranted for severe foot injuries. A Note to Diagnostic Code 5284 instructs that the actual loss of use of the foot should be rated at 40 percent. See id. The Veteran was afforded VA examinations for his left foot in October 2012, November 2017, September 2019 and August 2020. The Veteran reported to the October 2012 VA examiner that he did not have left foot pain on a daily basis, but only if he ran or during cold weather. The examiner noted the Veteran had hammertoes and hallux valgus. The examiner noted no symptoms of hallux valgus and no malunion or nonunion of the tarsal or metatarsal bones. The Veteran reported to the November 2017 VA examiner that he had “very mild” plantar fasciitis in his left foot and that he experienced foot pain in the morning that would resolve after stretching the foot. The VA examiner did not diagnose any foot conditions. The September 2019 and August 2020 VA examiners noted diagnoses of hallux valgus and hammertoe of the second, third, fourth and fifth toes. The September 2019 VA examiner described the Veteran’s left foot condition as asymptomatic, with no objective signs of pain on examination. The Veteran reported to the August 2020 VA examiner that he experienced intermittent pain that was made worse with prolonged standing, walking or high-impact activities. The Veteran also described flareups of extreme pain after standing during his shift at work as a car salesman. The August 2020 VA examiner noted that there was pain on examination and described it as being mild to moderate. The Veteran testified at the November 2017 Board hearing that he experienced left foot pain. VA and private treatment records do not reflect any ongoing complaints of or treatment for left foot pain. Based on the foregoing, the Board finds that the Veteran’s left foot disability did not approximate the criteria for a 10 percent rating prior to September 10, 2019. Specifically, the Veteran either denied the existence of symptoms or described them as mild and limited to specific times, such as after exercise, during cold weather or in the mornings. VA examiners found no objective symptoms related to the Veteran’s left foot and VA and private treatment records do not reflect symptoms related to the Veteran’s left foot disability. As the evidence does not support a finding that the Veteran’s left foot symptoms could be characterized as moderate prior to September 10, 2019, the Board finds no basis for a compensable rating during that period. Given the evidence of the Veteran’s increasing pain during the period after September 10, 2019, including the August 2020 VA examiner’s description of the Veteran’s pain as mild to moderate, the Board finds that the Veteran’s left foot disability is best characterized as moderate for the period after September 10, 2019. The evidence, including the Veteran’s own reports, VA examinations and VA and private treatment records, do not suggest that the Veteran’s left foot disability was moderately severe. As such, a rating in excess of 10 percent is not warranted for the period after September 10, 2019. The Board acknowledges the Veteran’s claim that he experienced plantar fasciitis in his left foot. However, the November 2017 VA examiner specifically noted that the condition was not related to service. The Board also recognizes the Veteran’s report to the August 2020 VA examiner that he experienced “extreme” pain during flare-ups. However, the evidence does not show that the flare-ups rendered the disability, as a whole, more than moderate during the appeal period. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating prior to September 10, 2019 and for a disability rating in excess of 10 percent thereafter. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal is therefore denied. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.