Citation Nr: 21031200 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-56 723 DATE: May 20, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of left foot metatarsal fracture (left foot disability) with hallux valgus is denied. Entitlement to a separate evaluation of 10 percent for left foot metatarsal Morton's neuroma beginning October 13, 2016, but no earlier, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected left foot disability with hallux valgus was assigned the maximum disability rating authorized under diagnostic code 5280 and manifested by no more than moderate symptoms. 2. Beginning October 13, 2016, the Veteran has metatarsalgia/Morton's neuroma of the left foot which is associated with his service-connected left foot disability with hallux valgus and manifested by non-duplicative symptomatology 3. The preponderance of the evidence is against finding that Veteran's service-connected disabilities are of such severity as to preclude his participation in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left foot metatarsal fracture (left foot disability) with hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5280-5284. 2. The criteria for a separate 10 percent evaluation for metatarsalgia/Morton's neuroma, as associated with left foot disability with hallux valgus, beginning October 13, 2016, but no earlier, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.63, 4.68, 4.71a, DC 5279. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1990 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. In an April 2020 Board decision, the Veteran's claim for an evaluation in excess of 50 percent prior to October 26, 2018 for PTSD was denied; but an evaluation of 70 percent for PTSD effective October 26, 2018 was granted; entitlement to a compensable rating for right foot stress fracture was denied; and a compensable rating for the right arm scar was dismissed. Additionally, entitlement to a compensable rating for the left foot metatarsal fracture with hallux valgus and entitlement to TDIU was remanded. In an July 2020 rating decision, the RO increased the rating for the Veteran's service-connected left foot disability from noncompensable to 10 percent, effective June 14, 2010, the date of receipt of claim. Although the RO stated that this decision represents a full and final determination of this issue and the issue is considered resolved in full, this is not accurate as the Veteran's claim is rated under DC 5280-5284, which allows for higher evaluations. As such, this does not constitute a full grant and this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). After the July 2020 Supplemental Statement of the Case, VA records were received showing the Veteran was hospitalized in November 2020 for his psychiatric condition. No waiver or RO consideration of this evidence is needed, as it is not relevant to the issues at hand. The Veteran raised no complaints concerning his left foot during this hospitalization, and there is no information about his employment. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim. 1. Left Foot Disability The Veteran essentially contends that his left foot disorder is more disabling than reflected by the 10 percent rating currently assigned. The Veteran's service-connected left foot disability is current rated 10 percent under Diagnostic Code 5280-5284. Diagnostic Code 5280 allows for a maximum 10 percent rating for hallux valgus, unilateral, operated with resection of metatarsal head, or for severe hallux valgus, if equivalent to amputation of great toe. See 38 C.F.R. § 4.73, Diagnostic Code 5280. This is the highest rating available under this diagnostic code. Diagnostic Code 5284 states that a moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating, and a severe foot injury warrants a maximum 30 percent rating. However, a note states that actual loss of use of the foot warrants a 40 percent rating. See 38 C.F.R. § 4.73, Diagnostic Code 5284. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in October 2010. At that time, it was noted that the Veteran injured his feet in service and had metatarsal fractures; he subsequently experienced foot pain though it had "healed up somewhat" and did not have any treatment. He denied swelling, loss of strength or coordination, or loss of sensation, but stated that his feet are sore and ache, and that the longer he stands, the worse the pain aches. Upon physical examination, it was noted he had normal strength, and there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. He had some minor pain on palpation but the Achilles tendon on the left was not tender. The pertinent diagnoses were left foot third metatarsal fracture that was normal on X-ray, with bunion formation, great toes, with hallux valgus which were noted to be non-tender and asymptomatic with movement, and the examiner stated there would be no repetitive movement flare-ups from this. The Veteran filed a notice of disagreement, stating the issues have progressively gotten worse. Therefore, in June 2016, the Veteran underwent another VA examination. The Veteran denied problems and any functional loss or disability and remained asymptomatic. He did not report pain of the foot, flare-ups, or functional loss of the foot. The Veteran denied any complaints with his feet and imaging studies demonstrated well healed stress fractures. He does not have pes planus; Morton's neuroma (Morton's disease) and metatarsalgia; hammer toes; hallux rigidus; pes cavus; or malunion or nonunion of tarsal or metatarsal bones. The examiner marked that he had no symptoms for his hallux valgus. He did not have pain on manipulation of the feet, nor did he have swelling on use or characteristic callouses on the feet. The Veteran did not have extreme tenderness of the plantar surfaces on one or both feet and did not have decreased longitudinal arch height of both feet on weight bearing. There was no objective evidence of marked deformity of one or both feet, and he did not have marked pronation of the feet. The Veteran did not have inward bowing of the achilles tendon, nor did he have marked inward displacement and severe spasm of the achilles tendon. The X-ray findings showed moderate hallux valgus deformity, but no acute fractures or subluxations and his joint spaces were maintained without degenerative change; but it did also show tiny erosion of the left first metatarsal head that the examiner stated could be gout. The Veteran was afforded another DBQ examination of his feet in November 2017. He reported the symptoms of his feet as very sharp pain under pressure. The Veteran stated that his symptoms are aggravated, and he has flare ups when climbing stairs and standing, and he has limited prolonged walking and standing. It was noted that the Veteran uses arch supports for both feet but remained symptomatic. The Veteran had pain on both feet that contributed to functional loss, but there is no other functional loss during a flare up or after foot is used repeatedly over a period of time. He has metatarsalgia on the left foot and his hallux valgus is mild to moderate in severity, but he has not had surgery for it. He does not have pes planus, Morton's disease/neuroma, hammer toe, hallux rigidus, pes cavus, mal union or nonunion of tarsal or metatarsal bones, and no other foot injuries or conditions. It was noted that the Veteran is limited in prolonged walking. He uses custom orthotics for both feet. X-ray of the left foot revealed degenerative arthritis. The Board also reviewed the Veteran's ongoing treatment in his VA medical records. For example, in July 2014, he reported pain in his feet and podiatry ordered him new shoes. In October 2014, he reported worsening symptoms and he was diagnosed with hallux valgus and pain in feet (no metatarsalgia yet) and prescribed orthotics. In a March 2015 podiatry follow-up visit, he reported the orthotics helped and physical examination revealed pain on palpation, but no discomfort noted with compression of the heel and his muscle strength was normal. In October 2016, it was noted that he had possible Morton's neuroma, with marked tenderness in the second and third metatarsal heads and that he has received injections for his bunions. In December 2017, he reported sharp pain in the left foot and that he uses inserts and that he had injections before in 2011 for neuroma. In January 2018, he reported pain in the left foot and that he needed new orthotics, and the podiatrist diagnosed him with hallux valgus and metatarsalgia with pain, but not Morton's neuroma which correlates with the 2017 VA examination report. In July 2018, he reported bilateral foot discomfort and he was diagnosed with hallux valgus and metatarsalgia with pain; it was noted that he had callouses but on his right foot only and physical examination revealed pain on palpation but no discomfort noted with compression of the heel and his muscle strength was normal. In January 2019, he reported pain in his foot and back, but mostly discussed the pain symptoms from his back, which is not service connected. After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left foot. The Board acknowledges the Veteran's reports of symptoms and that there was functional loss in that there was difficulty with prolonged standing or walking. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of limitation would not result in symptoms more nearly approximating moderately severe foot injuries. With respect to the diagnosed metatarsalgia/Morton's neuroma, the medical evidence shows that the Veteran was first diagnosed with metatarsalgia/Morton's neuroma in October 13, 2016. See January 2013 to September 2017 VAMC records. This is consistent with subsequent medical records showing he has had a diagnosis for metatarsalgia/neuroma, such as the 2017 VA examination report and the July 2018 VA podiatry note. Further, the 2020 VA examiner opined that "it is at least as likely as not that metatarsalgia is a progression of the service-connected left foot disability." This symptomatology is expressly contemplated by DC 5279 for unilateral or bilateral metatarsalgia (Morton's disease), which provides for a maximum 10 percent evaluation for such findings. As the Veteran's metatarsalgia/Morton's neuroma symptomatology is separate and distinct from his left foot bunions and hallux valgus with painful motion, the Board finds that a separate rating for metatarsalgia is warranted beginning October 13, 2016, but no earlier (as noted above, the June 2016 VA examination report clearly marked he did not have metatarsalgia/neuroma). This is the maximum rating available under this Diagnostic Code. See 38 C.F.R. § 4.71a, DC 5279. The Board has considered whether a higher or separate rating is warranted under other diagnostic codes. The Veteran has not alleged, and the record does not show, pes planus, hammer toes, weak foot, hallux rigidus, acquired pes cavus or malunion or nonunion of tarsal or metatarsal bones. Therefore, a higher or separate rating under Diagnostic Codes 5276, 5277, 5278, 5281, 5282, or 5283 is not warranted. The Board acknowledges the Veteran's statement that his left foot is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a higher rating than as already awarded have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his feet. However, these records do not address the specific rating criteria necessary to determine severity greater than already being granted. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Accordingly, the Board finds that a preponderance of the evidence is against the assignment of a rating in excess of 10 percent for left foot disability under DC 5281-5284, but that a separate 10 percent evaluation under DC 5279 is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. TDIU The Veteran claims he is entitled to TDIU as he is unemployed due to his service-connected disabilities, to include PTSD. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. see 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases, such as employment in a protected environment like a family business or sheltered workshop, when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. See 38 C.F.R. §§ 3.341, 4.19. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After the review of this evidence, the Board finds that the claim for a TDIU is not substantiated and, therefore, is not warranted. Beginning October 26, 2018, the schedular criteria for TDIU are met. See 38 C.F.R. § 4.16(a). The Veteran is service connected for PTSD as 50 percent disabling effective June 14, 2010 and as 70 percent disabling effective October 26, 2018; left foot metatarsal fracture with hallux valgus, 10 percent disabling effective June 14, 2010; and right foot stress fracture with hallux valgus and right arm scar each evaluated as noncompensable. As noted above, the Board is also assigning a separate 10 percent evaluation for metatarsalgia/Morton's neuroma, as associated with left foot disability with hallux valgus, beginning October 13, 2016. Therefore, the Veteran's combined disability ratings are 60 percent from June 14, 2010 and will remain 60 percent with the assignment of the additional rating from October 13, 2016, but will be 80 percent from October 26, 2018. As such, he does not meet the schedular criteria for a TDIU prior to October 26, 2018. Regardless, the Veteran initially filed a claim in October 2019 for TDIU, which was denied in a February 2020 rating decision. He contends that he is unable to maintain employment due to his service-connected PTSD, which was on appeal, as noted; therefore it was part and parcel to the claim for a higher rating for PTSD. As the TDIU claim was raised during the appeal for a higher PTSD rating, the Board took jurisdiction over it, and, as noted above, it was remanded in the 2020 Board decision and remains on appeal before the Board. Harper v. Wilkie,30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the RO sent two letters in October and December 2019 to attempt to obtain employment information from the Veteran following the October 2019 TDIU application. The December 2019 letter specifically alerted the Veteran that additional evidence was needed and what was needed from him. He did not respond to these correspondences which detailed the information needed to support his claim. In the April 2020 remand, the Board directed that the Veteran be provided another opportunity to clarify his dates of employment since 2014, provide income verification, and submit verification to any employer listed. Thereafter, in May 2020 correspondence, the Veteran was again provided with appropriate notice and was asked to complete another VA Form 21-8940 with specific employment information. However, the Veteran did not respond. While failure to complete the form is not fatal to the claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history and his income history necessary to address a claim for TDIU. Turning to the evidence of record, it is unclear, from the VA examinations, medical records, and Veteran's statements/testimony when the Veteran stopped working/or only had marginal employment. According to the October 2019 VA Form 21-8940, the Veteran stopped working in October 2018. However, he testified during the 2020 Board hearing that after he stopped working in dealerships in 2014, he then worked at a National Cemetery, and then at convenience stores through January 2019. His medical records also indicate that he was working in April 2019 but stopped showing up because he was feeling ill; he noted in July 2019 that he had stopped working; and in October 2019, he reported he works part time and his total monthly income is about $1,120 (but it is not clear if this is income from employment or from his service connected benefits). He also testified during the 2020 Board hearing that he applied to Social Security Administration (SSA) for disability benefits over 10 years ago, and was denied as he was getting help through VA. However, after a review of the SSA records, the Board notes that the Veteran applied for and was denied SSA disability benefits in August 2017, and it was determined he was not disabled. Specifically, his mental residual functional capacity assessment found that he does not have any memory, concentration, or understanding limitations, but does have social interaction limitations. He also was noted to have moderate limitations with appropriate interactions with others, accepting instructions and criticism, and in getting along with coworkers. Overall, it was noted that the Veteran would "do best in a non-public work setting that does not require frequent interaction with co-workers." In January 2020, the Veteran underwent a VA examination for his PTSD that included an assessment of the functional impact of his service-connected disabilities. It was noted that the Veteran received assistance from Vocational Rehabilitation and has participated in the Compensated Work Therapy work program. The Veteran reported difficulty in maintaining employment. The examiner noted that he has moderate impairment in concentration and focus impacting his ability to maintain organization and complete tasks, and noted that the Veteran reports PTSD symptoms, including persistent anxiety with hypervigilance, affects his ability to work with others in an employment setting. In a November 2017 VA examination, the Veteran reported he has had about 6 jobs in the last year and that little things set him off, but he currently works in a convenience store and works with another person on a shift and has so far gotten along well. In a June 2016 VA examination, the Veteran stated he had worked at Auto Repair since approximately November 2015 and that he has worked in the car industry for approximately 20 years. He was hired as a service advisor but moved over to facilities maintenance due to a decreased ability to concentrate and manage details; the examiner noted that these problems are likely related to ADHD. Further, during the course of the appeal, the Veteran reported to the RO that he had to reschedule or miss examinations due to being unable to take time off of work. As such, the Veteran's employment history is unclear, and, as noted above, the Board specifically remanded the claim to give the Veteran the opportunity to provide the information necessary to develop that information. The RO sent requests to clarify his October 2019 application in October and December 2019; and he was sent another letter in May 2020 subsequent to the 2020 remand, requesting that he specify his earnings and employment history. The Veteran failed to respond to the letters, did not submit a fully completed VA Form 21-8940, and has not otherwise provided any information pertaining to his employment history or his current employment status or his income from 2015 to present as requested. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). The Board acknowledges that the Veteran's service-connected disabilities have resulted in some functional impairments and have impacted his ability to perform certain physical and mental occupational tasks. VA examinations and medical records note the impact of the Veteran's PTSD and his feet on his ability to work; though, VA examiners have concluded that the Veteran is not precluded from medium to light or sedentary employment. That notwithstanding, the Veteran's records indicate he may be unemployable due to his disabilities which have resulted in some work impairments; however, the Veteran has not provided clarification or information regarding his employment history necessary to fully consider whether he is unemployable due to his service-connected conditions, and whether he was in fact not working or when he stopped working, or whether he was only able to sustain marginal employment. Unfortunately, the Board finds the preponderance of the evidence that is available is against the claim for a TDIU. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal must be denied. Gilbert, 1 Vet. App. 49, 55. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.