Citation Nr: 22030833 Decision Date: 05/25/22 Archive Date: 05/25/22 DOCKET NO. 16-61 316 DATE: May 25, 2022 ORDER Entitlement to a rating in excess of 30 percent for left ulnar neuropathy, has been withdrawn. Entitlement to a rating in excess of 10 percent from February 7, 2011, is denied; entitlement to a rating of 20 percent from April 3, 2013, and 30 percent from July 1, 2018, for fracture, left third metatarsal, is granted. FINDINGS OF FACT 1. On December 18, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the claim of entitlement to a rating in excess of 30 percent for left ulnar neuropathy in this appeal is requested. 2. From February 7, 2011, the Veteran's residuals of fracture, left third metatarsal, have manifested symptoms that more nearly approximate a moderate foot injury. 3. From April 3, 2013, the Veteran's fracture, left third metatarsal, have manifested symptoms that more nearly approximate a moderately severe foot injury. 4. From July 1, 2018, the Veteran's fracture, left third metatarsal, have manifested symptoms that more nearly approximate a severe injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 30 percent for left ulnar neuropathy by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to a rating in excess of 10 percent for fracture, left third metatarsal, from February 7, 2011, have not been met; the criteria for entitlement to a rating of 20 percent from April 3, 2013, and 30 percent from July 1, 2018, for fracture, left third metatarsal, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to January 1988. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. The hearing transcript is of record. Evidence has recently been added by VA to the record. In March 2022, the Veteran submitted waiver of agency of original jurisdiction (AOJ) consideration of new evidence pursuant to 38 C.F.R. § 20.1305. Accordingly, the Board will proceed with adjudication of the claim. 1. Entitlement to a rating in excess of 30 percent for left ulnar neuropathy The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the claim for entitlement to a rating in excess of 30 percent for left ulnar neuropathy and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board finds that the Veteran's oral withdrawal, made at the Board hearing on December 18, 2019, was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the claim for entitlement to a rating in excess of 30 percent for left ulnar neuropathy and it is dismissed. 2. Entitlement to a rating of 10 percent from February 7, 2011, 20 percent from April 3, 2013, and 30 percent from July 1, 2018, for fracture, left third metatarsal A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran's fracture, left third metatarsal, is rated under 38 C.F.R. § 4.71a, DC 5284. Under DC 5284, a 10 percent rating is warranted for moderate symptoms. A 20 percent rating is warranted for moderately severe symptoms. A 30 percent rating is warranted for severe symptoms. Where the disability is manifested by actual loss of use of the foot, a maximum schedular 40 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5284. The Board notes that words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. 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. Turning to the lay and medical evidence of record, the Veteran underwent a VA examination in March 2011. The Veteran reported feeling some pain occasionally but none most of the time. No functional limitations on standing or walking were noted; he noticed some tenderness in the fractured area with running. No evidence of painful motion, swelling, instability, weakness or abnormal weight bearing were noted; mild tenderness was noted with pressure. No foot abnormality or muscle atrophy were noted. No malunion or nonunion of the tarsal or metatarsal bones were noted. Normal pulses were noted. The examiner noted that in his former employment, the Veteran's foot would sometimes ache if he stood for a long time. Moderate effects were noted on exercise, sports, and recreation. A VA podiatry treatment record, dated April 3, 2013, noted that the Veteran presented with complaints of pain in the second digit of the left foot; the pain is intermittent; it is unrelated to shoes or ambulation; and it shoots toward the tip of his toe. Over-the-counter orthotics were worn for plantar fasciitis. Pain with palpation was noted at the second metatarsophalangeal (MTP) joint, left foot. Pain was also noted at the second interdigital space proximal to the second-third metatarsal head. The assessment was noted as neuroma verus capsulitis. The Veteran was instructed to use metatarsal pads with his orthotics. He was prescribed Diclofenac BID for 14 days. A May 2013 VA podiatry treatment record noted that the Veteran reported that the metatarsal pads did not provide relief; the medication caused side effects; and he continued to wear orthotics for foot support. Pain upon dorsiflexion and rotational movement of the second digit were noted. The condition was assessed as capsulitis and treated with lidocaine and dexamethasone. He was also given orthotics with felt pad modifications. A June 2013 VA podiatry treatment record noted that the Veteran reported that the orthotics afforded him some pain relief. The injection relief lasted only 3 to 4 days. The pain is worse with pressure at the dorsal aspect of his left second MTP joint. He did not take any NSAIDs as directed. Pain was noted upon range of motion of the left second MTP joint. The clinician taped the second digit to straighten out the MTP joint and take the strain off. He was prescribed ibuprofen for 7 to 10 days and told to continue use of orthotics with felt pad modification. A September 2013 VA podiatry treatment record noted that the Veteran reported that nothing seemed to help. He reported that the condition remained the same and he wanted to try a different NSAID. Minimal pain upon range of motion was noted for the second left MTP joint. A positive Lachman's test was noted. No dislocation was noted at the second left MTP joint. The clinician discussed an etiology of capsulitis and possible surgical treatment, but the Veteran did not want such treatment. He was prescribed Diclofenac for two weeks. A January 2014 VA podiatry treatment record noted that the Veteran reported that his foot digit pain was 7 or 8 out of 10 at its worst and no pain at its best. The pain is the worst at the end of a long day of walking around; his work shoes do not accommodate his custom orthotics. He had an injection some time ago and it helped for several weeks. The Diclofenac also afforded him some relief. He was not interested in surgical options. The clinician noted a normal range of motion for the first MTP joint without pain and pain with forced plantarflexion of the second toe. Diclofenac BID was prescribed for 10 days, and a new pair of orthotics to fit his work shoes were ordered. The clinician discussed both conservative and surgical care and the Veteran elected conservative care. An April 2014 VA podiatry treatment record noted an assessment of possible capsulitis of the second MTP versus plantar plate attenuation versus neuroma of the first interspace. An injection was administered; custom orthotics usage was continued; and conservative and surgical options were discussed, and the Veteran elected to continue conservative care. A May 2014 VA podiatry treatment record noted a possible right second interspace neuroma; he was administered an injection. A subsequent May 2014 VA treatment podiatry record noted that a prior injection lasted for two to three days. A June 2014 correspondence from a VA podiatrist notes that the Veteran was treated since April 2013. The Veteran experienced pain in his first and second MTP joints of his left foot. His job required standing and walking for eight hours per day. He was treated with custom shoe braces, taping, two courses of NSAIDs, and multiple corticosteroid injections all with minimal effect. The clinician noted that the Veteran would benefit from a more sedentary job. He was restricted to no more than two hours of weightbearing, climbing, pushing or pulling daily. Climbing ladders and carrying or lifting more than 20 pounds was prohibited. A November 2014 VA podiatry treatment record noted that the injection at the last visit lasted for a few weeks. The assessment was possible right second interspace neuroma; an MRI was requested to evaluate left forefoot for plantar plate tear versus intra-articular damage. A December 2014 VA treatment record included an x-ray and MRI of the left foot, noting atrophy and edema in the muscles of the forefoot around the second and third metatarsals. No clear mass lesions or evidence of nerve impingement. Findings may be secondary to neuropathy or myopathy. The Veteran underwent a VA examination in March 2015. The Veteran reported having pain and wearing inserts. He tried NSAIDs and steroid injections. The examiner noted that in March 2015, a VA provider assessed the condition as second metatarsal metatarsalgia, which was treated with a steroid injection, which was effective for two to three days. The Veteran reported needing to take frequent breaks throughout the day to rest his foot. He reported having slipped and fallen twice during the year due to left foot pain. The examiner noted that a March 2015 x-ray noted no acute osseous abnormality, normal study. No fracture or malalignment was noted. Joint spaces were preserved. An incidental note of type III os naviculare was present. Mineralization was normal, and soft tissues were unremarkable. The Veteran reported significant pain in his foot; no flare-ups were reported. The Veteran reported his functional loss as not being able to stand or walk for very long due to his foot pain, as well as need to wear inserts. The examiner noted left side moderate severity of the condition. The condition did not chronically compromise weight-bearing. Pain was noted upon examination and contributed to functional loss. Contributing factors were noted as excess fatigability, pain on weight-bearing, disturbance of locomotion, and lack of endurance. No assistive devices were noted. Diagnostic testing was performed, and no degenerative or traumatic arthritis was noted. Regarding functional impact, the examiner noted that the Veteran could no longer work as a housekeeper as he could not climb ladders, walk long distances, or stand for prologued periods, so he changed employment where he can sit more as an administrative support assistant. The examiner noted an increase in the condition as noted by the occupation change and ongoing visits to the VA podiatrist. An August 2015 VA podiatry treatment record noted that the Veteran continued to have chronic left foot pain, which he reported as severe pain and discomfort in his left second MTP joint. Cortisone injections, NSAIDs, activity modification, narcotics and custom orthotics were not effective. An examination showed pain on palpation to the second MPT joint and with range of motion; minimal localized edema was noted, and no warmth was noted. X-rays noted no acute osseous abnormality, and the impression was atrophy and edema in the muscles of the forefoot around the second and third metatarsals. The condition was assessed as second metatarsal metatarsalgia and possible early osteoarthritis versus complex regional pain syndrome. A September 2015 VA treatment physical therapy record noted a provisional diagnosis of metatarsalgia. A full active range of motion was noted for the ankle and toes. Strength was noted as 4/5 for ankle and toes. Tenderness to palpation was noted on the second and third dorsal metatarsal joint. The examiner noted weakness in the left foot intrinsic and extrinsic muscles. The Veteran underwent a VA examination in January 2016. A diagnosis of metatarsalgia dating back to 1995 was noted on the left foot. The examiner noted the March 2015 x-ray and December 2014 MRI findings. The Veteran reported pain under the middle of the ball of the left foot with local tenderness; pain was proportionate to amount of walking or standing. There were no calluses or local swelling; he did not use a walking aid. He did not have incapacitating flare-ups. The Veteran could walk reasonable distances and he was independent in self-care and able to work with some pain. He was also able to drive. He did not do any running or hiking. The severity of his left foot condition was noted as moderate. The condition did not chronically compromise weight bearing. Pain was noted on examination, and it impacted functional loss; pain was noted on weight-bearing. No assistive devices were noted. No arthritis was noted. A November 2016 VA treatment record noted the Veteran's reports of chronic left foot pain. The clinician noted the Veteran was referred from podiatry for possible complex regional pain syndrome. The clinician noted no clear difference when compared with the right foot to include discoloration, edema or temperature difference that would be associated with a complex regional pain syndrome. Point tenderness, dorsal and plantar surfaces surrounding distal portion of second metatarsal of the left foot, were noted. Pain with each step during push-off was noted. Gait was noted to be slightly broad based with minimized push-off on left. Full muscle strength was noted. The assessment noted that there was concern of complex regional pain syndrome; however, there is no associated signs of edema, discoloration or temperature change. Also, the pain is extremely localized to either side of the distal second metatarsal and would likely be more diffuse if it were complex regional pain syndrome. The clinician suspected neuroma with his history of fracture. The clinician noted that the use of rocker bottom shoes should be considered as this would keep the forefoot more neutral and less mobile during gait. VA treatment records dated June 2017, October 2017 and December 2017 noted a normal gait. Another June 2017 VA audiology treatment record noted continued symptoms of balance issues or vertigo, to include an unsteady gait. An April 2018 VA podiatry treatment record noted that the Veteran reported that he was hypersensitive but denied erythema or ecchymosis to area and he reported mild swelling. He described the pain as sharp. He tried injections and other treatment with no relief. He reported numbness and tingling at night that is tolerable. An examination noted full muscle strength bilaterally and no gross structural deformities were noted. Imagine was pending. The condition was assessed as pain to dorsal left second and third metatarsal head and neck, and second interspace of unknown etiology. He was prescribed diclofenac to apply to areas of pain and a shoe insert for walking. A June 2018 VA treatment record noted an x-ray of the left shoot showing findings suggesting residuals of old, healed fractures involving the second through fourth metatarsals. Otherwise, no acute osseous pathology or significant arthritis was noted. The assessment was status post healed left second through fourth metatarsal fractures upon radiographic evidence, as well as pain to dorsal left second and third metatarsal head and neck, and second interspace of unknown etiology. Medications and orthotics were continued. A December 2019 VA treatment record included correspondence by a VA physician noting that the Veteran should be considered for an increase in his disability rating for his left foot. He stated that the Veteran was under his care for approximately 18 months. The physician noted that he has an obvious gait disturbance and that he seems to drag his left foot and is very cautious about walking as if he might fall. He noted that his advantage over other providers is that he has had the opportunity to observe him in many unguarded moments. A December 2019 correspondence from the Veteran's representative argued that the Veteran's condition warranted a 30 percent rating as it causes serious pain that is so significant that he is unable to stand or walk on it for any length of time, which required him to change his job to a sitting position; it also has caused him to drag his foot and that he is subject to falling. The representative contended that the effective date of this rating should be in 2014 or 2015, as further addressed below. The Veteran testified at the December 2019 Board hearing that his condition causes major discomfort, particularly when doing activities to include prolonged standing and walking. He stated that he drags his foot. He also must sit down throughout the day and had to change employment to accommodate the condition. He also stated that he drags his foot when he walks, must be very conscious when he walks, and he that fell previously. From February 7, 2011 On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned 10 percent rating from February 7, 2011. The March 2011 VA examination noted that the Veteran reported occasional pain; the examiner noted no functional limitations with standing or walking; no painful motion, instability, weakness or abnormal weightbearing were noted; no atrophy was noted; and the examiner assessed that the condition as having a moderate impact on exercise, sports and recreation. These manifestations are consistent with a moderate foot injury. Therefore, the evidence shows that a rating of 10 percent, but no higher, is warranted. From April 3, 2013 The Board finds that, affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 20 percent disability rating, but no higher, from April 3, 2013. A September 2013 VA treatment record noted that the Veteran's foot condition, which was not responsive to conservative treatment, was considered severe enough to discuss surgical intervention, which was declined. A June 2014 correspondence from a VA podiatrist noted that the Veteran's condition was such that he would benefit from a more sedentary job and that his podiatry treatment began in April 2013. The record shows that the podiatry visits began on April 3, 2013. A December 2014 VA x-ray and MRI noted atrophy and edema. The March 2015 VA examiner noted that the Veteran's condition had worsened as of April 2013 when increasing podiatrist visits began. A November 2016 VA treatment record noted a slightly broad gait with minimized push-off on the left side; the clinician recommended rocker bottom shoes to stabilize the foot and gait. These manifestations are consistent with a moderately severe foot injury. Therefore, the evidence shows that a rating of 20 percent, but no higher, is warranted. Under the facts and procedural history of the appeal, the effective date of April 3, 2013, is assigned for the 20 percent rating. 38 C.F.R. § 3.400. This is the date that the Veteran's podiatry visits for his condition began, as noted in the June 2014 VA physician correspondence, and thus, it is date that it is factually ascertainable that an increase in severity occurred. From July 1, 2018 The Board finds that, affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 30 percent disability rating, but no higher, from July 1, 2018. A December 2019 correspondence from a VA physician treating the Veteran for 18 months prior supported an increased rating due to an obvious gait disturbance including a left foot drag and the Veteran's caution to avoid falling, which the Board finds to be indicative of instability. This manifestation is consistent with a severe foot injury. Thus, the evidence shows that a rating of 30 percent, but no higher, is warranted. The Board does not find that a higher disability rating is warranted. The Veteran does not allege, and the record does not show, actual loss of use of the foot such that would warrant the highest 40 percent rating. Under the facts and procedural history of the appeal, the effective date of July 1, 2018, is assigned for the 30 percent rating. 38 C.F.R. § 3.400. This is the date that the VA physician's correspondence indicated that he observed the Veteran's symptoms, i.e., 18 months prior to December 2019. Thus, it is date that it is factually ascertainable that an increase in severity occurred. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. Furthermore, the Board acknowledges the Veteran's contentions that a 30 percent rating is warranted as of December 2014 when an MRI noted atrophy and edema, or as of September 2015 when he submitted an increased rating claim (though the procedural history shows that the present claim was already pending). See December 2019 third party correspondence. The Board also acknowledges favorable evidence of record in this regard, to include the Veteran's contentions that he fell on multiple occasions in 2015. See March 2015 VA examination. However, the Board finds that the x-ray/MRI findings of atrophy and edema alone and the reports of isolated falls are insufficient to warrant an earlier effective date for the 30 percent rating. The record shows that the March 2015 VA examiner addressed the Veteran's reports having fallen twice that year due to his foot condition, noted the March 2015 x-ray, and assessed the condition as moderate; the examiner also noted that the condition did not chronically compromise weight-bearing and no assistive devices were noted. The January 2016 VA examination addressed the March 2015 x-ray and December 2014 MRI findings. The examiner noted that the Veteran's condition did not chronically compromise weight bearing and no assistive devices were noted. The overall severity was noted as moderate. The record shows that any gait disturbance as due to the left foot condition was first noted in November 2016. Subsequent VA treatment records dated June 2017, October 2017, and December 2017 noted a normal gait; a June 2017 VA audiology treatment record noted continued symptoms of balance issues or vertigo, to include an unsteady gait. An April 2018 VA treatment record noted full strength. As set out above, the earliest indication of a left foot drag, and resulting instability, was 18 months prior to the December 2019 VA physician's correspondence, or July 1, 2018. The Board acknowledges that the Veteran attributes the falls in 2015 to his left foot condition. However, the Veteran in this case is not competent to provide a diagnosis or nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The record shows that the Veteran's gait was noted as normal on several occasions both prior to and subsequent to these reported occasions in 2015; a gait disturbance was not noted, to include by two VA examiners, until November 2016, and a foot drag and resulting instability was not noted until 2018. Additionally, the record shows the presence of vertigo, which was identified as the cause of one instance of unsteady gait in 2017 and the cause of unsteady gait or falls in February and September 2016. See CAPRI records received by VA in July 2016 and November 2016. Thus, the evidence does not persuasively show that any falls in 2015 were due, in whole or in part, to the foot condition; and if they were, additional evidence in the record shows that they were isolated events, as the Veteran's gait was found on multiple occasions to be normal during the time period at issue and not severe enough to cause a foot drag until 2018. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. The record does not show a diagnosis of flatfoot, weak foot, claw foot, hallux valgus, hallux rigidus, hammer toe or malunion, or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, DCs 5276-78, 5280-83. Therefore, absent a diagnosis of such disorders related to the Veteran's service-connected left foot disability, these diagnostic codes are inapplicable. The Board acknowledges that VA treatment records dated August 2015 and September 2015 and the January 2016 VA examination assessed the condition as metatarsalgia; other VA treatment record noted a provisional diagnosis of neuroma, to include a November 2016 VA treatment record. However, a separate rating is not warranted as the record does not show anterior metatarsalgia or Morton's neuroma, which is required for a separate rating under DC 5279. Moreover, the record does not show that the Veteran has distinct disabilities; rather the VA treatment records indicate that there was an ongoing investigation into the precise etiology of the Veteran's foot pain. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, arthritis was considered as a possible diagnosis; however multiple VA treatment records and VA examinations, to include x-rays, did not confirm the presence of arthritis, which is required for a separate rating under the diagnostic codes for arthritis. Additionally, the record shows that the Veteran was diagnosed with plantar fasciitis in 2012. See CAPRI records received by VA in January 2015. However, the Veteran does not contend, and the record does not show, that this condition is attributable to his service-connected injury. Accordingly, a separate rating is not warranted under DC 5269. In sum, the Board finds that a disability rating in excess of 10 percent is not warranted from February 7, 2011, and a 20 percent rating, but no higher, is warranted from April 3, 2013, and a 30 percent rating, but no higher, is warranted from July 1, 2018, for the Veteran's fracture, left third metatarsal. To the extent that the Veteran contends entitlement to a higher rating, the evidence persuasively weighs against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.