Citation Nr: 21028698 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-59 215 DATE: May 11, 2021 ORDER A rating in excess of 10 percent for right foot metatarsalgia, status post fracture, right fifth metatarsal base is denied. REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran is currently in receipt of the highest disability rating under Diagnostic Code 5279 for unilateral or bilateral metatarsalgia and the rating schedule is adequate to evaluate the disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right foot metatarsalgia, status post fracture, right fifth metatarsal base are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5279 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to October 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in February 2020. A transcript of the hearing is of record. This matter was previously before the Board in February 2020 and June 2020 when it was remanded for further development. Entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. Entitlement to a rating in excess of 10 percent for right foot metatarsalgia, status post fracture, right fifth metatarsal base is denied. The Veteran contends he is entitled to a rating in excess of 10 percent for his service-connected right foot metatarsalgia, status post fracture, right fifth metatarsal base. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, 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, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran has been assigned a 10 percent rating for his service-connected right foot metatarsalgia, status post fracture, right fifth metatarsal base throughout the appeal period under Diagnostic Code 5279. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. A new Diagnostic Code to evaluate plantar fasciitis was added at Diagnostic Code 5269; however, the evidence does not reflect that the Veteran has plantar fasciitis; therefore, these revisions will not be further discussed. Under Diagnostic Code 5279, metatarsalgia, anterior (Morton's disease), either unilateral or bilateral, warrants only a 10 percent rating. 38 C.F.R. § 4.71a. "Metatarsalgia is a cramping burning pain below and between the metatarsal bones where they join the toe bones." Nix v. Brown, 4 Vet. App. 462, 464 (1993); Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Metatarsalgia is a term that refers to chronic pain in the ball of the foot from any of a variety of causes, one of which is Morton's neuroma. Morton's neuroma (or disease) is a painful neuropathy of the digital plantar nerve that usually results in pain in the ball of the foot between the third and fourth metatarsal heads. As with pes cavus and flatfoot, the symptoms of metatarsalgia may be unilateral or bilateral, and may be relieved with appliances, orthoses, or orthopedic shoes. Occasionally, surgery is needed for relief. 68 Fed. Reg. 7020 (Feb. 11, 2003). Turning to the evidence in this case, the record reflects that the Veteran underwent a VA examination in June 2016. During the examination, the Veteran reported right foot pain that increases with prolonged standing, walking, and impact sports and activities. The examiner noted that the Veteran's current treatment plan included custom orthotics and oral and topical NSAIDs. The Veteran reported pain but denied experiencing flare-ups and functional loss. The examiner noted a diagnosis of right foot metatarsalgia and indicated that the condition was mild. The examiner indicated that the Veteran's right foot condition did not chronically compromise weight-bearing but did require arch supports, custom orthotic inserts, or shoe modifications. There was pain on physical examination of the foot, but the examiner indicated that the pain did not contribute to functional loss. The examiner noted that there was pain on movement and pain on weight-bearing. In addition, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability and that there was no other functional loss during flare-ups or when the foot is used repeatedly over time. The examiner also noted that the Veteran did not use any assistive devices and that there was no functional impairment of the extremity that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that x-rays performed in June 2016 revealed arthritis of the right foot, specifically, minimal degenerative changes. Lastly, the examiner indicated that the Veteran's right foot condition impacted his ability to work, noting that the Veteran reported that he stood and walked a lot at work and prolonged standing and walking increased his right foot pain symptoms. On a September 2016 Notice of Disagreement, the Veteran reported daily pain and difficulty walking, noting that he currently walked with a limp. He also indicated that his doctor recommended Cortisone shots. On his November 2017 Form 9, the Veteran reported an inability to walk, stand, perform physically, or drive for long periods of time. He also reported that he had to change jobs due to the pain in his right foot and that he has to wear soft shoes when he is not at work. He reported that his foot injury was severe and that he will likely have to take time away from his job due to his right foot condition. In February 2020, the Veteran testified at a Board hearing. During the hearing, the Veteran stated that he treated his condition with Ibuprofen and a topical cream for pain. He reported that he was offered Cortisone shots but declined. He also reported that his current symptoms included burning sensations, pain, numbness, and swelling. He reported that driving was difficult and that he had to accept a demotion at work because of his right foot condition, that he was once athletic and cannot do certain activities now because his right foot cannot do quick movements or pivot, that he has to be careful when walking on uneven pavement, and that he cannot run or use certain gym equipment anymore. The Veteran reported pain and stiffness when getting out of bed in the mornings which sometimes prevents him from being able to walk. He testified that he walks with a limp when his condition flares-up. He also testified that he was prescribed orthopedics for his shoe. He indicated that he was told he had nerve and tissue damage which caused a lack of blood flow to his foot. In March 2020, the Veteran underwent an additional VA examination. The examiner noted a diagnosis of metatarsalgia of the right foot. During the examination, the Veteran reported pain that increases with prolonged standing and walking. He reported that he did not seek any medical help but continues to take over-the-counter analgesics and ice as needed. He reported experiencing burning, numbing sensations, and sharp pain occasionally and noted that the burning sensation occurs when he puts his right foot in a certain position while driving. The Veteran reported pain (which increases with walking or using the stairs), flare-ups (numbing and burning sensation on walking and soreness and pain when the foot is bent forward), and functional loss (an inability to curl his toes and pain when waking and walking in the mornings). The examiner noted that there was pain in the right foot on physical examination but indicated that the pain did not contribute to functional loss, noting that the Veteran's symptoms were subjective as the range of motion of the foot was within normal limits, there was no limp or antalgic gait on examination, and no guarding on active or passive range of motion despite the Veteran's reports of tenderness on palpitation. The examiner also noted that there was pain on movement and pain on weight-bearing in the right foot. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the foot is used repeatedly over time, noting that the Veteran reported that his pain increases with prolonged standing and walking which prevents him from exercising and doing certain physical activities with his children. The Veteran denied use of any assistive devices. The Veteran did not have pes planus, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner indicated that there was no functional impairment of an extremity such that no effective functions remains other than that which would be equally well served by an amputation with prosthesis. The examiner also indicated that the Veteran's right foot condition impacted his ability to work as the Veteran reported increased pain with prolonged standing and walking, which is a major part of his work requirements. VA treatment records also provide information regarding the Veteran's symptoms. For example, an April 2016 record reflects that the Veteran reported that his job requires a lot of driving and that the pain in his toe caused him great discomfort. In addition, a June 2016 VA treatment record contains an X-ray report which noted minimal degenerative changes of the right foot. In October 2019, the Veteran complained of discomfort to the right foot, noting that he had burning and sharp pains in the mornings to the point that he could barely stand. In addition, imaging studies revealed moderate degenerative joint disease. A November 2019 MRI report notes no bone contusion or acute fracture and indicates that there is a healed fracture of the 5th metatarsal base. There also was mild narrowing and spurring of the 1st metatarsophalangeal joint with underlying subchondral cystic changes. The overall impression was documented as a healed fracture of the 5th metatarsal base but an otherwise unremarkable right foot. There also was mild degenerative arthrosis of the 1st MTP joint. Another November 2019 record reflects that the Veteran reported constant pain; stiffness with first steps in the morning; walking with a limp; and shooting pain while driving, especially when he lifts his foot. He reported that he experiences the worst pain when climbing stairs. Lastly, in February 2020, the Veteran reported throbbing; a warm sensation; sharp pains; and a hot, burning feeling on the outer side of his foot. He stated that he feels as if he is walking with a dime in his shoes. After a review of the evidence of record, the Board finds a preponderance of the evidence is against finding a rating in excess of 10 percent for the Veteran's right foot metatarsalgia, status post fracture, right fifth metatarsal base is not warranted. Competent medical evidence for the period on appeal indicates that the Veteran has metatarsalgia of the right foot. However, the only and maximum rating under DC 5279, for unilateral or bilateral involvement, is a single 10 percent rating. As the Veteran is currently in receipt of the only and maximum rating, a higher rating under DC 5279 is not warranted. The evidence does not reflect that the Veteran has plantar fasciitis, weak foot, claw foot, hallux valgus, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones; therefore, evaluation under Diagnostic Codes 5269, 5277-5283 would not be appropriate. The Board acknowledges that imaging studies completed in June 2016 and October 2019 document degenerative changes of the Veteran's right foot. However, the Board cannot consider whether a higher or separate rating is warranted under the DC for degenerative arthritis as the Veteran's service-connected right foot metatarsalgia, status post fracture, right fifth metatarsal base is specifically contemplated by DC 5279. The United States Court of Appeals for Veterans Claims has indicated that when a service-connected disability, such as metatarsalgia, is specifically listed in the Rating Schedule, it must be rated under the Diagnostic Code that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). Moreover, a separate rating for degenerative arthritis would result in pyramiding as a separate rating would essentially be based on pain and functional impairment caused by the arthritis, which is the same symptoms for which he is granted a 10 percent rating under DC 5279. The Board also acknowledges that a November 2019 VA treatment record notes a diagnosis of pes planus. In accordance with a June 2020 Board remand, an addendum opinion was obtained to determine whether the diagnosed pes planus was part of the progression of the Veteran's service-connected right foot metatarsalgia. In the July 2020 opinion, an examiner opined that it was less likely than not that pes planus was caused or aggravated by the service-connected right foot metatarsalgia. The examiner noted that the Veteran's right foot complaints of metatarsalgia predated the diagnosis of pes planus and is unrelated to those complaints. The examiner further explained that the Veteran has bilateral longitudinal arch loss but explained that a unilateral 5th metatarsal injury would not cause bilateral foot problems in general as the area affected by the metatarsalgia is not related to arch loss, per se, as a right 5th metatarsal injury would not affect the bilateral medial arches leading to pes planus. The examiner explained that it is accepted medical knowledge and practice that arch loss commonly occurs with aging and does not represent progression of metatarsalgia. The examiner indicated that if anything, pes planus leads to pronation, which takes pressure off the lateral foot and places undue pressure on the medial foot. As the diagnosed pes planus is not part of the Veteran's service-connected metatarsalgia and Copeland does not permit rating by analogy when a condition is specifically listed in the Rating Schedule, the Veteran's service-connected metatarsalgia cannot be rated under the criteria for pes planus. Copeland, 27 Vet. App. at 337. The Veteran's metatarsalgia is the residual of a foot injury and the Board has considered whether evaluation under Diagnostic Code 5284 for other foot injuries would be appropriate. However, in this instance, the residuals of the Veteran's foot injury have been shown to result in the specific disability of metatarsalgia. As there is a Diagnostic Code that specifically evaluates metatarsalgia, evaluation under other foot injuries would be inappropriate. Copeland, 27 Vet. App. at 337. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and DeLuca. However, an increased rating is not warranted during the period on appeal based on functional loss because the symptom of pain is already contemplated in assigning a disability rating for metatarsalgia. The issue of consideration of an extraschedular rating was raised by the Veteran's representative in October 2020 written argument. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe the Veteran's disability picture. The record shows that he has complaints and findings of pain, including burning pain, and numbness in the ball of the foot, which are contemplated by the diagnosed metatarsalgia and the associated Diagnostic Code used to evaluate metatarsalgia. 68 Fed. Reg. 7020 (Feb. 11, 2003). Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his right foot metatarsalgia, status post fracture, right fifth metatarsal base. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, June 2016 and March 2020 VA examiners indicated that the Veteran's right foot metatarsalgia impacted his ability to work. In addition, the Veteran has reported that his condition has affected his ability to work, noting specifically that he was demoted as a result of his service-connected disability. Thus, the issue of TDIU has been raised in the context of this appeal. However, the claim has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, a remand is required to allow the AOJ to consider the merits of the claim in the first instance. The matters are REMANDED for the following action: Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating, to include consideration of whether referral for an extraschedular evaluation under 38 C.F.R. § 4.16(b) is required. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.