Citation Nr: A25034167 Decision Date: 04/14/25 Archive Date: 04/14/25 DOCKET NO. 210312-145895 DATE: April 14, 2025 ISSUES 1. Entitlement to an increased disability rating for a fractured fifth metatarsal, right foot (right foot 5th metatarsal disability). 2. Entitlement to total disability based on individual unemployability (TDIU). ORDER Entitlement to an increased disability rating of 20 percent, but no higher, for a right foot 5th metatarsal disability is granted. REMANDED Entitlement to TDIU is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, throughout the appeal period his service-connected right foot 5th metatarsal disability manifested moderately severe symptoms, including pain when standing and walking. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 20 percent, but no higher, for the Veteran's service-connected right foot 5th metatarsal disability have been met or approximated. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to May 1982. These matters come before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). As background, in January 1991 the Veteran was granted entitlement to service connection for a right foot 5th metatarsal disability, with a noncompensable rating. After multiple increased rating claims and appeals, including an October 2017 Board hearing and subsequent March 2018 Board decision remanding the issue, in February 2019 the Veteran was granted an increased disability rating of 10 percent, effective October 28, 2015. Following a November 2020 VA Form 526EZ, and a January 2021 rating decision continuing the 10 percent disability rating, the Veteran filed a timely March 2021 VA Form 10182, and selected the Hearing docket. A Board hearing was held in October 2024 with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Board may only consider the evidence of record at the time of the January 2021 rating decision, as well as any evidence submitted by the Veteran or representative at the October 2024 Board hearing or within 90 days following the Board hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) after the January 2021 rating decision and prior to the October 2024 Board hearing, or (2) more than 90 days following the October 2024 Board hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Additionally, the Board notes that in the October 2017 Board hearing noted above, a claim for entitlement to TDIU was also an issue on appeal. The subsequent March 2018 Board decision remanded TDIU for further development, which was followed by a February 2019 rating decision denying the claim. The Veteran then filed an October 2019 VA Form 10182, which was followed by a July 2023 Board hearing and subsequent December 2023 Board decision remanding the TDIU issue for further development, including referral to the Compensation Director for extraschedular consideration. A January 2024 rating decision denied entitlement to TDIU on an extraschedular basis. Although it appears that the Veteran did not appeal that January 2024 rating decision, under Rice, the claim for entitlement to TDIU is part and parcel of the appeal for an increased disability rating for the service-connected right foot 5th metatarsal disability currently before the Board. As such, the Board has included entitlement to TDIU as an issue in this decision. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Because the Board is remanding the claim of entitlement to TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to an increased disability rating for a right foot 5th metatarsal disability. The Veteran claims entitlement to an increased disability rating for his right foot 5th metatarsal disability. Specifically, he contends that his disability meets the moderately severe, or severe criteria under Diagnostic Code 5284 due to significant functional limitations. See October 2024 Board hearing. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Diagnostic Code 5284 governs foot injuries and provides a 10 percent evaluation for a moderate foot injury, a 20 percent evaluation for a moderately severe foot injury, and a 30 percent evaluation for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for the actual loss of use of the foot, which is evidenced by the absence of any remaining effective function 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. The terms moderate, moderately severe, and severe are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to ensure that its decisions are equitable and just. See 38 C.F.R. § 4.6. The adjective "moderate" is defined as "not violent, severe, or intense"; and "limited in scope or effect". Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited April 11, 2025). "Severe", as an adjective, is defined as "causing discomfort or hardship: harsh"; "very painful or harmful"; "of a great degree". Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited April 11, 2025). "Moderately severe" is not defined in the referenced dictionary but is understood to capture symptomatology that falls between moderate and severe. For illustrative purposes, it is interpreted to mean an injury of such severity it causes more than average pain with more than average functional impairment, such as limited ability to perform physical activities. In that regard, in a February 2019 VA Foot Conditions examination, the examiner noted the prior fracture of the Veteran's right foot 5th metatarsal and that in July 2009 he had right foot 1st metatarsophalangeal joint (MPJ) decompression osteotomy surgery (right big toe disability). The examiner also noted the Veteran's statements, including that he was experiencing daily recurrent right foot pain which was aggravated by walking or standing for more than 15 minutes. The Veteran stated that during flare-ups he experienced reduced ambulating endurance due to pain and swelling. The Veteran also stated he regularly used orthotics as assistive devices. The examiner noted pain on physical examination and that the pain contributed to functional loss with pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling, disturbance of locomotion, interference with standing, and a lack of endurance. Ultimately, the examiner, after noting that it was virtually impossible to separate the symptoms of his right foot 5th metatarsal disability from the right big toe disability, that the severity of the Veteran's right foot 5th metatarsal disability was moderately severe. In a more recent December 2020 VA Foot Conditions examination, the examiner also noted the prior fracture of the Veteran's right foot 5th metatarsal and that in July 2009 he had right big toe surgery. The examiner noted the Veteran's statements, including that in regard to his right foot, he "can't hardly walk on it, it's so painful", that it was "even hard for him to drive his truck", and that he would get sharp pains which felt like someone was slicing him with a knife. The Veteran also stated that during flare-ups it was hard for him to walk on it (right foot). The Veteran also stated that he regularly used a cane, but it appears, according to the examiner, the assistive device was for back and knee pain. The examiner noted that imaging studies showed that there were no abnormalities related to the prior fracture of the right foot 5th metatarsal, but that there was pain on physical examination and that the pain contributed to functional loss with pain on weight-bearing and interference with standing, and that there was pain, weakness, fatigability, or coordination during flare-ups. Ultimately, the examiner opined that the severity of the Veteran's right foot 5th metatarsal disability was moderate, did not chronically compromise weight-bearing, and that arch supports, custom orthotic inserts, or shoe modifications were not required specifically for this disability. In explanation, the examiner opined that weight-bearing was affected by the Veteran's right big toe disability, which was unrelated to the healed right foot 5th metatarsal fracture. The Board affords the February 2019 and December 2020 VA examinations probative value as the examiners, although formulating somewhat different opinions, appear to have reviewed the entire record as appropriate, noted and contemplated the Veteran's medical history and statements, and provided an assessment of the Veteran's overall level of functioning, in light of examination and symptoms reported by the Veteran. The Board also acknowledges the Veteran's statements reporting constant and severe pain involving his disability and manifestations of such, including when standing and walking. The Veteran is competent to report on his symptoms, but the Board notes that the record of evidence indicates that past reporting has been at times conflicting and confounding. This includes his past statements that he injured his back in-service but reported elsewhere that his back pain only began in 1985 after a work-site fall from scaffolding. Thus the Board affords the Veteran's statements less probative value than it would otherwise. Based on the foregoing, and a full review of all probative evidence of record, and noting the Veteran's functional impairment manifested by pain and restricted ability to stand or walk for any period of time, the Board finds that, for the entire period on appeal, the evidence is in approximate balance that the severity level of the Veteran's service-connected right foot 5th metatarsal disability symptoms was between moderate and moderately severe. Thus affording the benefit of the doubt to the Veteran, the Board finds the severity level of moderately severe is warranted. The Veteran's right foot 5th metatarsal disability did not rise to the severity level of severe, and the Board notes in support of this finding the VA examiners' opinions above, which portray a disability picture which did not generally cause hardship of a great degree, but rather caused more than average pain with more than average functional impairment, such as limited ability to perform physical activities, in this case, restricted ability to stand or walk for any period of time. In conclusion, then, as noted above, affording the Veteran the benefit of the doubt, during the appeal period the severity level of his right foot 5th metatarsal disability symptoms was moderately severe, and thus entitlement to a disability rating of 20 percent, but no higher, is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). REASONS FOR REMAND Entitlement to TDIU. When a Veteran files a claim for an increased disability rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. Rice, 22 Vet. App. at 453-54. As an initial matter, as noted above, in a January 2024 rating decision, the RO denied TDIU on an extraschedular basis. The RO also favorably found that the Veteran was not working. The Board is bound by this favorable finding, which was not clearly and unmistakably erroneous. See 38 C.F.R. §§ 3.104(c). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, if a Veteran fails to meet the threshold minimum percentage standards under 38 C.F.R. § 4.16(a), the rating board should refer to the Director of Compensation Service, for extraschedular consideration in all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see Fanning v. Brown, 4 Vet. App. 225 (1993). The Board notes that the "threshold" for referral is a lesser standard than that of evaluating whether TDIU is warranted on the merits and, therefore, a referral should not be perceived as a concession of entitlement to benefits. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In the present case, the Board notes that in a January 2024 VA Memorandum, the Director of Compensation Service determined that the evidence did not support the contention that the Veteran's service-connected disabilities prevented unemployment on an extraschedular basis. The Veteran is, as noted, service-connected for a right foot 5th metatarsal disability, with a herein granted 20 percent disability rating; tinnitus, with a 10 percent disability rating; and bilateral hearing loss, with a non-compensable disability rating. Evidence of record prior to the decision on appeal indicated that there was a reasonable possibility that the Veteran had been unable to work due to his service-connected disabilities, including 2020 CAPRI records noting the Veteran was hoping to start working again, and that as noted in the December 2020 VA examination discussed in the previous section, the Veteran stated that due to his service-connected right foot 5th metatarsal disability it was "even hard for him to drive his truck". The Board thus finds an inferred claim for TDIU had been reasonably raised, and failure to develop this claim, given the evidence of record during the period on appeal, constitutes a pre-decisional duty to assist error. Id. It is noted, however, that by virtue of the decision made herein above, the Board make no specific finding as to the Veteran's credibility as it relates to the question of whether he is rendered unemployable by virtue of his service-connected disabilities. As such, the Board finds that the Veteran's inferred claim for TDIU during the period on appeal should be remanded for further development pursuant to 38 C.F.R. § 4.16. The matter is REMANDED for the following action: 1. Seek any information that is not already of record deemed necessary to develop this TDIU claim for the period on appeal and provide the Veteran a reasonable amount of time to respond if and as necessary. 2. Refer the claim to the Director of Compensation Service for a new determination as to whether the Veteran's here-in changed disability picture warrants the assignment of a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). The Director's attention is directed to the increased disability rating grant as part of this decision as well as two separate appeal streams currently pending before the Board under dockets 210506-158282 and 210624-168133 which may or may not impact the Veteran's disability picture and any determinations made. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Matthew Leahy, 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.