Citation Nr: 0005552 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-28 819A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Dissatisfaction with the initial non-compensable rating assigned following a grant of service connection for residuals of fractured right second, third, and fourth metatarsals. ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from September 1966 to September 1969, and from December 1970 to April 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for residuals of fractured right second, third, and fourth metatarsals, and assigned a non-compensable rating to that disability. The Board remanded the case back to the RO for further development in October 1998. The veteran's claims file was thereafter permanently transferred to the Winston- Salem, North Carolina RO in December 1998. FINDINGS OF FACT 1. The veteran's service-connected residuals of fractured second, third, and fourth metatarsals are manifested by complaints of pain in the right foot. 2. The objective medical evidence does not show limitation of motion of the right second, third and fourth metatarsals, and/or additional loss of range of motion due to pain or during flare-ups or functional loss attributable thereto. CONCLUSION OF LAW A rating above the initial non-compensable rating assigned following a grant of service connection for service-connected residuals of fractured second, third, and fourth metatarsals from the effective date of service connection is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20 4.71a, Part 4, Diagnostic Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). A review of the service medical records reveals that the veteran sustained fractures of the second, third, and fourth metatarsals of the right foot in November 1966. The veteran was treated at that time and thereafter returned to duty. The service medical records for the remainder of that period, as well as for his second period of service spanning more than 7 years, are negative for any additional right foot complaints, fractures or residuals thereof. In February 1997, the veteran submitted a claim for entitlement to service connection for residuals of a broken right foot. The veteran indicated that he re-fractured his right foot in August 1996 and had right foot surgery in January 1997. The veteran attributed his 1996 foot fracture to his 1966 fracture, which he contended did not heal properly. He reported no post-service medical treatment for right foot pathology until August 1996. VA treatment records reflect that when the veteran was seen in April 1996, he reported no foot complaints and his gait was described as normal. Outpatient records show that the veteran began to complain of right foot pain in August 1996, at which time he reported onset 3 months ago. The pain was located in the arch of the foot. X-ray examination showed an accessory navicular bone. Treatment for pain in the navicular area continued until he underwent surgical excision of tibialis posterior with navicular tubersity in January 1997. Other foot diagnoses noted were plantar fasciitis, hallux valgus, ingrown toenail and heel spur. February 1997 X-rays of the veteran's right foot showed satisfactory position and alignment of the fractured fragments of the navicular bone as affixed by a metal screw. The fracture lines were still visible. A small calcaneal spur was also noted. VA examination in February 1997 provided a diagnosis of status post fracture of the right foot with recent surgery, with placement of a screw. (At that time, the foot was still wrapped, post-surgery.) The veteran claimed that he had kept having "breaks" and "cracks" in the right foot. In a May 1997 rating decision, the RO granted entitlement to service connection for residuals of fractured second, third, and fourth metatarsals, and a non-compensable evaluation was assigned for that disability, effective March 1, 1997. The RO pointed out that although a diagnosis of symptomatic navicular tubersity fracture was provided in the February 1997 VA examination, the navicular bone is located in the middle of the foot and not in the toe portions of the foot, where the metatarsal bones are located. The RO therefore determined that service connection for the surgical repair of the navicular bone of the right foot is not in order, as that is not part of the metatarsal bone structure and there was no clinical indication, other than by history provided by the veteran, that that fracture site was incurred during the veteran's period of active military service, or that the veteran's prior fractures of the second, third, and fourth metatarsals later caused the fracture of the navicular tubersity. The veteran appealed that determination. The veteran was afforded a VA examination in October 1997. At that time, the veteran complained of right foot pain. Examination of the right foot grossly showed no redness, warmth, or edema. There was a surgical scar on the medial aspect of the foot just superior to the medial malleolus which was approximately 4 inches long. Tenderness along the scar was noted on palpation. Impression was status post fracture of the foot with still residual pain and tenderness. Pursuant to the Board's October 1998 remand, the veteran was afforded a VA examination in June 1999 to determine the current severity of his service-connected residuals of fractured second, third, and fourth metatarsals. At that time, the veteran had some soreness, and some degree of tenderness along the medial arch underneath the area of the surgical scar. The veteran reported some pain in the heel, and gave a history of some tenderness and pain along the sole of the foot in the soft tissue of the mid foot. The veteran noted that the pain increased on weight bearing. The veteran did not volunteer pain on the dorsum of the foot on the right side, or the area of the healed second, third, and fourth metatarsals, but did note some aching at times in that area. On examination there was a slight hallux drift of the foot. The veteran had minimal appearance of pronation of the hindfoot. He still had some preserved arch, medial longitudinal. He had a 4 inch thin medial scar which was non-tender. The veteran evinced some minimal tenderness on deep palpation at the area of the scar and to the sole of the foot. There was minimal tenderness at the distal fourth metatarsal immediately proximal to the metatarsophalangeal joint. This was minimal at best, and there was no tenderness of the sole of the foot in that area or along the sole of the forefoot anywhere. Sensation was intact. The veteran had normal motion of his right ankle. He had no tenderness over the Achilles or immediately below the malleolus. The foot moved normally on the ankle without pain. Functionally, the veteran could obviously retain walking with or without support of a cane. The veteran could stand pain minimally when he stood on his foot; however, noted more pain at the end of the day with weight bearing. The veteran did not complain of weakness and none was exhibited on the examination. The examiner pointed out that the symptoms of soreness on the sole of the foot, and symptoms of recurrent pain were primarily for plantar fasciitis, unrelated to his fractures. The examiner noted that the veteran had essentially no residual functional disability from the fractures of the metatarsals and that they were presumed healed. The examiner attributed the tenderness on deep palpation along the medial longitudinal arch to repair of the navicular fracture. The diagnosis included, "1. Fractures, remote, metatarsal 2, 3, 4 of the right foot, healed, minor discomfort, no functional limitation with ordinary activity (for example, the veteran can undertake a propulsive propelling gait with no symptoms and has good flexion and extension of his toes with good strength). 2. Fracture of the navicular at tibial area with excision and fixation with screw, retained, with residual discomfort; and 3. Plantar fasciitis, right foot, mild." The examiner explained that the veteran had different symptoms related to navicular fracture as opposed to the original metatarsal fractures. The examiner did not believe that it was as likely as not that the navicular fracture of the right foot was incurred in 1966, at that time of the metatarsal fractures or was subsequently due to those fractures after they were healed. The examiner further opined that it was unlikely, although possible, on review of the record, that since 1966 such fracture, navicular, nonhealed, with fragments in the tibial area, would not have been symptomatic to an extent to gain attention and study to see if there was an applicable diagnosis to the veteran's symptoms. Currently, the veteran contends that his service-connected residuals of fractured second, third, and fourth metatarsals have been more disabling since the date of the grant of service connection than has been represented by the non- compensable rating. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court expounded on the evidence required for a full evaluation of orthopedic disabilities. In the DeLuca case, the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 (1999) or 38 C.F.R. § 4.45 (1999). It was also held that the provisions of 38 C.F.R. § 4.14 (1999) (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board noted that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). When there is a question as to which of two evaluations should be applied, the higher evaluation 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 (1999). Under 38 C.F.R. § 4.31 (1999), it is provided that where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. The rating schedule provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). The veteran has been rated under Diagnostic Code 5284 which governs ratings for impairment of the foot. In this regard, the Board points out that the veteran's service-connected residuals of fractured second, third, and fourth metatarsals are rated based upon the severity of a general injury to the feet. "Other" foot injuries of moderate severity warrant the assignment of a 10 percent disability evaluation. Evidence of a foot injury causing moderately severe residuals will result in the assignment of a 20 percent disability evaluation. Evidence of a foot injury causing severe residuals warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, Code 5284 (1999). In this case, the medical evidence shows that the veteran's status post navicular fracture is productive of pain, however, this is a foot disability for which the veteran is not currently service-connected. Specifically, a review of the evidence shows that the veteran's original fracture of the second, third, and fourth metatarsals occurred in 1966, but the veteran's post-service medical records do not show treatment for right foot pain until the second, nonservice- connected navicular bone fracture occurred in 1996. Furthermore, the objective medical evidence shows that the veteran's service-connected residuals of fractured second, third, and fourth metatarsals are healed, with only minor discomfort and no functional limitation with normal activity. The medical examiner in June 1999 noted that the veteran had essentially no residual functional disability from the fractures of the metatarsals. In order to warrant a compensable evaluation, the veteran's foot disability would have to be of at least a moderate degree. In this case, the evidence shows that the veteran's residuals of fractured second, third, and fourth metatarsals are, at most, mild. In addition, the medical evidence, which reflects range of motion testing, does not support the notion that the veteran has additional loss of range of motion due to pain on use or during flare-ups. DeLuca. In fact, the examiner in June 1999 attributed the veteran's pain to his nonservice- connected plantar fasciitis and his navicular bone fracture. Finally, the June 1999 examiner did not believe that it was as likely as not that the navicular fracture of the right foot was incurred in 1966, at that time of the metatarsal fractures, or was subsequently due to those fractures after they were healed. In light of the foregoing, a compensable rating for residuals of fractured second, third, and fourth metatarsals in not warranted. According to Fenderson v. West, 12 Vet. App 119 (1999), "at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings." Thus, the Board must consider the proper ratings since the effective date of service connection. In light of the medical evidence, the Board finds that the level of severity of the veteran's service-connected residuals of fractured second, third, and fourth metatarsals does not provide a basis for a compensable rating since the effective date of service connection. As such, the non- compensable disability rating has been properly assigned effective from the same effective date as that in effect for service connection. A compensable rating is not warranted for the reasons and bases previously set forth as there is no additional evidence for review. Accordingly, the medical evidence does not support the veteran's dissatisfaction with the initial non-compensable rating assigned following a grant of service connection for service-connected residuals of fractured second, third, and fourth metatarsals, and a non-compensable rating is warranted from the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20 4.71a, Part 4, Diagnostic Code 5284 (1999). ORDER Entitlement to an initial compensable rating for service- connected residuals of fractured second, third, and fourth metatarsals has not been established, and the appeal is denied. N. R. ROBIN Member, Board of Veterans' Appeals