Citation Nr: 0810354 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-39 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial disability rating for residuals of a left bunionectomy, currently evaluated as 10 percent disabling. 2. Entitlement to an increased initial disability rating for residuals of a right bunionectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from August 1999 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. The veteran testified before the undersigned Acting Veterans Law Judge in January 2008; a transcript of that hearing is associated with the claims folder. FINDINGS OF FACT 1. Residuals of a left bunionectomy are manifested by subjective complaints of swelling and pain with prolonged standing and walking; objective findings show full range of motion with no clinical evidence of swelling, instability, weakness, or malunion or nonunion of the metatarsal or tarsal bones. 2. Residuals of a right bunionectomy are manifested by subjective complaints of swelling and pain with prolonged standing and walking; objective findings show full range of motion with no clinical evidence of swelling, instability, weakness, or malunion or nonunion of the metatarsal or tarsal bones. CONCLUSIONS OF LAW 1. Criteria for an increased initial evaluation for residuals of a left bunionectomy, currently evaluated as 10 percent disabling, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5283, 5284 (2007). 2. Criteria for an increased initial evaluation for residuals of a right bunionectomy, currently evaluated as 10 percent disabling, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5283, 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board has carefully reviewed the claims folder and finds that letters dated in February 2004, May 2005, and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The February 2004 and May 2005 letters advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. These letters also expressly advised the veteran of the need to submit any evidence in her possession pertaining to her higher initial rating claims; they also informed her what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice concerning a service connection claim must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 letter provided such notice. The February 2004 letter was sent to the veteran prior to the April 2004 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice in accordance with Dingess was sent to the veteran after the initial adjudication. Nevertheless, the Board finds this error nonprejudicial to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the March 2006 letter fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra, and after the notice was provided the case was readjudicated and a June 2007 supplemental statement of the case was provided to the veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). The Board notes that the Court has issued a decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008), regarding the notice required for an increased compensation claim. In Vazquez-Flores, the Court distinguished claims for increased compensation of an already service-connected disability from those regarding the initial-disability-rating element of a service connection claim. In addition, the Court has previously held that, when the rating decision that is the basis of the appeal was for service connection for a disability, once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess, 19 Vet. App. at 490-91, aff'd by Hartman v. Nicholson, 483 F.3d 1311 (2007). As such, in the instant case, a discussion of whether sufficient notice has been provided for an increased compensation claim as discussed in Vazquez-Flores is not necessary. The Board finds that VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard, the veteran's service medical records are associated with the claims folder. The veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding her claim. Finally, the veteran was afforded a VA examination for the specific purpose of rating the current level of severity of her disabilities on appeal. Although the veteran implied through her testimony that this examination was inadequate (brief with little physical examination), the Board has reviewed the June 2007 VA examination report and finds that it fully discusses symptomatology pertinent to the applicable rating criteria. As such, the Board finds that the June 2007 VA examination was adequate for rating purposes. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence [s]he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis As an initial matter, the Board observes that the veteran's separate evaluations for residuals of a left and right bunionectomy are rated under the same diagnostic code. Moreover, as discussed below, the symptomatology for both disabilities has been identical throughout this appeal. For these reasons, the Board will discuss entitlement to higher initial disability ratings for these disabilities together. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service- connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2007). Regulations require that where there is a question as to which of two evaluations is to 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. The Board has considered whether staged ratings are appropriate in the present case. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). See also Hart v. Mansfield, No. 05-2424, (U.S. Vet. App. Nov. 19, 2007). For reasons discussed in more detail below, the Board finds that there is no competent evidence that the veteran's service-connected residuals of a left and right bunionectomy increased in severity during this appeal sufficient to warrant a higher evaluation; therefore, a staged rating is unnecessary. The veteran's service-connected residuals of a right and left bunionectomy have both been rated as 10 percent disabling under the provision of 38 C.F.R. § 4.71a Diagnostic Code 5280 (2007). Diagnostic Code 5280 provides for a 10 percent rating for unilateral hallux valgus that is severe, if equivalent to amputation of great toe; or, operated with resection of metatarsal head. Id. The Board observes that the veteran is already in receipt of the maximum disability rating for each foot under Diagnostic Code 5280. However, in rating this appeal, the RO considered other applicable diagnostic codes, namely, Diagnostic Codes 5283 and 5284, and provided the veteran with the appropriate citation and content for these diagnostic codes in the June 2007 supplemental statement of the case. The Board will therefore consider whether she is entitled to a higher initial disability rating under either of these diagnostic codes as well. First, the Board considered whether a higher initial disability rating was warranted under Diagnostic Code 5283, which is applicable to disabilities manifested by malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Code 5283 (2007). However, as noted by the June 2007 VA examiner, there is no evidence of any malunion or nonunion of these bones in either foot. See also Radiologic Examination Report dated February 19, 2003. Hence, Diagnostic Code 5283 is not for application. According to Diagnostic Code 5284, a 10 percent disability rating is assigned for moderate foot injury, a 20 percent disability rating is assigned for moderately severe foot injury, and a 30 percent disability rating is assigned for severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007). If actual loss of use of the foot is shown by the competent evidence of record, a 40 percent disability rating should be awarded. Id. at Note. Throughout this appeal, the veteran has complained of bilateral foot pain which increases with activity, as well as with prolonged standing or walking. Most recently, she testified before the undersigned that she experiences intermittent shooting pains in her toes with occasional throbbing. She also stated that she can walk about three miles before she has to stop due to pain and that she can no longer wear high heels due to the pain. Objective examinations of the veteran's feet during this appeal reflect symptomatology including tenderness to palpation of the bilateral first metatarsal joints and full range of motion in the joints. See Service Separation Examination Report dated June 4, 2003; see also VA Examination Report dated June 2007. There is an absence of objective evidence of swelling/edema, instability, painful motion, and weakness. Id. The June 2007 VA examiner indicated that the veteran suffered from decreased mobility, fatigue and weakness, and pain due to her service-connected disabilities with mild effects on some of her activities of daily living. The examiner also noted that there had been a 'mild' increase in the severity of the veteran's disability in light of her complaints of increased frequency of pain and swelling. With consideration of the above, the Board concludes that even when the provisions of 38 C.F.R. §§ 4.40 and 4.45 as well as DeLuca v. Brown, 8 Vet. App. 202 (1995) are considered, the competent evidence does not show that the veteran has met the criteria for a higher rating under Diagnostic Code 5284 as her disability picture is more characteristic of moderate right and left foot disabilities, rather than moderately severe. The Board acknowledges the veteran's increased complaints of pain and discomfort; however, it finds that evidence of pain on use and other symptoms, in conjunction with the minimal objective physical findings, is insufficient to establish a moderately severe disability. Moreover, the veteran has not presented any evidence that her residuals of a left and right bunionectomy require assistive devices, such as physician-prescribed orthotics, and she testified that she is still able to walk three miles before stopping due to pain. Finally, she testified that she has not lost any time from work due to her service-connected residuals. Such evidence weighs heavily against increasing her disability ratings above 10 percent, especially when considering that the purpose of the rating schedule is to compensate for decreases in earning capacity due to service-connected disabilities. See 38 C.F.R. § 4.1 (2007). Certainly, there is evidence of some functional loss due to pain, fatigue, and weakness, as contemplated by DeLuca; however, the Board concludes that such loss is more consistent with the currently assigned 10 percent disability ratings. In sum, the Board concludes that the veteran is entitled to initial ratings of 10 percent, and no higher, for residuals of a right and left bunionectomy under the Rating Schedule. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis upon which to assign a higher evaluation for either of the veteran's service- connected disabilities. The Board has also considered the applicability of the benefit of the doubt doctrine. However, as a preponderance of the evidence is against the veteran's claims for initial ratings in excess of 10 percent the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an increased initial disability rating for residuals of a left bunionectomy, currently evaluated as 10 percent disabling, is denied. Entitlement to an increased initial disability rating for residuals of a right bunionectomy, currently evaluated as 10 percent disabling, is denied. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs