Citation Nr: 21028624 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-25 092A DATE: May 11, 2021 ORDER A rating in excess of 10 percent for residuals of a right fifth metatarsal fracture is denied. FINDING OF FACT During the period on appeal, the right foot disability was manifested by subjective complaints of intermittent pain on weight-bearing, after prolonged walking or running, and with weather changes; objective findings did not demonstrate malunion or nonunion of the tarsal or metatarsal bones or a moderately severe disability picture. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for residuals of a right fifth metatarsal fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1989 to June 1997 and from January 2001 to January 2011. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for status post fracture of the right fifth metatarsal. The Veteran's notice of disagreement (NOD) was received in November 2011. The RO issued the statement of the case (SOC) in September 2013, and the Veteran's VA Form 9, substantive appeal was received in September 2013. In July 2015 the Board remanded the case to the RO for further development and adjudicative action. In March 2018 the Board remanded the case to the RO for further development and adjudicative action. In March 2020 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 October 2020 granting an increased rating for the service-connected status post fracture of the right fifth metatarsal to 10 percent, effective from February 2011. During the October 2020 VA examination, the Veteran reported that he had missed between zero days and one week of work time in the past year due to his right fifth metatarsal symptoms. See October 2020 VA examination. However, the Veteran has not alleged, and the evidence does not show, that he has since lost employment or has been unable to maintain substantially gainful employment due to his service-connected disabilities during the period on appeal. Accordingly, no inferred claim for a TDIU has been reasonably raised. 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). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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 (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM 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. 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 claims on appeal are indicated below. Entitlement to a rating in excess of 10 percent for residuals of a right fifth metatarsal fracture. The Veteran contends that a disability rating in excess of 10 percent is warranted for his service-connected residuals of a right fifth metatarsal fracture. The Veteran's right foot fifth metatarsal fracture is currently rated as 10 percent disabling 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. The Veteran received an initial pre-discharge VA examination for his right foot disability in November 2010. The examiner provided a diagnosis of sesamoiditis. During the examination, the Veteran reported sustaining a right fifth metatarsal fracture in 1994. He reported pain which is aching and sharp with a severity of 2/10 to 7/10 which is elicited by physical activity and relieved by rest. The Veteran's posture and gait were assessed as normal and the Veteran did not report using any assistive devices. Examination of the feet and toes did not reveal any sign of painful motion, edema, disturbed circulation, weakness, atrophy of musculature or tenderness. There was no evidence of claw feet, hammertoes, hallux valgus or hallux rigidus and flexion and dorsiflexion of the toes did not induce pain. X-ray imaging of the right foot revealed bipartite medial sesamoid but no acute fracture or dislocation. The Veteran received another VA podiatric examination in May 2013. The examiner diagnosed right foot strain. The Veteran reported intermittent pain of the right foot with walking or stepping on objects. The Veteran did not report using any assistive devices. The examiner stated that they could not provide an opinion as to additional functional loss during flare-ups without resorting to speculation as the examination was not conducted during a flare up. As noted in the March 2018 remand, this is not compliant with the holding in Sharp. The Veteran received another VA podiatric examination in September 2019. The examiner diagnosed status post fracture of the right fifth metatarsal. The Veteran reported that the condition has stayed the same since onset in 1994. The Veteran reported pain while running or walking for a long time. The examiner assessed the Veteran's status post fracture of the right fifth metatarsal as mild in severity and noted that the condition did not chronically compromise weight bearing or require arch supports, custom orthotic inserts or shoe modifications. No pain was noted on examination. The Veteran reported that when he curls his toes on the right he feels some discomfort in the right fifth metatarsal. The Veteran did not report using any assistive devices. The Veteran was provided another VA examination for his right foot in August 2020. The examiner provided diagnoses of acquired pes clavus and status post fracture of the right fifth metatarsal. The examiner stated that the Veteran's pes cavus is directly due to or related to the service-connected status post fracture of the right fifth metatarsal. The Veteran reported occasional intermittent sharp pain if he steps on his right foot wrong. He also reported occasional numbness and tingling to his right foot that he explains he was told is related to his lumbar spine abnormalities. The Veteran denied flare-ups and denied functional loss or functional impairment of the right foot. There was no tenderness with palpation to lateral aspect of right foot, right 5th metatarsal joint line. The Veteran reported a sensation of pressure along the right fifth metatarsal joint line/lateral aspect of right foot with leaning to the right and bearing most of weight to right foot. The examiner assessed the Veteran's status post fracture of the right fifth metatarsal as mild in severity and noted that the condition did not chronically compromise weight bearing but noted that his pes cavus did require arch supports. Pain was noted on physical examination but did not contribute to functional loss. Finally, the Veteran most recently received a VA examination for his right foot in October 2020. The examiner provided a diagnosis of status post fracture of the right fifth metatarsal. The Veteran reported intermittent pain which increases with walking, going down stairs, and weather changes. The Veteran described the pain as sharp and rated the severity as 6-7/10. He reported that pain is localized to his right foot just behind his pinky toe. The Veteran reported that walking without shoes on hard or uneven surfaces causes the most pain. He denied any swelling to the right foot. The Veteran reported daily flare-ups with going down stairs, walking barefoot and with weather and temperature changes. He reported that sometimes has to adjust his gait due to right foot pain. The Veteran stated that once the activity which caused the flare-up is stopped the pain will resolve. The examiner assessed the Veteran's status post fracture of the right fifth metatarsal as mild in severity and noted that the condition did not chronically compromise weight bearing or require arch supports, custom orthotic inserts or shoe modifications. Physical examination revealed normal bony alignment, no crepitus, normal range of motion and normal strength. The examiner stated that there were no other significant findings for any other foot pathology and that the symptoms are subjective only. The Veteran denied using any assistive devices. X-rays were taken which revealed no degenerative arthritis. (Continued on the next page) As noted above, the terms "mild," "moderate," and "severe" are not defined in the regulations, and it falls to the Board to adjudicate equitably and justly a veteran's claim for increase. In this case, multiple VA examiners, who the Board notes had the benefit of examining the Veteran in person and reviewing the medical file, concluded that the Veteran's foot condition was mild. In contrast, no examiner has ever found the Veteran's foot condition to be more than mild, nor has a treating provider explicitly characterized the condition as severe or moderately severe. Thus, the Board does not find warranted entitlement to an evaluation in excess of the already assigned 10 percent under Diagnostic Code 5284. Specifically, the Veteran's symptoms from the right foot fifth metatarsal fracture do not more closely approximate symptoms of a moderately severe or severe foot injury, or complete loss of the foot, and while functional impairments shown have included intermittent pain on weight-bearing, after prolonged walking or running, and with weather changes, no provider has ever characterized these symptoms as "severe" in any degree, and the Board does not find evidence that they rose to a level properly characterized as moderately severe or severe at any time during the period on appeal. Given the above, a disability rating in excess of 10 percent is not warranted for the residuals of right fifth metatarsal fracture, and the claim for increase must be denied. Z. SAHRAIE 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.