Citation Nr: 18132260
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 12-03 487
DATE:	September 6, 2018
ORDER
Entitlement to a disability rating in excess of 10 percent for metatarsalgia, status-post bilateral bunionectomies, is denied.
Entitlement to a compensable disability rating of 10 percent (but no higher) for a fracture of the medial sesamoid of the right foot first metatarsophalangeal joint with degenerative arthritis is granted, subject to the laws and regulations governing the payment of monetary benefits.
FINDINGS OF FACT
1. The Veteran’s metatarsalgia, status-post bilateral bunionectomies, was assigned the maximum schedular rating.
2. Throughout the appeal period, the Veteran’s fracture of the medial sesamoid of the right foot first metatarsophalangeal joint with degenerative arthritis has been documented by x-ray evidence, has affected a group of minor joints in one foot, and has been manifested by loss of motion, and confirmed by satisfactory evidence of painful motion. 
3. The Veteran’s bilateral foot disability does not present an exceptional or unusual disability picture.
CONCLUSIONS OF LAW
1. The criteria for a rating higher than 10 percent for metatarsalgia, status-post bilateral bunionectomies, have not been met.  38 U.S.C.§§ 1155; 38 C.F.R. §§ 3.102, 303, 4.71(a); Diagnostic Code 5279.
2. The criteria for a schedular rating of 10 percent (but no higher) for fracture of the medial sesamoid of the right foot first metatarsophalangeal joint with degenerative arthritis has been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5284-5010 (2017).
3. Application of the extraschedular rating provisions for a bilateral foot disability is not warranted in this case.  38 C.F.R. § 3.321(b) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1985 through December 1992.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from 
an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was remanded in August 2014 and May 2017 for further development. 

In August 2013, the Veteran presented testimony in a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the evidentiary record.

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2017).  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.

Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time.  See DeLuca, 8 Vet. App. at 206.  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).  

Pyramiding, providing more than one rating for the same manifestation of a disability, is not permitted. 38 C.F.R. § 4.14.  Thus, in assigning disability ratings for the Veteran’s bilateral foot disabilities, the Board is mindful of the rule against pyramiding.  

The Veteran is seeking an increased rating for a bilateral foot disability.  

The Veteran was afforded a VA examination for his feet in October 2010.  The examiner found that both the left and right foot had symptoms including swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance, and pain.  The examiner noted that the functional limitation of walk would limit the Veteran to standing for 15-30 minutes and he was unable to walk more than a few yards.  

During the August 2013 hearing, the Veteran testified he had chronic pain in his feet, and at times can barely walk.  The Veteran testified he worked full time as a janitor, and has missed some time at work due to pain in his feet. 

The Veteran was afforded another VA examination for his feet in April 2016.  The examiner diagnosed the Veteran with pes planus and plantar fasciitis.  The Veteran described pain with weight bearing, and having functional limitations including trouble with walking, standing and climbing.  Pain was noted bilaterally, as was characteristic callouses and extreme tenderness of plantar surfaces of both feet.  The examiner also noted bilateral residuals of a McBride bunionectomy performed in June 1989 that was moderate in severity and chronically compromises weight bearing. Functional limitations included less movement than normal, pain on non weight-bearing and weight bearing, interference with standing, and lack of endurance.  The Veteran constantly uses a cane.  A June 2002 bilateral foot x-ray reflected degenerative changes in both feet in the first metatarsophalangeal joints bilaterally. 

In a June 2017 addendum opinion, the examiner opined that it was not possible to distinguish manifestations of the Veteran’s service-connected metatarsalgia from
manifestations of his service-connected degenerative arthritis of the first metatarsophalangeal joint of the right foot, or his non-service connected pes
planus and plantar fasciitis.  The examiner noted that the symptoms of each disorder are overlapping and similar. 

Pursuant to VBA Manual M21-1, III.iv.4.A.7.c (last accessed August 20, 2018):
the compact anatomical structure of the foot as well as the inter-related physiological functioning may make it difficult to differentiate the etiology of certain disability symptoms.  When multiple service-connected foot disabilities are present but the etiology of the symptoms cannot be separated, assign a single disability evaluation for the predominant symptoms.  If, however, the etiology of the symptoms can be delineated, separate disability evaluations may be assigned under multiple DCs for foot disabilities provided that the principles of 38 C.F.R. 4.14 have not been violated.  The June 2017 VA examiner opined that the symptoms of the Veteran’s foot disabilities cannot be delineated.  

The Board has considered whether the Veteran may be entitled to higher ratings under any other diagnostic code.  Diagnostic Codes 5277, 5281, 5282, and 5283 are not for application because the medical evidence does not indicate atrophy of the musculature, disturbed circulation and weakness of the foot, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones.  Neither the lay statements or medical evidence of records indicates a different Diagnostic Code would provide a basis for a higher rating, considering the diagnosis and the symptoms.  See 38 C.F.R. § 4.20.  Thus, a rating higher than 10 percent for metatarsalgia is denied.

The Veteran’s foot disability is rated as 10 percent disabling under DC 5279.  Under DC 5279 provides that metatarsalgia, unilateral or bilateral, warrants a maximum 10 percent rating.  38 C.F.R. § 4.71(a).  Therefore, the Veteran is in receipt of the maximum schedular rating for his metatarsalgia disability under DC 5279.  The Veteran is also service connected for a fracture of the medial sesamoid of the right foot first metatarsophalangeal joint with degenerative arthritis, rated as 0 percent disabling. 

The Veteran is also service connected for a fracture, medial sesamoid, of the right foot, first metatarsophalangeal joint with degenerative arthritis, with a 0 percent rating, effective February 9, 1996.  The April 2016 VA examination noted a June 2002 bilateral foot x-ray reflected degenerative changes in both feet in the first metatarsophalangeal joints bilaterally.  VBA Manual M21-1, III.iv.4.A.7.d (last accessed August 20, 2018) provides guidance on evaluating arthritis of a group of minor joints of the toes.  If the arthritis affects a group of minor joints in one foot,
is documented by x-ray evidence, results in loss of motion, and is confirmed by satisfactory evidence of painful motion, pain on use or other findings such as swelling, then a 10 percent rating should be assigned. 

The Board finds the evidence of record satisfies the VBA Manual M21-1 guidance for awarding a 10 percent rating for the Veteran’s service-connected arthritis in his right foot.  The arthritis affects the first metatarsophalangeal joint, is document by x-ray evidence, results in loss of motion based on the VA examinations, and is confirmed by satisfactory evidence of pain on use.  The Veteran is competent to discuss observed physical symptoms, such as a pain in his foot, despite the use of insoles.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The assignment of a rating based on the Veteran’s arthritis in his left foot does not constitute pyramiding under 38 C.F.R. § 4.14.  

The Board finds the preponderance of the evidence is against granting a disability rating in excess of 10 percent because only the right foot arthritis is service connected and hence the Veteran’s foot disability cannot satisfy the criteria for 20 percent, which would require the disability in both feet with occasional incapacitating exacerbations.  See VBA Manual M21-1, III.iv.4.A.7.d (last accessed August 20, 2018).

Accordingly, the Board also finds the Veteran would not be entitled to a higher disability rating for bilateral metatarsalgia, as the highest possible disability rating under Diagnostic Code 5279 is 10 percent for unilateral or bilateral metatarsalgia.  The Board also finds the Veteran is entitled to a 10 percent rating, but no higher, for the degenerative arthritis due to his service-connected fracture of the medial sesamoid of the right foot. 

Extraschedular Consideration
The Veteran’s representative requested extraschedular consideration of the Veteran’s foot disability during the August 2013 hearing if an increased rating could not be granted for the Veteran’s foot disability.  The Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided. 
The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required 
The Board finds that the schedular evaluation assigned for the Veteran’s service-connected foot disability is adequate in this case.  Here, the schedular rating criteria used to rate the Veteran’s foot disability reasonably describe and assess the Veteran’s disability level and symptomatology.  The lay and medical evidence fails to show anything unique or unusual that would render the schedular criteria inadequate.  Throughout the rating period on appeal, the Veteran’s bilateral foot disability has been manifested by pain, indication of swelling on use, and characteristic callosities, with some improvement with the use of orthotics.  The schedular rating criteria provides for ratings based on these symptoms and manifestations; as such, referral for consideration of extraschedular ratings is not warranted. 
Accordingly, referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to further determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).
 
Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  In this case neither the Veteran nor the record has raised the question of unemployability due to service-connected disability, and the Veteran testified he was employed.  Therefore, no further discussion of a TDIU is necessary.
 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Keogh, Associate Counsel  

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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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