Citation Nr: 21028319 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-38 413 DATE: May 11, 2021 ORDER A compensable disability rating for chronic contusion, left calcaneus is denied. REMANDED Entitlement to service connection for back disorder, to include degenerative disc disease of the lumbar spine and as secondary to service-connected disability, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected chronic contusion, left calcaneus resulted in no more than a moderate foot disability, and the symptomatology of such are contemplated by the separate 30 percent rating assigned for service-connected left plantar fasciitis. CONCLUSION OF LAW The criteria for a separate compensable disability rating for chronic contusion, left calcaneus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 2003 to December 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a lumbar spine disability and continued a noncompensable rating for the service-connected left foot chronic contusion. The Veteran's notice of disagreement (NOD) was received in October 2014. The RO issued the statement of the case (SOC) in June 2016, and the Veteran's VA Form 9, substantive appeal was received in August 2016. In November 2018, the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, the RO issued a rating decision in July 2020 granting a separate 30 percent rating for left foot plantar fasciitis from June 13, 2012, the date of claim. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). Separate ratings can be assigned for separate periods 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 periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 background 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."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. Any changes to the criteria that are applicable to the issue on appeal are indicated below. 1. Entitlement to an initial disability rating for chronic contusion, left calcaneus. The Veteran contends that a compensable disability rating is warranted for his service-connected chronic contusion, left calcaneus. As noted in the introduction, the Veteran is also in receipt of a 30 percent disability rating for left foot plantar fasciitis. See July 2020 rating decision. The Veteran's chronic contusion, left calcaneus is currently rated as noncompensable under 38 C.F.R. § 4.71A, Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent disability rating is provided for a moderate foot injury. A 20 percent disability rating is provided for a moderately severe foot injury. A 30 percent disability rating is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71A. Words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In this case, the Veteran has a diagnosis of degenerative arthritis of the left first MTP joint. See September 2013 VA examination. Degenerative arthritis established by x-ray findings is rated under Diagnostic Code 5003, and is based on limitation of motion of the affected joint or joints. When limitation of motion is noncompensable under a limitation of motion code, but there is satisfactory evidence of painful motion, as is the case here, a 10 percent rating may be assigned for each major joint or group of minor joints so affected. 38 C.F.R. § 4.71A, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. If there are occasional incapacitating exacerbations, a 20 percent rating is assigned for the arthritis without limitation of motion involving two or more major joints or two or more minor joint groups with incapacitating episodes. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71A, Diagnostic Code 5003, Note 1. Under 38 C.F.R. § 4.45, for purposes of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae are considered groups of minor joints. An October 2012 VA treatment note indicates that the Veteran's chronic inferior left heel pain is secondary to chronic insertional plantar fasciitis. During the period on appeal, the Veteran received a VA examination for his left foot disabilities in August 2013. The examiner provided diagnoses of left calcaneal spur and left foot plantar fasciitis. During the examination, the Veteran reported onset of left foot pain as beginning in August 2006. The Veteran indicated regular use of left foot orthotic shoe inserts. The examiner stated that the Veteran's left foot disabilities do not impact his ability to work. Degenerative arthritis was found on imaging of the bilateral feet. An addendum opinion obtained in September 2013 indicates that the degenerative arthritis was in the first MTP joint bilaterally. In September 2015, the Veteran submitted a Foot Conditions Disability Benefits Questionnaire (DBQ) which was completed by a private medical provider. The private physician provided a diagnosis of left foot plantar fasciitis. During the examination, the Veteran reported experiencing pain in the bottom of his left heel which is worse after getting out of bed and whenever he gets up from sitting. For contributing factors of disability, the physician indicated that the left foot plantar fasciitis contributes to pain on weight-bearing. The examiner noted that the Veteran has functional loss in the form of heel pain, limping and gait alteration. Regarding functional impact, the private physician indicated that the Veteran may have difficulty with running or sprinting and prolonged standing or climbing. The Veteran most recently underwent a VA podiatric examination in August 2019. The examiner provided diagnoses of left heel contusion and left foot plantar fasciitis. During the examination, the Veteran reported constant left heel pain but denied flare-ups. He stated that any walking or standing is painful. The examiner noted that the Veteran uses arch supports and orthotics but remains symptomatic. The examiner recorded severity of symptoms from foot injuries for the left foot as moderate. The examiner stated that the Veteran's left plantar fasciitis is a residual injury or sequela of the service-connected left heel contusion and the calcaneal spur is an incidental radiographic finding related to the plantar fascia. The examiner noted that the Veteran experiences pain on weight-bearing, disturbance of locomotion, and interference with standing due to his left foot injuries. The examiner again noted that the Veteran regularly uses orthotics for his plantar fasciitis. X-ray imaging of the left foot revealed no evidence of degenerative or traumatic arthritis. Based on the foregoing, assignment of a compensable rating in conjunction with the currently assigned 30 percent disability rating for the left foot plantar fasciitis would amount to impermissible pyramiding. First, with regard to the arthritis of the left first MTP joint, arthritis of a single MTP joint in the left foot is an inadequate basis for a compensable rating for arthritis. In this regard, under the express language of 38 C.F.R. § 4.45(f), more than one minor joint must be affected to warrant a compensable rating for arthritis with noncompensable limitation of motion, or no limitation of motion. See Spicer v. Shinseki, 752 F.3d 1367 (Fed. Cir. 2014). Therefore, as the Veteran's degenerative arthritis of the left first MTP joint only affects a single minor joint, no further consideration of a rating for arthritis is warranted. Importantly, the rule against pyramiding prohibits the assignment of separate disability ratings for the same symptom. In other words, the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. It is possible to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this regard, the evidence shows that both disabilities are manifested by pain, disturbance of locomotion and interference with standing. Therefore, only one disability rating is warranted for the two disabilities. However, 38 C.F.R. § 4.14 (avoidance of pyramiding) does not preclude assignment of a higher disability rating for the left foot chronic contusion in place of the 30 percent disability rating for the left foot bunion currently assigned. In other words, if a disability rating in excess of 30 percent is warranted under another appropriate diagnostic code based on all of the symptoms attributable to both disabilities, such may be assigned in lieu of the currently assigned 30 percent rating under Diagnostic Code 5276. In this case, however, a disability rating in excess of 30 percent is not warranted for the service-connected chronic contusion, left calcaneus under a separate diagnostic code in lieu of the 30 percent rating currently assigned under Diagnostic Code 5276. Specifically, the Veteran's symptoms from the chronic contusion, left calcaneus do not more closely approximate symptoms of a complete loss of the foot. No examiner opined during the period on appeal that the severity of the Veteran's left foot disabilities was greater than moderate in severity. Although functional impairments included pain on weight-bearing, disturbance of locomotion and interference with standing, the evidence does not indicate that the Veteran had a left foot disability equivalent to complete loss of use of his left foot. See 38 C.F.R. § 4.63. The ability to stand and walk on his feet, although limited by pain, reflected more function than would have been served by amputation of the feet. See id. Given the above, a disability rating in excess of 30 percent is not warranted for the left foot chronic contusion. Accordingly, no revision of the rating of the left foot chronic contusion is warranted and the noncompensable disability rating for the left foot chronic contusion must remain in effect. REASONS FOR REMAND 2. Entitlement to service connection for back disorder, to include degenerative disc disease of the lumbar spine and as secondary to service-connected disability, is remanded. The Veteran seeks service connection for a lumbar spine disorder. The Veteran has stated that his lumbar spine disability is worsened by his service-connected left foot disability. See June 2012 Veteran lay statement; see also January 2013 spouse lay statement. The Veteran has more recently stated that he believes his lumbar spine disability is a result of carrying heavy gear while marching, running, and going on patrol during active service. See September 2015 lay statement. Service treatment records show that the Veteran sought treatment for low back pain in August 2006 after lifting weights in a gym. A clinician diagnosed low back strain and prescribed muscle relaxant medication and 24 hours rest. In a November 2007 discharge physical examination, the Veteran denied any recurrent back pain or problems, and the examiner noted no spinal abnormalities. On his August 2016 VA Form 9, the Veteran reported that he began having lower back pain again soon after separation but "dealt with the pain until 2013" when he was diagnosed with degenerative disc disease at the VA. The Veteran reported being told by the physician at the VA that he was very young to have such degeneration and that this level of degeneration "doesn't just happen overnight." The Veteran stated that for years he thought his back pain was a result of the gym injury he sustained in August 2006 but now believes it is a direct result of his military occupation and duties as an infantryman which entailed carrying a heavy load on his back and shoulders while hiking and on patrols. He reported that he has not had a strenuous job after service and thus believes that his physical activity during service were a "huge contributing factor" to his current back disability. A VA medical opinion was obtained in August 2013 on the issue of secondary service connection. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that, in the medical literature, early degenerative joint disease and plantar fascitis does not cause degenerative disc disease (DDD) of the L5-S1 vertebra or Limbus at L4. However, the examiner did not address whether the Veteran's service-connected left foot chronic contusion caused his DDD or limbus at L4. Moreover, the examiner did not address the aggravation prong of secondary service connection. The Veteran was most recently provided a VA examination in August 2019. Whereas the examiner provided an opinion with respect to direct service connection, the examiner did not address the remaining theories of entitlement as requested. Thus, the Board finds a remand is warranted for an addendum opinion addressing such matters. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to the VA examiner who conducted the August 2019 VA examination, or an appropriate substitute if unavailable, for an addendum opinion as to the etiology of the Veteran's current back disorder, diagnosed as thoracolumbar degenerative disc disease with disc bulge T12-L1. (A) After review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current back disorder is proximately due to a service-connected disability. (B) The examiner also should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current back disorder is aggravated by a service-connected disability. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The Veteran is currently in receipt of service connection for the following: posttraumatic stress disorder; left plantar fasciitis with calcaneal spur; tinnitus; and chronic contusion, left calcaneus. A complete rationale should be provided for any opinion offered. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.