Citation Nr: 21042761 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-55 207 DATE: July 13, 2021 ORDER Entitlement to a 30 percent rating for right foot osteoarthritis is granted, throughout (from September 16, 2015). FINDING OF FACT Throughout, the Veteran's right foot osteoarthritis has been manifested by chronically compromised weight bearing; he has required arch supports, custom orthotic inserts, or shoe modifications; and recent surgery residuals have included pain, swelling, impaired ambulation, weakness, and imbalance; symptoms and impairment consistent with severe foot injury are reasonably shown; loss of use of the right foot is not shown. CONCLUSION OF LAW A 30 percent rating is warranted for right foot osteoarthritis, throughout (from September 16, 2015). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Diagnostic Code (Code) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1976 to March 1977, May 1980 to April 1983, and January 1990 to December 1990, with additional Reserve service. This matter is before the Board on appeal from a July 2016 Department of Veterans Affairs (VA) rating decision. In November 2018, the matter was remanded for additional development. Entitlement to a rating in excess of 20 percent for right foot osteoarthritis On September 16, 2015 VA podiatry consult, the Veteran complained of a long history of right foot pain, described as "shooting, sharp pain upon ambulation", and rated as 8/10 in severity. On physical examination, there was guarding due to a "very painful right foot", pain on palpation of a soft tissue mass on the dorsal lateral aspect of the right foot, pain on dorsiflexion and plantar flexion, mild pain along the medial band of the plantar fascia, and swelling, as well as an antalgic gait. X-rays showed a progression of osteoarthritis in the first metatarsal phalangeal, sesamoid metatarsal, and first interphalangeal joints, fourth and fifth metatarsal phalangeal joints, and proximal interphalangeal joints of the second through fifth toes. The diagnosis was a soft tissue mass of the right foot. On June 2016 VA examination, the Veteran reported increased right foot pain and right foot swelling after prolonger walking or standing. He reported losing movement in two right foot toes; he used a cane for ambulation. On physical examination, moderately severe osteoarthritis of the right foot which chronically compromised weightbearing was noted, and he had an antalgic right foot gait with a use of a cane for support. X-rays were unchanged from September 2015. The diagnosis was degenerative arthritis of the right foot. Based on this evidence, a July 2016 rating decision granted a 20 percent rating for right foot osteoarthritis effective April 18, 2016. A November 2018 Board decision granted an earlier effective date of September 16, 2015 for the award of a 20 percent rating for right foot osteoarthritis; a February 2019 rating decision implemented the Board's decision. On July 1, 2016, the Veteran underwent surgical excision of a right foot soft tissue mass and dorsal cutaneous nerve release, due to nerve entrapment. In a July 2016 VA advisory medical opinion based on review of the record, the consulting provider opined that the right foot soft tissue mass excision and intermediate dorsal cutaneous nerve release (for nerve entrapment) surgery is less likely than not proximately due to or the result of the Veteran's service-connected right foot osteoarthritis. The provider opined that neither procedure was related or secondary to the service-connected degenerative joint disease because neither procedure involved bone or joint. On February 2017 VA treatment, the Veteran was seen for painful right foot dorsal aspect of digits 4 and 5; he had dorsal cutaneous nerve excision and now had numbness and inability to move the fourth and fifth digits down, as well as severe sharp shooting pain in the area. He reported pain with ambulating and wearing shoe gear. There was pain upon palpation at the intermediate dorsal cutaneous nerve of the right foot, and it was too tender for an injection. On December 2018 VA treatment, muscle strength was normal bilaterally, feet arches were normal with and without weight bearing, and gait was normal. Range of motion of all joints was within normal limits with no joint effusion, crepitus, bursitis, or inflammation. There was no tenderness upon palpation at the plantar medial calcaneal tubercle. There were no contracted digits. Neurological testing was intact for vibratory, sharp/dull, and position sense, and intact to 5.07 monofilament for touch test; deep tendon reflexes were 2/5. The assessment was status post right foot surgery and mid-tarsal joint arthritis. On May 2019 VA examination, the Veteran reported that he has lost movement of 3 toes and he reported that a bone tumor was found. He reported that his feet cannot hold him up, and he fell some years ago because he could not keep his balance. The right foot was very swollen with total rigidity of the third, fourth, and fifth metatarsals; sensitivity; pain; superficial palpation change of coloration to intense red; and deformity of the big toe. He reported having chronic and intense pain all the time that does not go away, that he almost cannot walk, and that he has to use a cane to keep from falling. He also reported cramps. He reported that during flare ups his feet are swollen, inflamed, and painful, and he cannot walk without his cane or wear closed shoes because of the swelling. Functional loss included total rigidity of the third, fourth, and fifth metatarsals; he reported that he cannot walk, his foot is constantly bruised and in great pain, and he cannot stop himself and is afraid of falling. He had flatfoot with pain accentuated on use and with manipulation, swelling on use, and characteristic calluses; he did not use arch supports. He had extreme tenderness of the plantar surface of the foot, decreased longitudinal arch height on weight bearing, objective evidence of marked deformity of the foot, marked pronation of the foot, and the weight bearing line fell over or medial to the great toe. He had marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot. He presented with decreased joint space with sclerosis and irregularity of the articular edges with the presence of osteophytes in the tibio-astragalin, sub-astragalin, articulation of lisfranc and metatarso-phalangeal joints, also an intense chronic pain on all toes of the foot. He also had enthesopathy of the foot, degenerative arthritis of the foot, calcaneal spurs, plantar fasciitis, and the right big toe rotated in the direction of the other toes, with pain over the joint where the bunion is located that gets worse with the pressure of shoes. The examiner opined that the foot condition is moderately severe, chronically compromises weight bearing, and requires the Veteran to wear open shoes two sizes too large. Functional loss included weakened movement because he cannot stand alone and uses a cane for support; pain on all movements; excess fatigability with trying to walk a short distance; swelling; deformity of the big toe; difficulty with sitting due to foot pain; difficulty standing due to pain and inability of the feet to support that position; rigidity of the toes; and loss of balance and gait stability. He had much difficulty with moving the foot, he could not move the third, fourth, or fifth toes, and these toes had no sensitivity and were totally rigid with changes of reddish coloration. There was tenderness upon range of motion of the subtalar joint and lateral aspects of the midtarsal joint. The examiner opined that the right foot condition impacts the Veteran's ability to perform occupational tasks due to inability to stand for more than 5 minutes, pain and swelling of the foot, and his feet reportedly cannot hold him and he has fallen several times; the Veteran reported he always has to use a cane and sometimes it is not enough because he still loses his balance. The examiner opined that the additional diagnosed conditions of metatarsalgia, plantar fasciitis, calcaneal spurs, enthesopathy, pes planus, and deformity of the big toe are directly due to or related to the service-connected condition (i.e. a progression thereof). On June 2019 VA examination, the Veteran reported increased right foot pain which interferes with his ability to stand and walk since weight bearing increases the pain. He reported forefoot swelling and a sensation of electricity radiating to his toes on some occasions. He reported that his foot has been tender since the surgery to remove a growth on the foot during service, and the pain has increased in intensity. He reported that prolonged weight bearing on the foot produces pain flare-ups and makes him sit and rest. He reported having decreased endurance for standing and walking. There was tenderness to palpation at the fourth metatarsal bone, which was moderately severe. The foot condition chronically compromised weight bearing but did not require arch supports, custom orthotic inserts, or shoe modifications. He wore a walking boot/foot immobilizer and a one-point cane due to his right foot condition. Residual signs or symptoms due to March 1981 surgery were pain and hypersensitivity of the right dorsal and plantar foot. Contributing factors of disability included pain on movement, on weight bearing, and on non-weight bearing; swelling; interference with standing; and lack of endurance. The examiner opined that the right foot condition impacts the Veteran's ability to perform occupational tasks in that he is limited in carrying objects that weigh 10 or more pounds, or doing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders, and is limited to sedentary or semi-sedentary type activities and should not participate in high impact activities. On October 2019 VA examination, the Veteran reported that the right foot is very swollen with total stiffness of the third, fourth, and fifth metatarsals, loss of sensibility in these same toes, pain to superficial palpation, and deformity of the big toe. He reported that the pain is intense and constant and does not allow him to almost stand or walk for a long time. He reported that when he walks, he has to stop because he feels fatigue and the foot is inflamed; he needs help to sit and stand up from a chair; and he has loss of balance when walking and the foot movements are weak and a bit uncoordinated. He reported flare-ups of the foot becoming very inflamed with an intense pain that prostrates him in bed for the duration of it, and he needs the help of another person to move in addition to leaning on his cane. He had flatfoot with pain accentuated on use and with manipulation, swelling on use, and characteristic calluses; arch supports did not relieve the symptoms. He had extreme tenderness of the plantar surface of the foot, decreased longitudinal arch height on weight bearing, objective evidence of marked deformity of the foot, marked pronation of the foot, and the weight bearing line fell over or medial to the great toe. He had marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot. The examiner noted that the Veteran was indicated to use arch support snice June 2019, but due to the inability to wear conventional footwear due to constant foot swelling, he had only been able to wear them a couple of times. He had mild or moderate symptoms of hallux valgus. He also had degenerative osteoarthritis of the foot, calcaneal spurs, bunion, and enthesopathy of the foot. The examiner opined that the right foot condition is moderately severe. The examiner opined that the Veteran's right foot condition impacts his ability to perform occupational tasks due to pain while standing and sitting for a long time, and inability to walk even a short distance due to fatigue and lower limb pain; he had fallen several times because he cannot stand, and his feet are swollen most of the time. The examiner opined that the additional diagnosed conditions of pes planus, plantar fasciitis, enthesopathy, calcaneal spur, and metatarsalgia are directly due to or related to the service-connected condition (i.e. a progression thereof). Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. 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. 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). In claims for increase, as here, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for a period beginning one year before the claim was filed until VA makes a final decision on the claim. However, separate ratings may be assigned for separate periods of time based on facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Veteran's right foot osteoarthritis has been rated under Code 5284, for other foot injury. Under that Code, a 20 percent rating is warranted for moderately severe injury, and a 30 percent rating is warranted for severe disability. A 40 percent rating is warranted with actual loss of use of the foot. The words "slight", "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. Use of terminology such as "severe" by VA examiners and others, 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 regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. At the outset, the Board notes that despite a 2016 VA medical advisory opinions that disassociates the Veteran's right foot soft-tissue pathology/manifestations his service-connected right foot disability, subsequent VA examinations and opinions clearly established that the various other right foot pathology shown is part and parcel of/a progression of the service-connected right foot disability entity. Therefore, all right foot pathology and related functional impairment is for consideration in determining the appropriate rating to be assigned. The Board finds that, throughout (from September 16, 2015), the reports of VA examinations, VA treatment records, and lay statements, overall, reasonably support a characterization of the disability picture presented by the service-connected right foot osteoarthritis as severe injury, warranting a 30 percent rating under Code 5284 (the criteria under this Code encompass all foot pathology and manifestations shown). The right foot has been symptomatic throughout the appeal period, and more than moderate impairment due to the disability has consistently been clearly shown. The Veteran has consistently reported chronic intense right foot pain on ambulation, standing, palpation, dorsiflexion and plantar flexion; stiffness and loss of movement of two to three toes of the right foot, swelling, loss of balance, and antalgic gait have been noted on treatment and examination reports throughout; and he has reported that he constantly requires use of a cane for support and balance, and open shoes in a larger size to accommodate pain and foot swelling. On June 2016, May 2019, June 2019, and October 2019 VA examinations, the examiners opined that the disability is no more than moderately severe; however, that of itself is not dispositive of the issue. The Board finds that the overall evidence reasonably demonstrates that the disability picture presented by the functional impairment associated/due to the service-connected right foot disability entity is reasonably found consistent with severe injury, and warrants a 30 percent rating under Code 5284. Loss of use of the foot is not shown at any time, and a still higher (40 percent) rating (under the note to Code 5284) is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.