Citation Nr: 25005708
Decision Date: 04/25/25	Archive Date: 04/25/25

DOCKET NO. 19-27 853
DATE:  April 25, 2025

ORDER

Entitlement to an effective date of July 26, 2017, but not earlier, for a disability rating of 20 percent for a left foot third metatarsal fracture (left foot toe disability) is granted. 

FINDINGS OF FACT

1. In an April 1995 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a stress fracture of the third metatarsal on the left foot and assigned a noncompensable (zero percent) disability rating, effective July 25, 1994. 

2. Although the AOJ sent the Veteran an April 1995 letter, with an attached copy of the April 1995 rating decision, the letter was sent to his previous address of record. The Veteran did not appeal the April 1995 rating decision or submit new and material evidence within one year.

3. The Veteran filed a formal claim for an increased rating for the left foot toe disability on December 4, 2018 on a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits.

4. After resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran was not notified of the April 1995 rating decision that assigned a noncompensable disability rating for the left foot toe disability; thus, the appeal period stems since July 25, 1994. 

5. The evidence persuasively weighs against finding that the Veteran's left foot toe disability symptoms have been moderate or worse prior to July 26, 2017, and that such symptoms have been severe thereafter.

CONCLUSION OF LAW

The criteria for entitlement to an effective date of July 26, 2017, but not earlier, for a disability rating of 20 percent for a left foot toe disability have been met. 38 U.S.C. §§ 1155, 5107, 5109A, 5110, 7105; 38 C.F.R. §§ 3.105, 3.400, 3.2600, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5276, 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active duty from July 1990 to July 1994. 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in June 2021. 

This case has a complicated procedural history. Specifically, the claim of entitlement to an effective date earlier than December 4, 2018 for a disability rating of 20 percent for the left foot toe disability, as well as a claim of entitlement to a disability rating of 20 percent from December 4, 2018 to July 11, 2019, and in excess of 10 percent thereafter, for a left foot toe disability was previously before the Board in June 2022. The Board denied the claims at that time. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2023, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (Joint Motion), which was granted by the Court that same month, and which vacated the June 2022 Board's decision as to both issues and remanded the matters consistent with the Joint Motion. 

In the Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons and bases when it denied entitlement to an effective date earlier than December 4, 2018 for a disability rating of 20 percent for a left foot toe disability. Specifically, the parties instructed the Board to address how it concluded in the June 2022 decision that VA's mailing of the April 1995 rating decision to an address located at [REDACTED] in a city in Louisiana was proper when that was not the last address reported in the December 1994 VA Form 119, Report of Contact, resulting in the rating decision not being sent to the Veteran's latest address of record for the presumption of regularity to attach. For privacy reasons, the Board shall not list the exact or specific addresses for the Veteran in this decision. 

The Board again denied these claims in an August 2023 decision. The Veteran again appealed the Board's decision to the Court, which issued a July 2024 Memorandum Decision that set aside the Board's August 2023 denial of the claim of entitlement to an effective date earlier than December 4, 2018 for a disability rating of 20 percent for the left foot toe disability. However, this Memorandum Decision did not disturb the Board's denial of the claim of entitlement to a disability rating of 20 percent from December 4, 2018 to July 11, 2019, and in excess of 10 percent, thereafter. Thus, the Board determines that the evaluation of the Veteran's left foot toe disability since December 4, 2018 is no longer part of the current appeal. 

In the July 2024 Memorandum Decision, the Court concluded that in its August 2023 decision, the Board clearly erred by concluding that the presumption of regularity applied to the mailing of the April 1995 rating decision, and that the Veteran received notice of the April 1995 rating decision because the copy of the rating decision mailed to [REDACTED] in a city in Louisiana was not returned as undeliverable by the United States Postal Service (USPS). Furthermore, the Court concluded that the Board provided an inadequate statement of reasons or bases for concluding that the Veteran received actual notice of the April 1995 rating decision when it was issued. The Board shall address the Court's conclusions further below.

The Veteran contends that an earlier effective date for the assignment of a compensable disability rating prior to December 4, 2018 for the left foot toe disability is warranted. For example, he and his representative testified during the June 2021 Board hearing that a higher rating should be assigned since July 1994 because the Veteran never received the April 1995 rating decision, which granted service connection and assigned an initial noncompensable disability rating for this disability. Alternatively, they assert that the Veteran's submission of a July 2017 Disability Benefits Questionnaire (DBQ) for foot disorders by a VA doctor, which notes diagnoses of a foot injury and metatarsalgia, should be considered an informal claim or an intent to file for a higher evaluation rating for this disability. 

The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on a claim for increase involving compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Board has carefully reviewed the evidence of record and finds that entitlement to an effective date of July 26, 2017, but not earlier, for a disability rating of 20 percent for the left foot toe disability is warranted. The reasons for the Board's decision follow.

The Veteran asserts that a compensable disability rating for this disability should be assigned from July 25, 1994, which is the first day after he separated from active duty. As noted above, he testified during the June 2021 Board hearing that the April 1995 rating decision, which granted service connection for the left foot toe disability and assigned an initial noncompensable disability rating, is not final because he never received notice of this decision. He and his representative assert that the Veteran never received the rating decision as it was sent to the wrong address. Thus, they contend that the appeal period for an increased evaluation for this disability stems from July 25, 1994. 

A rating decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25; see also Best v. Brown, 10 Vet. App. 322, 325 (1997). It is typically assumed that VA has timely issued notification of rating decisions to claimants. This presumption of regularity provides that, in the absence of clear evidence to the contrary, it is presumed that public officers have properly discharged their official duties. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). The presumption has been applied to the Government's mailing of certain types of notices. See e.g., Crain v. Principi, 17 Vet. App. 182, 186 (2003) ("The law presumes the regularity of the administrative process...."); Davis v. Principi, 17 Vet. App. 29, 37 (2003) (applying a "presumption of regularity of mailing"). The presumption of regularity is rebutted by submission of clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992) (quoting Rosler v. Derwinski, 1 Vet. App. 241, 242 (1991)). Once the presumption is rebutted, VA has the burden to show that the document was mailed in the appropriate manner or that the Veteran actually received a copy of the document. Sthele v. Principi, 19 Vet. App. 11, 19 (2004).

As previously stated in its August 2023 decision, the Board notes that the procedural history of the claim shows that in an August 1994 VA Form 21-526, Veterans Application for Compensation or Pension, the Veteran filed a claim for service connection for various disabilities, including residuals of the fracture of the left foot. He listed his mailing address as [REDACTED] in a city in Louisiana. However, in an August 1994 VA Form 119, it shows that the Veteran contacted VA to provide his wife's Social Security number to VA. The Veteran also reported that his mailing address was located at [REDACTED] in a city in Louisiana. The AOJ sent him a letter informing him of a scheduled VA examination in September 1994. This letter was mailed to the [REDACTED] address. The record shows that the Veteran failed to report to the scheduled examination. However, in a December 1994 VA Form 119, the Veteran stated that he did not receive the September 1994 letter showing the time and date of the VA examination because he had moved. He reported that his address was [REDACTED], which was the same road name as the address located at [REDACTED], in a city in Louisiana. Thereafter, the record shows that the Veteran attended a VA general medical examination on March 30, 1995, which included an evaluation of the left foot toe disability. The examination report shows that Veteran's mailing address was listed as being located at [REDACTED]. 

In an April 1995 rating decision, the AOJ granted service connection for the left foot toe disability, i.e., residuals of the left foot fracture of the third metatarsal, and assigned a noncompensable disability rating pursuant to 38 C.F.R. §4.71a, DC 5284 for other foot injuries, which the Board shall address further below. In particular, the AOJ explained that the evidence showed that the Veteran sustained a fracture of the left foot, which healed with no recurrent findings of limitation of motion or functional impairment that would meet the requirements of a compensable evaluation. Thus, the AOJ assigned a noncompensable rating for this disability, effective July 25, 1994. 

A notification letter dated April 21, 1995 and a copy of the rating decision were sent to the Veteran's address located at [REDACTED]. The record shows that the April 21, 1995 letter and rating decision were not returned to VA as undeliverable by USPS. The record also shows that the Veteran did not appeal this rating decision or submit new and material evidence within one year of the April 1995 notification.

The Board determined in its June 2022 and August 2023 decisions that the presumption of regularity in mailing the April 1995 rating decision attached and/or that the evidence showed that the Veteran had actual knowledge or actually received this rating decision within the applicable period to file a Notice of Disagreement (NOD) or submit new and material evidence within one year. However, based on the Court's conclusions and determinations in the July 2024 Memorandum Decision, as well as the contentions by the Veteran's representative in a January 2024 written brief, and after resolving all doubt in the Veteran's favor, the Board now finds that the Veteran was not notified of the April 1995 rating decision that assigned a noncompensable disability rating for the left foot toe disability. Thus, as the April 1995 rating decision is not final, the initial claim for an increased rating is still pending. Accordingly, the Board shall analyze whether entitlement to a compensable disability rating for the left foot toe disability is warranted since July 25, 1994. 

In that regard, VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or up to one year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." As discussed above, the record shows that the appeal period for the left foot toe disability stems from July 25, 1994 to December 3, 2018. Furthermore, a 20 percent evaluation was assigned effective December 4, 2018, and the Board has already adjudicated the claim for higher evaluations for this disability since that date in its August 2023 decision, which the Veteran did not appeal to the Court. 

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 these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 

The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

Furthermore, 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. 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. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Correia, 28 Vet. App. at 169-70.

Moreover, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in that case that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. 

The Veteran's left foot toe disability is rated as noncompensable prior to December 4, 2018 under 38 C.F.R. § 4.71a, DC 5284, which rates other foot injures. A 10 percent disability rating is assigned for moderate symptoms. A 20 percent disability rating is assigned for moderately severe symptoms. A 30 percent disability rating is assigned for severe symptoms. The rating criteria direct that a 40 percent disability rating should be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284, Note. 

Guidance from VA's General Counsel notes that DC 5284 is a more general DC under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, metatarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. See VAOPGCPREC 9-98. Depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and DeLuca. See id. 

While the Schedule does not define the words "moderate," and "severe" as used in the various diagnostic codes, the Board notes that the term "moderate" is defined as "tending toward the mean or average amount." See Merriam Webster's Collegiate Dictionary 798 (11th ed. 2003). "Severe" is usually defined as "a great degree" or "serious." Id. at 1140. Additionally, "mild" is generally defined as "not severe." Id. At 787. While DC 5284 does not include a rating for a mild foot injury, the Board considers the definition helpful in defining the terms "moderate" and "severe."

"Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. Id. 

For the purposes of this appeal, the Board defines a "moderate" foot injury as that manifesting with symptoms above what is needed to diagnose the condition, as compared with a mild injury that would have evidence of a prior injury with no active symptoms. There should be sensory symptoms such as pain that may be recurrent, but not continuous or even frequently occurring. There may be some limit in function of the foot that affect activities of daily living such as shopping or chores, but still retaining the ability to accomplish the activity independently.

Moreover, the Board defines a "moderately severe" foot injury as manifesting with more frequent sensory symptoms such as pain, but not continuous. There should be evidence of a motor dysfunction. Some help may be needed to accomplish activities of daily living due to the foot injury. There may be some signs of deformity, trophic changes, or it is medically graded as moderately severe.

Moreover, the Board defines a "severe" foot injury as having manifested with serious symptoms, but less than that of having no effective function remaining other than that which would be equally well served by an amputation of the foot. The injury is medically graded as severe, with pain at least near continuous. There will be signs of deformity, trophic changes, or another observable symptom. 

Rather than applying a mechanical formula, VA must evaluate all evidence to ensure that decisions will be equitable and just. 38 C.F.R. § 4.6. Additionally, the use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. See 38 C.F.R. § 4.2. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 U.S.C. § 7104(a); 38 C.F.R. § 4.6.

After a thorough review of all of the evidence of record, the Board finds that the evidence persuasively weighs against finding that the Veteran's left foot toe disability symptoms have been moderate or worse prior to July 26, 2017. However, resolving all doubt in his favor, this disability manifested with moderately severe, but not severe, symptoms since July 26, 2017. The reasons for the Board's decision follow. 

Initially, the Board notes that in an April 2023 statement, the Veteran's representative asserted that the Board needed to remand the case back to the AOJ for a retrospective medical opinion as the March 2023 Joint Motion established that the April 1995 rating decision never became final because it was not sent to the last address of record. While the Board acknowledges the representative's contentions, it determines that a remand is not necessary in this case as the record contains sufficient lay and medical evidence to rate the Veteran's left foot toe disability prior to December 4, 2018. Thus, the Board determines that a remand for a retrospective medical opinion is not warranted. 

After the Veteran filed a claim for service connection for a fracture of the left foot in August 1994, he underwent a VA general examination in March 1995, during which he reported that he broke his foot during boot camp. He stated that his foot got cold. The examiner noted that the Veteran's present complaints were primarily related to his back, including his neck. In addition to the back injury, the Veteran reported that he sustained a fracture of the bone immediately behind the third toe. The examiner noted that what the Veteran was describing was the third metatarsal on the left side. The Veteran reported that this was a hairline fracture. He stated that he was put on light duty for three weeks and sent back to complete his boot camp training. He reported that he did not have any complaints related to the foot. A physical examination showed that although the Veteran was noted to be obese, five feet and 10 inches tall, and weighing 230 pounds, he was documented to be remarkably muscular. He was noted to have excellent carriage and posture, and his gait and arm swings were normal. He was able to do heel, toe, and tandem walking, and a full squat-down and stand-up without difficulty. An examination of the feet showed no evidence of abnormality and the examiner provided a diagnosis of normal feet. Furthermore, an x-ray of the left foot showed no fracture, dislocation, or bone or joint disease. The impression was normal x-ray study of the left foot. 

VA treatment records from March 1997, November 1998, and January 1999 show that the Veteran received medical care for symptoms as he was experiencing them at those times, including for upper gastrointestinal symptoms and liver function. However, these treatment records do not show complaints of or treatment for symptoms related to his left foot toe disability. 

A September 2003 VA primary care note shows that the medical professional documented that the Veteran's extremities showed no edema or venous thrombosis. Similarly, while a March 2004 VA treatment record showed that the Veteran complained of back pain radiating to the right leg, there were no complaints of or treatment for abnormal or painful left foot toe symptoms. 

A June 2006 VA treatment record showed that on physical examination, the Veteran was able to touch his toes with his fingers by bending his back without any problem. He could walk on his tiptoes and heels without a problem. 

August 2010 and September 2010 VA primary care notes show that the Veteran did not have musculoskeletal complaints at that time. A physical examination of his extremities showed that his joints were not swollen and had a normal color. There was no limitation of motion or tenderness. An evaluation of his feet showed that there was no ankle edema, pulses in the feet were strong, and sensation was intact. The Board finds it significant that while performing evaluations of the Veteran's feet, the medical processionals did not document complaints of abnormal or painful symptoms related to the left foot toe disability at these times. 

A May 2011 VA treatment record showed that the Veteran's chief complaints were related to his hypertension, hyperlipidemia, and obesity. While examining his extremities, the medical professional noted that the Veteran's joints were not swollen and had a normal color. There was no limitation of motion or tenderness. The Veteran's gait was normal. 

A January 2015 VA physical therapy medicine rehabilitation consultation note shows that the Veteran reported a 20-year history of neck problems and stated that his pain had gotten worse over time. In addition to neck pain, the Veteran complained of pain, stiffness, and radicular symptoms in the bilateral upper extremities. He was noted to be employed in the oil fields where he worked full time. The Board notes that the Veteran did not complain of or seek medical treatment for abnormal or painful left foot toe disability symptoms at this time. 

A November 2016 VA examination for peripheral nerves showed that a sensory examination of the Veteran's bilateral foot/toes showed normal results. 

An April 2017 VA x-ray report showed mild arthritis of the neck, low back, and left foot. However, the Board notes that this x-ray report did not show that the arthritis was located in the left foot third metatarsal, but rather that it was located in the left foot. 

VA treatment records dated July 26, 2017, which were authored by Dr. Barry Osherowitz, show that the Veteran complained of left foot pain. He was noted to be a part of the weight management program where he lost 12 pounds. The medical professional stated that the Veteran still had degenerative joint disease (DJD) in the entire back and left foot. He was noted to be limping due to pain. A physical examination of the extremities showed that he had left foot pain and a limp. He was noted to need to constantly change position due to pain. There was no sign of deep vein thrombosis (DVT) or edema. He had weak pedal pulses due to obesity. 

The Veteran submitted a July 26, 2017 DBQ report by Dr. Osherowitz, which showed that the Veteran was diagnosed with metatarsalgia on the left since July 26, 2017 and a foot injury on the left since July 25, 1994. The doctor noted that the Veteran suffered a metatarsal fracture while running during boot camp after being pushed by drill instructor, and he kicked a concrete flag pole. He reported flare-ups of this disability and stated that one-to-two times a week, which occurred at the end of the week or Fridays, the pain was almost unbearable. The Veteran reported that he had to spend most of the day and weekend off the foot. He reported functional loss or function impairment of the foot. He stated that he had pain while walking or standing after five-to-10 minutes. He reported that he constantly had to switch position of weight bearing on the foot to compensate with the other foot. He reported that he must spend most of the day without standing or moving around.

The Veteran reported pain on use of the feet and on manipulation of the feet. A physical examination showed that he had metatarsalgia on the left. The doctor commented that the Veteran had pain with movement, weightbearing, and standing. He stated that the Veteran had swelling at the end of the day almost every day. The doctor stated that the Veteran had severe malunion or nonunion of tarsal or metatarsal bones on the left. The doctor commented that the Veteran had pain secondary to movement, fatigability, and swelling. The doctor noted that the Veteran did not have any other foot injuries or conditions and that he had not undergone any foot surgery. The doctor noted that the Veteran had pain in the left foot that contributed to function loss. Specifically, the doctor stated that the Veteran had excess fatigability, pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling, interference with standing, and incoordination or impaired ability to execute skilled movements smoothly. The doctor stated that during flare-ups, the Veteran was unable to walk around or carry objects properly. His balance and coordination was affected with weakness and fatigability. Furthermore, the functional loss during a flare up or when the foot was used repeatedly over a period of time showed that after five-to-10 minutes of walking or standing, the Veteran had to sit down and rest his foot. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms or any scars related to this disability. The doctor stated that the Veteran occasionally used a cane. The doctor stated that the functional impact of the left foot disability manifested as the Veteran could not stand for long periods of time and must shift his weight from foot to foot. The doctor stated that as the day went on, the Veteran had fatigability and incoordination while walking and carrying objects. 

A February 2018 VA treatment record shows that the Veteran used a rubber-tipped cane. Furthermore, he was noted to have a body mass index (BMI) score of 40+.

Given this evidence, the Board finds that the evidence shows that the Veteran's left foot toe disability symptoms worsened on July 26, 2017, as shown by the VA treatment records and the DBQ report authored by Dr. Osherowitz. Specifically, the DBQ report shows that the Veteran's left foot toe disability symptoms were moderately severe due to such symptoms as pain, swelling, flare-ups, and functional loss and functional impairment. However, the Board finds that the evidence persuasively weighs against finding that the Veteran's left foot toe disability symptoms have been moderate or worse prior to July 26, 2017, and that such symptoms have been severe thereafter. In that regard, the Board notes that after a careful review of the record since July 1994, the Veteran sought medical treatment for various disabilities and symptoms throughout the years, but he did not endorse painful symptoms or other complaints related to his left foot toe disability prior to July 2017. In fact, the March 1995 VA examination report shows that the Veteran did not have complaints related to the foot, and the examination showed that his feet were normal. Thereafter, when his extremities or feet were evaluated on numerous occasions throughout the approximately more than 20 years until 2017, the Veteran did not endorse, or he affirmatively denied, having painful or abnormal symptoms related to the left foot toe disability. Overall, the evidence does not show that this disability manifested with moderate symptoms of a foot injury prior to July 26, 2017. 38 C.F.R. § 4.71a, DC 5284. As discussed above, the evidence prior to July 26, 2017 does not show symptoms of recurrent pain or limitation in function of the foot that affected the Veteran's activities of daily living. In fact, the evidence shows that the Veteran was employed full time in various physically demanding jobs, such as working on oil fields, during this time on appeal. 

Moreover, the Board finds that the evidence persuasively weighs against finding that the Veteran's left foot toe disability symptoms have been severe since July 26, 2017. While the Board acknowledges that Dr. Osherowitz stated on the DBQ report that the Veteran had severe malunion or nonunion of tarsal or metatarsal bones on the left due to such symptoms as pain secondary to movement, fatigability, and swelling. However, as indicated above, the use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. See 38 C.F.R. § 4.2. Overall, the Board determines that the July 2017 DBQ, as well as the VA treatment records since that time, do not show serious symptoms that were less than that of having no effective function remaining other than that which would be equally well served by an amputation of the left foot that is due to the service-connected toe disability. In fact, the Veteran's statements to Dr. Osherowitz, as well as the doctor's clinical findings, do not show that the Veteran had near continuous pain, or any sings of deformity, trophic changes, or other such severe observable symptoms. 

The Board has also considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria for the entire appeal period but determines that a higher rating is not warranted for the Veteran's disability picture. The testing conducted during the medical examinations, including the July 2017 VA evaluation by Dr. Osherowitz, considered the thresholds at which pain limited motion, as well as whether there was pain in weight-bearing and non-weight-bearing. Correia, 28 Vet. App. at 169-70. The Veteran endorsed having flare-ups of his symptoms or when the foot was used repeatedly over a period of time, and the doctor noted that after five-to-10 minutes of walking or standing, the Veteran had to sit down and rest his foot. This medical evaluation also showed the presence of any additional functional impairment due to such symptoms as excess fatigability, pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling, interference with standing, and incoordination or impaired ability to execute skilled movements smoothly. See Sharp, 29 Vet. App. at 26. However, even though there is evidence of pain, functional loss, and swelling, the evidence does not show that the Veteran's left foot toe disability manifested with or more closely resembled severe symptoms of a foot injury since July 26, 2017. Thus, a higher rating for the left foot third metatarsal fracture is not approximated in the Veteran's disability picture. 

The Board notes that in an August 2018 VA Form 21-4138, Statement in Support of Claim, the Veteran indicated that the left foot toe disability symptoms had increased in severity. In that regard, and as discussed in the Board's August 2023 decision, the Veteran underwent a VA examination for the feet in August 2018 in connection with his claim for service connection for pes planus. This examination report shows symptoms of the left foot toe disability, as well as pes planus symptoms. In particular, the August 2018 VA examiner determined that it is not known whether the symptoms of pain and lack of endurance in the left foot were attributed to the pes planus, the left foot third metatarsal fracture, or the relatively-recent diagnosis of left foot arthritis. 

While the Board has considered the August 2018 VA examiner's findings, it determines that an evaluation of the left foot toe disability based on this examination report is not proper because assigning separate compensable disability ratings for left foot pes planus and the left foot toe disability symptoms noted in this report would amount to impermissible pyramiding. 38 C.F.R. §§ 4.14, 4.71a, DCs 5276, 5284. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (stating that the critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (addressing the holding in Esteban and stating, "We agree with the Veterans Court that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology."). 

The record shows that the AOJ has already assigned a 20 percent disability rating for left pes planus from July 30, 2018, and a 30 percent disability rating for bilateral pes planus since January 5, 2022 in a March 2022 rating decision. Thus, the record shows that the Veteran was in receipt of a 20 percent rating for the left foot as of July 30, 2018, which disability rating contemplates severe pes planus in the left foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Therefore, the Veteran was already being compensated for a painful left foot, which is the symptom he is reporting regarding the service-connected left foot toe disability. 

For the above reasons, and after resolving all reasonable doubt in the Veteran's favor, entitlement to an effective date of July 26, 2017, but not earlier, for a disability rating of 20 percent for the left foot toe disability is warranted. However, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a compensable disability rating prior to July 26, 2017 is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Hodzic, 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.