Citation Nr: 1223265 Decision Date: 07/05/12 Archive Date: 07/13/12 DOCKET NO. 10-09 536 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for capsulitis, status post surgery for hammertoes of both feet. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1983 to October 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Winston-Salem, North Carolina RO, which in pertinent part granted service connection for capsulitis, status post surgery for hammertoes, bilateral feet, rated 0 percent, effective November 1, 2007 (the day following date of separation from service). The Veteran's claims file is now in the jurisdiction of the Jackson, Mississippi RO. In April 2012, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing the Veteran requested, and was granted, a 60 day abeyance period to allow for the submission of additional evidence; such evidence was received in May 2012 with a waiver of RO consideration. FINDING OF FACT Throughout, the Veteran's capsulitis, status post surgery for hammertoes of the bilateral feet, is reasonably shown to have been manifested by symptoms and impairment that may reasonably be characterized as moderate left foot injury (but no more than mild right foot injury), or approximating such level of severity; disability consistent with moderately severe foot injury is not shown at any time. CONCLUSION OF LAW A 10 percent (but no higher) rating is warranted for capsulitis, status post surgery for left hammertoe; a compensable rating for right post-operative hammertoe is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.10, 4.21, 4.71a, Diagnostic Codes (Codes) 5282, 5284 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A February 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to increased initial rating, and a January 2012 supplemental SOC (SSOC) readjudicated the matter after the appellant responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. She has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). At the April 2012 videoconference Board hearing before the undersigned, the Veteran was advised of what she still needs to substantiate the claim; her testimony reflects that she is aware of what is still needed. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in September 2007, December 2009, and October 2011, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). She has not identified any evidence pertinent to the matter addressed on the merits that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file and on Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's capsulitis, status post surgery for hammertoes of the bilateral feet, is rated under Code 5282 (for hammer toe disability). A 0 percent rating is warranted for single toes affected. A 10 percent rating is warranted for all toes, unilateral without claw foot. The foot disability may also be rated under Code 5284 (other foot injuries), which provides for a 10 percent rating for moderate foot injury, a 20 percent rating for moderately severe foot injury, and a 30 percent rating for severe foot injury. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.31, if a diagnostic code does not include criteria for a 0 percent rating, and the criteria for the minimum compensable rating are not met, a 0 percent rating is to be assigned. It is noteworthy at the outset that the schedular criteria in both Code 5282 and Code 5284 encompass only unilateral disability. Consequently, for bilateral pathology a separate rating must be assigned for each foot. On September 2007 pre-service discharge VA examination, the Veteran reported that she developed corns on both feet, on the sides of the fifth toes, in service due to being issued military shoes, particularly during boot camp in 1983. She reported that she tried using a patch and shaving them off then had them surgically removed about 2.5 years earlier. She reported that later, with running, she developed a knot in the left foot about 2 years earlier which had been treated with steroid shots, orthotics, and physical therapy. She reported that she had had surgery mainly for the left second hammertoe about one year earlier; she denied any history of hammertoe surgery to the right foot. She complained of not being able to stand long due to pain on the bottom of the feet at an intensity of 4 [out of 10]. She reported having pain mainly with standing and walking; she denied resting pain or ankle pain. She reported getting daily flare-ups of pain on the bottoms of her feet when walking or standing for 15 minutes. She used insoles (which did not help). For functional limitations, she reported that she could not stand more than 15 minutes or walk more than half an hour. She used Goody's powder for foot pain. On physical examination, a second toe scar of the left foot was noted to measure 2 inches in length and 0.1 inch in width; it was well-healed, not painful on examination, superficial, not adherent to underlying tissues, stable, of normal texture, and showed no elevation or depression of the surface contour, inflammation, edema, or keloid formation. It caused no functional limitations. There was moderate swelling of the right ankle down into the right foot with a healing ulcer in the medical side of the right ankle measuring 1 centimeter in length and in width; no tenderness was noted. On the right fifth great toe, a healed scar from corn removal measured 0.5 inch by 0.1 inch; there was no right hammertoe. The right foot had a callus on the side of the metatarsal head, and the left foot had a callus on the side of the great toe; there was no tenderness of either callus. No other foot abnormality was noted. X-rays of the feet showed resection of the proximal phalanges of the small toes bilaterally, and erosion or possibly post-traumatic sequela in the left second toe. The impressions included capsulitis of both feet; it was noted that in service, the Veteran was followed by the podiatry clinic for foot pain and had capsulitis of both feet diagnosed. There was no right foot hammertoe, and the left foot was status post hammertoe surgery. In a March 2009 notice of disagreement, the Veteran stated that the reason she underwent foot surgery was for a knot on the bottom of the left foot under the toe on which surgery was performed. She stated that the knot went away after surgery but had returned; she had first noticed the knot on active duty as it occurred when she was required to run every day, 5 days per week with a Seabee Battalion. She stated that she had not had any problems with a knot in the bottom of her foot until reporting to that Battalion. She stated that she had been having cramps in both feet and had recently sought treatment with her physician, who had prescribed the muscle relaxer Flexeril. On June 2009 treatment, the Veteran complained of painful bilateral hammertoes of several years' duration. She complained of pain with shoe wear and activity. She reported no history of trauma or change of activity. She had tried shoe wear changes, which had helped, however she still had pain with certain activity and shoes. On physical examination, there was no edema or erythema of either foot. There was full range of motion of the metatarsophalangeal joints bilaterally. There was 5/5 muscle power to all groups of both lower extremities, and there was a hammer digit syndrome to the second toe of both feet that was semirigid at that time. Neurovascular status was intact. The assessment was hammer digit syndrome of both feet. Suggested conservative treatment included shoe wear changes and padding versus surgical intervention which would include a proximal interphalangeal joint arthroplasty. June 2009 X-rays of the left foot showed osteoarthritis of the proximal interphalangeal joint of the second toe, probable postsurgical changes in the region of the proximal interphalangeal joint of the fifth toe, and an Achilles calcaneal spur. X-rays of the right foot showed probable postsurgical changes in the region of the proximal interphalangeal joint of the right fifth toe and an Achilles calcaneal spur. On December 2009 VA examination, the Veteran reported that she underwent arthroplasty to the left fifth digit proximal interphalangeal joint with osteoplasty with capsulotomy and KY fixation for hammertoe deformity, as well as to the proximal interphalangeal joint of the left second toe and the metatarsophalangeal joint. She was receiving ongoing treatment, and the examiner noted the treating physician's findings of hammertoe digit to the second toe of both feet that was semirigid, with full range of motion of the metatarsals, and X-rays showing arthritic changes at the proximal interphalangeal joint of the left second toe. The Veteran reported no further surgery on her foot but she had chronic sharp pain, worse with standing and walking than at rest. No weakness was reported. She reported cramping of the foot occurred once to twice per week, leading to both big toes overlapping the second toe bilaterally, which normally lasted for one hour. She did not know what precipitated the cramps but relieved the cramping by massaging the area and taking extra strength Excedrin for pain. She had several injections in service (but none since separation). She wore shoe inserts but had not been given special shoes or braces. Regarding functional limitations, she reported that standing or walking for 5 minutes would lead to unbearable pain along the forefoot bilaterally; she reported that the right foot was equal to the left, and in an 8 hour day she could stand or walk only for 10 minutes. She reported that normally in her job as an administrative assistant, she would sit at her desk most of the time, but any pain would reduce her productivity and efficiency. Her bilateral foot condition did not interfere with activities of daily living. On physical examination, the Veteran had normal sensation to monofilament. She was noted to have mild hallux valgus of 18 degrees on the right foot and 10 degrees on the left foot. She had a small callus, less than 1 centimeter, along the proximal phalanx of both big toes on the medial surface. There was a small, less than 1 millimeter, callus on the bottom of the left fifth distal metatarsal area with a subcutaneous tendon lesion. No redness, warmth, increased skin temperature, or swelling was noted. She was able to move all of her toes, and there was no evidence of hammertoe. She had congenital pes cavus with slight falling of the left arch. She reported no tenderness to the metatarsophalangeal joints. The examiner could not palpate a calcaneus spur. There was no ulcer or other such deformity. The Veteran had a well healed nontender scar and full movement of all toes without any evidence of hammertoe. She had normal wear on her shoes (that did have inserts). There were no spasms or atrophy, and there was no overriding of the big toes over the second toes bilaterally on examination. There was no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness, or instability except as noted. There was no additional limitation of motion after at least 3 repetitions. Additional limitation due to flare-ups could not be determined without resorting to mere speculation. The June 2009 X-rays were reviewed. The diagnosis was status post arthroplasty of the left fifth toe and chondroplasty of the second toes with X-rays showing bilateral calcaneus spur and osteoarthritis of the second left toe; there was no evidence of hammertoe noted, and there was full range of motion. In a March 2010 substantive appeal, the Veteran stated that the hammertoe problem was never an issue; the problem with her left foot began with a knot on the bottom of the foot that caused pain when she ran or walked. She stated that she had no problems with her feet until she reported to a Naval Construction Battalion in 2000, where she was required to do physical fitness training 3 times per week and would run from 1 to 5 miles on those days; after 3 years, the physical fitness took its toll on her left foot. She stated that "removing the digit" from the toe had not solved the problem with the knot on the bottom of her left foot, which still caused problems. On October 2011 VA examination, it was noted that in service, the Veteran underwent arthroplasty of the left fifth digit proximal interphalangeal joint with osteoplasty with capsulotomy and KY fixation for hammertoe deformity, as well as the left second toe proximal interphalangeal joint and the metatarsophalangeal joint. The course of the foot disability was noted to be worse as the Veteran could not walk or stand for very long, and she would get pain to the whole bottom of the left foot when walking. She complained of pain on the bottom of the whole left foot when walking and standing; the pain was described as being like an ache and occurring daily but not while resting. She reported having flare-ups once to twice per week, triggered by standing or walking for a long time; the feet would get extremely sore the next morning, at an intensity of 8 to 9 out of 10, and she sought relief with NSAIDs, Aleve, or Valium as needed. She reported taking Robaxin, Tramadol, and Lyrica for the dull pain in her feet and her back. She reported feeling a hard knot in her left foot since before she retired from service, before surgery, and the surgery did not help. She indicated the surgical site became painful 2 to 3 times per week with prolonged standing and walking, at an intensity of 7 to 8 out of 10. She reported a history of injury to the right foot before she retired from service, which had to be treated surgically. She reported right foot symptoms including weakness and occasional pain around the area of the medial malleolus with an intensity of 4 to 5 out of 10, and flare-ups once per month with walking or standing. She reported being able to walk for 1 mile and being able to stand for 10 minutes, and she would try to walk daily. On physical examination, the examiner noted that the Veteran had no Morton's neuroma or metatarsalgia, no hammertoes, no hallux valgus, hallux rigidus, or pes cavus, no malunion or nonunion of the tarsal or metatarsal bones, and no other foot injuries such as bilateral weak foot. Left foot exam showed a callus area to the bottom/plantar aspect of the foot at the second metatarsal head (where the Veteran reported a "knot") which was nontender with no redness or swelling. On the dorsal aspect over the second toe, a healed scar was noted as 4.5 by 0.2 centimeters in size, nontender, well healed, and with no skin breakdown or functional limitations due to the scar. Right foot exam showed no abnormality, tenderness, or scars. A minimal callus was noted to the medi-side of the great toe, less than 1 millimeter in size, nontender, and with no functional limitations due to the callus. No pes planus was noted. The Veteran reported regular use of orthotic inserts which did not help. Bilateral range of motion of the ankle joint was dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees, or normal, with no pain on motion. The range of motion of the toes was equal on both sides. The Veteran's gait was normal; she was able to take a few steps on heel and toes, and she was able to do tandem. X-rays showed no acute process. The diagnosis was capsulitis, status post surgery for hammertoes, bilateral feet, with residual subjective symptoms of pain, and a mild callus to the bottom of the left foot. The examiner opined that the Veteran had mild functional limitations with prolonged standing and walking. The examiner opined that the disability did not impact the Veteran's ability to work. At the April 2012 videoconference Board hearing, the Veteran testified that when she underwent toe surgery, the surgeon told her that he would remove the "knot" on the bottom of her foot. She testified that the knot was still there and she still had pain in the left foot to the point that the big toe would try to cross over the second toe; she testified that she would get bad cramps in the left foot and the surgery had not helped at all. She testified that the October 2011 VA examiner did not identify the knot on the bottom of her foot, instead identifying a non-tender scar at the site of the surgery on the toe. She noted that the [non-tender] surgical scar is on the top of the foot while the painful knot is on the bottom of the foot. She testified that she also has a callus on the side of the left foot that does not bother her. After the hearing, the Veteran submitted (with a waiver of RO consideration) a May 2012 private treatment record from her treating physician. The Veteran complained of pain in the second toe of the left foot; it was noted that she had had a hammertoe correction performed by a podiatrist in 2005. She complained of increased pain lately and reported that she still had some Ultram left (prescribed by another physician). The impression was left second toe arthralgia/capsulitis. Pain medications were prescribed. At the outset the Board notes that the Veteran has separately established service connection for residuals of a right ankle injury and for scars (including on the feet); the ratings for such disabilities are not at issue herein. While the findings noted on objective examination have been somewhat inconsistent, the Veteran has been consistent and is credible in her subjective reports of pain to the left foot due to a "knot" on the bottom of the foot. Indeed, X-rays of the feet on September 2007 (pre-discharge) VA examination showed "erosion or possibly post-traumatic sequela in the left second toe"; a June 2009 treatment record noted a hammer digit syndrome to the second toe of both feet that was semirigid at that time; a callus area to the bottom/plantar aspect of the left foot at the second metatarsal head was noted on October 2011 VA examination, at which time the examiner opined that the Veteran had mild functional limitations with prolonged standing and walking; and the impression on May 2012 private treatment was left second toe arthralgia/capsulitis. The Board finds that it is reasonably shown that the Veteran's left foot capsulitis status post surgery for hammertoes approximates a level of severity best characterized as moderate foot injury, warranting the assignment of a 10 percent rating under Code 5284. See 38 C.F.R. §§ 4.3, 4.7. There is no evidence that the service connected left foot disability at issue has manifestations, or causes impairment of function, equivalent to moderately severe foot injury, and the criteria for a still higher rating of 20 percent are neither met nor approximated. Lay statements submitted by the Veteran in support of this claim support that this disability causes her pain. However, they do not support that a rating in excess of 10 percent is warranted, as disability consistent with moderately severe foot injury is not shown. Although she has reported inability to stand or walk for prolonged periods, she has also indicated that the disability does not interfere with activities of daily living. The Board notes that 10 percent is the maximum rating under the other applicable Codes (5282, for unilateral hammertoes, and 5003, for arthritis - here shown by X-ray - with painful motion). Accordingly, rating the disability under these other applicable Codes would not benefit the Veteran. Regarding the right foot, disability consistent with moderate foot injury/all toes hammertoe/or arthritis with painful motion is neither met, nor approximated. Consequently, a compensable rating is not warranted. See 38 C.F.R. § 4.71a, Codes 5284, 5282, 5003. See also 38 C.F.R. §§ 4.7, 4.31. Examinations have been negative for right hammertoe, and calluses found have been nontender. The arthritic changes noted on the left foot are not shown on the right. Consequently, the right foot disability may not reasonably be characterized as consistent with more than mild foot injury (or meeting any other criteria for a compensable rating). Accordingly, a compensable rating for the right foot segment of the disability at issue is not warranted. Furthermore, the Board finds that the evidentiary record presents no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms". Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's capsulitis status post surgery for hammertoes of both feet and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria, and consequently those criteria are not inadequate. The Veteran has not alleged any symptoms or impairment that exist but are not encompassed by schedular criteria. Therefore, referral for consideration of an extraschedular rating is not necessary. Finally, the record does not show or suggest (nor is it alleged) that the Veteran is unemployable due to her capsulitis status post surgery for hammertoes of both feet. On December 2009 VA examination she reported that she was employed in a mostly sedentary administrative assistant position, and the October 2011 VA examiner opined that the foot disability does not impact the Veteran's ability to work. Consequently, the matter of a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 10 percent rating is granted for left foot capsulitis (subject to the regulations governing awards of monetary benefits); however, a compensable rating for right foot capsulitis is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs