Citation Nr: 22016196 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-66 197 DATE: March 21, 2022 ORDER Entitlement to separate 10 percent ratings, but no greater, for right and left foot metatarsalgia and plantar keratomas is granted. FINDING OF FACT 1. The Veteran's right foot plantar flexed fifth metatarsal and plantar keratomas manifests with pain and impairment of weight-bearing most closely approximating a moderate foot injury. 2. The Veteran's left foot flexed second metatarsal and plantar keratomas manifests with pain and impairment of weight-bearing most closely approximating a moderate foot injury. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for right foot plantar flexed fifth metatarsal and plantar keratomas have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5284. 2. The criteria for a separate 10 percent rating, but no greater, for left foot flexed second metatarsal and plantar keratomas have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1980 to May 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2014 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In June 2021 the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased evaluation for plantar flexed fifth metatarsal of right foot and flexed second metatarsal of left foot with painful plantar keratomas Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran contends he is entitled to an increased rating for his service-connected plantar flexed fifth metatarsal of right foot and flexed second metatarsal of left foot with painful plantar keratomas. The Veteran currently has a 10 percent rating under Diagnostic Code 5299-7813. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Codes ending in "99" are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. Diagnostic Code 7813 applies to dermatophytosis. Diagnostic Codes 5269 to 5284 apply to disabilities of the foot. Examinations and medical records reflect that the Veteran has been diagnosed with a flexed fifth metatarsal of the right foot and a flexed second metatarsal of the right foot, metatarsalgia, and plantar keratomas. On VA examination in August 2015 the Veteran reported his feet hurt when he gets out of bed in the morning and it hurts to walk barefoot. He reported his feet ache more by the end of the day. On his August 2016 notice of disagreement, the Veteran reported that he's not able to walk without limping at the end of the day. At his March 2021 Board hearing, the Veteran testified that his foot condition causes pain that prevents him from walking barefoot except for on carpet and causes him to limp. He reported he uses specially made shoes. On VA examination in October 2021, the Veteran reported sharp pain on the bottoms and tops of both feet that make it difficult to walk or stand for long periods, climb, and squat. The examination report indicates that the Veteran's keratomas on both feet hurt when pressure is applied to them. The examiner indicated that they are of mild severity and chronically compromise weight-bearing and require the use of arch supports, custom orthotic inserts, or shoe modifications. The Board has considered the diagnostic codes applying to rating skin disabilities but finds that none would provide a rating in excess of 10 percent based on the percentage of the Veteran's body affected and that he has not treated the condition with systemic therapy. Further, the Board finds that the Veteran's primary symptom is pain, which causes functional impairment. Thus, the Board will consider whether a higher rating is warranted under any of the diagnostic codes for rating foot disabilities. Metatarsalgia is rated under Diagnostic Code 5279 and provides a maximum 10 percent rating when the condition is either unilateral or bilateral. The Veteran has argued that his disability should be rated under Diagnostic Code 5284 for other foot injuries. 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. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. 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). The Board finds that the Veteran's right and left foot disabilities most closely approximate a moderate foot injury. The evidence reflects that the pain from his metatarsalgia and plantar keratomas cause pain with weight-bearing, which results in difficulty with extended walking and standing. The Board finds that considering the nature and severity of the Veteran's symptoms as he himself has described them, the condition most closely approximates a moderate foot injury. (Continued on the next page) However, as the condition affects both feet, the Board finds that the Veteran should be afforded separate 10 percent ratings under Diagnostic Code 5284. The Board acknowledges that the Veteran has testified that his left foot is worse than his right; however, the Board finds that the symptomatology of each foot most closely approximates a moderate foot injury. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.