Citation Nr: 22015145 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 15-23 187A DATE: March 16, 2022 ORDER Prior to November 13, 2021, a rating in excess of 10 percent for residuals of a right great toe injury is denied. From November 13, 2021, a rating of 20 percent, but no higher, for residuals of a right great toe injury is granted. FINDINGS OF FACT 1. Prior to November 13, 2021, residuals of a right great toe injury do not more nearly approximate a moderately severe disability. 2. From November 13, 2021, residuals of a right great toe injury more nearly approximate a moderately severe disability. CONCLUSIONS OF LAW 1. Prior to November 13, 2021, the criteria for a rating in excess of 10 percent for residuals of a right toe injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284. 2. From November 13, 2021, the criteria for a 20 percent rating, but no higher, for residuals of a right toe injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from September 1983 to May 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains the hearing transcript. In September 2021, the Board remanded the issue for additional development; there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATINGS The Veteran asserts that the severity of his disability warrants a rating in excess of 10 percent. 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. 38 C.F.R. § 4.1. 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. 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. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The RO has evaluated this disability under Diagnostic Code 5299-5284. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the rating, with the first Diagnostic Code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27 Under Diagnostic Code 5283, for nonunion or malunion of tarsal or metatarsal bones, a 10 percent rating is warranted for moderate nonunion or malunion of tarsal or metatarsal bones. A 20 percent rating is warranted for moderately severe nonunion or malunion of tarsal or metatarsal bones. A 30 percent rating is warranted for severe nonunion or malunion of tarsal or metatarsal bones. A Note to Diagnostic Code 5283 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other 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. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. (accessed last on February 2, 2022. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. (accessed last on February 2, 2022). 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. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Neither Diagnostic Code 5283 nor Diagnostic Code 5284 were changed by the amended criteria. When addressing a foot disability, the Federal Circuit has concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Scott, 920 F. 3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016)). Thus, also relevant are the remaining Diagnostic Codes pertaining to the foot. Plantar fasciitis is governed by Diagnostic Code 5269; flatfoot (pes planus) is governed by Diagnostic Code 5276; and Diagnostic Code 5277 relates to "weak foot," a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. 38 C.F.R. § 4.71a , Diagnostic Codes 5269, 5276, 5277. Diagnostic Code 5278 relates to a diagnosis of acquired claw foot (pes cavus); Diagnostic Code 5279 governs metatarsalgia; Diagnostic Code 5280 relates to unilateral hallux valgus; Diagnostic Code 5281 provides the rating criteria for severe hallux rigidus; and Diagnostic Code 5282 provides the rating criteria for hammer toe. See 38 C.F.R. § 4.71a. When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Evidence and Analysis Service treatment records showed that the Veteran sought treatment in April 1986 for trauma after hitting his right toe with a jackhammer. A clinician noted swelling and tenderness of the right MTP joint. X-rays were negative and the clinician diagnosed a contusion. In May 1986 the Veteran was treated for an infected lesion on the right toe. In a May 1986 discharge medical examination, the Veteran reported the jackhammer injury, and the examiner noted that it was a healing abrasion of the right large toe. In a June 2011 lay statement, the Veteran reported that he injured his right with a jackhammer in service that cut his foot through his boot with bleeding and swelling, which made it painful to stand or walk. In January 2012, the Veteran reported for a VA foot examination. The clinician indicated that the Veteran had residual arthralgia at the right first MTP joint following a contusion and laceration in service and right foot osteoarthritis diagnosed during the examination. The clinician noted an absence of Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The clinician indicated that the residual arthralgia at the right first MTP joint was of moderate severity. The Veteran did not require an assistive device. X-ray imaging confirmed right foot degenerative or traumatic arthritis. The clinician opined that the residuals did impact the Veteran's ability to work by impairing prolonged ambulatory activities. In a May 2012 VA treatment record, a clinician indicated that the Veteran's right first metatarsal showed great sensitivity to pressure. At this time, the clinician provided assessments of hallus limitus, plantar fasciitis, onychomycosis, and questionable alcoholic neuropathy. In a July 2012 VA operative report, clinicians diagnosed of right hallux limitus. These clinicians performed a right first metatarsal cheilectomy (removal of a bone spur on the tip of a joint), noting that the Veteran had reported a traumatic injury 10 years earlier. Upon completion of the procedure, clinicians noted hallux limitus with exostosis and osteophyte growth of the first metatarsal headdorsal, lateral, and medial. In a subsequent post-operative report, a VA podiatric surgeon reported that there were no complications. The wound healed, and the Veteran reported wearing regular shoes. In an April 2014 lay statement, the Veteran reiterated points about his right toe injury in service. In his May 2014 notice of disagreement (NOD), the Veteran rereported this account and contended that his right toe award should be from 1986. In a June 2014 VA Form 27-0820, a VA employee noted a telephone call with the Veteran. The Veteran stated that he had filed a claim for his right big toe in 1986 that he thought was lost. At the August 2018 Board hearing, the Veteran testified that he had jackhammered his right foot and not his right toe. In December 2019, the Veteran reported for a VA foot conditions examination. This clinician diagnosed of right great toe condition status post injury. The clinician reported that trauma to the right foot occurred in 1986. The disability was moderate in severity. There was pain elicited upon physical examination of the right foot. Factors contributing to this disability included pain on movement, pain on weight bearing, pain on non-weight bearing, and interference with standing. There was exacerbated pain upon repetitive use and during flare-ups. The Veteran did not use an assistive device for mobility. As to functional impact on the Veteran's ability to work, the clinician indicated that the Veteran had limited weight bearing of 15 minutes at a time. In March 2021, the Veteran reported for a VA foot conditions examination. This clinician diagnosed right great toe injury. The Veteran reported pain at the top of his right foot, without flare-ups. The Veteran also reported that this disability prevented much walking. Again, the clinician took note of the jackhammer injury. The disability was moderate in severity. The disability did not chronically compromise weight bearing and it did not require orthotic inserts. Pain was present upon physical examination. Factors contributing to this disability included interference with standing and pain. Pain significantly functional ability after repeated use over time. Pain was present upon active motion and upon weight bearing. The clinician characterized thus as sharp pain on the top of the right foot. The Veteran did not use an assistive device for mobility. As to functional impact on the Veteran's ability to work, the clinician indicated that the Veteran could not walk much. On November 13, 2021, the Veteran reported for a VA foot conditions examination. This clinician provided primary diagnoses of dorsal right foot injury/contusion with residual chronic pain and right great toe spurs, surgical incision. The clinician also indicated other diagnoses (bilateral flat feet, right foot plantar fasciitis, and right foot arthritis). The Veteran endorsed sharp pain upon palpation as well as flare-ups (3-4 times a week for 10 minutes, exacerbated pain impairs movement). The Veteran endorsed functional loss upon repetition, namely and inability to run, take extended walk, and even driving. The clinician opined as to the Veteran's bilateral pes planus, but reported there was no objective evidence of Morton's neuroma, hallux rigidus, acquired pes cavus, hallux valgus, hammer toe, or malunion of nonunion of tarsal or metatarsal bones. As to the right great toe, the clinician opined that the Veteran experienced residual chronic pain with swelling tenderness (in the impacted area). This clinician indicated that this service-connected disability was moderately severe; however, it neither compromised weight bearing nor required orthotics. There was pain upon physical examination. Factors contributing to functional loss include less movement that normal, swelling, instability of station, pain, and lack of endurance (after repetitive use over time and during flare-ups). After repetitive use and during flare-ups, there was less movement which affects daily activities. There was pain upon passive motion, active motion, weight bearing, non-weight bearing, and rest/non-movement. Here, the clinician specially indicated that the Veteran voiced "subjective" complaints of pain upon rest and non-weight bearing and pain upon palpation and manipulation of the foot. The Veteran reported that he occasionally used a cane and an arch support. X-ray imaging (2012) disclosed osteoarthritis of the first MTP joint and distal joint of the second toe. As to functional impact on the Veteran's ability to work, the clinician stated that pain and swelling results in unsteady gait and requires frequent rest that will negatively impact occupational tasks. In additional commentary, the clinician stated that there was a change in diagnosis to S/P dorsal right foot injury/contusion because the great toe had growth spurs removed in 2012 unrelated to SC condition. Importantly, the clinician specifically opined of bilateral pes planus, right plantar fasciitis, right great toe degenerative arthritis, and right great toe spurs excision in 2012 are less likely than not related to the service-connected right foot injury. In the accompanying opinion, the clinician reported that the Veteran's only other right great toe complaint involved a residual scar. The clinician considered the Veteran's lay statements that functional limitations consisted of less movement than usual and frequent rest of foot. The clinician found that pain/cramps and swelling on the affected area resulted in unsteady gait. The Veteran contends that his residuals of a right great toe injury were more severe than that contemplated by a 10 percent rating. The Veteran is competent to report discernable symptoms of pain. The Board has considered the Veteran lay statements. 38 C.F.R. § 3.159(a)(2). The Veteran reporting of discernable symptoms is competent and assigned some probative weight, particularly those reported during medical examinations; however, upon review of the evidence of record the Veteran does not possess the specialized orthopedic or podiatric education, training, or experience to offer medical diagnoses, statements, or opinions as to the clinical severity of residuals of a right great toe injury. 38 C.F.R. § 3.159(a)(1). As noted above for an increased rating under the assigned Diagnostic Code 5299-5284, there would need to be a showing that the disability is moderately severe. Indeed, the November 13, 2021 VA clinician did report that this disability was moderately severe. As such the Veteran does warrant a 20 percent rating from November 13, 2021. The Board recognizes that this "moderately severe" status did not emerge on this day; however, this is the earliest evidence of record that includes a clinical finding of moderately severe. As noted above, all of the other VA clinicians indicated that the residuals of a right great toe injury were moderate, from January 2012 to March 2021. As to a rating is excess of 20 percent from November 13, 2021, there are no clinical findings that this disability was ever severe. As to the application of other Diagnostic Codes (5276 to 5283) for the right foot, the evidence of record provides no basis for assigning a separate rating. As noted above, the Veteran does not have acquired pes cavus, Morton's neuroma, hallux rigidus, or hammer toe of the right foot, While the evidence shows plantar fasciitis and pes planus (flat foot) of the right foot, the November 13, 2021 clinician, in whose opinion the Board assigns significant probative weight, specifically indicated that pes planus and right plantar fasciitis are less likely than not related to the service-connected right foot injury. Consequently, the weight of competent and persuasive evidence (lay and clinical) does not support assigning separate ratings for additional right foot disabilities. As to the right foot osteoarthritis, the Board recognizes that the Veteran has this diagnosis. However, here too, the November 13, 2021 clinician also stated that the Veteran's, right great toe degenerative arthritis, and right great toe spurs excision in 2012 (residuals) are less likely than not related to the service-connected right foot injury. Consequently, the weight of competent and persuasive evidence (lay and clinical) does not support assigning a separate rating for right foot osteoarthritis. The Board has considered whether a higher 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 manifest by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. 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. A rating higher than 20 percent rating is not warranted. While VA clinicians noted that the Veteran's disability functionally impacts the Veteran's ability to work by limiting prolonged standing activities and prolonged ambulation, clinicians did not indicate that flare-ups or losses in ranges of motion upon repetitive use. Consequently, an increased rating based on functional limitations due to these factors is not warranted. The weight of competent and credible evidence is against assigning a rating in excess of 10 percent prior to November 13, 2021, and in favor of assigning a 20 percent rating from November 13, 2021. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.