Citation Nr: 22005228 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 10-49 467 DATE: February 1, 2022 ORDER Entitlement to a rating in excess of 30 percent for service-connected right foot stress fracture residuals (calcaneus) is denied. Entitlement to a rating in excess of 30 percent for service-connected left foot stress fracture residuals (calcaneus) is denied. Entitlement to service connection for a bilateral hip strain, claimed as due to a service-connected bilateral foot condition is granted. Entitlement to service connection for a bilateral ankle strain, claimed as due to a service-connected bilateral foot condition is granted. Entitlement to service connection for a bilateral calf strain, claimed as due to a service-connected bilateral foot condition is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's service-connected right foot stress fracture residuals have not been manifested by actual loss of use of the foot. 2. The Veteran's service-connected left foot stress fracture residuals have not been manifested by actual loss of use of the foot. 3. The Veteran's bilateral hip strain was caused or aggravated by his service-connected bilateral foot condition. 4. The Veteran's bilateral ankle strain was caused or aggravated by his service-connected bilateral foot condition. 5. The Veteran's bilateral calf strain was caused or aggravated by his service-connected bilateral foot condition 6. The Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected right foot stress fracture residuals (calcaneus) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.2, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284. 2. The criteria for a rating in excess of 30 percent for service-connected left foot stress fracture residuals (calcaneus) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.2, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284. 3. The criteria for service connection for a bilateral hip strain, claimed as due to a service-connected bilateral foot condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a bilateral ankle strain, claimed as due to a service-connected bilateral foot condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a bilateral calf strain, claimed as due to a service-connected bilateral foot condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to December 1975. This matter originally came before the Board of Veterans' Appeals (Board) from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a June 2012 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Increased Rating 1. Entitlement to a rating in excess of 30 percent for service-connected right foot stress fracture residuals (calcaneus) 2. Entitlement to a rating in excess of 30 percent for service-connected left foot stress fracture residuals (calcaneus) The Veteran contends that his right and left foot stress fracture residuals (bilateral foot disability) are more disabling than currently rated. During the pendency of the appeal, the Veteran was granted an increased 30 percent rating in an August 2021 rating decision, effective March 5, 2009. As less than the maximum available benefit for a schedular rating was awarded and to the extent that the increases were not awarded for the entirety of the claims period, the claims remain before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's foot disabilities are currently rated 30 percent disabling under 38 C.F.R. § 4.71a, DC 5284, which addresses other foot injuries. Under DC 5284, a severe foot disability warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. Of the diagnostic codes for evaluating foot disabilities (i.e., DC 5276-5284), there are no criteria for rating a unilateral foot disability higher than 30 percent. Regulations indicate that "loss of use of the foot" exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. This determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Id. In this case, the preponderance of the evidence is against a finding that the Veteran condition was manifested by loss of use of either foot throughout the appeal period to warrant a 40 percent rating. For example, at the time of an April 2009 VA examination, the Veteran reported soreness of both feet, wearing orthotics that helped with the condition, issues with prolonged walking and standing, and an inability to run. He also reported trouble walking on uneven surfaces and occasionally falling. During a February 2012 examination, the Veteran reported the use of orthotics and limiting his walking and standing. The examiner indicated that there was no evidence of loss of use of either foot. Likewise, at the time of a May 2016 VA examination, the examiner again indicated that there was no evidence of loss of use of either foot. During an October 2018 VA examination, the Veteran reported pain with standing and walking. The Veteran also reported issues with prolonged standing and walking. However, the examiner indicated that there was no evidence of loss of use of either foot. Most recently, the Veteran was afforded a VA examination in July 2021. The Veteran reported episodes of heel pain and tenderness, an inability to put weight on the heel or walk, pain in the front of the foot, and pain that goes away during rest and returns with physical activity. He reported flare-ups related to prolonged walking and standing. The examiner indicated that there was no evidence of loss of use of either foot. VA treatment records also do not document loss of use of the left foot. To that extent, the Veteran's VA treatment records show complaints of foot pain, balance issues, issues with prolonged standing, sitting, and walking, and foot pain that was worsened with physical activity. Based on the VA examinations and treatment records, the evidence does not support a finding that no effective function remains other than that which would be equally well served by an amputation. The medical evidence of record documenting the Veteran's ability to stand and walk, albeit with pain associated with such activity, goes against a finding that the Veteran had loss of use of either foot. Accordingly, the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's right and left foot stress fracture residuals. Service Connection 3. Entitlement to service connection for a bilateral hip strain, claimed as due to a service-connected bilateral foot condition 4. Entitlement to service connection for a bilateral ankle strain, claimed as due to a service-connected bilateral foot condition 5. Entitlement to service connection for a bilateral calf strain, claimed as due to a service-connected bilateral foot condition The Veteran contends that he suffers from additional impairment of the lower extremities that is caused or aggravated by his service-connected bilateral foot condition. During the Veteran's June 2012 hearing, he reported pain that occurred in the legs, calves, and ankles. See June 2012 Hearing Testimony. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When this matter was last before the Board in May 2021, it was remanded, in pertinent part, to obtain a VA opinion that addressed the impact that the Veteran's service-connected feet stress fracture residuals may have on the Veteran's kidneys, ankles, hamstrings, legs, calves, and toileting. The Veteran was afforded such examinations in July 2021. The examiner indicated that the Veteran had current diagnoses of bilateral strains of the calves, bilateral hip strains, and bilateral ankle strains. The examiner opined that it is at least as likely as not that all of the identified conditions were related to or aggravated by the Veteran's bilateral foot disability. The examiner explained that the Veteran's service-connected stress fractures have an impact on his ankles, hamstrings, legs, and calves; affecting his ability t/o stand for long periods of time or walk long distances. The Board acknowledges that while the Veteran was noted to have a history of kidney stones, the examiner indicated that this condition was not caused or aggravated by the Veteran's service-connected foot disability. The examiner cited medical literature indicating that kidney stones form when the urine contains more crystal-forming substances such as calcium, oxalate, and uric acid. The examiner added that the Veteran's stress fractures of the feet had no impact on his kidneys. As to toileting, the examiner indicated that the Veteran often had to shower after bowel movements, due to an inability to clean himself. The Board also acknowledges that the Veteran was noted to have a diagnosis of bilateral knee strains with instability. However, the examiner did not conclude that the condition was caused or aggravated by his service-connected bilateral foot disability. Likewise, the Veteran does not contend that he has a knee condition that is related to his bilateral foot disability. Here, the Board finds that the preponderance of the evidence supports a finding that the Veteran has current diagnoses of bilateral strains of the calves, bilateral hip strains, and bilateral ankle strains. Additionally, the July 2021 examiner concluded that the conditions were caused or aggravated by the Veteran's service-connected stress fracture residuals of the right and left foot. Based on the foregoing, service connection is warranted for bilateral strains of the calves, bilateral hip strains, and bilateral ankle strains. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. See September 2010 Third Party Correspondence. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. For the period on appeal, the Veteran has been in receipt of a 30 percent rating for right foot stress fracture residuals and a separate 30 percent rating for left foot stress fracture residuals; combining for a 60 percent disability rating. For purposes of determining whether there is a single disability for schedular TDIU purposes, disabilities affecting the bilateral lower extremities, disabilities with the same etiology, or those affecting a single body system may be combined. See 38 C.F.R. § 4.16. Here, the Veteran's bilateral foot disabilities should be combined as they meet all of the criteria above. Moreover, given the grant of service connection herein for several disabilities of the bilateral lower extremities, the objective minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for the award of a schedular TDIU are met for the entire period on appeal. At the time of a June 2007 VA Form 21-8940, the Veteran indicated that he became too disabled to work in June 2007. He reported that when he last worked, he was employed as a truck driver, but that he stopped working due to foot swelling and extreme pain. He indicated that his highest level of education was a GED. As to work history, the Veteran indicated that he was employed for 25 years as a boiler room operator, prior to undergoing training to become a truck driver. See SSA/SSI Letter, submitted May 16, 2012. As discussed in detail above, the medical evidence of record indicates that the Veteran's bilateral foot disability has been manifested by severe symptoms for the entire period on appeal. During VA examinations conducted in April 2009, February 2012, May 2016, October 2018, and July 2021, the Veteran was consistently noted to have issues with balance, prolonged walking and standing. In several lay statements of record, the Veteran has also reported impairment related to prolonged sitting. See Correspondence, dated May 11, 2009; June 2012 Hearing Testimony; Correspondence, dated May 24, 2016; Third Party Correspondence, dated July 8, 2016. Likewise, the medical evidence of record shows that the Veteran's service-connected disabilities cause limitations with performing duties that require prolonged sitting due to pain, weakness, fatigue, and discomfort. See July 2021 Hip and Thigh Conditions DBQ and July 2021 Ankle Conditions DBQ. Notably, the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). While VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. However, the Board finds the SSA determinations particularly probative in this case. The records indicate that the Veteran endorsed pain that worsened with prolonged walking, sitting, standing, and driving. He further endorsed swelling of the feet after prolonged driving; indicating that he was no longer able to sit for 11 hours or hold down a vehicle's clutch, as required of a truck driver. Moreover, based on the Veteran's physical impairments, SSA determined that he would be unable to perform any of his past relevant work. See SSA/SSI Letter, submitted May 16, 2012. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities would present significant impairment with any job that required physical activity. This is evidenced by his inability to perform activities that require prolonged standing or walking. Additionally, his service-connected disabilities would also present difficulty in working a job that required him to remain seated, as he endorses an inability to sit for a prolonged period. Finally, the Veteran's history, education, skills, and training, support a finding that he is unable to secure or follow substantially gainful employment. As noted above, his highest level of education is a GED. Further, there is no indication in the record that the Veteran possesses any transferable skills from prior employment that would allow him to secure and follow a substantially gainful occupation, given the functional impairment related to his service-connected disabilities. For the reasons stated above, the Board finds that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment, and assignment of a TDIU is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate 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.