Citation Nr: 18132295
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-07 686
DATE:	September 6, 2018
ORDER
Entitlement to a 30 percent for the entirety of the appeal period effective from July 1, 2013 for left foot strain is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to a separate 10 percent rating for painful scar on the left foot is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to an effective date earlier than July 1, 2013 for the grant of service connection for left foot strain is denied.
FINDINGS OF FACT
1. Effective July 1, 2013, the Veteran’s left foot strain results in impairment that becomes severe with any significant activity.
2. The Veteran has a painful scar of the left foot due to her December 2014 surgery.
3. The Veteran separated from active military service in June 2013; and her benefits for service connection for left foot strain began the first of the month after her separation date, i.e., July 1, 2013. 
CONCLUSIONS OF LAW
1. The criteria for a rating of 30 percent, but no higher, for service-connected left foot strain have been met, effective July 1, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5284.
2.  The criteria for a separate rating of 10 percent, but no higher, for service-connected residual scar, status post extensor hallucis longus tendon repair with tenosynovectomy on her left foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7804.
3. The criteria for an effective date prior to July 1, 2013, for the grant of service connection for left foot strain have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c)(1)(2), 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from June 2008 to June 2013. 
She testified before the undersigned at a Board videoconference hearing in June 2018. 
1. Entitlement to an increased rating higher than 30 percent, effective July 1, 2013; and 20 percent, effective December 18, 2015, for left foot strain
Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.
The Veteran contends that the symptoms associated with her left foot have been the same throughout the appeal. See June 2018 Board hearing testimony, p. 13. 
The Board concludes that a rating of 30 percent for left foot strain is warranted based on the evidence of record for the entire appeal. 
The Veteran’s left foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. With actual loss of use of the foot, rate 40 percent. 
An August 2013 VA examination report shows the Veteran injured her left foot in 2011 when she stepped off an elevated surface. She was diagnosed with joint strain and had pain for two weeks after the injury, which was treated with non-steroidal anti-inflammatory medication and rest. She continued to have daily pain in service, and currently had daily pain with no response to three steroid injections.
A December 2015 VA examination report notes that the Veteran had extensor hallucis longus tendon repair with tenosynovectomy on her left foot in December 2014. She reported having left mid dorsal foot pain associated with standing 1 hour, walking 20 minutes, or climbing 2-3 flights of stairs. It was noted that the left foot impairment was mild, but chronically compromised weight-bearing. It was noted that in addition to pain on weight-bearing, there was disturbance of locomotion, and interference with standing. An August 2014 bone scan showed increased left first tarsometatarsal joint tracer uptake consistent with inflammatory change. A September 2014 MRI of the left foot showed reactive tenosynovitis and partial extensor hallucis tendon tear at base of first metatarsal. 
The Veteran testified at the June 2018 Board hearing that her pain would become severe if she did any prolonged activity. See June 2018 Board hearing, pp. 10-11. She also indicated that she had tingling nerve pain that would go up her foot. Id. at 11. She stated that her symptoms had been the same throughout the appeal period. Id. at 13.
Based on these findings, the evidence more closely approximates the criteria for a 30 percent rating under Diagnostic Code 5284, and has so effectively since the beginning of the appeal on July 1, 2013. This is the maximum schedular rating available under this diagnostic code. The evidence does not approximate the equivalent of loss of use of the foot.
An inferred claim for a total disability rating due to individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered.  While the Veteran’s left foot disability has limited her ability to work in jobs with prolonged standing or walking, the evidence does not suggest that she has been rendered unemployable because of her left foot disability. Therefore, any inferred TDIU claim is inapplicable in this case.
The Board has also considered whether the Veteran’s left foot strain presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”).  
In the instant case, the Veteran’s left foot strain result in impairment that becomes severe with any significant activity. This does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate.  See Thun, 22 Vet. App. at 115.  
The symptoms associated with the Veteran’s left foot strain are not shown to cause any impairment that is not already contemplated by the rating criteria.  The 30 percent rating assigned under Diagnostic Code 5284 specifically contemplates severe foot injuries.  
The Board finds that the rating criteria reasonably describe the Veteran’s disability.  For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim.
Considering the foregoing, the Board concludes that an initial rating of 30 percent, but no higher, for left foot strain is warranted, effective July 1, 2013 and throughout the period on appeal. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
2. Entitlement to a separate 10 percent rating for painful scar on the left foot 
A December 2015 VA examination report notes that the Veteran had extensor hallucis longus tendon repair with tenosynovectomy on her left foot in December 2014. Additional examination of the scar shows it is painful to touch. 
The Board concludes that a higher rating of 10 percent, but no higher, for the residual scar status surgery of the left foot is warranted based on the evidence of record.
Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 
The Veteran testified at the Board hearing in June 2018 that the scar on the top of her foot was painful and that she had to wear shoes with an open top to accommodate her left foot scar. See June 2018 Board hearing transcript, p. 7. 
A December 2015 scar examination report notes that the Veteran had a painful scar associated with repair of her extensor hallucis longus tenosynovitis and tendon strain/ tear in December 2014. She also reported tingling, itching, and burning of the scar associated with standing for 30 minutes. The scar measured 4.0 cm x 0.5 cm. 
Resolving all doubt in the appellant’s favor, these findings support a 10 percent rating under Diagnostic Code 7804 for a painful scar. None of the remaining diagnostic codes pertaining to scars apply to the Veteran’s scar.  
The Board has considered the application of staged ratings; however, at no period did the Veteran’s scar warrant a rating higher than 10 percent. 
The Board has also considered whether the Veteran’s scar presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”).  
In the instant case, the Veteran has a painful scar because of her left foot surgery in December 2014.  This does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  
The symptoms associated with the Veteran’s scar are not shown to cause any impairment that is not already contemplated by the rating criteria.  The 10 percent rating assigned under Diagnostic Code 7804 specifically contemplates a painful scar.  
The Board finds that the rating criteria reasonably describe the Veteran’s disability.  For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. 
3. Entitlement to an effective date earlier than July 1, 2013 for the grant of service connection for left foot strain
Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  For direct service connection claims, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service. 38 C.F.R. § 3.400(b)(2)(i).
The Veteran separated from service in June 2013. She filed a pre-discharge compensation claim in May 2013. The effective date of her grant for service connection for left foot strain cannot be earlier than the first of the month following her separation from service, which, in this case, is July 1, 2013.
As such, the RO assigned the earliest possible effective date for its grant of service connection for the left foot strain, which based on the procedural history as outlined in detail above was determined to be July 1, 2013. 
Accordingly, the claim for entitlement to an effective date prior to July 1, 2013, for service connection for left foot strain is denied. 
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Sarah B. Richmond 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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