Citation Nr: 0810199 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-29 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for residuals of a bilateral metatarsal osteotomy, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for residuals of an injury to the left ankle, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from October 1981 to April 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Regional Office (RO) that denied the veteran's claim for an increased rating for his service-connected disabilities. This case was previously before the Board in May 2006, at which time it was remanded for additional development of the record. As the requested development has been accomplished, the case is again before the Board for appellate consideration. FINDINGS OF FACT 1. The residuals of the veteran's bilateral foot disability more nearly approximate pronounced impairment. 2. The veteran has no more than marked limitation of motion of the left ankle, and ankylosis is not present. CONCLUSIONS OF LAW 1. The criteria for a 50 percent evaluation for bilateral metatarsal osteotomy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2007). 2. A rating in excess of 20 percent for residuals of a left ankle injury is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For an increased-rating claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (Jan. 30, 2008). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in October 2003 and June 2006 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim for an increased rating, including evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disabilities. The letters also advised the veteran as to what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertains to the claim. The June 2006 letter also informed the veteran of the necessity of providing on his own, by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability, and the effect that worsening has on his employment and daily life. The notice also provided examples of pertinent medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. The Board notes that the June 2006 letter also notified the veteran of the evidence needed to establish a disability rating and effective date, to include submitting or advising VA of any evidence that concerns the level of disability. The Board further points out that the statement of the case issued in September 2003 included the diagnostic criteria for an increased rating for each of his service-connected disabilities. The case was last readjudicated in September 2007. Later that month, the veteran indicated that he had no additional evidence or information to submit. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include service medical records, statements submitted on the veteran's behalf, private and VA medical records, and VA examination reports. As discussed above, the VCAA provisions have been considered and substantially complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, including the criteria necessary for higher ratings, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The veteran has been an active participant in the claims process by submitting medical evidence and statements concerning the impact of his service- connected disabilities on his life and employment. Thus, the veteran had actual knowledge of what was needed to substantiate his claim and the types of evidence needed. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Sanders, supra; Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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.A. § 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 a 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). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. I. Residuals of bilateral osteotomies The veteran's bilateral foot disability is rated analogously under Diagnostic Codes 5277-7276. Bilateral weak feet, a symptomatic condition, secondary to constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness is rated by the underlying condition with a minimum rating of 10 percent. Diagnostic Code 5277. A 50 percent rating will be assigned for bilateral acquired flatfoot which is pronounced; 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 orthopedic shoes or appliances. When severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Diagnostic Code 5276. The evidence supporting the veteran's claim includes his statements and some of the medical findings of record. The veteran has been afforded three VA examinations during the course of his claim, as well as receiving outpatient treatment care. The November 2001 VA examination demonstrated that the veteran had decreased sensation on the medial aspect of the left foot. There were scars on the dorsal surface of the third toes of each foot and the fourth toe of the right foot with tenderness to palpation. There was swelling and redness of the metatarsophalangeal joints of each great toe, and some redness at the lateral border of the left fifth toe and more proximal aspect of the foot. It was also noted that the veteran's gait was mildly antalgic and that he lifted up all toes on both feet to limit his pain when walking. X-ray studies of the feet revealed bilateral hallux valgus deformities. The diagnoses included history of weak foot condition; calluses of the bilateral soles; bilateral hallux valgus deformities; and gait disturbance secondary to foot condition. The April 2003 VA examination revealed that the veteran had pain in the soles of both feet when lightly stroked. He resisted passive tarsal motion. VA outpatient treatment records disclose that the veteran complained of bilateral painful toes and bunions in July 2006. There was a bony prominence on the medial aspect of the first metatarsal head, pain on palpation on range of motion, and a bursa on the medial eminence of each foot. The veteran fell in December 2006 and sustained a dislocated second metatarsophalangeal joint of the left foot. He underwent a bunionectomy and open reduction of the dislocated second metatarsophalangeal joint the following month. The veteran was seen in March 2007, and it was reported that he was eight weeks status post the surgery. The veteran asserted that his left foot continued to be stiff. There was decreased range of motion at the first and second metatarsophalangeal joints. On VA examination in March 2007, the veteran related that his pain had become worse since the most recent surgery. He also stated that he had pain in each foot. It was noted that the veteran used an arch support. An examination disclosed severe tenderness to palpation over the left first metatarsophalangeal joint. The range of motion of the first toe was very limited due to the severity of the pain. The examiner was unable to perform repetitive range of motion due to the pain. Range of motion testing of the first metatarsophalangeal joint of the right foot showed that dorsiflexion was from 0-30 degrees, associated with pain, and that palmar flexion was from 0 to 5 degrees with pain. There was tenderness to palpation at the first metatarsophalangeal joint. There was also tenderness at the third and fourth metatarsophalangeal joints, and pain on motion. The impressions were bilateral hallux valgus, chronic pain at the right third and fourth metatarsophalangeal joints, likely secondary to strain, and hammertoe deformity second through fifth digits on the right. Based on the evidence summarized above, the Board concludes that the symptoms of the veteran's bilateral foot condition more nearly approximate the criteria compatible with a 50 percent rating. This is the maximum evaluation under Diagnostic Code 5276. II. Left ankle A 20 percent evaluation may be assigned for severe limitation of motion of the ankle. Diagnostic Code 5271. A 40 percent evaluation may be assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. A 30 percent rating is assignable for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 20 percent rating may be assigned for ankylosis in plantar flexion, less than 30 degrees. Diagnostic Code 5270. The record discloses that the veteran is currently in receipt of the maximum evaluation for limitation of motion of the ankle. There is no clinical evidence that he has ankylosis of the left ankle, and therefore, no basis on which a higher rating may be assigned. For example, the November 2001 VA examination noted 15 degrees of dorsiflexion and 35 degrees of plantar flexion in the left ankle. The April 2003 VA examination noted 15 degrees of dorsiflexion and 50 degrees of plantar flexion. The March 2007 VA examination noted 10 degrees of dorsiflexion and 40 degrees of plantar flexion. Clearly, the criteria for a higher evaluation have not been met. In reaching this decision, the Board has considered the issue of whether the veteran's service-connected bilateral foot or left ankle conditions present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2007); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this regard, the Board notes that the objective evidence does not show that the veteran's service-connected foot and ankle disabilities, by themselves, interfere markedly with employment (i.e., beyond that contemplated in the assigned rating), warrants frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards. Although the veteran reported that he is unemployed, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). In this case, the service-connected disabilities have not resulted in hospitalization, and while he has apparently not worked for some time since he states he cannot walk fast enough or unable to stand for prolonged periods of time, this does not equate to marked interference with employment. In this regard, the Board points out that a private podiatrist noted several weeks after the veteran's surgery in January 2007 that the veteran should be excused from any work-related duty that would require weight bearing for a period of six weeks. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Thus, based on the record, the Board finds that the currently assigned schedular ratings have already adequately addressed, as far as can practicably be determined, the average impairment of earning capacity due to the veteran's service-connected foot or ankle disability. See 38 C.F.R. § 4.1. Therefore, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER A rating of 50 percent for bilateral metatarsal osteotomy is granted, subject to the governing law and regulations pertaining to the payment of monetary benefits. An increased rating for residuals of a left ankle injury is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs