Citation Nr: 21042168 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-49 443 DATE: July 12, 2021 ORDER Prior to October 19, 2017, a compensable disability rating for service-connected right foot strain is denied. From October 19, 2017 to September 9, 2020, a 10 percent disability rating for service-connected right foot strain is granted, subject to the regulations governing the payment of monetary awards. From September 9, 2020, a disability rating in excess of 10 percent for service-connected right foot strain is denied. FINDINGS OF FACT 1. Prior to October 19, 2017, the Veteran's right foot strain was not manifested by pain. 2. From October 19, 2017, the Veteran's right foot strain has been manifested by mild impairment due to pain; moderately severe impairment due to pain has not been shown. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to October 19, 2017 for service-connected right foot strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for a disability rating of 10 percent, but no higher, beginning on October 19, 2017 for service-connected right foot strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1991 to December 1994. In February 2020, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript is of record. In April 2020, the Board of Veterans' Appeals (Board) remanded the above captioned issue for further development. Following the additional development, in an October 2020 rating decision, the evaluation for the Veteran's service-connected right foot strain was increased to 10 percent, effective September 9, 2020. In February 2021, the Board remanded the increased rating claim again for the issuance of a Supplemental Statement of the Case (SSOC); this was completed in March 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to a compensable disability rating prior to September 9, 2020 and in excess of 10 percent thereafter for service-connected right foot strain The Veteran maintains his service-connected right foot strain is more severe than the staged ratings currently assigned. The Veteran's right foot strain is rated under 38 C.F.R. § 4.71a, DC 5299-5284. Hyphenated codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5284 provides a 10 percent rating for moderate symptoms, a 20 percent rating for moderately severe symptoms, and a 30 percent rating for severe symptoms. Id. A note indicates that, where there is actual loss of use of the foot, a 40 percent rating is warranted. While no noncompensable rating is specifically provided by the DC, a noncompensable rating will be assigned if the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.30. Notably, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. Words such as "severe," "moderately severe," and "moderate," are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. "Moderate" is defined as tending toward the mean or average amount of dimension, having average or less than average quality. "Severe" is defined as harsh or of great degree. Merriam-Webster's collegiate dictionary. (2003). Springfield, MA, U.S.A.: Merriam-Webster, Incorporated. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 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 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; 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 criteria."). Turning to the medical evidence of record, on February 2013 VA examination, the examiner expressed their disagreement with the findings from a prior VA examination conducted in November 2012. In contrast to the November 2012 VA examination, which had been the basis for the Veteran's award of service connection for the right foot, the February 2013 VA examiner indicated the Veteran did not have a present diagnosis relating to his right foot. The examiner noted that physical examination showed no palpatory tenderness or apparent deformity, no swelling or erythema and range of motion function motor strength pulses were all normal. See February 2013 VA examination. In the Veteran's January 2014 Notice of Disagreement (NOD), he disagreed with the findings by the February 2013 VA examiner and argued that they were based on erroneous information as he believed the examination to have been prejudicial, wrongful, and inadequate. See January 2013 NOD. VA treatment records show that in July 2016, an X-ray was conducted that showed the Veteran had a normal right foot with a tiny or developing calcaneal spur. See VA treatment records, received August 2016. In September 2016, during a primary care follow-up visit, when asked, the Veteran denied having any complaints of right foot pain. See VA treatment records, received October 2018. However, on October 19, 2017, the Veteran reported that his right foot hurt despite the X-ray not showing any findings and requested a consult with a podiatrist. See VA treatment records, received November 2018. In February 2020, the Veteran testified at a hearing before the Board. He stated that his service-connected right foot strain had worsened since his last VA examination, and reported constant, sometimes severe pain which caused issues with his family life as well as some issues with his employment. See February 2020 Hearing Transcript. As a result of the Veteran's hearing testimony, and in satisfaction of the Board's February 2021 remand, a more recent VA examination was conducted in September 2020. The examiner diagnosed the Veteran with right foot strain and degenerative arthritis of the right foot; subluxation of the talonavicular joint was also noted. The Veteran reported suffering from pain in the right foot. Specifically, the pain was described as "deep pain" and was located "closer to the top of the foot, and towards the lateral border." There were no flare-ups reported which impacted the function of the foot but overall, the Veteran reported functional loss in that it limited his walking all day or standing, especially on hard surfaces. Pain on use of the foot, including manipulation of the feet were reported but there was no evidence of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, decreased longitudinal arch height, marked deformity or marked pronation nor is there evidence of a lower extremity deformity other than pes planus, causing alternation of the weight-bearing line, "inward" bowing of the Achilles' tendon or marked inward displacement and severe spasms of the Achilles' tendon. Overall, the examiner found the Veteran's severity of his foot injury was moderate on the right side. The foot condition chronically compromised weight bearing but did not require arch supports. However, the examiner noted the degenerative arthritis and talonavicular joint subluxation were the predominant injuries that caused the moderate level of pain and disability. The pre-existing service-connected foot strain was described as mild in severity and limiting functions. Functionally, the examiner indicated the Veteran suffered from pain on movement, pain on weight-bearing, disturbance of locomotion, interference with standing and lack of endurance. The examiner added a note indicating the Veteran's right foot condition limited him from doing weight-bearing, walking, or standing for prolonged periods of time due to pain. He did not use an assistive device for ambulation. Diagnostic testing confirmed the Veteran suffered from degenerative arthritis as well as talonavicular joint subluxation with the functional impact of limited from doing high-impact activities, such as jumping from heights or pushing against resistance. The Veteran's degenerative arthritis and subluxation of the TNK limited the Veteran from standing for more than one hour without taking a break, walking for more than 2 miles due to pain, or run for more than 1 mile due to pain. Pain was noted during weight-bearing activities but not during non-weight bearing. Pain was not noted during active motion, instead it was found to be mostly associated weight weight-bearing. Pain was, however, noted during passive motion of the right foot, demonstrating pain with extremes of manipulating the foot from side to side. Importantly, the September 2020 VA examiner also opined that the Veteran had presented with a new injury of degenerative arthritis of the mid foot. The examiner explained that the Veteran's prior injury (strain) affected his upper foot, and that he described that as almost an extension of the connected aspect of his reported ankle pain. The Veteran had since developed a new condition of mild mid-foot degenerative arthritis due to aging, weight and wearing and tear. The examiner stated he had reviewed the records and the Veteran's prior diagnosis of foot strain was not of such an extensive character as to cause any altered mechanic of the foot to create degenerative arthritis. The examiner also explained that a talonavicular joint dislocation was a very rare and uncommon injury that took a unique force or significant chronology of microtrauma. The examiner stated the Veteran's records did not support the position that it was caused during his time in service, nor was there evidence that the Veteran's strain would cause that type of force. Finally, the examiner parsed out the Veteran's symptoms by noting that the strain on the top of his foot caused some pain with prolonged standing or walking; the midfoot degenerative arthritis caused the deeper pain, which was the pain that limited the Veteran the most for endurance; and the subluxation of the TNJ caused the Veteran some occasional pain or flare-ups due to certain actions or events that was significant at times but could also be quiescent at other times. See September 2020 VA examination and medical opinion. Following a review of the relevant evidence for the entire period on appeal, and in giving the Veteran's lay assertions of pain the benefit of the doubt, the Board finds there is evidence of pain associated with the Veteran's right foot documented as early as the October 19, 2017 VA treatment record. The Veteran's reports of pain were reiterated at the February 2020 Board hearing and corroborated by the September 2020 VA examiner's findings. Therefore, although the Veteran has already been assigned a 10 percent disability rating based upon results from the September 2020 VA examination, the Boards finds the 10 percent disability rating for moderate impairment of the right foot based on pain should be assigned effective October 19, 2017. Prior to October 19, 2017, the record does not support a finding of moderate impairment of the right foot, as the record is absent for any reports of pain, and therefore a compensable disability rating is not warranted. In making this finding, the Board acknowledges that in the Veteran's January 2013 NOD, he argued the February 2013 VA examiner's findings should not be considered. The Board notes, however, that the examiner's medical opinion that the Veteran does not have a right foot disability that is related to his military service is a separate matter from the findings reported during that examination for the right foot. The Board does not give any consideration to the examiner's opinions regarding the etiology of the Veteran's right foot disability, as the Veteran is already service-connected for the right foot. However, as to the examiner's findings that the Veteran did not have any symptoms related to the right foot, the Board finds these to be probative and can find no reason to question such findings when they are also supported by the Veteran's treatment records which show that prior to October 2017, he denied pain and was demonstrated by X-ray testing to have an essentially normal right foot. As for the period from October 19, 2017, there is no evidence the Veteran's right foot disability has ever risen to the level of a moderately severe impairment in order to warrant a rating in excess of 10 percent. As characterized during the most recent VA examination in September 2020, the Veteran's service-connected disability alone (excluding consideration of the additional nonservice-connected disabilities diagnosed at the examination) is mild in severity and in limiting functions. The Veteran also does not require any assistive devices for ambulation despite the pain. Finally, the Board has also considered the other Diagnostic Codes pertaining to the foot for this period. In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Here, no other Diagnostic Code is applicable, as there were no findings of acquired flatfoot, weak foot, pes cavus, metatarsalgia, Morton's neuroma, hallux valgus, hallus rigidus, hammer toe, or malunion/ nonunion of bones for the period at issue. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283. In conclusion, the Board finds that the evidence supports a rating of 10 percent effective October 19, 2017, but no sooner, for the Veteran's service-connected right foot strain. However, a rating in excess of 10 percent is not warranted for any period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.