Citation Nr: A26028362 Decision Date: 03/30/26 Archive Date: 03/30/26 DOCKET NO. 200618-93385 DATE: March 30, 2026 ORDER Entitlement to a 30 percent rating, but no higher, for residual stress fracture, fourth metatarsal, right foot (also claimed as a right foot condition) is granted. FINDING OF FACT Residual stress fracture, fourth metatarsal, right foot (also claimed as a right foot condition) is manifested by severe pain and flare-ups that limit prolonged standing and walking. The Veteran does not have loss of use of the right foot. CONCLUSION OF LAW The criteria for a 30 percent rating for residual stress fracture, fourth metatarsal, right foot, are met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. § 4.71a, DC 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to February 1998 and from January 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2020 and June 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran submitted a VA Form 10182 appealing the rating for his fight foot in a February 2020 rating decision. The Veteran selected the Hearing docket. In November 2020, the Veteran submitted a VA Form 10182 appealing the rating assigned for osteoporosis in a June 2020 rating decision. The Veteran selected the Hearing docket. A Board hearing was held on August 30, 2024. Therefore, the Board may only consider the evidence of record at the time of the February 2020 and June 2020 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran, or representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of increased rating for osteoporosis, 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). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. VA amended the criteria for rating musculoskeletal disabilities, which include ratings for foot disabilities, during the course of this appeal, effective February 7, 2021. 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed Reg. 8142 (Feb. 4, 2021). If a law or regulation changes during the course of a claim or appeal process, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that amendment. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. The revision added DC 5013 pertaining to the evaluation of residuals of osteoporosis. A Note to § 4.71a provides that diseases under diagnostic codes instructs to evaluate disease under 5013 to 5024 as degenerative arthritis based on limitation of motion of the affected parts. The revision also added rating criteria for plantar fasciitis under DC 5269. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Increased rating for residual stress fracture, fourth metatarsal, right foot (also claimed as a right foot condition) A February 2020 rating decision granted service connection for residual stress fracture of the right fourth metatarsal. A noncompensable (0 percent) rating was assigned from October 2017. The Veteran seeks a compensable initial rating. The Veteran's right fourth metatarsal disability is evaluated under Diagnostic Code 5284, which pertains to foot injuries. A 10 percent rating applies for moderate injury, 20 percent for moderately severe, and 30 percent for severe foot injury. A Note provides that actual loss of use of the foot is to be rated at 40 percent. The Board notes that Diagnostic Code 5284 was not changed by the amendments effective from February 7, 2021. A January 2014 VA physician statement noted significant limitation when the foot is moved repeatedly during flare-ups or due to pain. The Veteran had a VA examination in March 2019. The examination noted a history of a stress fracture of the right 4th metatarsal in 1995. The Veteran reported chronic episodic right foot pain. The pain was described as "sharp dull or throbbing." The VA examination noted diagnoses of hallux valgus, stress fractures, degenerative arthritis, and metatarsus adductus. The examination noted that the pain, frequency and duration vary depending on activity and weather. The severity was described by the VA examiner as "moderate." The VA examination showed that precipitating factors include prolonged standing, prolonged walking, cold weather, damp weather, and weather changes. The Veteran reported increased pain with flare-up. At the Board hearing the Veteran testified that her right foot symptoms are sometimes severe. She stated that her foot gets hot, and she feels like it will break. She testified that she does not use assistive devices. (Continued on the next page) ? A layperson is competent to describe symptoms of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board finds the Veteran competent to report severe foot pain. The VA examination noting sharp pain of "dull or throbbing" character supports a higher rating than moderate. Separate ratings for hallux valgus and metatarsus adductus are not warranted, as the evidence does not show that those diagnosed conditions are associated with the service-connected stress fracture of the right fourth metatarsal. The Board finds that her right foot disability is severe, considering flare-ups of the foot and functional loss due to pain. The evidence does not reflect actual loss of use of the foot. Therefore, a 30 percent rating is warranted for severe foot injury under DC 5284. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.