Citation Nr: 21027004 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-45 417 DATE: May 4, 2021 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to a compensable rating for residuals of fracture of the right 5th metatarsal (claimed as broken right foot and toe) is denied. FINDINGS OF FACT 1. A right knee disability was not shown in service and is not shown to be related to service. 2. The Veteran's status post fracture of the right 5th metatarsal has not been shown to result in moderate foot disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for residuals of fracture of the right 5th metatarsal (claimed as broken right foot and toe) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from August 29, 1975 to October 14, 1975. This matter is on appeal before the Board of Veterans Appeals (Board) from May and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, a Board hearing was held before the undersigned; a transcript of the hearing is of record. In May 2020, the case was remanded for further development. The Board has recharacterized the Veteran's service-connected right foot disability as residuals of fracture to the right 5th metatarsal rather than residuals of fracture to the right 5th "metacarpal" as it is evident from the record that the injury from which this service-connected disability stems was a right 5th metatarsal fracture (i.e. fracture in the foot area rather than the hand area). The Veteran is not prejudiced by this correction of the earlier typographic mistake made by the November 2015 rating decision, as he has been appropriately rated under a Diagnostic Code, which addresses disability of the feet, as explained in the analysis below. 1. Entitlement to service connection for right knee disability. The Veteran alleges that his current right knee disability is related to his military service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records do not show any findings or complaints of knee problems. The Veteran's service personnel records include an October 1975 memorandum indicating that the Veteran was to be discharged prior to serving for 180 days. This was based on him expressing the desire to not continue serving in the Army. The Veteran indicated that he did not wish to submit a rebuttal and did not desire to have a separation examination if his discharge was approved. Subsequent records show that the Veteran was approved for an honorable discharge after service for less than 180 days (i.e. 1 month and 16 days) on active duty for training. Thus, as his preference was honored concerning discharge, it was also honored concerning his desire not to have a separation examination. At a May 1977 private medical visit, the Veteran reported a history of a twisting injury to the right knee. He noted that in March 1977, he caught his pants going down the stairs and his right knee gave out. As a result, he experienced joint effusion and pain. Physical examination showed 2+ joint effusion along with medial line joint tenderness. There was a moderately positive anterior drawer sign, pain produced by valgus stress and 1+ medial laxity. The McMurray test was painful with no click. The impression was anterior cruciate tear and possible tear of the medial meniscus. A May 1977 operative report shows that the Veteran underwent right knee surgery in form of a medial meniscectomy and pes transfer. A May 1977 pathology report indicates that samples were taken in conjunction with the Veteran's diagnosed right knee anterior cruciate tear and possible medial meniscus tear. A sample showed fibrocartilage consistent with the meniscus, showing tear and degenerative changes. At a July 2009 medical visit, the Veteran was seen for pain in many areas, including the knee. He indicated that he had been having pains for the better part of 7 to 10 years. He noted that he had been involved in both work and car accidents, which he thought had precipitated the pains. In particular, he cited an auto accident where he had been rear-ended as a precipitant for the pain. He also gave a history of prior right knee surgery. He indicated that he had been informed that he had significant arthritis. He reported pain in both knees and into his feet. A May 2010 private physical therapy discharge summary shows that the Veteran received physical therapy in March and April 2010 status post total right knee replacement. An October 2010 private physical therapy evaluation note shows that he was referred for another round of therapy. At a March 2012 private orthopedic consultation, the Veteran reported fairly severe pain, including in the knees and feet. He noted that he had had surgery on both knees, including a right knee total replacement. The diagnoses included degenerative joint disease of the knees and possible rheumatoid arthritis. On his May 2015 notice of disagreement, the Veteran reported that during service, he fell down the steps of the barracks and broke his right foot. He also noted that he hurt his right knee on the steps, which later led to problems with the knee and ultimately led to surgery. At an October 2015 VA examination, the Veteran was diagnosed with right knee osteoarthritis. He reported that he had had a problem with his right knee since injuring it falling down the stairs in service. The Veteran also reported that at the time of the knee injury, X-rays were taken, and medical personnel informed him that his knee was o.k. The Veteran indicated that soon after service, he suffered the 1977 injury, was told he injured his cartilage and a ligament, and subsequently had surgery. The Veteran also indicated that the jobs he had after service only involved being on his feet and his cartilage eventually wore out to the point that he had bone on bone knee arthritis. As a result, he had a right total knee replacement in February 2010. He noted that even after the replacement, he still felt the knee locked up and was painful, especially on the lateral side. He reported current constant right knee pain that varied. After examination and review of the claims file, the examiner opined that the evidence supported the conclusion that it was less likely than not that any right knee condition was incurred in service. The examiner noted that the Veteran was in the Army less than two months and there was no mention of a right knee injury in the service treatment records. The examiner also found that the Veteran's current right knee osteoarthritis was the result of non-service-related factors such as age and employment and possibly motor vehicle accidents, which occurred over the years. On his November 2016 Form 9, the Veteran reported that he injured his right knee during service and that the knee was currently causing him pain and suffering. Thus, he felt that he should be compensated for the disability. At his March 2020 Board hearing, the Veteran testified that he injured his knee during service at the same time that he injured his foot. He noted that he was cleaning out the barracks, located at the top of the stairs. He made a misstep and slipped on the water on the floor that was being used for mopping. As a result, he fell down the steps. He noted that he tweaked his knee, bending it in an outward direction. He reported that when he was seen by medical personnel following the injury, he informed the individual attending to him that he had tweaked his knee and done something to his foot. He noted that at the time his foot was hurting worse than the knee so that may have been why medical personnel just disregarded his knee since there was not anything noticeably wrong with it. The Veteran also testified that he has continued to have problems with his right knee ever since service. He indicated that he ended up having right knee surgery in 1977. He also indicated that the surgeon informed him that if he would have had some treatment at the time he injured the knee during service, his knee problem would not have been as bad. Additionally, he noted that he eventually had the total knee replacement. Regarding the right knee disability, the above summarized evidence does not show any medical evidence of knee problems during service. Also, there is no medical evidence of record, which even suggests a relationship between the Veteran's current right knee disability and his military service. To the contrary, the October 2015 VA examiner specifically found that it was less likely than not that any right knee condition was incurred in service. The examiner supported this opinion with a reasoned rationale based on examination and records review, noting that the Veteran was in the Army less than two months with no mention of a right knee injury in the service treatment records and finding that the Veteran's current right knee osteoarthritis was the result of non-service related factors such as age, employment and possibly motor vehicle accidents. The Veteran has asserted that he did injure his knee during service in the same injury where he fractured his right 5th metatarsal and that his right knee has bothered him ever since. However, as alluded to above, the service treatment records, including records pertaining to treatment for the Veteran's metatarsal fracture are negative for any findings or complaints of knee pathology. Also, the Veteran's reporting of medical attention received for the knee pathology he alleges was present after his in-service fall has been inconsistent. In this regard, at the October 2015 VA examination, the Veteran reported that an X-ray of his right knee was taken when he was seen by medical personnel following the fall in service. However, at the March 2020 Board hearing the Veteran testified that although he informed medical personnel that he had tweaked his knee in the fall, the treating medical professional disregarded his knee to wholly focus on his foot. The report of a right knee X-ray being taken is clearly inconsistent with the report of the right knee being disregarded. Additionally, when the Veteran was seen by private medical personnel in May 1977 following his right knee twisting injury, he did not report any prior history of knee problems. Moreover, at subsequent medical visits for the right knee over the years, and prior to him claiming service connection for right knee in October 2014, the Veteran similarly did not report any history of right knee injury during service. Given the Veteran's inconsistent reporting concerning medical personnel's reaction to his alleged reporting of the right knee injury during service combined with the lack of evidence in the service treatment records of the occurrence of such injury, and the lack of any report of the alleged injury to medical personnel he saw in conjunction with ongoing knee problems for at least 37 years after service, the Board is not able to credit the Veteran's report of injuring his right knee during service and continuing to experience right knee problems ever since this injury. Rather, the Board must credit the medical history relied upon by the October 2015 VA examiner of no right knee injury occurring during service and knee problems not developing until after service. To the extent the Veteran is otherwise alleging that his current right knee disability is related to service (i.e. on a basis other than continuity of symptomatology), as a layperson without any demonstrated expertise concerning the etiology of knee disability, this general assertion may not be afforded any significant probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum because a right knee injury was not shown in service and the Veteran's current right knee disability is not shown to be related to service, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 3.303; Alemany, 9 Vet. App. 518 (1996). 2. Entitlement to a compensable rating for residuals of fracture of the right 5th metatarsal. In the November 2015 rating decision, the RO granted service connection for residuals of fracture of the right 5th metatarsal and assigned a noncompensable rating effective October 14, 2014. The Veteran seeks an increased rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. At an October 2015 VA foot examination, the diagnosis was right 5th metatarsal fracture with residual mild tenderness to palpation. The Veteran reported that in service he injured his foot after his fall downstairs. He indicated that he had had pain in the right foot ever since the injury. He noted that the pain was a constant, aching pain that was aggravated by weather changes or prolonged walking. He indicated that he was not taking any medications for the disability. He also reported that he had had no additional medical treatment for the right foot since service. He noted that he did not think that there had been anything medically that could be done for it. The examiner noted that there was pain in the right foot that was accentuated on use. There was also pain on manipulation of the feet. Physical examination showed slight tenderness to palpation over the lateral fifth proximal metatarsal head. The examiner found that this pain did not contribute to functional loss. The examiner noted that the Veteran's right foot was only mildly tender to palpation, and with shoes on, the disability would be unlikely to result in significant symptoms. The examiner commented that there was no additional pain on repetitive use or on flare-ups. An X-ray showed lucency base in the right 5th metatarsal, likely representing the prior fracture. The examiner found that the right foot disability did not impact the Veteran's ability to work. The examiner also noted that the Veteran had had a non-service-related amputation of the right 2nd toe and reported ghost limb pain in conjunction with this. In summarizing the examination findings, the examiner indicated that there was no evidence that the Veteran's slight residual tenderness to palpation of the lateral right foot resulted in impairment. The examiner commented that the records since the military indicated that there were numerous other medical conditions that impaired the Veteran, which were not service-related and that the right 5th lateral foot pain has not been clearly identified as one of them. The examiner found that the severity of the foot condition was mild. On his November 2016 Form 9, the Veteran reported that his foot injury during service had caused pain and suffering and thus, he felt he should be compensated for it. At the March 2020 Board hearing, the Veteran testified that he could feel his right foot when the weather changed. He indicated that it was kind of a burning sensation. He reported that he thought he had arthritis and that his foot hurt most of the time. He also testified that there was "kind of a lump" where the bone had snapped when he experienced the fracture in service. He reported that the foot sometimes hurt when he was walking and that when it was warm weather, he felt "kind of okay." He noted that he tried to wear thick-soled shoes, so he had cushioning when he was walking. He also noted that how much his right foot hurt could be dependent on how long he had been walking or standing. Additionally, the Veteran testified that he was not receiving any medical treatment for his foot, but he did soak it in hot water and Epsom salts. The Veteran's status post fracture of the 5th metacarpal is rated as noncompensable under Diagnostic Code 5284. In order to warrant a higher, 10 percent rating under this Code, a moderate level of foot injury must be present. A 20 percent rating is warranted for moderately severe foot injury. A 30 percent rating is warranted for severe foot injury. 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. Code 5284 does not define the terms, "moderate", "moderately severe" or "severe." 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. As noted above, the October 2015 VA examiner specifically found that the right 5th metatarsal disability, manifested by only a small level of pain, including on palpation, did not result in any functional impairment. There is no other medical evidence of record tending to show any higher level of impairment. Consequently, the medical evidence does not indicate that the Veteran's right 5th metatarsal disability tends toward "a mean or average" level of foot disability. Accordingly, it does not provide a basis for a 10 percent rating under Diagnostic Code 5284. Also, as noted above, at the March 2020 Board hearing, the Veteran testified that his foot hurt most of the time; that he could feel a kind of burning sensation when the weather changed; that there was a "kind of a lump" where the bone had snapped during his initial injury; and that how much his right foot hurt could be dependent on how long he had been walking or standing. The Board notes that although the Veteran's testimony described the nature of the pain he experienced, it did not describe a significant level of functional loss. In this regard, the Veteran only vaguely indicated that he could experience more pain after activities such as prolonged walking or standing and did not allege that the pain associated with the right 5th metatarsal disability significantly limited his ability to walk or stand or perform any other physical activity. In the absence of an allegation of any such significant loss of function, the Veteran's lay assertions also do not tend to indicate that his right 5th metatarsal disability is compatible with a mean or average level of foot disability. Thus, there is no basis for assigning a compensable rating under Code 5284 for moderate foot disability based on these assertions. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board has considered whether a compensable rating could be applied under any other rating codes applicable to disability of the feet. However, these Codes are not found to be applicable. See e.g. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283. The Board has also considered whether a compensable rating could be awarded on the basis of functional loss. However, as noted above, the October 2015 VA examiner did not find that the Veteran had any underlying functional loss, including after repetitive use or upon flare-ups. Additionally, the Veteran's right 5th metatarsal disability is not shown to result in any loss of motion after repetitive use or upon flare-ups, which could be compensable. Accordingly, there is no basis for assigning a compensable rating based on functional loss. Finally, the Board has considered whether Code 5172 for amputation of the toes, other than the great toe, with or without removal of the metatarsal head could be applied. 38 C.F.R. § 4.71a. However, unlike the Veteran's non-service-connected right 2nd toe, his right 5th toe has not undergone any amputation. Thus, as his metatarsal head is intact, there can be no basis for assigning a compensable rating under Code 5172 and even if his 5th right metatarsal disability were deemed to be compatible with amputation of the right 5th toe without removal of the metatarsal head, Code 5172 assigns a noncompensable rating for this level of disability. In sum, considering all applicable criteria, there is no basis for assigning a compensable rating for the Veteran's right 5th metatarsal disability. The preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 4.71a, Diagnostic Code 5284; Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.