Citation Nr: 21041377 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-15 054 DATE: July 9, 2021 ORDER Prior to May 23, 2016, entitlement to a 10 percent rating, but no higher, for left foot degenerative joint disease with plantar fasciitis is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to May 23, 2016, the Veteran's left foot disability, which included x-ray evidence of arthritis, was manifested by pain at rest and with walking or standing; there was no evidence of moderately severe foot injury. 2. The Veteran's service-connected disabilities meet the schedular requirements for at TDIU, but they do not preclude him from securing or following substantial gainful employment. CONCLUSIONS OF LAW 1. Prior to May 23, 2016, the criteria for entitlement to a 10 percent rating, but no higher, for left foot degenerative joint disease with plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5284. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to December 1997. This matter is on appeal before the Board of Veterans Appeals (Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran had a video conference hearing before a Veterans Law Judge; a transcript of the hearing is in the record. In November 2020, the Board informed the Veteran that the Veterans Law Judge who held the hearing was no longer available to participate in the appeal, and he was offered the opportunity to have a hearing with a different Veterans Law Judge. He was given 30 days to respond and since he did not, the Board assumes he does not want another hearing. The Board remanded these matters in September 2017 and January 2020. Most recently, the Board awarded staged ratings for the left foot disability and remanded the TDIU issue. The Veteran appeal the portion of the January 2020 Board decision that denied a compensable rating for the left foot disability prior to May 23, 2016 to the Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Remand (JMR), vacated that portion of the Board decision, and remanded the matter. See February 2021 CAVC Decision. 1. Prior to May 23, 2016, entitlement to a compensable rating for left foot degenerative joint disease with plantar fasciitis. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. It is the defined and consistently applied policy of the Department of Veterans Affairs 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. The Veteran contends that his left foot degenerative joint disease with plantar fasciitis should be assigned a 10 percent rating due to his pain. The February 2021 JMR found that the Board had not adequately considered findings of foot pain and tenderness on the October 2009 VA examination, a radiology report revealing degenerative disease at the first metatarsophalangeal joint, and the Veteran's complaints of pain when walking and standing. It stated that while the Board considered assigning a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003, it did not adequately address why the objective findings of pain and tenderness on the VA examination did not constitute objections findings of limitation of motion that would warrant assignment of a compensable rating under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis that is established by X-ray will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, since the issue on appeal only relates to the period prior to May 23, 2016, those changes are not applicable. The record contains objective evidence of arthritis in the first MTP joint of the left foot. See January 1989 Medical Treatment Record non-Government Facility. Diagnostic Code 5003 provides swelling, muscle spasm, and painful motion as examples of acceptable types of evidence of objective evidence of limitation of motion. In the present case, the October 2009 VA examiner found objective evidence of tenderness and plantar foot pain, but not painful motion, edema, weakness, or atrophy. See October 2009 VA Examination. Although the VA examiner noted that the Veteran had active motion in the MPT joint of the left foot, the physician did not mention whether there was any limitation of motion. She did, however, note there was no painful motion, but given that there were objective findings of left foot pain and tenderness, and the Veteran reported having pain with walking, reasonable doubt will be resolved in his favor. Thus, the Board finds that a 10 percent rating is assignable for the period prior to May 23, 2016 under Diagnostic Code 5003. A higher rating of 20 percent is not permissible under Diagnostic Code 5284 since the criteria for that rating requires a moderately severe foot disability. See 38 C.F.R. § 4.71a. The Veteran reported having pain at the bottom of his foot when standing or walking and that the pain on the bottom of his foot and in-step were constant. Pain could be exacerbated by physical activity and he also had pain, weakness, and stiffness at rest, walking, or standing. On a scale of one to ten, he estimated that the severity of his foot pain was a nine. See October 2009 VA Examination. In a May 2021 statement in support of the higher rating, the Veteran stated that since 1996 he had a significant amount of pain in the bottom on his left foot and that it worsened with physical activity. It also resulted in limited mobility and swelling. He stated that he reported these symptoms during the October 2009 VA examination. See May 2021 Appellate Brief. While the Veteran is competent to report his symptoms, the Board does not find his statements regarding their severity of his foot pain to be credible or very probative. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). June and July 2009 VA treatment records, which were just months prior to the October 2009 VA examination, show that the Veteran reported having knee pain after running or walking. He also reported in April 2009 that he did a lot of standing at his job. None of these records included any complaints of left foot pain. See January 2014 Medical Treatment Record Non-Government Facility. Similarly, an April 2016 treatment record shows the Veteran reported having hip pain that was worse with prolonged standing or walking. He also complained of hip pain 8/10 in severity that was present with standing, walking, or running 8/10 in severity; there was no mention of left foot pain. See August 2016 Medical Treatment Record- Non-Government Facility. The Board recognizes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). It must be considered whether there is evidence as to the severity of symptoms that would have made it "reasonable to expect" that at that time he would have reported symptoms during treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013). The Board observes there is no mention of left foot pain with these activities or in these records and finds that it is reasonable to expect that if the pain had been as severe as the Veteran has reported (9/10 in severity) then these or other records would have included complaints of left foot pain. This is particularly true since the Veteran had a job that required him to be on his feet. Furthermore, since he sought treatment for hip pain that was reported as less severe and his reported left foot pain, it would be reasonable to also seek treatment for very severe foot pain. Therefore, since the medical records show the Veteran was able to stand for prolonged periods, run, and walk without complaints of significant or any left foot pain, a preponderance of the evidence is against a higher rating based on moderately severe foot disability under Diagnostic Code 5284. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. Although his service-connected disabilities have a combined rating of 100 percent beginning March 28, 2017, it does render the matter of a TDIU moot since the Veteran could potentially be entitled to special monthly compensation pursuant to 38 U.S.C. § 1114(s) if he is found to have disabilities resulting in a total 100 percent rating and a separate disability which qualifies for a total disability rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). In the prior remands, the Board explained that because the disabilities had a combined rating of 100 percent and the Veteran had sought to reopen the claim for entitlement to service connection for a left hip disability, he could potentially be eligible for special monthly compensation if service connection was granted for the hip disability. Since the August 2020 rating decision denied the Veteran's claim for service connection for a left hip disability, the Board need not consider a TDIU as of the date the 100 percent rating came into effect since special monthly compensation would not be available. The Board, therefore, will consider the period from September 2, 2009 to March 28, 2017. 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. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry 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). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran's service-connected disabilities are PTSD, tinnitus, left ear hearing loss, left foot scar, chronic kidney disease with hypertension, and disabilities of the left elbow, low back, right lower extremity, left shoulder, left foot, knees, ankles, and left fourth finger. These disabilities meet the schedular requirements for a TDIU for the entire period on appeal since they at least had a combined rating of 70 percent beginning September 2, 2009 and his orthopedic disabilities together satisfied the requirement of one disability being rated at 40 percent or more. See August 2020 Rating Decision Codesheet. During his March 2017 video conference hearing, the Veteran testified that he retired from his job on the 31st of that year, so presumably January 31st, due to his service-connected disabilities and nonservice-connected hip disability. See March 2017 Hearing Transcript. The record shows that up until that point he was employed full-time and worked for the post office. See August 2010 C&P Exam and March and May 2017 CAPRI records. Based on an October 2009 VA examination and an April 2009 treatment record, the Veteran's past employment included being a truck driver and being on his feet a lot of the time. See December 2009 C&P Exam and January 2014 Medical Treatment Record Non-Government Facility. Since the Veteran had full-time employment with the post office that ended on January 31, 2017, the record demonstrates he was able to obtain and maintain substantial gainful employment during that period; therefore, a TDIU is not warranted despite meeting the schedular requirements. Thus, the Board will focus on whether he was unemployable due to service-connected disabilities from February 1, 2017 to March 28, 2017. A January 2017 VA examination for his kidney disability shows his symptoms were persistent proteinuria and transient edema. The examination revealed trace edema in both lower extremities and the physician found that the disability did not have any impact on the Veteran's ability to work. See February 2017 C&P Exam. During his March 2017 hearing, the Veteran stated that he could not run due to deterioration of his ankle joints and back. He had pain on the bottom of his foot and ankles after walking long distances. His finger hurt occasionally, and he always walked with a cane. His hearing loss made it difficult to hear the television unless the volume was high and indicated he had difficulty in noisy environments. He occasionally had pain in his left finger, but it was not every day. Sometimes it would hurt when he picked up something. See March 2017 Hearing Transcript. Records from the Social Security Administration (SSA) show that he reported being a clerk at the post office from February 2000 to January 2017 and that his duties involved handling heavy sacks of mail, and sorting and distributing mail. He also helped at the service window. He had stood seven hours a day, sat one hour a day, and walked seven hours a day. SSA records in March 2017 show the Veteran reported he was able to drive, but could not do prolonged standing, walking, or sitting due, in part, to back pain. He also had problems getting along with others due to PTSD. A functional capacity assessment indicates he was able to occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds, stand and/or walk for four hours, sit with normal break periods for six hours during an eight hour work day, and required a hand-held device for ambulation. See March 2020 Medical Treatment Records Furnished by SSA. The SSA found that he was unable to perform his past relevant work due to exertional limitations and that he was essentially limited to the degree noted on the functional capacity assessment. See March 2020 Medical Treatment Records Furnished by SSA. In April 2016, he reported having two years of college. See March 2017 CAPRI records. The Board finds that from February 1, 2017 to March 28, 2017, the Veteran's service-connected disabilities did not preclude him from engaging in and maintaining substantial gainful employment. He attributed his retirement, in part, to these disabilities, and the record indicates that as a clerk he likely would not have been able to continue with the physical and more strenuous aspects of that job. However, the record shows he also had experience as a truck driver. The Board finds that the physical limitations, PTSD symptoms, and hearing difficulties due to his service-connected disabilities would not impact his ability to return to that type of work. Given that he still drove, could sit for longer periods of time, and would have contact with few people as a truck driver, the record indicates he would likely be able to engage in that type of employment. For these reasons, a preponderance of the evidence is against a TDIU. Under the circumstances, the claim must be denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.