Citation Nr: 21025271 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 20-04 443 DATE: April 27, 2021 ORDER Entitlement to a rating higher than 10 percent for residuals of fractures to right third, fourth and fifth toes, is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to a rating higher than 20 percent for right shoulder bursitis is remanded. FINDINGS OF FACT The Veteran’s residuals of fractures to right third, fourth and fifth toes, have been manifested by symptoms, primarily pain while walking, that are no more than moderate in severity. CONCLUSIONS OF LAW The criteria for residuals of fractures to right third, fourth and fifth toes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to July 1960, and from October 1960 to May 1977. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Increased Rating 1. Entitlement to a rating higher than 10 percent for residuals of fractures to right third, fourth and fifth toes Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The Board notes that neither the Veteran nor his representative have claimed that his right foot disability worsened since the last examinations and the probative evidence of record does not otherwise indicate that there has been a material worsening in the severity of the Veteran’s disabilities since the 2018 VA examination. As such, remand for current VA examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (VA’s duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted); see also 38 C.F.R. § 3.327 (a); VAOPGCPREC 11-95. The Veteran seeks a disability rating higher than 10 percent for residuals of fractures to right third, fourth and fifth toes. The Veteran residuals of a right foot fracture with arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for which refers to other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/ dictionary/moderate. “Severe” means “of a great degree.” See www.merriam-webster.com/dictionary/severe. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. On VA examination in February 2016, the Veteran complained that his toes were not mobile, which he believed was causing balance issues. Reportedly, he was issued a cane to assist with ambulation, approximately 20 years earlier. The Veteran denied residual pain or flare-ups resulting in additional functional limitations. There was no neuropathy. He denied any podiatric treatment or directed foot care. Examination revealed bilateral hammer toes, not likely to be related to the in-service original injury because they were symmetric and affected all the toes, bilaterally. Imaging studies confirmed healed fractures to the third and fourth metatarsals, along with normal mobility at metatarsophalangeal joint (MTPJ). There was mild tenderness to palpation at the mid and distal shaft of the third metatarsal without notable deformity. Distal neurovascular examination of the foot was normal, bilaterally. The arch was also normal. There was pain on examination, but it did not contribute to functional loss or additional limitations. The Veteran denied any pain with weightbearing or motion of the foot. The examiner noted mild dorsal tenderness to palpation limited to the third metatarsal, which did not produce any functional impairment. The examiner noted no pain, weakness, fatigability, or incoordination that significantly limited his functional ability during flare-ups or when the foot was used repeatedly over a period of time. There was no deformity of the foot related to prior fracture. The examiner described the Veteran’s service-connected right foot disability as mild in severity. The examiner opined that the condition was not productive of occupational impairment. The examiner concluded that the Veteran’s stated balance issues were not likely to be related to his original service-connected metatarsal injuries which were well-healed radiographically for more than 20 years and almost 60 years since the original injury. He denied any ongoing pain condition or any functional impairment from pain or weakness. The examiner reiterated that the Veteran’s hammertoes were not likely due to his original in-service injury. The Veteran underwent a foot examination in June 2018. The examiner noted a diagnosis of status post-fractures to right third, fourth, and fifth toes. The Veteran endorsed flare-ups characterized by sharp dull pain productive of difficulty with standing, running or walking for long period of time. Examination revealed pain on movement, weight bearing and non-weight bearing. After repetitive use over time and on flare-ups, there was foot tenderness and pain with prolonged walking. He did not require assistive devices for ambulation. The examiner described the condition as moderate productive of foot tenderness, pain with prolonged walking. Based on consideration of the evidence of record, the Board finds that a rating in excess of 10 percent for service-connected right foot disability is not warranted. Here the evidence shows that the Veteran’s primary problem with his right foot, at worst, was pain, particularly with prolonged walking. Examination revealed pain on movement, weight bearing and non-weight bearing. After repetitive use over time and on flare-ups, there was foot tenderness and pain with prolonged walking. Significantly, the VA examiners characterized the condition as mild to moderate in severity. Even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that prolonged walking and standing would not result in symptoms more nearly approximating moderately severe other foot injuries. Collectively, this evidence indicates that the Veteran’s symptoms more closely approximated no more than moderate severity, pursuant to Diagnostic Code 5284. The Board further notes that the Veteran’s right foot disability is not shown to have involved any other factor(s) warranting evaluation under any potentially applicable diagnostic code. While the evidence shows hammertoes affecting both feet, it has been determined not to be service related. Diagnostic Codes 5282. The evidence of record is devoid of any findings of flatfoot, pes cavus, weak foot, hallux valgus, hallux rigidus, malunion or nonunion of the metatarsal bones, Morton’s neuroma, or other right foot deformity. Thus, a higher or separate rating under Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281 and/ or 5283, respectively, is not warranted. As the preponderance of the evidence weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, the Board acknowledges that a claim for entitlement to a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Here, the Veteran has not specifically claimed entitlement to a TDIU as a result of his service-connected disabilities. In the event that a claim of a TDIU was implicitly raised, review of the medical evidence does not reflect that the Veteran meets the required percentage criteria. Nor does the record suggest that the Veteran’s service-connected connected disabilities preclude employment so as to warrant a referral for extraschedular consideration. Thus, a clear preponderance of the evidence of record is against a finding that the Veteran is precluded from gainful employment due solely to his service-connected disabilities, and no further action pursuant to Rice is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded is remanded. The Veteran seeks service connection for a left knee disability. During the March 2021 Board hearing the Veteran asserted that his left knee disability was secondary to the service-connected right foot disability. The February 2016 examination opinion is limited to a direct theory of entitlement and does not address a secondary theory of entitlement. The Board must consider all reasonably raised theories of entitlement to service connection for the claimed disability. Thus, the Board is without discretion and must remand the appeal for an addendum opinion. 2. Entitlement to a rating higher than 20 percent for right shoulder bursitis is remanded. The Veteran asserts that he is entitled to a disability rating higher than 20 percent for his service connected right shoulder disability. The Veteran was most recently afforded a VA examination in connection with his right shoulder disability in June 2018. At that time, the examiner noted limited motion during flare-ups with flexion reduced to 90 degrees, abduction to 90 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees. At the March 2021 Board hearing the Veteran essentially testified that his right shoulder disability had worsened and reported increasingly reduced range of motion. Specifically, the Veteran testified that he could no longer raise his right arm to 90 degrees. He reported inability to raise it no higher than just above the waistline at times. VA’s General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In light of the Veteran’s contentions that his right shoulder disability has increased in severity, a new examination to evaluate the severity of the Veteran’s right shoulder bursitis is warranted. The matters are REMANDED for the following action: 1. Obtain all relevant ongoing VA treatment records or any private records the VA does not have. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the appeal. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature, extent, and severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 3. Submit the claims file to the February 2016 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. The examiner should provide an opinion that responds to the following: a) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that the current left knee disability had onset during service, to include as due to injuries incurred in May 1958. Please explain why or why not. In formulating the opinion, the examiner is asked to comment on the clinical findings recorded in July 1996, which noted left knee medial abnormality possibly due blunt trauma. b) If not, determine whether it is at least as likely as not (a probability of 50 percent or greater) that the current left knee disability was caused or aggravated by the service-connected right foot disability. Please explain why or why not. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.