Citation Nr: 1749036	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-27 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an increased rating for status post fracture of the right 2nd metatarsal, status post-surgery with scar (right foot disability), rated as noncompensably disabling prior to August 24, 2012; 10 percent disabling from August 24, 2012, to March 26, 2015; and 30 percent disabling thereafter.

2.  Entitlement to an increased rating for status post excision of Morton's neuroma of the left foot with scar and calcaneal spur (left foot disability), rated as 10 percent disabling prior to March 26, 2015, and 30 percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Amy K. Hart, Attorney at Law





WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to July 1974 and December 1980 to January 1986.

These matters come before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied a compensable rating for status post excision of Morton's neuroma of the left foot; and granted service connection for status post fracture of the right 2nd metatarsal, status post-surgery with scar and assigned an initial noncompensable disability rating, effective from July 9, 2010. The RO in Muskogee, Oklahoma currently has jurisdiction over the Veteran's claims.

An August 2012 rating decision granted an increased (10 percent) rating for the service-connected left foot disability, effective from July 9, 2010.

The Veteran testified before the Board at an October 2013 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with his claims file.

In February 2015, the Board remanded the claims for further development. The Board finds that the RO substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with).

In November 2015, the Veteran testified before the RO at a DRO hearing. A transcript of the hearing has been associated with his claims file.

In an October 2016 rating decision, the AOJ assigned a 10 percent rating for the right foot disability effective August 24, 2012, and a 30 percent rating effective March 26, 2015. The AOJ also assigned a 30 percent rating for left foot disability effective March 26, 2015. The Veteran has not withdrawn his appeals for higher ratings before or after the effective dates of the increased ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

Additionally, the October 2016 rating decision granted a separate, 10 percent rating for painful scar of the left foot and a noncompensable rating for scar of the right foot and assigned a rating of 10 percent effective March 26, 2015. The Veteran has not indicated any disagreement with these separate ratings.

This appeal is now entirely being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems.

As a final preliminary matter, the Board notes that the matter of the Veteran's entitlement to earlier effective dates for the grant of service connection for right and left foot disabilities was raised during the November 2015 DRO hearing. However, as these matters have not been adjudicated by the AOJ, the Board does not have jurisdiction over them, and they must be referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 19.9(b) (2016). See also 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R §§ 3.160 and 20.201 (2016) (requiring that claims and notices of disagreement be filed on standard forms).


FINDINGS OF FACT

1.  Prior to March 26, 2015, the Veteran's right foot disability was manifested by  daily pain, numbness, swelling, weakness, tenderness, limitation of motion, pes planus, edema, and difficulty walking and standing; collectively, these symptoms are suggestive of a severe disability.

2.  Since March 26, 2015, the Veteran's right foot disability has been manifested by daily pain, numbness, swelling, weakness, tenderness, limitation of motion, hallux valgus, edema, frequent spasm, inward bowing, instability, and difficulty walking and standing; loss of use has not been shown.

3.  Prior to March 26, 2015, the Veteran's left foot disability was manifested by daily pain, numbness, swelling, weakness, tenderness, limitation of motion, pes planus, edema, and difficulty walking and standing; collectively, these symptoms are suggestive of a severe disability.

4.  Since March 26, 2015, the Veteran's left foot disability has been manifested by daily pain, numbness, swelling, weakness, tenderness, limitation of motion, hallux valgus, edema, frequent spasm, inward bowing, foot drop, instability, and difficulty walking and standing; loss of use has not been shown.


CONCLUSIONS OF LAW

1.  Prior to March 26, 2015, the criteria for a 30 percent rating, but no higher, for status post fracture of the right 2nd metatarsal, status post-surgery with scar are met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).

2.  Since March 26, 2015, the criteria for a rating in excess of 30 percent for status post fracture of the right 2nd metatarsal, status post-surgery with scar are not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).

3.  Prior to March 26, 2015, the criteria for a 30 percent rating, but no higher, for status post excision of Morton's neuroma of the left foot with scar and calcaneal spur are met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).

4.  Since March 26, 2015, the criteria for a rating in excess of 30 percent for status post excision of Morton's neuroma of the left foot with scar and calcaneal spur are not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2016). Moreover, neither the Veteran nor his attorney has raised any issues with regard to the duty to notify or duty to assist, nor have any such issues been raised by the evidence of record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


II.  Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation 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. 

Descriptive words such as "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6.

In general, when 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). The Board may, however, grant different levels of compensation effective from different dates based on the evidence, throughout the period since service connection was awarded. See Hart v. Mansfield, 121 Vet. App. 505   (2007). Additionally, when a veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection, and the evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). 

Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims.

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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 enervation, 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. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45.

The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

III.  Analysis

By way of background, a December 1986 rating decision granted service connection for status post excision, Morton's Neuroma left foot, and assigned a noncompensable rating effective January 25, 1986. In July 2010, the Veteran filed a claim for increased rating for left foot disability, and filed a claim for service connection for a right foot disability.

The Veteran's right and left foot disabilities are currently rated under Diagnostic Code (DC) 5284, which provides ratings for foot injuries. Under DC 5284, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent evaluation requires moderately severe residuals. A 30 percent rating requires severe residuals. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2016).

The term "loss of use" of a foot is defined at 38 C.F.R. § 3. 50 (a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether, in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63 (2016).

Turning to the pertinent evidence of record, an August 2010 VA contract examination indicated that the Veteran complained of pain at the bottom of the feet which occurred two times per day and each time lasted for two hours. His symptoms included burning, aching, and continuous numbness in the toes and feet. He rated his pain level as a three out of ten. Pain was exacerbated by physical activity and elevation and relieved by rest. At the time of pain he could function without medication. While standing or walking he had pain and swelling, but no weakness, stiffness or fatigue. 

Physical examination revealed a normal posture and gait. Each foot was tender to palpation. There was no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness or instability. There was active motion in the metatarsophalangeal (MTP) joint of the right great toe. Alignment of the Achilles tendon was normal on both sides while the Veteran was weight bearing and non-weight bearing. Pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, and hallux rigidus were not present. He had limitations with standing and walking. He could walk a mile, but his feet became painful and numb with walking. He required shoe inserts, which did not relieve his symptoms and pain. X-rays of the right foot were normal. X-rays of the left foot showed calcaneal spurs. Effect on occupation was limited walking distances.

On November 2010 VA contract examination, the Veteran complained of pain in the feet which occurred once per day and each time lasted for 6 hours. Pain was burning, aching, and sharp. Pain was rated as a 6 out of 10. The pain was exacerbated by physical activity and relieved by rest and by elevation, or by walking on the outside of a foot. At the time of pain, he could function without medication. He described additional symptoms of swelling, weakness, tiredness, pain in the entire foot, numbness and sensitivity to pressure. The Veteran reported a history of hospitalization and surgeries for a fixation of the right 2nd metatarsal; however, this could not be completed due to a fusion at the Air Force Base in 1972. He reported that the bone was not set correctly and healed crooked. Treatment was Ibuprofen 4 x 200 milligrams (mg) twice a day for years. Overall functional impairment was described as being unable to run without pain, and his foot hurt and went numb with prolonged standing and walking.

Physical examination revealed a normal posture and gait. The feet were tender. There were no signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. There was no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness or instability. There was active motion in the MTP joint of the right great toe. Alignment of the Achilles tendon was normal on both sides with weight bearing and non-weight bearing. Pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, hallux rigidus were not present. He had limitations with standing and walking. He could walk a mile but his feet became painful and numb with walking. He did not require any type of support with his shoes. X-rays revealed old healed 2nd metatarsal fracture of the right foot and calcaneal spurs of the left foot.

During an August 2012 private examination, the Veteran complained of pain in both feet causing increased limping. His pain was rated at worst a 6 out of 10, and he normally functioned at a 0 to 3 out of 10. He was not currently taking medication. He soaked his feet in warm water to aid with pain relief. Periods of flare-ups lasted two to three days, during which he kept off his feet and propped them up. Both being on his feet with increased activity, and being totally sedentary increased his pain levels. He used a single point cane when pain was bad. He also used orthotics in his shoes, with a four inch lift for the left foot. Functional limitations included needing a five minute break for every hour that he stood, and he could not walk a full two miles. Physical examination revealed mild pain to palpation in plantar surface at 2nd metatarsal bilaterally. His gait was slightly antalgic.

During the October 2013 Board hearing, the Veteran reported that he has had significant edema and an altered gait since 1972. See Board Hearing transcript, p. 3.

A November 2013 independent medical evaluation noted that the Veteran had pes planus with calcaneovalgus forefoot abduction and loss of the medial and longitudinal arch; this worsened with standing. There was tenderness to palpation of the anterior tibiotalar margin. There was evidence of pitting edema. He was neurovascularly intact in his feet. The examiner diagnosed bilateral foot pes planus, Morton's neuroma, left foot, and malunion of right second metatarsal. The examiner found that the Veteran had a reduced ability to do weight-bearing activities such as standing or walking for prolonged periods. He should not be required to do any activities requiring running or jumping. Further, he would only occasionally be able to kneel, crouch, crawl or climb stairs or ladders. Due to the risk of injury, he should avoid any walking on uneven surfaces. He should wear support hose and elevate his legs whenever possible to reduce swelling.

A March 2015 foot disability benefits questionnaire included the following diagnoses: flat foot (pes planus) left, Morton's neuroma (left), metatarsalgia (right). The Veteran reported that, in the last year, bilateral pain had been almost constant with frequent disabling cramping episodes. Cramping episodes occurred three to four times per week. Pain increased with any weight bearing activity or prolonged sitting. He had to stand up and apply all his weight on the cramping foot until "it pops back in." Since the fracture, the Veteran had to progressively reduce physical activities. He previously ran 50 miles per week, power lifted, played many sports, and hiked. Currently, he could do some calf raises with 20 pound weights, golf with a cart, and limited walking. 

On physical examination, the Veteran had pain on manipulation of both feet. There was indication of swelling on use and calluses of both feet. The Veteran had tried built-up shoes and orthotics but both sides were not relieved. The Veteran had extreme tenderness of plantar surfaces of both feet. Tenderness was improved by orthopedic shoes or appliances. He had decreased longitudinal arch height of both feet on weight-bearing. There was objective evidence of marked deformity of both feet. The right foot was inverted with beginning of step and then moved toward eversion. The Veteran has inward bowing and severe spasm of the Achilles tendon affecting both feet. Achilles tendons tended to be displaced outward with right more severe than left. Morton's neuroma of the left was surgically removed, but the Veteran had pain in metatarsals bilaterally. He had severe malunion of metatarsal bones of the right foot. The right second toe was dorsiflexed and was not in contact with the floor when standing normally. There was noticeable various angulation of calcaneus bilaterally, left greater than right, with forefoot adduction. Left lateral malleolus was enlarged in comparison to right.

The examiner found that the disability of each foot was severe in nature. The foot conditions chronically compromised weight bearing, and required arch support, custom orthotic inserts or shoe modifications. Symptoms included pain on movement, less movement than normal, more movement than normal on the right, weakened movement, excess fatigability, incoordination, an impaired ability to execute skilled movements smoothly, pain on weight bearing and non-weight bearing, swelling, deformity, instability of station, disturbance of locomotion, and interference with sitting and standing. The Veteran must elevate his feet if pain or edema is too much, but if he does not have enough activity the feet hurt and are swelled. On his left, he also had foot drop. Cramping and stiffness reduced range of motion and proprioception (ability to know where body parts are in space during movement) causing stumbling and inability to perform coordinated activities. On the left foot, partially due to foot drop and partially due to pain and stiffness, the Veteran used a cane when he felt especially unsteady. Morton's neuromas are known to return frequently. The same area is tender to touch and painful when walking. The Veteran utilized an elastic ankle/foot brace when the feet and ankles seemed especially weak. Range of motion testing was abnormal with expected limitations in activities in both feet. With regard to functional impact, the examiner noted that the Veteran could not stand or walk for any length of time. His job required him to sit for long periods of time; thus, the Veteran had to be sure there was time allowed for getting up and moving around to keep his feet and ankles movable. Function was not so diminished that amputation with prosthesis would equally serve the Veteran. Bilateral foot problems were chronic, permanent, and likely to worsen as he ages.

During the November 2015 DRO hearing, the Veteran's attorney argued that both feet should be at the maximum rating for marked displacement and severe spasm in the Achilles tendon manipulation. See DRO Hearing Transcript, p.3. His gait was not normal. Id. There had been swelling and pitting edema for many years. Id. at p. 4.

On April 2016 VA examination, diagnoses included: Morton's neuroma and metatarsal fracture, right; metatarsalgia, left; and hallux valgus, bilateral. The examiner noted that the foot condition did not chronically compromise weight bearing, require arch supports, custom orthotic inserts or shoe modification. There was pain of both feet on exam. Contributing factors of disability included excess fatigability, pain on movement, pain on weight-bearing, swelling, deformity, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. Functional impairment was described as limited prolonged standing and walking. Functional was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner found that the Veteran had mild or moderate symptoms of hallux valgus, bilaterally, and moderate symptoms of right foot fracture. 

Considering the pertinent evidence in light of the above, the Board finds that a 30 percent rating, but no higher, for each foot is warranted for the entire appeal period.

Prior to the March 26, 2015 disability benefits questionnaire, the Board acknowledges that the examination reports do not indicate the severity level of the Veteran's foot disabilities. However, the Board finds that the description of the Veteran's foot disabilities is suggestive of a severe disability. In this regard, the medical and lay evidence indicates pain on a daily basis, numbness, swelling, weakness, tenderness, limitation of motion, pes planus, edema, and difficulty walking and standing. Taking into account these symptoms, and in consideration of his reports of flare-ups of foot symptoms, the Board finds that the Veteran's service-connected right and left foot disabilities most nearly approximate the criteria required for a 30 percent disability rating. See 38 C.F.R. §§ 4.7, 4.40, 4.45 (2016); DeLuca, supra.

The Veteran, however, is not entitled to a disability rating in excess of 30 percent for his right and left foot disabilities at any time during the appeal. As noted above, a 40 percent rating is warranted when there is actual loss of use of the foot; however, the examination reports of record do not indicate that the Veteran has suffered actual loss of use of the foot or that the Veteran's symptoms more closely approximate the criteria for that rating. Indeed, the March 2015 disability benefits questionnaire and the April 2016 VA examination report specifically note that function was not so diminished that amputation with prosthesis would equally serve the Veteran. The Board further notes that the 30 percent rating assigned is based on consideration of all functional impairment associated with the Veteran's right and left foot disabilities. 

Finally, the Board finds that any additional separate ratings for the Veteran's right and left foot disabilities would result in double compensation for the same symptomology in violation of anti-pyramiding provisions. See 38 U.S.C.A. § 1155, 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993).

Finally, the Board has considered whether any further staged ratings are appropriate and finds that evidence regarding the level of disability for the right and left foot disabilities is consistent with the assigned ratings. The record does not indicate any significant increase or decrease in such symptoms and symptoms warranting a higher rating have not been shown other than as reflected by the assigned staged ratings. Accordingly, further staged ratings are not warranted.

For the foregoing reasons, ratings of 30 percent, but no higher, is warranted for the Veteran's right and left foot disabilities throughout the appeal period. As the preponderance of the evidence reflects the symptoms of the Veteran's right and left foot disabilities do not more nearly approximate the criteria for a rating higher than 30 percent, the benefit of the doubt doctrine is not for application and the claim for a rating higher than that assigned herein must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3.

B.  Additional Considerations

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms are fully contemplated by the applicable rating criteria. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The descriptive criteria such as slight, moderate, and marked, and moderate, moderately severe, and severe, as well as the provisions of 38 C.F.R. §§ 4.40 and 4.45, allow for consideration of all aspects of each disability in assigning the appropriate disability rating. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2016); see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40, 4.45 (2016). As the criteria contemplate the symptoms, the Board need not consider whether the right and left foot disabilities cause marked interference with employment for purposes of an extraschedular rating.

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further.

The Board also recognizes that the United States Court of Appeals for Veterans Claims (Court) has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384   (Fed. Cir. 2001). The Veteran has not contended that his service-connected disabilities render him unemployable and the evidence does not otherwise suggest that this is the case. The evidence shows that the Veteran's feet disabilities limit his ability to stand and walk or run for extended periods of time. However, the evidence of record indicates that the Veteran is still employed. See, e.g., November 2015 DRO Hearing Transcript, p. 28. As such, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record.


	(CONTINUED ON NEXT PAGE)



ORDER

Prior to March 26, 2015, a 30 percent rating for status post fracture of the right 2nd metatarsal, status post-surgery with scar is granted, subject to the legal authority governing the payment of compensation.

Since March 26, 2015, a rating in excess of 30 percent for status post fracture of the right 2nd metatarsal, status post-surgery with scar is denied.

Prior to March 26, 2015, a 30 percent rating for status post excision of Morton's neuroma of the left foot with scar and calcaneal spur is granted, subject to the legal authority governing the payment of compensation.

Since March 26, 2015, a rating in excess of 30 percent for status post excision of Morton's neuroma of the left foot with scar and calcaneal spur is denied.




____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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