Citation Nr: 21030309 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-55 132 DATE: May 18, 2021 ORDER A rating in excess of 10 percent for residuals of open reduction and internal fixation fracture of the right foot is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's residuals of open reduction and internal fixation fracture of the right foot has been characterized by arthritis and metatarsalgia with less movement than normal, pain on movement, disturbed balance on right side, and restricted ambulation due to pain. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for residuals of open reduction and internal fixation fracture of the right foot have not been met. 38 U.S.C. § 1155, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.27, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5269-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision. The Veteran testified before the Board at a hearing in September 2019. A transcript of the hearing has been associated with the claims file. In December 2019, the Board remanded the Veteran's claim to afford him a new VA examination as to the severity of his right foot disability. The claim has since been returned to the Board for review. For the reasons indicated in the discussion below, the examination conducted pursuant to the Board's remand instructions was adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Residuals of Right Foot Fracture Disability ratings for musculoskeletal disabilities of the foot are assigned under 38 C.F.R. § 4.71a, DCs 5269-5284. The Veteran's residuals of open reduction and internal fixation fracture of the right foot have been assigned a 10 percent rating under 38 C.F.R. § 4.71a, DCs 5299-5276. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. As further discussed below, the Veteran's right foot disability does not involve plantar fasciitis (DC 5269), flatfoot (DC 5276), bilateral weak foot (DC 5277), pes cavus (DC 5278), hammer toe (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Thus, to warrant a rating for a foot disability under the remaining applicable codes, the evidence must demonstrate: metatarsalgia, anterior (Morton's disease), unilateral, or bilateral (10 percent maximum under DC 5279); hallux valgus, unilateral: operated with resection of metatarsal head, or severe, if equivalent to amputation of great toe (10 percent maximum under DC 5280); hallux rigidus, unilateral, severe: rate as hallux valgus, severe (10 percent maximum under DC 5281); other foot injuries with moderate symptoms (10 percent under DC 5284); other foot injuries with moderately severe symptoms (20 percent under DC 5284); or other foot injuries with severe symptoms (30 percent maximum under DC 5284). 38 C.F.R. § 4.71a. Additionally, under 38 C.F.R. § 4.71a, DC 5003, ratings regarding arthritis shall be assigned on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. For rating assignment purposes, the interphalangeal, metatarsal, and tarsal joints of the lower extremities are considered minor joints. 38 C.F.R. § 4.45. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided under 38 C.F.R. § 4.14; however, it is possible for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. For purposes of the Veteran's disability, the rating criteria did not change. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's residuals of open reduction and internal fixation fracture of the right foot. The Veteran contends that his disability warrants a rating in excess of 10 percent. During the September 2019 hearing before the Board, the Veteran provided testimony regarding the symptoms of his right foot disability. He stated that sometimes when walking he experiences residual pain in his great right toe, which feels like a pinch or jolt. He also stated that he experiences flare-ups that do not have a consistent pattern and that at times are caused by the weather. Lastly, he stated that he is able to continue walking during a flare-up of his great toe pain and it does not require him to immediately sit down. In October 2013, the Veteran underwent an in-person VA examination with claims file review regarding his right foot disability. The examiner noted that during service the Veteran experienced a right foot fracture requiring open reduction and internal fixation surgery. The examiner diagnosed metatarsalgia and mild hallux rigidus of the right foot. The examiner indicated that the Veteran does not have Morton's disease, hammer toe, pes cavus, hallux valgus, bilateral weak foot, or any other foot injuries. The examiner noted that the Veteran occasionally uses a cane due to his right foot disability. The examiner determined that the Veteran's right foot disability does not impact his ability to work. In August 2016, the Veteran underwent a second in-person VA examination with claims file review regarding his right foot disability. The examiner indicated that during service the Veteran experienced a right foot fracture requiring open reduction and internal fixation surgery. The Veteran reported that he experiences residual pain in his great right toe due to the in-service injury, that he does not experience flare-ups that cause functional loss, and that he does not require an assistive device. The examiner diagnosed arthritis of the great right toe and mild to moderate hallux rigidus of the right foot. The examiner indicated that the Veteran does not have Morton's disease, hammer toe, pes cavus, hallux valgus, bilateral weak foot, or any other foot injuries. The examiner determined that the Veteran's right foot disability does not cause functional loss and does not impact his ability to work. Following the December 2019 Board remand, the Veteran underwent a third in-person VA examination with claims file review regarding his right foot disability in August 2020. The examiner indicated that during service the Veteran experienced a fracture of the great right toe requiring open reduction and internal fixation surgery. The examiner diagnosed metatarsalgia and arthritis of the right foot. The examiner indicated that the Veteran does not have Morton's disease, hammer toe, pes cavus, hallux valgus, hallus rigidus, bilateral weak foot, or any other foot injuries. The Veteran reported chronic pain in his great right toe with flare-ups caused by weather changes and overuse. Further, he reported that he cannot climb easily, walk on uneven surfaces, or stand for prolonged periods. The examiner determined that the Veteran's functional loss during flare-ups include less movement than normal, pain on movement, disturbed balance on the right side, and restricted ambulation due to pain. The examiner indicated that his functional loss during a flare-up is not manifested by more movement than normal, weakened movement, excess fatigability, incoordination, pain on non-weightbearing, swelling, deformity, atrophy, or instability of station. The examiner documented that he does not require orthotic inserts or assistive devices. The examiner determined that the severity of the Veteran's right foot disability is moderate in nature. The examiner also determined that the Veteran's right foot disability causes an occupational impact as his chronic pain and limitation of motion would not make him suitable for employment that requires intensive standing, walking, or climbing. Additionally, in an addendum VA examination opinion provided in January 2020, the examiner stated that the Veteran's arthritis of the great right toe is secondary to his in-service fracture of the great right toe with open reduction and internal fixation surgery and that subsequent arthritis is a common residual of this injury and surgery. The Board notes that the Veteran's private treatment records indicate complaints of an ongoing right foot disability; however, the records do not contain the findings and diagnostic testing necessary to properly assign a disability rating. Therefore, the Board finds these private treatment records to be of little probative value. The Board finds that the Veteran's residuals of open reduction and internal fixation fracture of the right foot does not warrant a rating in excess of 10 percent. Initially, the Board notes that the Veteran's right foot disability is primarily manifested by foot pain with use and therefore separate ratings under multiple diagnostic codes for the same symptomology would constitute pyramiding, which would be contrary to the provisions of 38 C.F.R. § 4.14. Therefore, a rating for the Veteran's right foot disability may only be assigned under a single diagnostic code. (Continued on the next page) First, the evidence demonstrates that in the October 2013, August 2016, and August 2020 VA examinations the Veteran was diagnosed as having metatarsalgia, which warrants a 10 percent maximum rating under DC 5279. Second, although the October 2013 and August 2016 VA examiners diagnosed hallux rigidus and the August 2020 VA examiner did not diagnose the Veteran as having hallux rigidus, under DC 5281 hallux rigidus also warrants a 10 percent maximum rating under DC 5281. Third, the evidence of record does not demonstrate that the Veteran's diagnosis of arthritis involves two or more minor joint groups; thus, a rating under DC 5003 is not warranted. Fourth, the evidence of record demonstrates that the severity of the Veteran's right foot disability is moderate in nature, as contemplated by the 10 percent rating criteria under DC 5284. Specifically, the Board finds that the Veteran's symptoms are moderate in nature as his right foot disability causes limited symptoms of functional loss manifested by less movement than normal, pain on movement, disturbed balance on the right side, and restricted ambulation due to pain. Further, the evidence demonstrates that flare-ups causing such functional loss are not consistent in nature, and that the Veteran is able to continue walking during pain from a flare-up. Additionally, the examiner indicated that the Veteran's right foot disability does not cause more numerous symptoms of functional loss, including more movement than normal, weakened movement, excess fatigability, incoordination, pain on non-weightbearing, swelling, deformity, atrophy, or instability of station. Thus, the Board finds that the symptoms of the Veteran's right foot disability do not rise to the level of moderately severe, as contemplated by the 20 percent rating criteria under DC 5284. Therefore, the Board finds that medical evidence of record demonstrates that the symptoms of the Veteran's right foot disability do not warrant a rating in excess of 10 percent and demonstrates that the criteria for a 10 percent rating under DC 5284 for a foot injury with moderate symptoms best reflects the Veteran's predominant disability picture. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a rating in excess of 10 percent for residuals of open reduction and internal fixation fracture of the right foot, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, Associate 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.