Citation Nr: 21026758 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-24 084 DATE: May 3, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, from February 27, 2017, is granted. Entitlement to a disability in excess of 10 percent for a service-connected bilateral foot disability is denied. FINDINGS OF FACT 1. From February 27, 2017, the most probative evidence of record shows that Veteran's back disability is manifested by adverse symptomatology that equates to forward flexion of the thoracolumbar spine not greater than 60 degrees but not at least 30 degrees or less even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by ankylosis or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period. 2. The preponderance of the evidence shows the Veteran's bilateral foot disability symptoms is not manifested by adverse symptomatology that equates to at least a moderately severe foot injury even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups any time during the appeal. CONCLUSIONS OF LAW 1. From February 27, 2017, the criteria for a 20 percent disability rating, but no higher, for a service-connected back disability have been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 to 5243. 2. The criteria for a disability rating in excess of 10 percent for a service-connected bilateral foot disability have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to August 1985. This matter was previously before the Board of Veterans' Appeal (Board) in November 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. Post-Remand Compliance The Board finds that the post-Remand development complied with the Remand because the VA examinations dated in February 2017 and October 2019 provide, when taken together, VA with medical evidence adequate to rate the Veteran's back and bilateral foot disability under all applicable rating criteria to include considering functional loss, pain, and painful motion with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiners provided sufficient findings to addressed each of these concerns in accordance with the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) as well as 38 C.F.R. §§ 4.40, 4.45, 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011). See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remands because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. The Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that none of the amendments changes how the Veteran's back and bilateral foot disability are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5003 and Diagnostic Code 5284. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination, obtain additional treatment records, or to provide the Veteran with notice of these new rating criteria and have his claim adjudicating applying them is not required is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155: 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code (DC). 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 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 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this regard, the Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. The Back Disorder The Veteran was originally granted service connection for a back disability and assigned a 10 percent disability rating effective August 27, 2005, under 38 C.F.R. § 4.71a, DC 5236. A subsequent April 2017 rating decision increased the Veteran's disability rating to 20 percent disabling effective February 27, 2017. A November 2018 Board decision denied the Veteran's claim for entitlement to a disability rating in excess of 10 percent prior to February 27, 2017, but remanded the Veteran's claim for entitlement to a disability rating in excess of 20 percent after February 27, 2017. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 40 percent rating if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, given the Veteran's diagnosis of intervertebral disc syndrome at his February 2017 and October 2019 VA examinations the Board that under the old and new regulations the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. Tellingly, the Court has also held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), the Board finds that the meets the criteria for at least a 20 percent rating from February 27, 2017, under the General Rating Formula for Disease and Injuries of the Spine at all times during the appeal. The Board has reached this conclusion because the record shows that post-February 27, 2017, VA examination dated in February 2017 showed that flexion was not greater than 60 degrees because it was 60 degree. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; Also see 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. The Board has also reached this conclusion because while treatment records document the Veteran's complaints and treatment for his back disability, nothing in these records shows his adverse symptomatology to be worse than what was reported by the above VA examiner. See Colvin, supra. Likewise, the Board has reached this conclusion because it finds the VA examiners opinions as to the severity of his back disability more probative than any lay claims from the appellant to the contrary, even though his symptomatology is observable by a lay person, because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). As to a rating in excess of 20 percent for the back disability from February 27, 2017, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 40 percent, rating. The Board has reached this conclusion because flexion of the thoracolumbar spine was significant higher than the 30 degrees or less required for a 40 percent rating at all of his VA examinations (i.e., it was 60 degrees in the addendum to the February 2017 VA examination, and 70 degrees in October 2019 VA examination). See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records also do not document flexion being 30 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for a diagnosis of ankylosis of the thoracolumbar spine from July 19, 2010. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in February 2017 and October 2019. See Colvin, supra. In fact, the February 2017 and October 2019, VA examiners opined that the Veteran did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Furthermore, in the absence of ankylosis the Board may not rate his back disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the February 2017 and October 2019 VA examinations, are negative for his having physician ordered bedrest much less 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Colvin, supra. In fact, the February 2017 and October 2019 VA examiner opined that he had not had any episodes of bedrest. Id. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and his treatment records does not show he ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Therefore, the Board also finds that the criteria for a rating in excess of 20 percent for the Veteran's back disability is not met at any time from February 27, 2017, under 38 C.F.R. § 4.71a, Diagnostic Code 5243. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. The bilateral foot disorder The Veteran is currently service connection for a bilateral foot disorder and assigned a 10 percent disability rating under diagnosis code (DC) 5284. He contends he is entitled to a higher disability. Under DC 5284, a 10 percent rating is warranted for moderate impairment. A 20 percent rating is warranted for moderately severe impairment. A 30 percent rating is warranted for severe impairment. A Note under DC 5284 provides that a 40 percent rating is warranted for actual loss of use of the foot. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "moderate" "and "severe." See Sellers v. Wilkie, 30 Vet. App. 157 (2018). It should also be noted that use of terminology such as "moderate" and "severe" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in August 2010. At that time, the examiner identified problems with bilateral foot pain, swelling, heat, stiffness, and weakness. The Veteran reported that he had flare-ups 1 to 3 a month and at those times he cannot stand. Otherwise, the Veteran reported he could walk more than 14 a mile but less than 1 mile. On examination, there was no limping, but shoes are worn on one side. X-rays showed a spur on the right but no other abnormalities. Thereafter, the Veteran had another foot examination in February 2017. At that time, the Veteran admits to currently experiencing tingling to his bilateral feet a lot as well as pain in his bilateral bunion areas and a burning sensation to the bottom of his feet. He denied having flare-ups. The examiner opined that the Veteran's adverse symptomatology was best characterized as mild or moderate. Next, the examiner opined that, while the Veteran had pain including on weight bearing, that this pain did not contribute to functional loss of additional limitations as well as did not cause any functional loss. The Veteran was afforded another VA examination of his bilateral feet in October 2019. The examiner diagnosed the Veteran with bilateral hallux valgus. The Veteran described bilateral foot pain when he stands for extended periods. The examiner qualified the Veteran's hallux valgus symptoms as mild or moderate, bilaterally. On examination, bilateral heel tenderness was noted, however the examiner found it does not chronically compromise weight bearing. With the above criteria in mind, the Board finds that the record does not suggest that the disability approximates the degree of severity required for at least 20 percent ratings. Specifically, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca, Mitchell, Burton, Correia, and Sharp, the appellant's bilateral disability does not meet equate to a "moderately severe" foot injury. See Owens, supra. The Board has reached this conclusion because the only adverse symptomatology seen on examination was bilateral foot pain and/or tenderness. See VA examinations dated in August 2010, February 2017, and October 2019. Moreover, the Board finds it significant that the February 2017 VA examiner opined that, while the Veteran had pain including on weight bearing, that this pain did not contribute to functional loss of additional limitations as well as did not cause any functional loss. Likewise, the Board finds it equally significant that the October 2019 VA examiner opined that the Veteran's bilateral heel tenderness does not chronically compromise weight bearing. The Board cannot ignore this evidence which it finds weighs against the claim for an increased rating. See Owens, supra. In this regard, the Board notes that the February 2017 and October 2019 VA examiners were uniform in opining that the adverse symptomatology due to the service-connected bilateral foot disability seen at those examinations were best characterized as mild or moderate in severity. Tellingly, because the above VA examiners characterization are supported by the medical findings at those VA examinations and because they are not directly contradicted by any other medical evidence of record, the Board finds that they are the most probative evidence of record. See Owens, supra; Colvin, supra. The Board has also reached this conclusion because, while the Veteran's treatment records periodically document his complaints and treatment for his bilateral foot disability, nothing in these treatment records show his adverse symptomatology worse than what was reported at the above VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, the Board finds the VA examiners opinions more probative than the claims from the Veteran regarding more service adverse symptomatology because as a lay person he does not have the required training to provide medical opinions even though he can report on what comes to him via his own senses (see Davidson, supra) and as medical experts the Board finds the opinions by the VA examiners have greater probative value (see Black, supra). Therefore, because the most probative evidence of record shows that the Veteran does not have at least a "moderately severe foot injury" because his adverse symptomatology is limited to pain and tenderness opined to be mild or moderate in severity and the Board finds that he is not entitled to ratings in excess of 10 percent for his bilateral foot disability under Diagnostic Code 5284 at all times during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5284; Owens, supra; Fenderson, supra; Hart, supra. Furthermore, given the nature and location of the Veteran's bilateral foot disability, the Board finds that they should not be rated under one of the other Diagnostic Codes for rating foot disabilities (see 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5282, and 5283) because he has never been diagnosed with these other foot disorders, his VA examiners specifically opined that his service-connected disabilities did not include these disorders and/or he did not have many of these disorders (see, e.g., VA examinations dated in August 2010, February 2017, and October 2019), and/or because the 10 percent ratings already assigned the disability meets the maximum rating possible for some of the Diagnostic Codes in question. See 38 C.F.R. § 4.71a; Butts, supra; Owens, supra. Therefore, the Board also finds that the criteria for a rating in excess of 10 percent for the Veteran's bilateral foot disability are not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5284. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.