Citation Nr: 22011683 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 16-36 526 DATE: March 1, 2022 ORDER Entitlement to an evaluation in excess of 20 percent for residuals of a left fifth metatarsal fracture is denied. FINDING OF FACT Throughout the appeal period, the Veteran's residuals of a fifth metatarsal fracture of the left foot were manifested by symptoms that were no more than moderately severe. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a fifth metatarsal fracture of the left foot are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to July 1981 and from December 1982 to April 1986. This matter is on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in May 2020 and June 2021 for further development. They have since been returned to the Board for appellate review. The Board notes that the original appeal included additional claims. However, in an October 2021 rating decision, the RO granted service connection for a left knee disorder, low back disorder, and bilateral hip disorders. The decision constitutes a full grant of benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, the claims are no longer in appellate status. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran's service-connected residuals of a fifth metatarsal fracture of the left foot is currently assigned a 20 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5299-5284. Under DC 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A Note to DC 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. The terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. It should also be noted that use of terminology such as "mild" or "moderate" 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 20 percent for his residuals of a fifth metatarsal fracture of the left foot. At a July 2016 VA examination, the examiner noted the Veteran had been diagnosed with hallux rigidus, arthritis, and residuals of a fifth metatarsal fracture of the left foot. It was also noted the Veteran had undergone left foot surgery that caused the area to be sore during the examination. Ultimately, the examiner found the Veteran's hallux rigidus symptoms were mild or moderate. However, he did not indicate the severity of any of the other documented left foot disorders. In June 2020, the Veteran was afforded another VA examination. The Veteran reported having a generalized ache and pain in his left foot near the great toe area. He also indicated that he had mild tenderness. The examiner noted the Veteran did not have Morton's Neuroma, metatarsalgia, hammer toes, hallux vagus, claw foot, or malunion or nonunion of the tarsal or metatarsal bones. However, he indicated the Veteran experienced hallux rigidus that resulted in mild or moderate symptoms. Moreover, the examiner noted the Veteran experienced pain on movement, weight-bearing and nonweight-bearing that limited the Veteran's standing. Overall, the examiner found the Veteran's left foot disability was mild in severity. The Veteran was most recently afforded a VA examination in October 2021. The examiner noted the diagnosis of the Veteran's left foot fracture. At that time, the Veteran reported that he had left foot pain when walking and tenderness. He also reported having flare ups daily that lasted for days. He indicated that he had functional loss because he experienced pain on movement of his left foot. The examiner noted the Veteran did not have Morton's Neuroma, metatarsalgia, hammer toes, hallux vagus, hallux rigidus, claw foot, or malunion or nonunion of the tarsal or metatarsal bones. While the Veteran experienced left foot pain, the examiner found the condition did not chronically compromise weight bearing. Ultimately, the examiner found the Veteran experienced only moderate severity of symptoms related to his disability. Having reviewed the evidence as reported above, the Board has determined that the Veteran's service-connected left foot disability does not warrant an evaluation in excess of 20 percent throughout the appeal period. The Board has also considered the private treatment records and remaining VA treatment records which, while periodically noting foot-related treatment, overall are not indicative of a worsening. Based on the symptoms described in the record, including the Veteran's lay statements, the Board finds that the severity of the Veteran's left foot disability was no more than moderately severe during the appeal period. The Board acknowledges the findings at the examinations of record which reflect reports of pain with weight-bearing and nonweight-bearing, pain with movement, and pain with prolonged standing or walking. In reaching this conclusion, the Board has also considered records that the Veteran wore orthotic shoes and inserts in the past and was fitted for custom orthotics. In this regard, the Board notes that the rating assigned contemplates the Veteran's use of orthotics. See Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). As such, this does not indicate that a rating in excess of 20 percent is warranted for this period. The Board has considered whether an increased disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran has been granted a 20 percent rating for his moderately severe foot disability. He reported his main symptoms were pain and tenderness of the foot. Additionally, it is noted the Veteran had functional loss due to pain. However, overall, the Board finds that a higher evaluation is not warranted. For these reasons, an increased evaluation in excess of 20 percent for residuals of a fifth metatarsal fracture of the left foot is not warranted. Jack S. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.