Citation Nr: 21029187 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-58 763 DATE: May 12, 2021 ORDER A rating in excess of 30 percent for residuals of a right foot fracture is denied. REMANDED 1. A rating in excess of 30 percent for left knee status post arthroplasty. 2. Service connection for a right knee disorder. 3. A total disability rating based on individual unemployability (TDIU) prior to January 25, 2018. FINDING OF FACT The Veteran's residuals of a right foot fracture result in at most severe symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for residuals of a right foot fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to August 1974. The case is on appeal from November 2015 and July 2017 rating decisions. In February 2021, the Veteran testified at a Board hearing. Additional evidence was associated with the record subsequent to the statement of the case issued in November 2017. As the evidence is not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 30 percent for residuals of a right foot fracture. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's service-connected bilateral foot conditions are rated under 38 C.F.R. § 4.71a, DC 5284, which is a catchall DC for "other foot injuries." Under DC 5284, a 10 percent rating is warranted for a moderate foot disability; a 20 percent rating is warranted for moderately severe foot disability; and a 30 percent rating is warranted for severe foot disability. Actual loss of use of the foot warrants a 40 percent rating. "Moderate" is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. In contrast, "severe" is "of a great degree." www.merriam-webster.com/dictionary/severe. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran filed a claim for a TDIU in May 2017. The RO interpreted this claim as including a request for a higher rating for residuals of a right foot fracture. The Veteran was afforded a foot examination in June 2017. The Veteran reported experiencing an aching pain in the bottom of his right foot and feeling like he is walking on cement after standing for too long. He also reported being unable to perform construction work, walk long distances, or run. He denied experiencing flareups. The examiner reported a right foot fracture in 1973 that results in moderate residual symptoms of chronic pain as well as pain on movement and weight-bearing and disturbance of walking and standing. The examiner also reported regular use of a cane, but denied the use of orthotics. The examiner also denied the presence of the presence of pes planus, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, and malunion or nonunion of tarsal or metatarsal bones. The examiner found that the Veteran's residuals of right foot fracture result in difficulty standing and walking for prolonged periods of time. The examiner rated the severity of the condition as moderate. The Board finds that a rating in excess of 30 percent is not warranted. In this regard, a 30 percent rating is the highest available schedular rating under this DC. 38 C.F.R. § 4.71a, DC 5284. In addition, the 30 percent rating provides compensation for severe symptomatology while the evidence indicates that the severity of this condition during the appeal period is moderate. Furthermore, there is no actual loss of foot. Thus, the evidence shows that the Veteran's residuals of a right foot fracture result in at most severe symptoms. In addition, he has been assigned the highest schedular rating for the entire period on appeal. Therefore, the preponderance of the evidence is against the claim, and a higher rating for this disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. A rating in excess of 30 percent for left knee status post arthroplasty. 2. Service connection for a right knee disorder. The Veteran is seeking a higher rating for a left knee disability and service connection for a right knee disorder. During a February 2021 Board hearing, he reported that his left knee symptoms have worsened since the most recent VA examination for this disability in 2017. He also reported that his left knee range of motion is limited to 90 degrees. He further reported that he has experienced right knee pain due to compensating for his left knee disability. The Veteran was afforded a knee examination pursuant to these claims in October 2015. The examiner diagnosed the Veteran with left knee post-total knee arthroplasty and right knee patellofemoral pain syndrome. The examiner noted that there was no abnormal findings on July 2015 right knee imaging. The examiner found that the Veteran's right knee disorder is less likely than not due to or a result of the left knee disability, but did not offer an opinion regarding aggravation. The Veteran's post-service VA treatment records include December 2015 treatment for bilateral knee pain. The treatment provider noted imaging indicating mild right knee patellofemoral osteoarthritis of unclear etiology. The treatment provider noted that the right knee pain could be due to overuse of the right knee caused by compensating for the left knee pain. A July 2016 treatment record notes imaging of the right knee showing moderate osteoarthritis. The examiner was afforded another knee examination in July 2017. The examiner reported left knee range of motion from zero to 95 degrees, but did not address the right knee claim. The Board finds that a remand is warranted to obtain another examination for these claims. In this regard, the Veteran has reported his left knee condition has worsened since the July 2017 examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In addition, there is no opinion addressing whether the Veteran has a right knee disorder that is aggravated by his left knee disability. 3. A TDIU prior to January 25, 2018. In an October 2018 rating decision, the RO granted a TDIU as of January 25, 2018. However, the issue of a TDIU prior to January 25, 2018 remains on appeal. This issue is also remanded as it is intertwined with the left knee rating claim. These claims are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the service-connected left knee status post arthroplasty and the nature and etiology of the right knee disorder. The record, including a complete copy of this remand, should be made available for review in connection with the examination. The examiner should then: (a.) Identify all current right knee disorders present since August 2015. (b.) For each right knee disorder, state whether it is at least as likely as not that it is caused or aggravated by the service-connected left knee post arthroplasty. Aggravation means an increase in severity beyond the natural progress of the disease. (c.) The examination should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. (d.) If there are flare-ups and the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. A rationale should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.