Citation Nr: 21041932 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-15 493 DATE: July 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right foot before April 17, 2021 is denied. Entitlement to an initial rating in excess of 30 percent for degenerative joint disease of the right foot from April 17, 2021 to the present is denied. REMANDED Entitlement to service connection for a right foot disability other than right foot degenerative joint disease is remanded. FINDINGS OF FACT 1. Before April 17, 2021, the Veteran's degenerative joint disease of the right foot has been manifested by pain and other symptoms, resulting in no more than moderate impairment. 2. From April 17, 2021 to the present, the Veteran's degenerative joint disease of the right foot has been manifested by pain and other symptoms, resulting in severe impairment but has not resulted in loss of use of the right foot. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative joint disease of the right foot before April 17, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 2. The criteria for an initial rating in excess of 30 percent for degenerative joint disease of the right foot from April 17, 2021 to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to March 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially testified at a Board hearing in June 2019 before the undersigned Veterans Law Judge (VLJ). Unfortunately, the transcript from that hearing was unavailable. As such, the Veteran testified again at a Board hearing in December 2020 before the undersigned VLJ. A transcript of that hearing has been associated with the record. In January 2021, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. The rating criteria for the Veteran's musculoskeletal disability, right foot arthritis, did not change. Accordingly, the Board finds no prejudice to the Veteran deciding his claims for a higher rating. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").]]] The Veteran is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, for right foot degenerative joint disease (right foot arthritis). This claim stems from a January 2015 claim. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The terms "moderate," "moderately severe," and "severe" are not defined by the diagnostic code. The Board notes that "mild," as relevant to a physical condition, is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed January 25, 2021). "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 5284, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5284, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right foot before April 17, 2021 By way of history, the Veteran has been service connected for residuals of a right ankle injury and surgery since July 1984. Besides the original surgery in service to repair the ankle injury, the Veteran underwent ankle fusion surgery in December 2009. The Veteran's right foot arthritis is service connected as caused or aggravated by the separately rated right ankle disability. The Veteran has also had his left ankle fused after a post-service injury to that joint. In February 2015, the Veteran underwent a VA examination. At that time, the examiner noted the Veteran used an ankle brace on both ankles. He also had orthotic shoes and inserts. The Veteran complained of pain in his entire right foot and pain in his big toe that worsens when he walks more than a block. He experiences flare- ups when he stands or walks. During a flare-up, the pain rises to 8/10 and this occurs five to six times a week. The Veteran had occasional pain in the left foot but the pain in the right foot is worse. The VA examiner noted pain in the right sinus tarsi region. The examiner also found pain, tenderness, and crepitus in the right foot dorsum and great toe. The Veteran had tenderness in the medial malleolus and the sinus tarsi area. Besides pain with weight bearing, the Veteran had instability of station, and interference with standing. The Veteran also had bilateral disturbance of locomotion. The VA examiner concluded the severity of the Veteran's right foot arthritis as moderate. The Veteran has sought treatment at the VA medical center (VAMC). The VAMC treatment notes demonstrate the Veteran has had continued pain especially in the sinus tarsi. In March 2016, an orthopedic physician noted the Veteran has had less ankle pain since his fusion surgeries but has bilateral mid foot pain which is worse with walking. Both ankles have limited motion. The doctor concluded the Veteran had bilateral painful ankle fusions due to mid foot arthritis and a lack of dorsiflexion. He ordered different orthotics to eliminate dorsiflexion thrust from both feet. A month later the Veteran stated he essentially had no right ankle motion and the motion came from his foot. Braces helped when his foot went lateral. In May 2016, the Veteran stated it was hard for him to ambulate over uneven ground. He had decreased subtalar motion which was very painful. The Veteran did not have gross abnormality to his alignment when standing. The doctor at this time raised subtalar fusion surgery as future treatment. A June 2016 treatment note indicated the Veteran walked well in a right ankle Velcro-closure foot and ankle brace and sneakers. He worked on a warehouse on his feet all day. The doctor recommended different footwear for both feet to reduce the subtalar motion and pain. In February 2017, the Veteran had limited subtalar range of motion. The physician noted that not all of the Veteran's symptoms seem to be coming from his subtalar joint, but the Veteran clearly had some aspect of subtalar dysfunction. The doctor recommended fusion of the subtalar region. The Veteran, however, in April 2017 decided not to proceed with the surgery because he was busy at work. In December 2017, the Veteran stated the pain is worsening but still did not want fusion surgery. Although the pain is constant, the Veteran still had a reasonable amount of motion through the subtalar joint. The ankle joint is well fused without appreciable motion at the ankle joint. By March 2019, the Veteran stated he was ready for the foot fusion. The Board notes, however, that to date, the Veteran has not had the surgery. Again, his provider noted the Veteran still had a reasonable amount of motion through the subtalar joint. The ankle joint is well fused without appreciable motion at the ankle joint. The Veteran had significant pain over the calcaneal cuboid and lesser talonavicular joints as well as subtalar joint with inversion/eversion. The Veteran had constant right subtalar pain in May 2019, which is worse with weight bearing despite constant brace use. The Veteran also reported pain and difficulty with uneven surfaces. He continued working in the warehouse. He ambulated with moderate antalgia. In February 2020, the Veteran had been trying additional medication (a gel) instead of the fusion surgery and reported that the gel has been effective. He used a brace for support, which has been helpful. He had no ankle motion and diminished motion in the subtalar region with pain and tenderness noted in the sinus tarsi. The Veteran chose to continue with his current medical management as he was comfortable with ambulation at this point. The Board notes this is the last relevant, significant treatment note concerning the Veteran's right foot arthritis before April 17, 2021. The Veteran asserts his right toot arthritis symptoms are severe. He describes increasing difficulty as his day proceeds. He also states his foot locks up and it is stiff if he sits and then gets up. He also finds it hard to sleep because the weight of his foot lying in his bed causes pain. His doctors have told him there is nothing they can do for his pain other than the foot fusion surgery. The Veteran testified that if he undergoes right foot fusion surgery, he will no longer be able to work. Running is not an option for him. If he walks on any surface with a rock, his ankle will not flex, and he stumbles a lot. After a review of the evidence, the findings from the above VA examination and other medical evidence does not approximate the criteria for a 20 percent rating under Diagnostic Code 5284. At no time throughout the pendency of this appeal has the Veteran's right foot arthritis disability been manifested by symptoms of moderately severe foot impairment, even considering functional loss due to painful motion or other symptoms of pain, weakness, excess fatigability, swelling, deformity, or atrophy on repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. On the contrary, the clinicians who have examined the Veteran have all reported findings that this disability is productive of no more than moderate impairment for which a 10 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5284. This disability is primarily manifested by pain, stiffness, and tenderness, as reported by the Veteran. The Veteran's foot range of motion is diminished or limited but described as reasonable. While the Veteran may have some restrictions related to prolonged standing or walking or uneven surfaces, the Board finds such a limitation presents a disability picture of a moderate disability as opposed to a moderately severe or severe disability. The remaining symptoms such as pain lying in bed, stiffness, and tenderness do not appear to affect any function of the Veteran. On the other hand, while he has pain and it makes his job more difficult, he works full time and continues as a warehouse manager in the same fashion for the period under review. Although fusion surgery has been recommended, the Veteran continues to receive conservative treatment such as medication and orthotics. Again, this suggest a level of severity less than severe or moderately severe. The Board is sympathetic to the Veteran's testimony that he must work full time to support his family and surgery will prevent employment. Nevertheless, his rating is based upon functional impairment and the evidence establishes that before April 20201, the Veteran's right foot arthritis demonstrates a moderate impairment, not a moderately severe or severe impairment. The examiner, medical providers, and the Veteran have simply not described moderately severe residuals. The February 2015 VA examiner described the right foot arthritis as moderate. As previously noted, characterizations by healthcare providers are not dispositive, but they are probative evidence that the Board may take into consideration. The Board also notes that the symptoms and restrictions asserted by the Veteran are often related to his separately rated ankle disability. For instance, he testified his ankle will not flex if he steps on a rock and he frequently stumbles. His providers have noted the Veteran has no right ankle range of motion. To assess his right foot arthritis under Diagnostic Code 5284 with the manifestations already evaluated by his right ankle rating would violate the rule against pyramiding. 38 C.F.R. § 4.14; Cullen v. Shinseki, 24 Vet. App. 74 (2010) (within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise). The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board notes that the Veteran has other foot disabilities which are discussed in the REMAND below. Once the directives of the remand are completed, to the extent that any other foot disabilities should be service connected and have distinct manifestations from the right toe disability, then the Veteran will be compensated for those additional disabilities. See 38 C.F.R. § 4.14. Otherwise, the Board finds that none of the other diagnostic codes pertaining to the foot are applicable in this instance. 38 C.F.R. § 4.71a, Diagnostic Codes 5077-5083. The Veteran has not alleged, and the record does not otherwise show, that his service-connected disability encompasses symptoms of other disabilities such as pes planus (5076), weak foot (5077), claw foot (5078), hallux valgus (5280), hallux rigidus (5081), or malunion or nonunion of the tarsal or metatarsal bones (5083). A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In this case the Veteran has stated his right foot arthritis results in pain, limitations on walking or running, and standing. The Veteran's statements and testimony do not indicate that the Veteran has a moderately severe disability of the right foot As the preponderance of the evidence is against an initial rating higher than 10 percent before April 17, 2021, for the Veteran's right foot arthritis disability, the claim for a higher rating is denied. 2. Entitlement to an initial rating in excess of 30 percent for degenerative joint disease of the right foot from April 17, 2021 to the present The Veteran's right foot arthritis has been rated at 30 percent effective April 17, 2020. At that time, a VA examiner reported symptoms and findings of the Veteran's right foot arthritis are severe. The Veteran has difficulty with walking, running, standing, squatting, kneeling, and climbing stairs; he can work only where he can remain sitting. The examiner, however, did not find the Veteran has complete loss of use of his right foot. There is no evidence to suggest loss of use of the right foot. Instead, the Board notes that the Veteran had pain, stiffness, and as well as some limitation of function in standing and walking but he can use the right foot. The Veteran can receive a 40 percent rating, the maximum rating available for the right foot, only if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Accordingly, a 40 percent rating for the Veteran's right foot arthritis is not warranted. The claim for an initial rating higher than 30 percent since April 17, 2021, is denied. REASONS FOR REMAND Entitlement to service connection for a right foot disability other than right foot degenerative joint disease is remanded. Besides right foot arthritis, the Veteran has been diagnosed with additional right foot disabilities, namely Morton's neuroma, and hammer toes of the second through fifth toes. The Board has a duty to maximize the Veteran's benefits if warranted. Because the evidence indicates that the Veteran may have different conditions or diagnoses for ¬¬¬his claim for a higher rating for his right foot arthritis, the Board is expanding the scope of the claim to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has determined that the Veteran should receive a VA examination to determine if these additional disabilities of the right foot are related to service or caused or aggravated by the Veteran's service connected right ankle and right foot arthritis disabilities. Ongoing medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his right foot. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right foot, other than degenerative joint disease, had its onset during service or is otherwise related to an in-service injury, event, or disease, to include Morton's neuroma, hammer toes. The examiner should also address whether any current disability of the right foot is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) the Veteran's service-connected disabilities, to include his right ankle disability and degenerative joint disease of the right foot. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.