FOOT IMPAIRMENT OF

Summary

The Veteran, who served from December 1973 to August 1977 and January 1978 to January 1982, appeals the denial of an increased rating for his left foot strain. Service connection for the left foot, secondary to a left knee and ankle disability, was previously established with an effective date of October 22, 2009. The Veteran asserts entitlement to a 30 percent rating for his left foot strain, claiming daily pain that worsens with walking and standing, significantly impacting his activities of daily living, with two to three episodes per month of complete inability to stand or walk. The Board reviewed medical evidence, noting that early records vaguely mentioned "multiple areas" of chronic pain, including the feet, and a later VA treatment record indicated "residuals of foot injury" without specifying the foot. The Veteran's left foot was not specifically addressed until a 2017 VA examination, which found only subjective pain without functional limitation. A private opinion supported service connection but was silent on severity. The Board found that the Veteran's left foot disability worsened significantly when he began using a rolling walker in June 2019, citing pain described as six or seven out of ten and difficulty walking, which aligns with the "severe" rating criteria. Therefore, the Board granted an increased rating of 30 percent, the maximum available, effective June 20, 2019.

Rationale

Service connection for left foot secondary to left knee and ankle disability established.; Symptoms became severe as indicated by June 20, 2019, VA treatment record.; Pain described as six or seven out of ten, difficulty walking, interference with daily living.

Full Decision Text

Citation Nr: A24048504
Decision Date: 08/21/24	Archive Date: 08/21/24

DOCKET NO. 210506-158605
DATE: August 21, 2024

ORDER

Entitlement to an increased rating of 30 percent, but no higher, from June 20, 2019, for left foot strain is granted.

FINDING OF FACT

From June 20, 2019, the Veteran's left foot strain was manifest to a severe degree.

CONCLUSION OF LAW

The criteria for entitlement to an increased rating of 30 percent, but no higher, from June 20, 2019, for left foot strain are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1973 to August 1977, and from January 1978 to January 1982.

The rating decision on appeal was issued in May 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of the May 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 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.

Entitlement to an initial rating in excess of 10 percent for left foot strain.

The Veteran asserts that he is entitled to an initial rating of 30 percent for a left foot strain.  Service connection for the left foot secondary to altered body mechanics from a left knee and ankle disability has been established with an effective date of October 22, 2009.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.)  Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran's left foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries.  Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate injuries.  A 20 percent rating is warranted for moderately severe injuries.  A 30 percent rating is warranted for severe injuries.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  According to
 rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran's left foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries.  Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate injuries.  A 20 percent rating is warranted for moderately severe injuries.  A 30 percent rating is warranted for severe injuries.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension."  See www.merriam-webster.com/dictionary/moderate.  "Severe" means "of a great degree."  See www.merriam-webster.com/dictionary/severe.

Medical records addressing the left foot are scant.  Most of the treatment records regard the right foot, but there are some vague references to both feet and references for an unspecified side.  An early treatment record indicated that the Veteran had "multiple areas" of chronic pain, which included the feet; the specific foot was not specified.  See October 2009 Medical Treatment Record - Non-Government Facility.  A VA treatment record around the same time indicated "residuals of foot injury," but did not specify which foot.  See October 2010 CAPRI received February 2020.

The Veteran's left foot was not specifically mentioned until he was afforded a VA examination in 2017.  The examination focused on the right foot, but the examiner found only subjective pain in the left foot without any functional limitation.  See April 2017 C&P Exam.  An addendum report added that the Veteran had "minimal insignificant pain" in the left foot, and the examination of the left foot was normal.  See May 2017 C&P Exam.  

The Veteran later obtained a rolling walker to assist with difficulty walking.  However, the records do not indicate which disability, or combination of disabilities, necessitated the use of the walker.  See June 2019 CAPRI received April 2020.  During a diabetic foot examination the following month, the podiatrist noted "Foot Deformities [ambulates] with a rolling walker."  The left or right foot was not identified.  However, it was noted that the Veteran's left hallux nail was absent.  See July 2019 CAPRI received April 2020.  A follow up note indicated that the pain and neuropathy in the Veteran's feet had severely affected his "WOL" and that he had difficulty walking.  Id.  Again, it is unclear if this note applies to one foot or both.

In support of his claim for service connection, the Veteran submitted a private opinion.  While this opinion supports service connection for the left foot, it is silent with respect to the severity of the Veteran's left foot disability.  See October 2019 Medical Treatment Record - Non-Government Facility.

The Veteran submitted a written statement in support of his claim.  The Veteran has daily pain in his left foot.  The pain is more severe after walking and standing.  His activities of daily living are affected by his left foot pain.  He cannot play sports, and he has difficulty running errands and doing chores.  Two or three times per month, the Veteran is unable to stand or walk at all.  The Veteran's statement does not indicate when these symptoms began or when they worsened.  See October 2019 Affidavit.

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?

Overall, the evidence indicates that the Veteran's left foot disability became worse when he sought a rolling walker in June 2019.  Prior to that date, there is no indication that the Veteran's disability increased.  The Veteran's most recent symptoms include pain described as six or seven out of ten.  The Veteran's left foot causes difficulty walking and interferes with daily living.  These symptoms can be described as "a great degree" within the dictionary meaning of severe under Diagnostic Code 5284.  It is factually ascertainable that the Veteran's left foot symptoms became severe as indicated by a June 20, 2019, VA treatment record.  Therefore, an increased rating of 30 percent, the maximum rating available, is warranted beginning June 20, 2019.

 

 

Frederic P. Gallun

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Chris Bumgarner, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. 
 foot causes difficulty walking and interferes with daily living.  These symptoms can be described as "a great degree" within the dictionary meaning of severe under Diagnostic Code 5284.  It is factually ascertainable that the Veteran's left foot symptoms became severe as indicated by a June 20, 2019, VA treatment record.  Therefore, an increased rating of 30 percent, the maximum rating available, is warranted beginning June 20, 2019.

 

 

Frederic P. Gallun

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Chris Bumgarner, 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.