Citation Nr: 21030341 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-00 104A DATE: May 18, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for residuals of left foot fracture is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran's residuals of left foot fracture have not manifested in moderately severe symptoms. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 10 percent for residuals of left foot fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1991 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in August 2018. The case has since been returned to the Board for appellate review. The Board notes that the Veteran requested a hearing with a Veterans Law Judge in his January 2016 substantive appeal. In December 2016, the Veteran submitted a VA form wherein he specifically withdrew his request for a Board hearing, as well as a contemporaneous statement from the Veteran's representative echoing that request to withdraw. Although the Veteran's representative stated in his informal hearing presentation (IHP) dated May 2018, that he would provide additional evidence at a Board hearing, no request to reschedule the withdrawn Board hearing has been submitted. Therefore, the Board finds that the hearing request has been withdrawn. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When 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 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Entitlement to an initial evaluation in excess of 10 percent for residuals of left foot fracture is denied. The Veteran seeks a higher initial rating for his service-connected residuals of left foot fracture. The Veteran's service-connected residuals of left foot fracture is rated a 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5284. The applicable rating period is from September 30, 2014, the effective date for the award of service connection for residuals of left foot fracture, through the present. See 38 C.F.R. § 3.400. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Diagnostic Code 5284 provides for evaluations of 10, 20, and 30 percent for moderate, moderately severe, and severe foot injuries, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The words "moderate," "moderately severe," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the available evidence, the Veteran was first afforded a VA examination for his left foot condition in March 2015. The Veteran reported throbbing pain in his left foot, which resulted in a limp. He further reported an occasional sharp pain in the foot when he walked and pain in the foot when the weather was cold. He explained that he had flare-ups about 5 out of 7 days, but could not identify any precipitating factors. He stated that the flare-ups are managed by ibuprofen and rest. He reported an inability to stand, walk, or use his left foot during a flare-up. The examination report noted that the Veteran occasionally used a brace as an assistive device as a normal mode of locomotion for his left foot pain. It also noted pain on movement, pain on weight-bearing, swelling, disturbance of locomotion, and interference with standing that applied to his left side. The examiner found that due to pain in his left foot, the Veteran was unable to stand for more than 10 minutes without pain in the left foot. The examiner also found that the Veteran could not run, was unable to walk his dog, and had difficulty climbing stairs due to the pain in his left foot. In a VA podiatry treatment note from February 2019, the Veteran reported that since his left foot injury in 1991, his left foot pain had developed from occasional pain to a progressive acute pain. He rated his foot pain as a 7 out of 10 on a 10-point scale. The podiatrist noted left foot swelling and that the Veteran used a cane to walk. See CAPRI, received July 2019. The Veteran was afforded an additional VA examination in July 2019. The Veteran reported pain, with increased pain and stiffness during flare-ups. He further reported that during flare-ups, his pain is aggravated by prolonged walking and climbing stairs. He stated that he used ibuprofen 800 mg, as needed, and custom orthotic shoe inserts to treat his left foot pain. The VA examiner noted physical examination revealed mild tenderness dorsal aspect of left foot, but no swelling or erythema. The examination report noted flare-ups at least once every three weeks, lasting two to three days. The examiner found that the severity of the Veteran's left foot injury was moderate and did not chronically compromise weight bearing. The examiner noted left foot pain on weight-bearing and that pain limits climbing stairs. The examination report noted that the Veteran regularly used a cane as an assistive device as a normal mode of locomotion for his left foot pain. The examiner found that the Veteran's left foot disability would impact his ability to perform certain occupational tasks. The examiner stated that the Veteran would have difficulties with any physically demanding occupation, any occupation that required prolonged walking, running, climbing stairs, and climbing ladders. Having reviewed the complete record, the Board finds that the evidence does not support the criteria for an initial disability rating in excess of 10 percent during the period on appeal for residuals of left foot fracture under Diagnostic Code 5284. The Veteran's left foot disability does not manifest in a moderately severe foot injury. Both VA examiners noted that overall the Veteran's foot disability was moderate in severity, based on the Veteran's own reports and each examiner's own objective examination of the foot. As such, entitlement to an increased rating in excess of 10 percent is not warranted. The Board has also considered other Diagnostic Codes to determine whether the Veteran might be entitled to a higher rating at any time during the rating period in relation to his service-connected residuals of left foot fracture. Diagnostic Codes 5276-5283 pertain to disabilities of the foot and toes, but are not application in the present case because the record is absent for evidence of flatfoot, weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus, hammer toe, malunion or nonunion of the metatarsal bones or other foot injuries as required under those Diagnostic Codes. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature and severity of his service-connected residuals of left foot fracture at issue, and notes that his lay statements are competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board therefore finds that the criteria for an initial rating in excess of 10 percent for the Veteran's service-connected residuals of left foot fracture have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran's residuals of left foot fracture, pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher initial rating must be denied. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.