Citation Nr: 21040598 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-03 217 DATE: July 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral metatarsalgia is denied. REMANDED Entitlement to a rating in excess of 10 percent for lumbar musculoligamentous strain with mild degenerative spondylosis, to include whether the reduction of the rating from 20 percent to 10 percent effective July 3, 2014 is proper, is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT The 10 percent rating currently assigned for bilateral metatarsalgia is the highest rating available under the appropriate rating code; this rating code does not provide for separate evaluations for each foot. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral metatarsalgia, to include separate ratings for each foot, have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Code 5279. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1978 to April 1989. The Veteran requested and was scheduled to appear at a video hearing before a Veterans Law Judge in June 2021, for which he failed to appear. Bilateral Metatarsalgia The Veteran contends that the 10 percent rating assigned to his bilateral metatarsalgia is inadequate. He believes that each foot should receive a separate 10 percent rating. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2017), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider if a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's metatarsalgia is evaluated under the rating criteria for metatarsalgia, anterior (Morton's disease), unilateral or bilateral. A 10 percent rating is assigned for this disability. This is the highest rating available under this rating code. 38 C.F.R. § 4.71a, Code 5279. The Board finds that entitlement to a rating in excess of 10 percent for metatarsalgia is not warranted. The 10 percent rating is the highest that is available under the appropriate rating criteria. Furthermore, there is no basis for separate 10 percent evaluations for each foot. The rating criteria clearly state that the 10 percent rating is assigned for either unilateral or bilateral metatarsalgia. They do not provide the option for separate ratings for each foot. The implication is that separate 10 percent ratings for each foot are not possible. Therefore, no further discussion is required. See 38 C.F.R. § 4.71a, Code 5279; Johnston v. Brown, 10 Vet. App. 80, 85 (1995). The Board has considered an evaluation under a different rating code, but there are no codes more appropriate. The Veteran is already service connected for plantar warts and hammertoes with separate 10 percent ratings for each foot assigned under the rating criteria for hammertoes. See 38 C.F.R. § 4.71a, Code 5282 (2017). He is also service connected for bilateral flat foot, and has been assigned a zero percent rating under the rating criteria for acquired flatfoot. See 38 C.F.R. § 4.71a, Code 5276 (2017). The evaluations of these disabilities are not on appeal. An evaluation under the rating code for malunion or nonunion of the tarsal or metatarsal bones has been considered. However, a July 2014 X-ray study is negative for evidence of malunion or nonunion of any of the metatarsals, and evidence of malunion or nonunion is not shown elsewhere. This precludes evaluation under this code. See 38 C.F.R. § 4.71a, Code 5283 (2017). A 10 percent rating is the highest allowed under the rating code for bilateral weak foot, and the Veteran does not have a diagnosis of claw foot or pes cavus, so evaluations under these codes are neither helpful or appropriate. See 38 C.F.R. § 4.71a, Codes 5277, 5278 (2017). Finally, the Board has considered entitlement to a rating under the code for other foot injuries. This code provides for a rating of up to 30 percent. See 38 C.F.R. § 4.71a, Code 5284 (2017). However, the Board finds that the use of this rating code would not be appropriate. The Veteran does not have an "other" foot injury. He has a disability that is diagnosed as metatarsalgia. Metatarsalgia already has its own rating code, which is the one currently being utilized. The Board concludes that there are no rating codes more appropriate than the one already assigned, and there is no basis for separate ratings or a rating higher than 10 percent. REASONS FOR REMAND 1. The issue of the proper evaluation of the Veteran's lumbar musculoligamentous strain with mild degenerative spondylosis is remanded. In the July 2014 notice of disagreement, the Veteran asserts that his back continues to worsen. He expressed dissatisfaction with the previous examination, and said he was willing to attend a new VA examination. The Veteran is entitled to a new VA examination where there is evidence the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). This includes his own statements. Furthermore, the Board observes that the most recent VA examination of the back was in July 2014, and the Veteran asserts it was not accurate. The evaluation of the Veteran's disability was decreased from 20 percent to 10 percent based on the findings of that examination. He should be scheduled for a new VA examination of his spine. 2. The issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. The Veteran's assertions regarding his radiculopathy are similar to those relating to his spine. Furthermore, given that the radiculopathy was last examined at the same time as the back, and given that this disability is associated with the back disability, it should be included as part of the new VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for his back disability and his radiculopathy to the left lower extremity for the period from 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran's low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected radiculopathy to the left lower extremity. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the radiculopathy to the left lower extremity alone and discuss the effect of the Veteran's radiculopathy to the left lower extremity on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Prichard, 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.