UNSPECIFIED DEPRESSIVE DISORDER

M. SORISIO · 2026 · Case ID: A26017432

MIXED

Summary

The veteran, who served from November 1982 to October 1987, appeals the Board of Veterans' Appeals (BVA) decision regarding his acquired psychiatric disability and left foot conditions. The veteran sought an increased rating for his psychiatric condition, which was previously rated at 50 percent. The BVA reviewed the evidence, including VA treatment notes and a May 2023 VA psychiatric examination. The examiner diagnosed unspecified depressive disorder and alcohol use disorder, noting overlapping symptoms. The veteran reported suicidal ideations, prior suicide attempts, and symptoms like social isolation, depressed mood, anhedonia, sleep problems, negative self-thinking, anger, irritability, and poor concentration. The examiner opined that these symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Board found that the veteran's symptoms throughout the appeal period most closely approximated the criteria for a 70 percent rating, citing deficiencies in judgment, thinking, and mood, including irritable behavior and suicidal ideations. However, the Board determined the evidence did not support a 100 percent rating due to consistent employment and lack of total occupational and social impairment. For the left foot, the veteran appealed the denial of an increased rating for pes planus and tarsal coalition. The Board found the evidence did not support a rating higher than 20 percent for pes planus, as the symptoms did not meet the criteria for marked pronation or severe spasm. For the tarsal condition, the Board also found the evidence did not support a rating higher than 20 percent, concluding the symptoms were moderately severe and higher ratings would constitute impermissible pyramiding. The Board did, however, grant a separate 10 percent rating for hallux valgus, effective February 1, 2023, due to the Veteran undergoing a 5th metatarsal exostectomy, and a temporary total rating from November 9, 2022, to January 31, 2023, for convalescence. The Board also noted that a claim for TDIU was not raised by the record.

Rationale

Symptoms throughout appeal period approximated 70% rating criteria; Deficiencies in judgment, thinking, and mood noted; Suicidal ideations and prior attempts considered

Special Benefit

TEMPORARY TOTAL (§4.30)

Diagnostic Code

9435

Docket No.

250811-573369

Full Decision Text

Citation Nr: A26017432
Decision Date: 02/26/26 Archive Date: 02/26/26

DOCKET NO. 250811-573369
DATE: February 26, 2026

ORDER

An initial rating of 70 percent, but no higher, throughout the appeal period for the Veteran's acquired psychiatric disability is granted, subject to regulations governing the payment of monetary awards.

An initial rating in excess of 20 percent for the Veteran's left foot pes planus is denied.

A rating in excess of 20 percent for the Veteran's left foot tarsal coalition with degenerative arthritis, status post talonavicular, and calcaneo-cuboid fusion, left foot is denied.

A temporary total rating from November 9, 2022, to January 31, 2023, pursuant to 38 C.F.R. § 4.30 for left foot hallux valgus with 5th metatarsal exostectomy is granted, subject to regulations governing the payment of monetary awards.

From February 1, 2023, a rating of 10 percent under Diagnostic Code 5280 for left foot hallux valgus with left 5th metatarsal exostectomy is granted, subject to regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. Throughout the appeal period, the severity, frequency, and duration of symptoms of the Veteran's acquired psychiatric disability more closely approximates occupational and social impairment with deficiencies in most areas.

2. Throughout the appeal period, the Veteran's left foot pes planus has been manifested in symptoms most closely approximating severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, and indication of swelling on use.

3. Throughout the appeal period, the Veteran's left foot tarsal coalition with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion was demonstrated by moderately severe impairment.

4. On November 9, 2022, the Veteran underwent left 5th metatarsal exostectomy for hallux valgus.

5. The evidence of record demonstrates that the Veteran has been shown to have been in need of two months of convalescence following his November 9, 2022, left 5th metatarsal exostectomy.

6. From February 1, 2023, the Veteran's left foot hallux valgus has been operated with resection of the metatarsal head.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for the Veteran's acquired psychiatric disability throughout the appeal period are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, Diagnostic Code 9435.

2. The criteria for a rating in excess of 20 percent for left foot pes planus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276.

3. The criteria for entitlement to a rating in excess of 20 percent for the Veteran's left foot tarsal coalition with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276-5284.

4. The criteria for a temporary total rating from November 9, 2022, to January 31, 2023, pursuant to 38 C.F.R. § 4.30 for left foot hallux valgus with 5th metatarsal exostectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.30.

5. From February 1, 2023, the criteria for a separate rating of 10 percent for left foot hallux valgus, with left 5th metatarsal exostectomy, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280.

REAS
38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.30.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1982 to October 1987.

In the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the June 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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.

The Board acknowledges that in argument submitted with the Veteran's August 2025 VA Form 10182, the Veteran's representative indicated that the Board should address entitlement to a total disability rating due to unemployability due to service-connected disabilities (TDIU). When evidence of unemployability is submitted during the course of an appeal from an assigned rating, a claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 App. 447, 453-54 (2009). In this case, the Board finds that TDIU has not been raised by the record and the Board will not further address it. In this regard, in a May 2023 VA psychiatric examination, the Veteran reported that he was employed at the United States Postal Service as an electronic technician and had maintained the position for 15 years. Neither the Veteran nor his attorney has alleged or indicated that this employment is marginal employment or employment in a protected environment, and the record does not otherwise suggest that it is. Moreover, the Veteran's representative's statements consist of boilerplate language that is not specific to the Veteran's appeal. Such vague, unspecific assertions without corresponding evidence indicating a suggestion of unemployability do not raise the theory of entitlement to TDIU. Thus, the Board will not further address entitlement to TDIU in this decision.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A veteran's entire
C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath, 1 Vet. App. 589. Where entitlement to compensation already has 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). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge).

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

A. Acquired Psychiatric Disability

The Veteran's acquired psychiatric disability is rated 50 percent disabling throughout the appeal period under DC 9435.

Under the General Rating Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411.

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Therefore, although the veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a higher evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b).

The June 2023 rating decision awarded service connection for unspecified depressive disorder, evaluated as 50 percent disabling, effective June 3, 2022. The Veteran filed a June 2024 VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), seeking review of the rating assigned. In a September 2024 HLR decision, the AOJ denied a rating in excess of 50 percent and the Veteran appealed the rating assigned via the August 2025 VA Form 10182 currently before the Board. Thus, the Veteran has continuously pursued an appeal for an initial increased rating for unspecified depressive disorder.

A March 2022 VA treatment note documents that the Veteran had thoughts about suicide.

An April 2023 VA treatment note documents that the Veteran indicated that over the past month he had experienced actual thoughts of killing himself and wished he was dead or could go to sleep and not wake up. He further indicated that in the past month he had not been thinking about how he might commit suicide, had not had an intention to act on the thoughts, and had not started to work out the details of how to act on the thoughts.

The Veteran was afforded a VA examination in May 2023 and the examiner diagnosed unspecified depressive
the Board. Thus, the Veteran has continuously pursued an appeal for an initial increased rating for unspecified depressive disorder.

A March 2022 VA treatment note documents that the Veteran had thoughts about suicide.

The Veteran was afforded a VA examination in May 2023 and the examiner diagnosed unspecified depressive disorder and alcohol use disorder (moderate and in full remission). The examiner noted it was not possible to differentiate what symptoms were attributable to each diagnosis because the symptoms overlapped. The Veteran stated he resided with his girlfriend and that they have known each other for 20 years but had become a couple one year ago. The Veteran denied ever being married and noted that he did not have any children. The Veteran added that he had contact with some of his extended family members. The Veteran noted he was currently employed at the United States Postal Service as an electronic technician and has held this position for 15 years. The Veteran indicated that he enjoys his job, but sometimes experiences frustration, anger, and irritability with other employees. The Veteran stated he has suicidal ideations and has attempted suicide on four occasions. He denied current plan or intent to harm himself during the examination and the examiner determined he was at a low acute risk for suicide. The Veteran endorsed active symptoms of social isolation, depressed mood, anhedonia, sleep problems, negative self-thinking, anger, irritability, and poor concentration. The examiner noted that the Veteran presented as friendly and cooperative and his appearance was well-groomed and appropriate for the setting. He was alert to time, place, and purpose for evaluation. His mood was normal and congruent with affect. His speech was clear with a normal rate and tone of voice. His thought process was logical. He showed adequate insight and was able to describe information in a narrative format. The examiner did not observe hallucinations or delusions. The examiner noted that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and suicidal ideation. The examiner opined that the Veteran's acquired psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity.

After evaluating the evidence of record, the Board finds that the symptoms of the Veteran's acquired psychiatric disability throughout the entire appeal period most nearly approximate the criteria for a 70 percent rating. The record indicates the Veteran's symptoms during this period included social isolation, depressed mood, anhedonia, negative self-thinking, anger, irritability, poor concentration, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, suicide attempts, and suicidal ideations. This evidence shows deficiencies in judgment, thinking, and mood throughout the appeal period. For example, the evidence reflects that the Veteran has irritable behavior and angry outbursts at his coworkers. Also, the VA examiner noted the presence of impaired judgment. Moreover, the record shows the presence of suicidal ideations and suicide attempts. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (noting that "the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas").

The Board has further considered whether the Veteran is entitled to a 100 percent rating at any time during the appeal period. In analyzing the evidence, the Board has considered, but has not exclusively relied upon, the symptoms associated with a 100 percent rating in the General Formula, and has focused on evaluating the frequency, duration, and severity of all of his symptoms. The evidence persuasively weighs against a finding that the Veteran's service-connected psychiatric disorder has been manifested by total social and occupational impairment.

The Veteran has been shown to be consistently employed throughout the appeal period. While he indicated that he sometimes experiences frustration, anger, and irritability with other employees, he also indicated that he enjoys his job. This evidence weighs against a finding that the frequency, duration, and severity of his acquired psychiatric disability symptoms have resulted in total occupational impairment.

Also, the evidence persuasively weighs against a finding that the Veteran's service-connected psychiatric disorder has been manifested by total social impairment. The Veteran lives with his girlfriend and keeps in touch with extended family members.

Furthermore, the evidence has not reflected that the Veteran
asively weighs against a finding that the Veteran's service-connected psychiatric disorder has been manifested by total social and occupational impairment.

Furthermore, the evidence has not reflected that the Veteran has experienced symptoms that would be of such frequency, duration, and severity to reflect total occupational and social impairment, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran is rarely, if ever, shown to be disoriented to time and place or to have gross impairment in thought processes or communication. The evidence also fails to show symptoms of such frequency, duration, and severity to more nearly approximate memory loss for names of close relatives, own occupation, or own name, an intermittent inability to perform activities of daily living, grossly inappropriate behavior, or persistent delusions or hallucinations. Although the Veteran has reported having suicidal ideation and prior suicide attempts, the record fails to show that he is a persistent danger of hurting himself or others. In this regard, during the May 2023 examination, the examiner indicated that he was at a low acute risk for self-harm. Additionally, during an April 2023 suicide screen, although he reported having suicidal ideation in the past month, he reported that during that time he had not been thinking about how he might commit suicide, had not had an intention to act on the thoughts, and had not started to work out the details of how to act on the thoughts. As such, the evidence persuasively weighs against a finding that the Veteran's service-connected psychiatric disorder has been manifested by total occupational and social impairment at any time during the appeal period.

The Board has also considered the Veteran's statements and other lay evidence regarding the severity of his psychiatric disorder. The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran and other lay evidence do not more nearly approximate the criteria for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disorder.

The Board has considered whether any further staged rating is appropriate and finds that the record does not indicate any significant increase or decrease in the Veteran's symptoms that are not already accounted for by the assigned ratings. Therefore, any further staged rating is not warranted. See Fenderson, 12 Vet. App. at 126.

Accordingly, the Board concludes that a rating of 70 percent, but no higher, throughout the appeal period for the Veteran's service-connected acquired psychiatric disorder is granted.

B. Left Foot

On June 3, 2022, VA received the Veteran's intent to file a claim for compensation. In March 2023, the Veteran filed a claim seeking an increased rating for his left foot condition. A June 2023 rating decision continued a 20 percent rating for tarsal coalition and pes planus with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion, left foot. In June 2024, the Veteran requested an HLR of the rating assigned for the left foot disability. In the September 2024 rating decision, the AOJ continued a 20 percent rating for the left foot tarsal coalition and pes planus with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion (left foot tarsal condition) under Diagnostic Code 5284. The AOJ also determined that a separate compensable rating was warranted for left foot pes planus and granted service connection for pes planus of the
for tarsal coalition and pes planus with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion, left foot. In June 2024, the Veteran requested an HLR of the rating assigned for the left foot disability. In the September 2024 rating decision, the AOJ continued a 20 percent rating for the left foot tarsal coalition and pes planus with degenerative arthritis, status post talonavicular and calcaneo-cuboid fusion (left foot tarsal condition) under Diagnostic Code 5284. The AOJ also determined that a separate compensable rating was warranted for left foot pes planus and granted service connection for pes planus of the left foot, evaluated as 20 percent disabling, effective February 7, 2021, under Diagnostic Code 5276. The August 2025 VA Form 10182 appealed both ratings assigned for the left foot. Thus, the appeal of the proper ratings for the left foot conditions has been continuously pursued since the June 2023 rating decision.

The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45.

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 flareups 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 (musculoskeletal system) or § 4.73 (muscle injury); 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.").

Left Foot Factual Background

A September 2021 VA treatment note documents that the Veteran was seen to discuss a left foot surgery in the spring of 2022 to remove spurs. The Veteran's pain in the left foot was noted to be 8 out of 10. He found the orthotics to be helpful, but they were too hard and the arch was a little too high. He requested new inserts that were a little softer. He also reported needing new orthopedic shoes. Physical examination revealed no motion in the left subtalar joint, the left foot was tender to touch from the orthotic pressure. The base of the fifth metatarsal bone in the left foot was noted to be prominent and painful. There was no edema or erythema to the styloid process. There was no inversion or eversion of the left subtalar joint. There was pain to the sinus tarsi area with direct pressure and with excessive inversion and
8 out of 10. He found the orthotics to be helpful, but they were too hard and the arch was a little too high. He requested new inserts that were a little softer. He also reported needing new orthopedic shoes. Physical examination revealed no motion in the left subtalar joint, the left foot was tender to touch from the orthotic pressure. The base of the fifth metatarsal bone in the left foot was noted to be prominent and painful. There was no edema or erythema to the styloid process. There was no inversion or eversion of the left subtalar joint. There was pain to the sinus tarsi area with direct pressure and with excessive inversion and eversion of the foot. He was referred for an examination to obtain new orthotics.

A February 2022 VA treatment note documents that the Veteran presented with pain along the left lateral 5th metatarsal styloid process. The pain was noted to be 10 out of 10. A bursal sac was noted along the left 5th metatarsal base. Physical examination revealed pain to palpation along the left 5th metatarsal base. X-ray results reflected hallux valgus deformity; narrowing of the first metatarsophalangeal joint with adjacent soft tissue swelling. There was interval progression of the hallux valgus deformity and degenerative changes at the first metatarsophalangeal joint; calcaneal enthesophytes, and flattening of the planar arch on the upright view.

In August 2022, the Veteran was seen for a bursal sac at the left 5th metatarsal styloid process. There was pain to palpation along the left 5th metatarsal base. The Veteran was advised that surgery was the only reasonable option.

A November 9, 2022 VA treatment note documents the Veteran underwent left 5th metatarsal exostectomy and was expected to be out of work until at least mid-December 2022.

Approximately two weeks after the surgery, the Veteran was seen for a follow up. The Veteran described his current pain as a 6 out of 10 and noted he was no longer taking pain medication. The Veteran reported that he was not putting any weight on his left foot. Shooting pain and tingling along the course of sural nerve upon palpation was noted and pain was stated to be extremely sharp to palpation over the dorsal aspect of incision of the left foot. Muscle strength was 5/5 for all pedal muscles. The Veteran's range of motion for the left ankle, subtalar joint, midtarsal joint, and first metatarsophalangeal joint was normal.

A December 2022 VA treatment note documents that the Veteran would most likely return to work on December 29, 2022.

A January 10, 2023, VA treatment note documents that the Veteran was doing much better, that he had returned to work, was standing 4 to 5 hours per day, and had some pain. There was pain on palpation at the base of the fifth metatarsal of the left foot. Muscle strength was 5/5 for all pedal muscles. The Veteran's range of motion for the left ankle, subtalar joint, midtarsal joint, and first metatarsophalangeal joint was normal.

An April 2023 VA treatment note documents that the Veteran noted that his pain had decreased and he was no longer taking any medications for pain. The Veteran's left foot incision site was well healed, sutures were intact, and no drainage was noted. There was pain on palpation to the base of the fifth metatarsal of the left foot. Muscle strength was 5/5 for all pedal muscles. The Veteran's range of motion for the left ankle, subtalar joint, midtarsal joint, and first metatarsophalangeal joint was normal.

The Veteran was afforded a VA examination in April 2023. The Veteran described having sharp pain with prolonged standing and walking. The Veteran reported having surgery on the left foot in November 2022 and that he was off work until the end of December 2022. It was noted that he had now undergone 5 surgeries on his left foot. He reported that the lateral side of his foot was no longer rubbing against his shoe and that the surgery was an improvement, but that he still had daily pain in his left foot, especially at work. He reported having sharp pain with prolonged standing and walking that causes him to have to sit down. The pain was located on the medial and lateral side of the foot. The Veteran noted he has swelling if he
April 2023. The Veteran described having sharp pain with prolonged standing and walking. The Veteran reported having surgery on the left foot in November 2022 and that he was off work until the end of December 2022. It was noted that he had now undergone 5 surgeries on his left foot. He reported that the lateral side of his foot was no longer rubbing against his shoe and that the surgery was an improvement, but that he still had daily pain in his left foot, especially at work. He reported having sharp pain with prolonged standing and walking that causes him to have to sit down. The pain was located on the medial and lateral side of the foot. The Veteran noted he has swelling if he stays on his feet for too long. The Veteran added that he has numbness and tingling in the first three toes and he was unsure if this would resolve, as the surgeon indicated his foot was still healing. The Veteran described having severe flareups and noted the symptoms included extreme pain that lasts for a day or two, comes three or four times a month, is precipitated by more physical activity, and alleviated by rest. The Veteran stated that during flareups he cannot work and cannot do things the same as before flareups. The Veteran reported functional loss in terms of sharp pain with prolonged standing and walking that causes him to sit down. The examiner noted that the Veteran had pain on use and that the pain was accentuated on use, there was pain on manipulation and the pain was accentuated on manipulation, and there was swelling. The Veteran did not have calluses. The Veteran's left foot disability was noted to require the use of an orthotic insert, specifically the Veteran was noted to use arch supports. The Veteran did not have extreme tenderness of plantar surfaces. The Veteran did have decreased longitudinal arch height on weight bearing and there was objective evidence of marked deformity of the left foot. There was no marked pronation of the left foot. The Veteran was noted to have inward bowing of the Achilles' tendon (i.e. hindfoot valgus, with lateral deviation of the heel) of the left foot. The weight bearing line was over or medial to the great toe in the Veteran's left foot. There was evidence of pain with weight bearing. The Veteran did not have marked inward displacement and severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation of the left foot. The examiner indicated that the Veteran did not have Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus (claw foot), pain and tenderness due to pes cavus, or dorsiflexion and varus deformity due to pes cavus. There was no malunion or nonunion of the tarsal or metatarsal bones. The examiner indicated that the Veteran had sharp pain with prolonged standing and walking causing him to sit down. The pain was located on the medial and lateral side of the foot. The foot swelled the more he was on it. He also had numbness and tingling in the first 3 toes but was not sure if that would resolve over time after the surgery. The examiner indicated that the Veteran experienced functional loss from swelling and pain in the left foot that significantly limited functional ability during flare ups and after repeated use over time. The Veteran occasionally used a brace on the left foot and constantly used orthotics. The Veteran reported that around the house he does not do activities like mowing the lawn anymore and that he has to do things in stages. The examiner noted the February 2022 X-ray results, including that they reflected hallux valgus deformity. The examiner noted that the new left foot surgery, status post 5th metatarsal exostectomy, is related to his current service-connected left foot condition and should be added as a diagnosis to his service-connected condition.

i. Pes Planus

As noted above, the Veteran's left foot pes planus is rated under DC 5276 and is assigned a 20 percent disability rating from February 7, 2021.

Under Diagnostic Code 5276 for flatfoot, a 20 percent rating is assigned for unilateral severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276.

A maximum 30 percent rating is assigned for flatfoot that is unilateral pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orth
5276 and is assigned a 20 percent disability rating from February 7, 2021.

The Board concludes that the evidence persuasively weighs against a finding that the Veteran is entitled to a rating in excess of 20 percent anytime during the appeal period for his left foot pes planus. During the appeal period, the Veteran's left foot pes planus has been manifested by objective evidence of marked deformity, pain on manipulation and use accentuated, an indication of swelling on use, and limitations in walking and standing. These symptoms are contemplated by the assigned 20 percent rating. The evidence fails to show that left foot pes planus manifests in a marked pronation of the left foot, extreme tenderness of the plantar surfaces of the left foot, or marked inward displacement and severe spasm of the tendo Achillis on manipulation. As such, the criteria for a 30 percent rating have not been satisfied.

The Board has also considered ratings under other DCs. The Veteran already has a separate rating for his left foot tarsal condition under DC 5284, and the claim seeking an increased rating under that DC is discussed below. The Board will also discuss below entitlement to a separate rating under DC 5280, for hallux valgus.

For other DCs, the record reflects that the Veteran's left foot disability does not involve weak foot, claw foot, hammer toe, metatarsalgia (or Morton's disease), or malunion/nonunion of the tarsal or metatarsal bones. Thus, Diagnostic Codes 5277-5279, 5282, and 5283 are not for application. The Veteran also does not have hallux rigidus; thus, a separate rating under DC 5281 is not warranted.

In sum, the Board concludes that that the evidence weighs persuasively against a finding that the Veteran is entitled to a rating in excess of 20 percent for left foot pes planus at any time during the appeal period. ?

ii. Tarsal Condition

The Veteran has a separate 20 percent rating throughout the appeal period for his left foot tarsal condition under DC 5284.

Under DC 5284, a 20 percent disability rating is assigned for symptomatology which is moderately severe; and a 30 percent disability rating is assigned for symptomatology which is severe. A 40 percent evaluation is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71, DC 5284.

The words "moderate," "moderately severe," and "severe" used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Indeed, the use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence is evaluated in determining an increased rating. 38 C.F.R. §§ 4.2, 4.6.

In this regard, "moderate" is generally defined as "tending toward the mean or average amount." Merriam-Webster's Collegiate Dictionary 798 (11th ed. 2003). "Severe" is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being of a great degree or serious.

The Court of Appeals for Veterans Claims (Court) held in Prokarym v. McDonald, that a "severe" disability under DC 5276 is not equivalent to a "severe" disability under DC 5284. 27 Vet. App. 307, 312 (2015) (holding that 38 C.F.R. § 4.71a, DC 5284, does not apply
2003). "Severe" is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being of a great degree or serious.

The Court of Appeals for Veterans Claims (Court) held in Prokarym v. McDonald, that a "severe" disability under DC 5276 is not equivalent to a "severe" disability under DC 5284. 27 Vet. App. 307, 312 (2015) (holding that 38 C.F.R. § 4.71a, DC 5284, does not apply to the other eight-foot conditions specifically listed that pertain to musculoskeletal disabilities of the foot). Additionally, the Federal Circuit has recognized DC 5284 as a "catch-all" provision covering foot disabilities not expressly contemplated by other diagnostic codes. Delisle v. McDonald, 789 F.3d 1372, 1372-75 (Fed. Cir. 2015).

The Board concludes that the evidence persuasively weighs against a finding that the Veteran is entitled to a rating in excess of 20 percent at any time during the appeal period for his left foot tarsal condition. The evidence shows that during this time period, the Veteran's disability was manifested by no more than moderately severe symptomology. In this regard, during the April 2023 examination, he reported having sharp pain with prolonged standing and walking that causes him to have to sit down. The pain was located on the medial and lateral side of the foot. He also had numbness and tingling in the first three toes. The Veteran described having severe flareups and noted the symptoms included extreme pain that lasts for a day or two, comes three or four times a month, is precipitated by more physical activity, and alleviated by rest. The Veteran stated that during flareups he cannot work and cannot do things the same as before flareups. The Board finds that the symptoms the Veteran experiences during flareups at most reflect moderately severe symptomatology, or symptoms that fall beyond or above the mean or average amount but fall short of being of a great degree or serious. The Board finds that any higher rating under DC 5284 would result in impermissible pyramiding as the Veteran is already being compensated under DC 5276 for pain on manipulation and use accentuated and swelling on use. 38 C.F.R. § 4.14.

In sum, the Board concludes that the Veteran is not entitled to a rating in excess of 20 percent at any time during the appeal period for his left foot tarsal condition under DC 5284.

iii. Hallux Valgus and Temporary Total Rating

Under Diagnostic Code 5280, a maximum 10 percent rating is warranted if the condition has been operated upon with resection of the metatarsal head; or if the condition is severe, equivalent to amputation of the great toe.

The April 2023 VA examiner noted that the Veteran does not have hallux valgus and that the Veteran did not have surgery for hallux valgus. However, the examiner discussed a February 2022 X-ray that reflects that the Veteran does have a hallux valgus deformity. As explained above, the Veteran underwent a left 5th metatarsal exostectomy on November 9, 2022. An exostectomy is the excision of a benign bony growth projecting outward from the surface of a bone. Exostectomy; Exostosis, Dorland's Illustrated Medical Dictionary 660 (32d ed. 2012). The April 2023 examiner stated that the November 2022 exostectomy was related to the Veteran's current left foot conditions and should be added as a diagnosis for his service-connected condition. The Veteran's treatment records reflect that the exostectomy was completed to address the hallux valgus. Thus, the Board finds the evidence is at least in approximate balance that the Veteran has hallux valgus and that the exostectomy the Veteran underwent in November 2022 is a surgery contemplated by DC 5280 for hallux valgus. As such, the Board finds that a separate rating under DC 5280 for left foot hallux valgus is warranted from the date of the November 9, 2022 surgery.

In this regard, a temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at
at least in approximate balance that the Veteran has hallux valgus and that the exostectomy the Veteran underwent in November 2022 is a surgery contemplated by DC 5280 for hallux valgus. As such, the Board finds that a separate rating under DC 5280 for left foot hallux valgus is warranted from the date of the November 9, 2022 surgery.

In this regard, a temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The total rating will be followed by appropriate schedular evaluation.

Notations in the medical record as to a veteran's incapacity to work after surgery must be considered in the evaluation of a claim brought under the provisions of § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden, 11 Vet. App. at 430 (citing Dorland's Illustrated Medical Dictionary 415 (30th ed. 2003)). The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986)). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. Id. Temporary total ratings for convalescence are payable from the date of entrance into the hospital and are awarded after discharge. 38 C.F.R. § 3.401(h)(2).

The purpose of a temporary total rating is to aid the appellant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. The inability to return to any employment would, in fact, show a need for continuing convalescence under § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995).

The Board concludes that the Veteran's November 9, 2022, left 5th metatarsal exostectomy required two months of convalescence as reflected by the evidence showing that the Veteran's treating doctors told him he could not work until the end of December 2022. See Seals v. Brown, 8 Vet. App. 291, 296-97 (1995) (noting that the inability to return to any employment would, in fact, show a need for continuing convalescence under § 4.30). Under 4.30, a total disability rating is assigned effective the date of hospital admission, which in this case is November 9, 2022, the date of the Veteran's left 5th metatarsal exostectomy. The Veteran's two month period of convalescence did not start until December 1, 2022, which is the first day of the month following outpatient release for his left 5th metatarsal exostectomy. Thus, the Veteran's convalescence period extends until January 31, 2023, two months after December 1, 2022. Accordingly, as the criteria under 38 C.F.R. § 4.30 are met for the Veteran's left 5th metatarsal exostectomy, a temporary total rating is granted from November 9, 2022, until January 31, 2023.

From February 1, 2023, the Veteran is entitled to a separate 10 percent rating under DC 5280 for unilateral hallux valgus operated with resection of metatarsal head.

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Patel, S., Associate Counsel

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