Citation Nr: 21032774 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-38 591 DATE: May 27, 2021 ORDER Entitlement to a disability rating of 20 percent for right fifth toe metatarsalgia status post PIP joint arthroplasty (right toe disability) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's right fifth toe metatarsalgia status post PIP joint arthroplasty has been manifested by moderately severe residuals; symptoms do not more nearly approximate malunion or nonunion of the metatarsal bone, complete loss of function or severe impairment. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for residuals of right fifth toe metatarsalgia status post PIP joint arthroplasty are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71A, DCs 5279-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from August 1980 to July 1985. This matter was previously before the Board in December 2019. As part of the Board's remand directives, the AOJ was instructed to obtain a contemporaneous VA examination, assessing the severity of the Veteran's right toe disability. The matter was again remanded by the Board in December 2020, for non-compliance with the Board's December 2019 remand directives. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The matter has been returned to the Board for an appellate review. As the necessary development has been accomplished, the appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Entitlement to a disability rating of 20 percent for right fifth toe metatarsalgia status post PIP joint arthroplasty (right toe disability) The Veteran contends that his right toe disability warrants a rating greater than 10 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various 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). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Board notes that although various musculoskeletal diagnostic codes were amended effective February 7, 2021, no substantive changes were made to the rating criteria that applies here. The Veteran's right toe disability has been evaluated as 10 percent disabling under DC 5284 for "other foot injuries" effective from December 28, 2011 to July 13, 2018. Currently, the Veteran's right toe disability is combined with his left foot metatarsalgia disability and rated at 10 percent under hyphenated diagnostic code 5279-5284 effective from July 13, 2018. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5279, Morton's Disease, unilateral or bilateral, warrants a maximum 10 percent evaluation. Under DC 5284, the criterion for a 10 percent evaluation is a moderate foot injury. A 20 percent evaluation is warranted for a moderately severe foot injury and a 30 percent evaluation is warranted for a severe foot injury. A note states that with actual loss of use of the foot, a 40 percent rating is warranted. Additionally, under DC 5283, the criterion for a 10 percent rating is moderate malunion or nonunion of the metatarsal bones. The criterion for a 20 percent rating is moderately severe malunion or nonunion of the metatarsal bones. The criterion for a 30 percent rating is severe malunion or nonunion of the metatarsal bones. Lastly, under DC 5282, the criterion for a 10 percent evaluation is hammer toe of all toes, without a claw foot. VA treatment records reveal the Veteran persistently complaining of ongoing right toe pain. In June 2012, he complained of pain in his right foot radiating from the pinkie toe. The impression showed interval healing of fracture of the second proximal phalanx. Postoperative deformity following resection of the head of the fifth proximal phalanx is unchanged. No acute findings in the bones or soft tissues of the little toe. Tiny plantar calcaneal spur. In November 2017, the Veteran also reported foot pain "that is always there" and that the pain is increased by movement. See Medical Treatment Record - Government Facility The Veteran was afforded a VA Foot Conditions (Other than Pes Planus) examination in December 2012. The examiner noted tenderness along the lateral right fifth metatarsal from the MTP joint proximally to the mid-fifth metatarsal shaft. No hammertoe, hallux valgus, acquired claw foot, or Malunion/nonunion of tarsal/metatarsal bones were noted. There was no evidence of bilateral weak foot. The examiner noted that the Veteran was wearing the short leg walking orthosis for an unrelated condition of his foot. See December 2012 VA Examination. At a May 2014 VA Foot Conditions examination, the diagnosis was metatarsalgia of the right 5th toe. The examiner noted that the Veteran experiences right 5th toe arthroplasty residual pain with walking, standing and manipulation. The examiner indicated the severity of the right toe disability as moderate. The examiner remarked that flare-up of the Veteran's right foot condition was not present at the time of examination; and that in the absence of the Veteran's flare-up at examination, it would be mere speculation to express in terms of the degrees of additional ROM loss due to pain, weakness, fatigability, or incoordination. See May 2014 VA Examination. During a September 2014 Podiatric Consult, the Veteran reported that his previous great toe injection helped but that he has a new problem with his right foot. He reported sharp shooting pain from toes 3, 4 and 5 up to his foot, ankle, and lower leg. He narrated that this could happen at any time while he is driving; that it hurts "pretty bad"; and can be debilitating. On objective examination, pain was noted upon compression; right forefoot was positive for Mulders sign which is indicative of a possible neuroma. The assessment was Morton's neuroma right foot. See Medical Treatment Record-Non-Government Facility. At a May 2016 Foot Conditions examination, the Veteran reported persistent pain in the right fifth digit with radiation into the distal calf. He also reported numbness in the right fourth and fifth toes and pain in the plantar surface of the right fourth and fifth toes, all of which he stated were new symptoms since his March 2016 surgery. The Veteran further stated that he is limited in standing and walking because of the right foot pain. Upon examination, no malunion or nonunion of tarsal or metatarsal bones were noted. The examiner described the residuals of the foot surgery as persistent pain in the right fifth toe and mild soft tissue swelling over the dorsum and plantar surface of the right foot since the recent surgery. Objective examination also revealed numbness of the right fourth and fifth toes since the surgery. It was noted that the Veteran uses a cane to ambulate when he leaves home. Regarding the functional impact of the right toe disability, it was stated that the Veteran's disability impacted his ability to work as he lost his warehouse job in 2014 because he took too many breaks from work as a result of the right foot pain. See May 2016 C&P Examination. The Veteran was afforded a VA Amputations examination in February 2019. It was noted that the Veteran underwent a right 5th toe amputation at the mtp joint in 2017 because of a hammertoe and neuralgia type pains per surgeon operative note. It was indicated that the Veteran has chronic pains over the stump and the 5th metatarsal area, all the time, which becomes aggravated with walking and standing. It was noted that the Veteran uses flip flop shoes most of the time and ambulates using a walker. The examiner further noted amputation of toes without removal of the metatarsal head. The examiner remarked that the Veteran's right toe disability did not impact his ability to work. See February 2019 C&P Examination. At the October 2019 Board hearing, the Veteran described increased pain, instability, and an inability to sleep without "hanging his foot out" because of foot pain. The Veteran testified that he frequently wears flip-flops because when he put shoes on, it hurts. He stated that he has circulation problems, experiences numbness, and tend to lose balance without his walker. He remarked that he struggles with depression and sleep apnea due to his right toe disability. He stated that his pain level was an eight out of 10 daily-on a pain scale of 1 to 10, ten being the highest. The Veteran further stated that he takes cortisone shots for his condition every three months. See October 2019 Hearing Transcript. At the February 2020 VA Amputations examination, the examiner stated the following: "the Veteran underwent right 5th digit amputation in 2017 for hammertoe deformity and neuralgia, which were resultants of a neuroma resection in 2016. The Veteran continues to have neuralgia at the amputation stump site to the right leg. He says the pain is sharp and severe." The examiner noted amputation of toes without removal of the metatarsal head. Functional impact was noted as difficulty with walking. The examiner remarked that there was no evidence of pain on passive range of motion testing of the right foot and no evidence of pain on non-weight bearing testing of the right foot. See February 2020 C&P Examination. In light of the Veteran's reported symptoms (daily pain with prolonged standing and walking, right toe interference with his ability to ambulate without the use of assistive devices), the minimal benefit of cortisone injections, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the right toe disability more closely approximates a 20 percent rating under DC 5284 for the entire period on appeal. This contemplates a moderately-severe right toe disability. 38 C.F.R. § 4.71a, DC 5284. A rating greater than 20 percent is not warranted at any time during the claim period because although the Veteran's right toe symptoms interfere with weight-bearing, he is nonetheless able to bear weight and ambulate both with and without the use of assistive devices. Also, the Board finds that the reported functional impairment has not been so severe, frequent, and/or prolonged to warrant a rating higher than 20 percent. In other words, even considering functional impairment due to pain and other factors, the Veteran's symptoms have not been shown to be so disabling as to result in more than moderately severe limitation of foot function. The only other diagnostic codes under which a rating greater than 20 percent is available are DCs 5276 (acquired flat foot), 5278 (claw foot (pes cavus)), and 5283 (malunion or nonunion of the tarsal or metatarsal bones). There has been no evidence of any acquired flat foot, claw foot (pes cavus) warranting a greater disability rating. Also, malunion/nonunion of the tarsal or metatarsal bones has not been noted during the entire claim period. Moreover, the Veteran has not contended, and the evidence does not otherwise reflect, that he has completely lost all functional use of his right foot, to warrant a 40 percent disability rating under DC 5284, Note. In sum, the Veteran's right fifth toe metatarsalgia status post PIP joint arthroplasty has resulted in impairments that more nearly approximate the criteria for a 20 percent rating, but no higher, under DC 5284 during the entire claim period. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds a claim for a TDIU has been raised by the record. Notably, the Veteran has reported that he is not working due to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a TDIU claim is part of an increased rating claim when it is expressly raised by the Veteran or reasonably raised by the record). The issue of entitlement to TDIU has not been developed or adjudicated by the AOJ. Thus, on remand the AOJ should send the Veteran a VA Form 21-8940 to assist in developing his claim. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's file outstanding/updated treatment records. 2. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, [Veteran's Application for Increased Compensation Based on Unemployability]. Explain what is needed to establish entitlement to TDIU due to his service-connected disabilities. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.