Citation Nr: 21041786 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-05 069 DATE: July 10, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, from February 27, 2015 to November 7, 2019, for residuals of a puncture wound to the right foot with traumatic arthritis (hereinafter right foot injury) is granted. Entitlement to a rating of 20 percent, but no higher, since November 7, 2019, for a right foot injury is granted. FINDINGS OF FACT 1. From February 27, 2015 to November 7, 2019, the Veteran's right foot injury was manifested by no more than moderate symptoms including foot pain, pain with pressure on the top of his foot, pain with weight bearing, and tenderness to pressure, as well as, reports that Veteran changed his gait due to pain and stopped participating in recreational activities like skiing due to right foot pain. 2. Since November 7, 2019, the Veteran's right foot injury was manifested by no more than moderately severe symptoms including right foot pain, flares of pain, pain on manipulation of the foot, use of an orthotic, disturbance of locomotion, interference with standing, interference with weight bearing, and interference at times with sitting. CONCLUSIONS OF LAW 1. From February 27, 2015 to November 7, 2019, the criteria for a 10 percent rating, but no higher, for a right foot injury are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5010-5284. 2. Since November 7, 2019, the criteria for a 20 percent rating, but no higher, for a right foot injury are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.71a, DC 5010-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Navy from August 1987 to August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the claim for development including a new VA examination. The Veteran was afforded a new VA examination in November 2019. In May 2020, a rating decision granted an increase to 10 percent for right foot injury effective June 26, 2015. After a Supplemental Statement of the Case (SSOC), the claim was returned to the Board. INCREASED RATING Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation 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. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 1. Entitlement to a rating of 10 percent, but no higher, from February 27, 2015 to November 7, 2019, for a right foot injury is granted. See section 2. 2. Entitlement to a rating of 20 percent, but no higher, since November 7, 2019, for a right foot injury is granted. The Veteran filed a claim for service connection for a right foot injury in February 2015. See VA 21-526EZ received February 2015. In July 2015 a rating decision granted the Veteran's claim for service connection for his right foot injury at a noncompensable level. In December 2015, the Veteran contended he should have an increased rating for his right foot injury. He had constant pain in his right foot. He reported that he had spikes of pain in his right foot that made him completely unable to walk or to walk with very little movement in his foot. See Correspondence and NOD received December 2015. Then in February 2016, the Veteran explained, that he had to wear wide shoes to relieve pressure on his foot. He also had a custom orthotic for his right foot. Additionally, the Veteran stated that his foot disorder was moderate on most days but moderately severe on some days. See Form 9 received February 2016. The Veteran's right foot injury has been rated, under DC 5010-5284, as noncompensable from February 27, 2014, to June 26, 2015, and at ten percent since June 26, 2015. Under DC 5284 (same before and after the February 7, 2021 regulatory change), a 10 percent rating is warranted for a moderate foot injury, a 20 percent rating is warranted for a moderately severe foot injury, and a 30 percent rating is warranted for a severe foot injury. A note to DC 5284 provides that a 40 percent disability rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board finds that prior to November 7, 2019, the Veteran's right foot injury warranted a ten percent rating, and since November 7, 2019, a 20 percent rating, but no higher, was warranted. In June 2015, the Veteran had a VA examination. The examiner completed a Foot Conditions, including Flatfoot (Pes Planus) Disability Benefits Questionnaire (DBQ). The Veteran was diagnosed with residuals of a puncture wound to the right foot and traumatic arthritis. The Veteran reported during the examination that he had stopped skiing due to pain in his foot. He had to wear wide shoes due to pain and pressure. He also reported walking "funny" to compensate for pain or pressure in his foot. He reported pain in his right foot including sharp pains. See C&P Examination received June 2015. During the June 2015 VA examination, the Veteran had pain in his right foot on physical examination, described as mild, very localized pain. The examiner reported the Veteran walked a postal route for a living. The examiner stated that the Veteran had pain on weight bearing, but he did not use any assistive devices. Imaging of the Veteran's right foot reported spurring on the lateral aspect of the shaft of the third metatarsal bone which may be ligamentous in nature and related to old trauma. The Veteran also had moderate degenerative joint disease at the first metatarsophalangeal joint with joint space narrowing, marginal spurring, and subchondral sclerosis. Id. The Board finds that the June 2015 VA examination as well as the other evidence supports that the Veteran had at least moderate functional limitations to his right foot from February 27, 2015 to November 7, 2019. In making this finding the Board noted that the Veteran had foot pain, pain with pressure on the top of his foot, pain with weight bearing, and tenderness to pressure, as well as, reports that he changed his gait due to pain and stopped participating in recreational activities like skiing due to right foot pain. Moreover, in May 2020, a rating decision granted an increase to 10 percent for his right foot injury effective June 26, 2015. The Board finds that it is reasonable to assumed that the Veteran had at least moderate functional limitations to his right foot from the time he filed his claim for service connection for a right foot injury in February 2015 to his first VA examination on June 26, 2015, as this is an initial claim for an increase in rating. Then in November 2019, the Veteran had another VA examination of his right foot. The Veteran reported pain in the top of his right foot. He stated his pain was a seven out of ten when weight bearing. He reported pain in his right foot when ascending stairs, descending stairs, squatting, kneeling, and sitting. The Veteran reported that he had flares of pain at a severity of a nine out of ten. He explained that a couple times a day he would have flares of pain caused by walking, going up stairs, going down steps, walking on a slope, or performing other activities. He also could not wear tight shoes. The Veteran stated that flares of pain would stop him in his tracks for a few minutes each time. The examiner stated that the Veteran had pain on use of his right foot and also on manipulation during examination. The Veteran had no swelling or callouses, but he did have a right foot orthotic. The Veteran did not have extreme tenderness of the plantar surface, or other marked deformity noted on the examination. However, the scar from his foot injury was visible. The examiner stated that the Veteran's right foot had pain on movement, pain on weight bearing, disturbance of locomotion, interference with sitting, and interference with standing. See C&P Exam received November 2019. The November 2019 examiner reported some other physical findings from his examination of the Veteran's right foot. In particular, the Veteran had tenderness to pressure at the right dorsal forefoot between the third and fourth distal metatarsals at a mild to moderate degree consistent with his reports. He had no skin discoloration, no induration, and no swelling. He appeared to prefer to walk on the lateral aspect of the right foot to minimize pain around the tender part of his foot. He did not use any assistive devices for locomotion like a cane. However, he had functional limitations. In particular, the examiner reported that the Veteran would not easily tolerate prolonged or sustained walking or standing without a couple minutes of rest. The Veteran could not walk at a quick pace, he could not make unexpected changes of direction while walking, and he could not perform high impact or high agility activities. The examiner noted that the Veteran had changed duties at the US postal service from delivering mail to a more sedentary position and that the Veteran reported not being able to participate in past recreational activities due to his right foot. The Veteran no longer went hunting, fishing, or hiking. He also no longer performed yard work, or snow removal. Id. The Board finds that the November 2019 VA examination supports that the Veteran had at least moderately severe functional limitations to his right foot since November 7, 2019. In making this finding the Board noted that the Veteran had right foot pain, flares of pain, pain on manipulation of the foot, use of an orthotic, disturbance of locomotion, interference with standing, interference with weight bearing, and interference at times with sitting. At this time, the Board finds that the Veteran's lay statement that he had flares of moderately severe pain was supported and consistent with the evidence. In particular during the November 2019 examination, the Board notes the Veteran reported symptoms of daily pain in the right foot at a seven out of ten and flare ups of right foot pain at a nine out of ten a few times a day. The Veteran stated that he had to take a few minutes to get off of his right foot after walking or going up and down stairs. Additionally, the November 2019 examiner found that the Veteran had functional limitations, due to his service-connected right foot injury discussed above in detail. Considering the evidence in November 2019 and resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms of his service-connected right foot injury have more closely approximated the criteria for a 20 percent rating under DC 5284 since November 7, 2019. A rating higher than 20 percent is not warranted at any time during the claim period because although the Veteran's foot symptoms interfere with weight-bearing and he uses a right foot orthotic, he is nonetheless able to ambulate with the use of a right foot insert and does not require another assistive device like a cane or crutches. The examinations also did not report severe functional limitations, severe tenderness to pressure, or deformity in the foot. Also, there is functional impairment of the right foot during flare ups and with repetitive use, but the Board finds that the reported functional impairments following repetitive use and during flare ups have 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 actually or effectively result in more than moderately severe limitation of foot function. The only other diagnostic codes under which a rating higher 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), or malunion/nonunion of the tarsal or metatarsal bones during the 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, with no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. Thus, a higher rating of 40 percent under DC 5284 for loss of use of the foot is also not warranted. Lastly, although the Veteran has been diagnosed as having right foot arthritis during the claim period, both degenerative and traumatic arthritis are rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. See 38 C.F.R. § 4.71a, DC 5010. As the Veteran is in receipt of a compensable rating under DC 5284 and this rating contemplates limitation of motion/function of the foot due to pain, any separate rating(s) on the basis of foot arthritis would constitute prohibited pyramiding and is not warranted. 38 C.F.R. § 4.14. The Board also noted that the amendment to the rating criteria for evaluating musculoskeletal disabilities effective February 7, 2021, did not apply to the DC 5284, nor was the amendment applicable to supply the Veteran any increase in rating. In sum, the Veteran's right foot injury has resulted in functional impairment that more nearly approximates the criteria for 10 percent, but no higher, prior to November 7, 2019, and after November 7, 2019 the criteria for a rating of 20 percent, but no higher, under DC 5284 for a right foot injury are warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.