Citation Nr: 25004076 Decision Date: 03/26/25 Archive Date: 03/26/25 DOCKET NO. 19-38 055 DATE: March 26, 2025 ORDER A separate 20 percent rating for amputation of the 5th left toe is granted, subjected to the amputation rule. Entitlement to an initial 30 percent rating from May 10, 2017 to March 16, 2021 and from May 13, 2021, for left foot callous, is granted, subjected to the amputation rule. FINDINGS OF FACTS 1. The Veteran's 5th toe of the left foot was amputated, and the metatarsal was removed in March 2021. 2. From May 10, 2017 to March 16, 2021 and from May 13, 2021, the Veteran's left foot callous is manifested by severe symptoms. CONCLUSION OF LAW 1. The criteria for a separate 20 percent rating for amputation of the 5th toe on the left foot 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 (DC) 5172. 2. The criteria for a 30 percent rating for left foot callous have been met for the appeal period from May 10, 2017 to March 16, 2021, and from May 13, 2021. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to July 1970. This appeal comes to the Board of Veterans' Appeals (Board)from a rating decision issued in August 2017. The Veteran filed a notice of disagreement (NOD) in August 2018, which resulted in a December 2019 statement of the case (SOC). Thereafter, the Veteran filed a substantive appeal in December 2019 and requested a hearing. The hearing was scheduled for October 2021. The Veteran's representative appeared at the hearing, but the Veteran did not attend. Neither the Veteran nor his representative have asked to reschedule the hearing. There has not been a good cause shown for the Veteran's failure to appear. Thus, the Board will proceed to adjudicate the claims. The appeal was before the Board in October 2023. At that time, the Board found that there were outstanding private treatment records and remanded the claim to the agency of original jurisdiction (AOJ). Pursuant to the Board's remand directives, the AOJ sent the Veteran a letter asking him to complete and return a form authorizing VA to obtain the private treatment records. The Veteran did not respond to the request. The United States Court of Appeals for Veterans Claims (Court) has found that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, to the extent possible, VA has attempted to assist the Veteran. The Board finds there was substantial compliance with its remand directive, as such it will proceed to adjudicate the claim based on the evidence in the record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs. The critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In assigning the separate rating, the Board acknowledges the potential applicability of the "amputation rule," which provides that the combined rating for disabilities affecting an extremity cannot exceed the rating assigned for an amputation which would remove the disabilities. 38 C.F.R. § 4.68. When considering the ratings assigned herein for the left foot disability, and depending on the applicable level of amputation, the combined ratings for the left lower extremity disabilities may exceed the rating assigned for amputation of the limb at the requisite level. 38 C.F.R. § 4.68. Nevertheless, the amputation rule does not bar the assignment of appropriate ratings for disabilities affecting an extremity. Instead, it places a limit on the maximum level of compensation that can be paid, which is commensurate with the maximum level of compensation that would be paid were the limb to be amputated. Id. As such, the Board will assign all necessary ratings for the left foot disability as appropriate, noting only that the Veteran's overall level of compensation for the disabilities affecting his left foot disability may be limited to the amount payable for amputation of the left lower extremity at the elective level. Id.; see also 38 C.F.R. § 4.71a, DCs 5166-5173 (concerning ratings for amputation of the foot). 1. A separate 20 percent rating for amputation of the 5th left toe is granted, subjected to the amputation rule. The Veteran underwent a surgery to remove the 5th left toe on May 17, 2021. Under DC 5172, a 20 percent rating is warranted for amputation with removal of the metatarsal head of one or two toes, other than the great toe. In this case, the medical evidence in the record reflects that the Veteran underwent a left 5th toe amputation and 5th metatarsal head condylectomy. Because the amputation is a distinct manifestation of his left foot disability, a separate 20 percent rating is warranted. A higher rating is not available under DC 5172. The other DCs related to amputation of the feet that offer a higher rating are inapplicable. Specifically, DC 5171 and DC 5170 are inapplicable because the Veteran did not get his great toes or all his toes amputated, respectively. Similarly, DC 5166 and DC 5167 are inapplicable because the Veteran neither had his forefoot amputated nor lost use of his foot. Therefore, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that a separate 20 percent rating for amputation of the left 5th toe is warranted. 2. Entitlement to an initial 30 percent rating from May 10, 2017 to March 16, 2021 and from May 13, 2021 for left foot callous is granted, subjected to the amputation rule. The Veteran is seeking increased rating for his left foot callous, which is currently assigned a 10 percent rating from May 2017 to March 16, 2021 and from June 1, 2021 to January 8, 2023, and 20 percent from January 9, 2023. The Veteran was granted a temporary total disability rating (100 percent) based on convalescence following a March 17, 2021 left foot surgery from March 17, 2021 to May 31, 2021. As such, that period is currently not before the Board, as the Veteran is receiving the maximum rating possible. Under Code 5284, a 10 percent rating is assigned for moderate foot injury; a 20 percent rating is assigned for moderately severe foot injury; and a 30 percent rating is assigned for severe foot injury. Words such as "moderate" and "severe" are not defined in DC 5284, or elsewhere in the rating schedule in a way that might be applicable to DC 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. The Court has held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021) ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011))). The Board is required to discuss any relevant portions of VA's Adjudication Procedures Manual (M21-1) as part of its duty to provide adequate reasons and bases. See Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 981 F.3d at 1376 (2020), citing Overton v. Wilkie, 30 Vet. App. 257 (2018). However, M21-1 V.iii.B.5.a. (addressing Diagnostic Code 5284) does not address the terms "moderate," "moderately severe," or "severe." In this case, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that the evidence does not establish a distinct period, where the severity of his left foot callous required different rating. Rather, the evidence shows that the Veteran's left foot callous was consistent with a 30 percent rating from May 10, 2017 to March 16, 2021 and from June 1, 2021. To that end, VA treatment records from January 2018 reflect that the Veteran reported painful callus. In July 2020, he endorsed experiencing pain that he rated as 8/10, which is improved with orthotic shoes. He continued to report pain, especially when walking barefoot on hard surface, in August 2020, September 2020 and March 2021. The Veteran underwent surgery in March 2017 to amputate his left 5th toe. Thereafter, in June 2021, the Veteran's pain reportedly started back up because he was working around the house more. He reported that his pain was worse when walking bare foot and it was improved with custom orthotics shoes. In March 2022, the Veteran continued to report left foot pain. In April 2022, he described the pain as dull, and he also indicated that he is unable to walk barefoot. In March 2023, the Veteran indicated that he still had pain that limits his ability to hike or run. He explained that his "foot hurts so bad, [he] can't even walk." See March 2023 VA Mental Disorder Examination. The Veteran was afforded a VA examination in August 2017, where he reported getting callous under his 5th toe that causes pain and pressure. He explained that it is painful for him to walk barefoot or walk for a long time. The examiner indicated that the Veteran had pain on use and manipulation, as well as characteristic callouses of the foot. The Veteran was provided additional evaluation in January 2023. At that time, he reported "sharp pain going up the outside of the foot." His pain reportedly worsens with activity, such as walking, but he indicated that he occasionally had pain while at rest. The examiner indicated that the Veteran's pain results in less movement than normal, weakened movement, disturbance of locomotion, lack of endurance, and interference with sitting and standing. The examination report showed that the Veteran regularly used cane for mobility. The examiner concluded that the Veteran's condition would have significant effect on physical and sedentary work. During a September 2023 evaluation, the Veteran reported feeling like he is walking on bone. He explained that he cannot walk more than one block or drive. Although the Veteran did not have callous on the date of the exam, he explained that he gets his callous removed from his left foot every three months. He reported that he constantly uses a cane for mobility. Overall, the medical and lay evidence of record reflects that the severity of the Veteran's left foot disability approximates a level contemplated by severe level of impairment. The Board arrived at this conclusion because the Veteran's pain and callosities significantly limit his mobility. This level of impairment is comparable to the more objective criteria for other foot conditions, such as DC 5276 for flat foot, where pain on use or manipulation and characteristics callosities are symptoms listed under severe disability. The evidence reflects that the Veteran's symptoms compromise his mobility to a great degree and cause a significant functional loss. Thus, the Board concludes the severity of the Veteran's left foot disability approximates a level contemplated by 30 percent rating under 5284 for the appeal period outside of the convalescence period. A 30 percent rating is the highest rating available under DC 5284. A higher 40 percent rating is only available for amputation of the forefoot or complete loss of use of the foot under DC 5166 and 5167, respectively. As explained above, the evidence does not support finding that the Veteran had amputation of the forefoot or complete loss of use of the foot to warrant a 40 percent rating. (Continued on the next page) ? In sum, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, a 30 percent rating, but no higher, is warranted for the appeal period from May 10, 2017 to March 16, 2021 and from May 13, 2021 for left foot callous. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.