Citation Nr: 0948703 Decision Date: 12/28/09 Archive Date: 01/13/10 DOCKET NO. 05-03 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating for osteomyelitis in excess of 20 percent from February 10, 2002, until February 16, 2003, and to a compensable rating thereafter. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from July 1995 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for osteomyelitis and assigned an initial noncompensable disability rating, both effective December 20, 2002. The Veteran testified at an RO hearing in June 2005. A transcript of that hearing is on file. Although the Veteran requested a Board hearing in Washington, D.C., in March 2006 he withdrew that request. The Board remanded this case in June 2006 for compliance with the Veterans Claims Assistance Act of (2000), to assist in obtaining private clinical records, and afford him a VA rating examination. The Board again remanded the case in February 2009 to provide him copies of documents at his new address, to assist in obtaining private clinical records, and to clarify his representation. As to the latter, the RO notified him by letter dated in April 2009 that his Veterans Service Organization had advised that it was closing its office at the Board. He was informed how to designate a new Veterans Service Organization as his representative or he could represent himself. However, the Veteran did not respond. A July 2009 rating decision granted a 20 percent initial disability rating for osteomyelitis from December 10, 2002, until February 16, 2003, with a noncompensable disability rating to resume effective February 17, 2003. FINDINGS OF FACT 1. From February 10, 2002, until February 16, 2003, the Veteran's osteomyelitic infection was not manifested by involucrum or sequestrum or a sinus. 2. After the initial infection beginning in 2002 until February 16, 2003, there was no evidence of discharging sinus or other evidence of active infection and repeated episodes of osteomyelitis were not shown. CONCLUSIONS OF LAW 1. From February 10, 2002, until February 16, 2003, the criteria for a rating for osteomyelitis in excess of 20 percent are not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5000 (2009). 2. Since February 17, 2003, the criteria for a compensable rating for osteomyelitis have not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided VCAA notice by RO letter dated in December 2003, in which he was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. He was also notified that VA would obtain records from Federal agencies, and that he could submit private medical records or authorize VA to obtaining private medical records on his behalf. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of an NOD with the RO's rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See 38 C.F.R. § 3.159(b)(3) (2009). Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for initial higher ratings. Dingess at 19 Vet. App. 473. As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the five elements of a service connection claim), aff'd Hartman v. Nicholson, 483 F.3d 1311, 2007 WL 1016989 (C.A. Fed. 2007). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran testified in support of his claim at a June 2005 RO hearing. The RO has obtained the Veteran's service treatment records and VA clinical records. Private clinical records are also on file. The Board remanded this case in June 2006, in part, to afford the Veteran a VA rating examination. In a March 2007 letter he refused to report for another examination because of the way he was allegedly treated during two VA examinations at the East Orange, New Jersey VA Medical Center (VAMC) and because he felt that the medical evidence already submitted to VA was sufficient. He reiterated his conviction that he was never report for a VA examination in a subsequent letter dated in April 2009. Because this case arises from the appeal of an initial disability rating assigned upon an original grant of service connection, it is to be considered "an original compensation claim" and falls within the scope of 38 C.F.R. § 3.655(b) which requires that when a veteran fails to report for an examination, the claim should be rated based on the evidence of record, as opposed to being summarily denied. See Turk v. Peake, 21 Vet. App. 565, 569 (2008) (holding that in an appeal of an initial disability rating assigned upon a grant of service connection, the claim was an 'original compensation claim'). Thus, in this case, the claim must be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Also, an August 2009 RO letter to the Veteran noted that had had indicated he had received treatment from St. Peter's Hospital, Northwestern University Medical Center, Rahway Hospital, and Robert Wood Johnson Hospital. The RO had previously received treatment records from Dr. Lintz, Dr. Giegerich, and from Nextron Infusion Services. He was informed that if the providers listed in his recent letter were from facilities other than those that the RO had already obtained records form, he should execute and return releases for each newly mentioned health care provide so that the RO could obtain more treatment information. Or, he might want to obtain those records and send them to the RO. However, the Veteran did not respond to the RO letter. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background In December 2002, the Veteran was hospitalized at the St. Peter's University Hospital for some soreness of a toe without any specific injury. There was no fluctuance or drainage, but he had taken some antibiotics as an outpatient without improvement, followed by developing high fevers. Upon admittance, he was placed on intravenous antibiotics and rapidly improved. When discharged he had minimal if any erythema of the toe and no drainage or fluctuance. A December 2002 magnetic resonance imaging (MRI) examination of the Veteran's right foot at the St. Peter's University Hospital revealed evidence of subcutaneous and soft tissue inflammatory changes in the right great toe, and abnormal osseous edema consistent with osteomyelitis in the distal phalanx of the great toe. There might be additional marrow edema in the distal most aspects of the proximal phalanx of the great toe at the interphalangeal joint. A January 2003 MRI examination at the Northwestern Memorial Hospital reported findings compatible with osteomyelitis and cellulitis in the distal phalanx of the great toe. Treatment records of Dr. Lintz reflect at in January 2003 it was reported that the osteomyelitis of the Veteran's right great toe had resolved. However, he was continued on antibiotics. A February 2003 biopsy of the Veteran's right great toe at the Northwestern Memorial Hospital yielded a postoperative diagnosis of right great toe osteomyelitis. However, the final pathology report, dated February 17, 2003, was that there was no evidence of osteomyelitis. A March 2003 radiology report stated the cortical margins of the medial aspect of the first distal phalanx were irregular, consistent with the clinical diagnosis of bony infection. Plain X-ray film findings were compatible with osteomyelitis involving the right first distal phalanx. More extensive bony infection could not be excludes based on the plain films. Records of Dr. Giegerich show that an April 2003 X-ray, compared to films a couple of weeks earlier, showed only a small little area on the proximal aspect of the distal phalanx which he had had a biopsy and which was consistent with post-operative changes, but no progressive destruction at all. The Veteran was told that the treating physician felt that the Veteran no longer had osteomyelitis and no longer needed antibiotics. On VA examination for evaluation of the Veteran's diabetes in July 2003 it was noted that the Veteran was a physician. He had been hospitalized in December 2002 for osteomyelitis and was put on intravenous antibiotics. He stated that his diabetes restricted his activities to some degree because of the recent diagnosis of osteomyelitis in December 2002. He had seen a podiatrist 2 weeks prior to the diagnosis and undergone some scrapping for a callus near his right great toe. He subsequently developed cellulitis which had not been healing. Then, after seeing his physician, he went to an emergency room and a MRI of the right foot revealed osteomyelitis within the distal phalanx of the right great toe. He subsequently received two 6-seek courses of antibiotics, some of which were administered intravenously. Occasionally, he still had some pain and erythema at the infection site requiring special types of shoes. On physical examination there was some mild erythema in the right great toe. The diagnosis was type II diabetes mellitus, complicated by osteomyelitis in December 2002 requiring a long course of intravenous antibiotics. Records of Dr. Giegerich show that in August 2003 the Veteran was having absolutely no difficulty with his right foot. There was a little bit of irregular growth of the medial corner of the right great toenail but no redness, skin break down or other problems. On VA examination in December 2003 for evaluation of osteomyelitis it was noted that the Veteran was a neurologist. In July 2002 a private podiatrist had scrapped calluses off the skin of the right great toe, after which the Veteran had redness for 3 or 4 weeks. There was no open wound but the toe was "raw." Four weeks later, that toe was swollen, red, and "tense." He had started himself on Amoxil, an antibiotic, which he later changed to Augmentin. He then saw an internist who stopped the Augmentin and put the Veteran on Flagyl and Cipro. The Veteran then saw a vascular surgeon who had the Veteran admitted to the St. Peter's Hospital where an MRI showed osteomyelitis of the distal phalanx of the right great toe. He was then put on an antibiotic, Zosyn, intravenously for 4 days and discharged with an oral antibiotic, Vantin. At this time, his toe was not yet better. He was then placed on IV Imipenem and Vancomycin, as an outpatient by a physician specializing in infectious diseases. This gave the Veteran an infusion reaction. He then went to Northwestern University Hospital, where he was a staff physician, and was kept off antibiotics completely for 6 weeks. He then took a course of Augmentin for 6 weeks, after which his right great toe returned to normal. At Northwestern University Hospital an MRI was positive for osteomeylitis and conventional X-rays on March 20, 2003, were also positive for osteomyelitis. The Veteran complained of mild burning pain on the dorsum of his right great toe. He had no weakness, stiffness, swelling, heat, redness, fatigability or lack of endurance. His burning pain became worse when changing from resting to either standing or walking. His gait was especially bad when walking. He was not now taking antibiotics but did use a cream which was a form of topical Lidocaine which helped relieve his pain for short periods of time. He used it twice daily and there were no side effects. He now used orthopedic shoes. As to the effects on his usual occupation and activities, he had to keep a pair of slippers in his office which he wore when he saw patients and when his ability to walk was decreased. On physical examination the Veteran had no pain on joint motion, no edema, no erythema and no sign of infection or ulceration. There was no instability and no weakness of the right hallux. However, the right hallux was tender to touch. There was not stance or gait abnormality. There was no callus or skin breakdown and no unusual shoe wear. There were no skin or vascular changes. Sensation was intact to touch by a monofilament, including on the dorsal and plantar aspects of the right hallux. Vibratory sensation was intact, including on the dorsal and plantar aspects of the right hallux. Muscle strength was 5/5 in the lower extremities. He could easily arise on his toes and on his heels. X-rays of the right foot, including the medial cortex of the distal phalanx of the right hallux demonstrated change, possibly consistent with prior acute osteomyelitis. There was a plantar spur on the right calcaneus and the tibial sesamoid was bipartite. The assessment was that the Veteran had mild disability due to limitations in ambulation when pain was present and he could not wear shoes. The diagnosis was chronic osteomyelitis of the right hallux distal phalanx with no acute infection at this time. On VA examination in January 2004 to evaluate the Veteran's diabetes, he denied any neurological symptoms except for the area around the right great toe and the dorsal surface of the right foot where he reported having burning, hyperesthesia- type pain which was chronic and increased with light touch or wearing clothing or shoes. He did wear soft shoes daily and wore slippers most of the time during office work. On physical examination the Veteran had no edema. Dorsalis pedis pulses were within normal limits. The diagnoses included status post osteomyelitis of the right great toe. A May 2004 private radiological examination, a whole body scan, noted that the Veteran had a history of osteomyelitis of the right great toe one year ago. The findings indicated slightly increased activity identified within the ankle joints, right greater than left, and mildly increased activity involving the great toe of the right foot. At the June 2005 RO hearing the Veteran testified that he had had almost constant mild pain in the area of his osteomyelitic infection which was in the area of the right great toe. Now, he could only walk about 3 blocks and could no longer swim. He had not been able to find any shoes that were comfortable. He did not have any weakness. Page 2 of that transcript. He did not have any discharge of pus but he believed he had chronic osteomyelitis because he had constant pain. He believed that it was active because he periodically had to take antibiotics, particularly when he developed redness at the infection site. Page 3. When he developed redness he also has swelling. He had last taken antibiotics 2 or 3 months ago. He had flare-ups every 3 months. Page 4. He saw a physician for this condition every 6 months for checkups. Page 5. At times he had taken antibiotics orally but at other times he had taken antibiotics intravenously. Page 7. The Veteran testified that he was a medical doctor. Page 9. In the past, he had been a volunteer physician at a VA Medical Center and had prescribed himself antibiotics. Page 10. He had even been hospitalized for treatment of his osteomyelitis. Page 12. He had never had a draining sinus. Page 15. Rating Principles Service-connected disorders are rated by comparing signs and symptoms with criteria in separate diagnostic codes which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required. 38 C.F.R. §§ 4.7, 4.21. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). Under 38 C.F.R. § 4.71a, DC 5000, Note 1, osteomyelitis warrant a noncompensable disability rating following cure by removal or radical resection of the affected bone. Under 38 C.F.R. § 4.71a, DC 5000 a 10 percent rating is warranted for osteomyelitis when inactive, following repeated episodes, without evidence of active infection in past 5 years. Note 1 to DC 5000 further provides that the 10 percent rating, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. Note 2 to DC 5000 states that to qualify for the 10 percent rating, 2 or more episodes following the initial infection are required. Under 38 C.F.R. § 4.71a, DC 5000 a 20 percent rating is warranted for osteomyelitis with discharging sinus or other evidence of active infection within the past 5 years. Note 2 to DC 5000 provides that the 20 percent rating on the basis of activity within the past 5 years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. Under 38 C.F.R. § 4.71a, DC 5000 a 30 percent rating is warranted for osteomyelitis when there is definite involucrum (a cover or sheath) or sequestrum (a piece of dead bone that has become separated from sound bone), with or without discharging sinus. A 60 percent rating is warranted when there are frequent episodes, with constitutional symptoms. Under 38 C.F.R. § 4.71a, DC 5000 a 100 percent rating is warranted for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. Analysis Twenty (20) percent for Osteomyelitis - December 10, 2002, to February 16, 2003 For the next higher rating above 20 percent, i.e., 30 percent, for osteomyelitis there must be definite involucrum or sequestrum, with or without discharging sinus. The Veteran acknowledged in his testimony that he had never had a sinus and the Board observes that the clinical records do not show that he has ever had involucrum or sequestrum. Moreover, the Veteran, who is a physician and so his statements constitute competent medical evidence, has never stated that he has ever had involucrum or sequestrum. In the absence of involucrum or sequestrum at any time, a rating in excess of 20 percent for osteomyelitis is not warranted. Noncompensable Rating since February 17, 2003 The February 17, 2003, pathology report found that there was no evidence of osteomyelitis. On VA examination in December 2003 it was reported that radiological studies in 2003, e.g., March 2003, had been positive for osteomyelitis. However, a review of the X-ray reports shows that the findings were consistent with osteomyelitis but they did not confirm the presence of an active infection. Indeed, an April 2003 X-ray was reviewed and compared with prior X-rays and the conclusion was that the findings were consistent with postoperative changes without progressive destruction. In short, the April 2003 X- ray merely confirmed the past osteomyelitic destruction and indicates that there was no current, active infection. Significantly, an August 2003 private treatment note reflects that the Veteran had no difficulty with his right foot and the diagnosis on the December 2003 VA examination was that there was no acute infection. The Board has considered the Veteran's statements and testimony of having continued symptoms, especially pain, in the area of the right great toe. However, as he must recognize the clinical evidence simply does not show that he has had an active osteomyelitic infectious process since the initial episode which began in 2002 and ended in early 2003. The Veteran has questioned the propriety of the staging of the ratings with a reduction from 20 percent to a noncompensable rating. However, while 10 percent is assigned for five years after the osteomyelitis is inactive, after repeated episodes, there is a requirement that there must be more than a single episode of osteomyelitis. Note 2 to DC 5000 specifically requires that there must be 2 or more episodes following an initial infection, before the historical rating of 10 percent may be awarded for a period of five years after the last active osteomyelitic infection. Here, the Veteran has had only one, single episode of osteomyelitis. Accordingly, the 10 percent rating, which may be assigned on an historical basis, is not warranted. Accordingly, the criteria for a compensable disability rating for osteomyelitis since February 171, 2003, are not met. Extraschedular Consideration The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance but not from considering whether the case should be referred for that purpose and must do so if the schedular rating criteria are inadequate and the issue is either raised by the claimant or reasonably raised by the evidence. Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 - 19 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009)). The inadequacy of the schedular criteria is a threshold determination, without which further extraschedular consideration is not required. This requires a comparison of the level of disability and symptomatology with the schedular rating. If the latter reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule and the assigned schedular rating is adequate. If not, secondly, it must be determined whether the disability picture exhibits other related factors, an exceptional or unusual disability picture with related factors as marked interference with employment (but not marked interference obtaining or retaining employment) or frequent periods of hospitalization as to render impractical application of regular schedular standards. Thun v. Peake, 22 Vet. App. 111, 115 - 19 (2008)) (citing VAOPGCPREC 6-96); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). In this case, the disability picture is not shown to be incapable of accurate evaluation with the use of the schedular rating criteria. Also, the disability is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. Moreover, the Veteran has not been frequently hospitalized on account of the osteomyelitis and it has not caused marked interference with his employment, i.e., beyond that contemplated by his assigned ratings, or otherwise rendered impractical the application of the regular schedular standards. For this reason, the Board finds no basis to refer this case for consideration of an extraschedular rating. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for an initial rating for osteomyelitis in excess of 20 percent from February 10, 2002, until February 16, 2003, and to a compensable rating thereafter is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs