12-23 490, 12-23 490

Veteran appealed VA regional office ratings for bilateral foot disabilities (right foot and left foot), seeking ratings above 10% for the period prior to October 5, 2009.
Service connection for left foot was originally granted in 1972 at a noncompensable level; both feet were rated 10% in December 2005 and later increased to 20% effective October 5, 2009.
The Board previously denied increased ratings (Dec 2015); Court granted a JMPR in Oct 2016, directing the Board to provide additional reasons addressing range-of-motion characterization.
Record includes a November 2005 VA exam reporting pain, limited ROM (dorsiflexion ~10→8°, plantar flexion ~30→25° after use), pain at rest/standing/walking, moderate functional limitation, and daily flare-ups; treatment largely OTC.
No evidence of surgical procedures, ankylosis, malunion/nonunion, flatfoot, pes cavus, metatarsalgia, hallux rigidus, hammertoe, or other listed severe foot conditions that would trigger higher DCs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Entitlement to an initial rating >10% for right foot prior to Oct 5, 2009	Right foot ROM and symptoms constitute "marked" limitation or "moderately severe" injury meriting >10% under DC 5271/5284	Objective record and 2005 exam show only moderate limitation, preserved mobility, manageable with OTC meds; no criteria for higher DCs met	Denied — preponderance of evidence does not show criteria for >10% were met
Entitlement to a rating >10% for left foot prior to Oct 5, 2009	Left foot worse than right; pain, limited ROM, daily flare-ups warrant >10% under DC 5271/5284	Same as for right: exam and records show moderate limitation only, no severe listed foot conditions or ankylosis	Denied — criteria for >10% not met

Francisco v. Brown, 7 Vet. App. 55 (1994) (distinguishing initial vs increased-rating claims and staged ratings)
Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings for increased-rating claims require distinct time periods with different severity)
DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss: examiner should address weakened movement, excess fatigability, incoordination, pain and quantify ROM loss when feasible)
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board must weigh evidence and deny when preponderance is against claimant)
Thun v. Peake, 22 Vet. App. 111 (2008) (extraschedular referral required where schedular criteria do not contemplate the veteran's unusual disability picture)
Mittleider v. West, 11 Vet. App. 181 (1998) (clarifies the scope of symptoms contemplated by schedular criteria)
Correia v. McDonald, 28 Vet. App. 158 (2016) (requires consideration of pain on active/passive motion and weight-bearing in musculoskeletal exams)
Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (extraschedular rating may be warranted for combined effects of multiple conditions)