Citation Nr: 21039889 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-01 241 DATE: July 1, 2021 ORDER From March 21, 2013, an increased rating of 40 percent (but no higher) for service-connected lumbar paravertebral myositis (back condition) is granted. From March 21, 2013, an increased rating of 20 percent (but no higher) for service-connected left knee instability associated with left knee patellofemoral syndrome (left knee instability) is granted. From March 21, 2013, an increased rating of 20 percent (but no higher) for service-connected left knee patellofemoral syndrome (left knee condition) is granted. From December 30, 2015 to November 19, 2017, an increased rating of 20 percent (but no higher) for a service-connected left great toe condition is granted. From November 20, 2017, an increased rating of 30 percent (but no higher) for a service-connected left great toe condition is granted. FINDINGS OF FACT 1. The March 2013 VA examiner failed to provide some required information; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the March 2013 examination would have supported an increased 40 percent disability rating for the Veteran's back condition. 2. The probative evidence of record including a March 2013 VA examination, medical treatment notes and the Veteran's competent reports support a finding that the Veteran's left knee instability required the use of a brace. 3. The March 2013 VA examiner failed to provide some required information; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the March 2013 examination would have supported an increased 20 percent disability rating for the Veteran's left knee condition. 4. From December 30, 2015 to November 19, 2017, the probative evidence of record including a November 2017 VA examination and the Veteran's competent and credible testimony support a finding that the Veteran's left great toe condition was manifested by moderately severe symptoms. 5. From November 20, 2017, the probative evidence of record (including a September 2020 VA examination and the Veteran's own competent and credible testimony) supports a finding that the Veteran's left great toe condition is manifested by severe symptoms. CONCLUSIONS OF LAW 1. From March 21, 2013, the criteria have been met for a disability rating of 40 percent for the Veteran's back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5237. 2. From March 21, 2013, the criteria have been met for a disability rating of 20 percent for the Veteran's left knee instability under DC 5257. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 3. From March 21, 2013, the criteria have been met for a disability rating of 20 percent for the Veteran's left knee condition under DC 5260. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 4. From December 30, 2015 until November 19, 2017, the criteria have been met for a disability rating of 20 percent for the Veteran's left great toe condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5284. 5. From November 20, 2017, the criteria have been met for a disability rating of 30 percent for the Veteran's left great toe condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the Army from July 1976 to November 1976 and from July 1978 to June 1998. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision. These matters were before the Board in December 2019 and were remanded for further development. In September 2019, a Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. [CONTINUED ON NEXT PAGE] Increased Rating 1. From March 21, 2013, an increased rating of 40 percent (but no higher) for a service-connected back condition is granted. Legal Criteria The Veteran's back condition with IVDS is currently rated under Diagnostic Code 5235-5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Evaluations for IVDS are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Factual Background The Veteran was afforded a March 2013 VA examination during which the conducting physician indicated that forward flexion of the thoracolumbar spine was limited to 60 degrees, with objective evidence of painful motion at 35 degrees and the combined range of motion of the thoracolumbar spine was limited to 150 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions during which forward-flexion was limited to 45 degrees and the combined range of motion of the thoracolumbar spine was limited to 145 degrees. The Veteran reported flare-ups of the back, but the examiner did not indicate whether the examination was being conducted during a flare-up. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran was later afforded a February 2016 VA examination during which the conducting physician indicated that the forward flexion of the thoracolumbar spine was limited to 50 degrees and the combined range of motion of the thoracolumbar spine was limited to 190 degrees. After performing three repetitions, the Veteran's forward flexion was limited to 40 degrees. The Veteran was not being examined immediately after repetitive use over time and the physician indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The conducting physician opined that there was evidence of pain with weight bearing. The conducting physician indicated that the Veteran did not report flare-ups of the thoracolumbar spine. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran was later afforded an October 2018 VA examination during which the conducting physician indicated that the forward flexion of the thoracolumbar spine was limited to 45 degrees and the combined range of motion of the thoracolumbar spine was limited to 145 degrees. The conducting physician indicated that the Veteran was able to perform repetitive-use testing without additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time, but the physician indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The physician indicated that pain causes functional loss but was unable to describe in terms of specific degrees because of the variability in each individual's pain tolerance as well as type and length of activity. The physician also indicated that the examination was not being conducted during a flare up but that the examination was medically consistent with the Veteran's statements describing functional loss during a flare up. At the September 2019 Board hearing, the Veteran testified that he receives injections for his back pain. The Veteran also testified that his back pain wakes him up and affects his social life. The Veteran was later afforded a September 2020 VA examination during which the conducting physician indicated that the forward flexion of the thoracolumbar spine was limited to 40 degrees and the combined range of motion of the thoracolumbar spine was limited to 130 degrees. Pain was noted on examination and causes functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was evidence of pain with weight bearing. The Veteran was unable to perform repetitive-use testing with at least three repetitions because the Veteran indicated that more than one range of motion would trigger a flare-up. The Veteran was not being examined immediately after repetitive use over time, but the physician indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The physician indicated that the examination was not being conducted during a flare-up but that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. The physician was unable to describe the functional loss in terms of range of motion. The physician indicated that there was objective evidence of pain when the back is used in non-weight bearing. The physician indicated that the Veteran has IVDS of the thoracolumbar spine, but it did not result in any incapacitating episodes over the past 12 months. Analysis The Board acknowledges that while the March 2013, October 2018 and September 2020 VA examiners indicated that the Veteran's flare-ups cause functional loss, they failed to describe the functional loss in terms of ROM. Additionally, these examiners did not provide specific values for passive ROM testing, weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board also acknowledges that the February 2016 VA examiner indicated that the Veteran did not have flare-ups of the back which is inconsistent with all the other examinations during the period on appeal. Accordingly, the Board cannot assign these opinions significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the March 2013 examination would support the next highest rating (40 percent) for the period on appeal. However, the Board also finds that a still higher (50 percent) disability rating is not warranted. There is no probative evidence of record that there was favorable ankylosis of the entire thoracolumbar spine during the period on appeal. There is no evidence of record that the Veteran's spine was ankylosed at any level. There is also no evidence during this specific period on appeal that the Veteran was incapacitated due to his IVDS of the thoracolumbar spine. As such, a 50 percent rating is not warranted under DC 5243. Accordingly, from March 21, 2013, an increased rating of 40 percent (but no higher) for a service-connected back condition is granted. 2. From March 21, 2013, an increased rating of 20 percent (but no higher) for service-connected left knee instability is granted. 3. From March 21, 2013, an increased rating of 20 percent (but no higher) for a service-connected left knee condition is granted. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. DC 5256 provides for a 40 percent rating for unfavorable ankylosis with knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the knee in flexion at an angle of 45 degrees or more Prior to the regulatory change, DC 5257 provides ratings based on other impairments of the knee, including recurrent subluxation or lateral instability. The minimum 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. The maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under the new DC 5257 regulations, a 10 percent rating is warranted for a sprain, incomplete tear, or complete tear causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is warranted for either sprain, incomplete ligament tear, or repaired tear causing persistent instability, and a provider prescribes a brace and/or assistive device OR unrepaired or failed repair of complete ligament tear causing instability, and a medical provider prescribes an assistive device. A 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. In the alternative, for patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription for a brace, cane, or walker. A 20 percent rating is warranted when the condition after a surgical repair requires a prescription from a medical provider for one of the following: brace, cane, or walker. A 30 percent rating is warranted when the condition after surgical repair requires a brace and or cane or walker. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). DC 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. The maximum 30 percent rating is warranted for flexion limited to 15 degrees. DC 5261 provides ratings based on limitation of extension of the leg. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The maximum 50 percent rating is warranted for extension limited to 45 degrees. Prior to the regulatory change, DC 5262 provided a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as 'slight,' 'moderate,' 'severe,' and 'marked' are not defined in the 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 as contemplated by the requirements of the law. 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, under DC 5262, a 40 percent rating is for nonunion of the tibia and fibula with loose motion requiring a brace. Malunion of the tibia and fibula are to be evaluated under DC 5256, 5257, or 5261 for the knee, or Medial tibial stress syndrome (MTSS), or shin splints: a non-compensable rating is afforded for a treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating for when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For diagnostic codes that are based on limitation of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. For diagnostic codes that are based on limitation of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). These rules have been considered in the analysis below. 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 required criteria; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition is not duplicative of the symptoms of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Factual Background The Veteran was afforded a March 2013 VA examination during which the Veteran displayed 110 degrees flexion, 0 degrees extension of the left knee. Pain was noted on examination which resulted in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions which did not result in additional functional loss or range of motion. There was no objective evidence of localized tenderness or pain of palpation of the joint or associated soft tissue. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner also indicated that the Veteran had a meniscal tear of the left knee. There was no x-ray evidence of patellar subluxation. The Veteran reported flare-ups of the left knee resulting in swelling and instability which occur sporadically less than 4 times yearly and only lasting 2-3 days at a time. The examiner did not indicate whether the examination was being conducted during a flare-up. Finally, the examiner noted that the Veteran did not use any assistive devices. An October 2013 medical note indicates that the Veteran required the usage of knee braces. The Veteran was later afforded a February 2016 VA examination during which the Veteran reported that his average knee pain is a 5-6/10. The Veteran reported that he is afraid to go upstairs because his left knee gives out. The Veteran also reported that he no longer runs, he cannot kneel and that he sometimes uses knee braces. The Veteran did not report any flare-ups of the knee. The Veteran testified at the September 2019 Board hearing that he used to receive steroid shots in his knee until he developed osteopenia. The Veteran was later afforded a September 2020 VA examination during which the Veteran displayed 80 degrees flexion, 0 degrees extension of the left knee. Pain was noted on examination which resulted in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions which did not result in additional functional loss or range of motion. The Veteran was not being examined immediately after repetitive use over time, but it was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. There was objective evidence of localized tenderness or pain of palpation of the joint or associated soft tissue. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner also indicated that the Veteran had a meniscal tear of the left knee. There was no evidence of patellar subluxation. The examiner also indicated that there was moderate lateral instability of the left knee. Joint instability testing was performed, and the left knee demonstrated anterior and medial instability of 1+. The physician indicated that there was objective evidence of pain when the left knee was used in non-weight bearing but did not perform passive range of motion for the left knee. The physician indicated that the examination was not being conducted during a flare-up but was consistent with the Veteran's statements describing functional loss during a flare-up. The physician was unable to describe functional loss in terms of loss of range of motion. Analysis Left knee instability The Veteran is currently rated at 20 percent for his service-connected left knee instability as of September 8, 2020. During the March 2013 VA examination, the Veteran indicated that he experiences instability of his left knee during flare-ups. The Board finds that the Veteran is competent and credible to report observable symptoms such as instability of the knee. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the conducting physician indicated that the Veteran was not using a brace, a medical treatment note from October 2013 indicated that the Veteran required the usage of a brace for his left knee. Subsequent VA examinations indicated that the Veteran still required the usage of a knee brace for his left knee instability. Accordingly, the Board finds that the preponderance of the evidence supports a finding that the Veteran's left knee instability met the 20 percent criteria under DC 5257 as of March 22, 2013. What remains for consideration is whether the Veteran meets the criteria for a still higher 30 percent rating for his left knee instability. The preponderance of the evidence is against a finding that the Veteran meets the criteria for a 30 percent rating under DC 5257 for his left knee instability. There is no evidence that the Veteran experienced an unrepaired or failed repair of complete ligament tear of his left knee nor is there any evidence that the Veteran was prescribed the use of a walker or cane. Left knee condition The Board notes that the Veteran is currently rated at 10 percent for his left knee condition under DC 5260. The Board acknowledges that while the March 2013 and September 2020 VA examiners indicated that the Veteran's flare-ups cause functional loss, they failed to describe the functional loss in terms of ROM. Additionally, these examiners did not provide specific values for passive ROM testing, weight-bearing or non-weight-bearing. See Correia supra; Sharp supra; DeLuca supra. Accordingly, the Board cannot assign these opinions significant probative value. See supra. The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the March 2013 examination would support the next highest rating (20 percent) for the period on appeal. However, the Board also finds that a still higher (30 percent) disability rating is not warranted. There is no probative evidence of record that the Veteran's left knee flexion was limited to 15 degrees or that the extension was limited to 20 degrees. There was also no evidence of malunion of the tibia and fibula or shin splints. There was no evidence of a semilunar cartilage condition resulting in frequent episodes of locking, pain and effusion of the joint nor any evidence of ankylosis of the left knee. 4. From December 30, 2015 to November 19, 2017, an increased rating of 20 percent (but no higher) for a service-connected left great toe condition is granted. Legal Criteria The Veteran's service-connected left great toe is rated under 38 C.F.R. § 4.71a, DC 5284. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under DC 5284, a 10 percent rating is assigned for a moderate foot injury; a 20 percent rating is assigned for a moderately severe foot injury; a 30 percent rating is assigned for a severe foot injury; and a 40 percent rating is assigned for actual loss of use of the foot. Factual Background The Veteran was afforded a March 2013 VA examination during which the conducting physician indicated that the Veteran had bilateral metatarsalgia. The physician indicated that the Veteran did not have hammers toes, Morton's neuroma, hallux valgus, hallux rigidus, clawfoot, malunion or nonunion of tarsal or metatarsal bones or bilateral weak foot. The physician indicated that there were minor functional limitations including walking greater than one or two miles. The physician opined that the Veteran had moderate severity of the left great toe. The Veteran was afforded a December 2015 VA examination during which the conducting physician indicated that the Veteran had bilateral metatarsalgia. The physician indicated that the Veteran did not have hammer toes, Morton's neuroma of the left foot, hallux valgus, hallux rigidus, clawfoot, malunion or nonunion of tarsal or metatarsal bones or bilateral weak foot. The physician also indicated that the Veteran's left foot condition interfered with walking. The conducting physician opined that the Veteran had mild severity of the right toes but did not opine as to the severity of their left toes. The Veteran testified at the September 2019 Board hearing that the December 2015 VA examination did not reflect the severity of his left great toe and that it was "really bad" at the time. The Veteran testified that he is taking a sleeping medication because it hurts when he walks and that he can barely move his toe during cold weather. Analysis The Board notes that the December 2015 VA examiner failed to opine as to the severity levels of the Veteran's left great toe but indicated that it interfered with his ability to walk. The Board finds the Veteran competent and credible to testify to his left great toe pain which he could barely move during cold weather and accordingly assigns significant probative value to his testimony. See Layno supra. Accordingly, the Board finds that from December 30, 2015 to November 19, 2017 the preponderance of the evidence is in favor of a finding that the Veteran's left great toe condition was manifested by moderately severe symptoms. What remains for consideration is whether a still higher, 30 percent rating is warranted for the Veteran's left great toe for this specific period on appeal. The Board finds that the evidence of record is silent for severe symptoms of the Veteran's left great toe. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left great toe condition meets the criteria for a 30 percent rating for this specific period on appeal. 5. From November 20, 2017, an increased rating of 30 percent (but no higher) for a service-connected left great toe condition is granted. Factual Background The Veteran was afforded a November 2017 VA examination during which the conducting physician indicated that the Veteran had metatarsalgia and plantar fasciitis of both feet. The Veteran reported that his left great toe will give him some pain along the distal phalanx of the left great toe. The Veteran further reported that he has to take frequent breaks from prolonged walking and standing and that is only able to walk about 2 blocks before needing a short rest. The Veteran also reported that his ability to stand is limited to about 15-20 minutes before needing to rest his feet. The Veteran displayed pain on weight-bearing, disturbance of locomotion and interference with standing on both sides. The physician indicated that the Veteran has pain and swelling on the use and manipulation of both feet. The physician also indicated that the Veteran does not have hammer toes, hallux valgus, hallux rigidus of the left foot. Finally, the physician noted that the Veteran's gait is slightly antalgic due to pain and that he is unable to stand on his tiptoes due to his foot pain. At the September 2019 Board hearing, the Veteran testified that his left great toe symptoms have worsened since the time of the December 2015 VA examination. The Veteran was afforded a September 2020 VA examination during which he indicated that his pain is intermittent and comes at least 6-7 times per day. The physician indicated that the Veteran has pain and swelling on the use and manipulation of both feet. The physician also indicated that the Veteran does not have hammer toes, hallux valgus, hallux rigidus of the left foot. The physician indicated that the Veteran's left foot condition interfered with his ability to sit and stand. The physician noted that left foot pain was noted during weight-bearing and non-weight-bearing. Finally, the physician opined that the Veteran's left foot condition was manifested by moderately severe symptoms. Analysis The Board finds the Veteran competent and credible to testify that his left great toe pain has worsened since the time of his December 2015 examination and accordingly assigns probative value to his testimony. See Layno supra. The November 2017 VA examination indicates that during this specific portion of the period on appeal, the Veteran's left great toe condition worsened to the extent that he is unable to walk for more than 2 blocks and stand for longer than 15-20 minutes. The Board assigns significant probative value to this opinion which supports a finding that the Veteran's left great toe condition is manifested by severe symptoms. Although the September 2020 VA examiner opined that the Veteran's left foot condition was manifested by only moderately severe conditions, the physician also indicated that the Veteran's left great toe pain comes at least 6-7 times per day. The Board finds that these findings indicate that the Veteran's left great toe condition is manifested by severe symptoms. Accordingly, the Board finds that from November 30, 2017 the preponderance of the evidence is in favor of a finding that the Veteran's left great toe condition meets the criteria for a 30 percent rating. A 40 percent rating is not warranted for this period on appeal because the evidence does not indicate that the Veteran has lost the use of his left foot. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.