Citation Nr: 0810952 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-40 811 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected metatarsalgia, status post right foot bunionectomy and 2nd hammer toe correction. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected patellofemoral stress syndrome of the right knee. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1991 to August 1995 This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2003 and January 2004 rating decisions issued by the RO. The veteran testified before a Decision Review Officer (DRO) in a hearing at the RO in March 2006. The Board is aware of a November 2006 statement from the veteran waiving initial RO consideration of evidence submitted October 31, 2006. The Board observes that this additional evidence has not been associated with the claims file; however, given the favorable action, there is no prejudice to the veteran due to a failure to secure this additional information and associate it with the claims file. Accordingly, the Board will proceed with disposition of the issues on appeal. FINDINGS OF FACT 1. The service-connected right foot disability currently is shown to be manifested by a level of disablement that more nearly approximates that of a moderately-severe foot injury. 2. The service-connected right knee disability currently is shown to be manifested by a level of disablement that more nearly approximates that of moderate impairment of the knee. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation of 20 percent for the service-connected metatarsalgia, status post right foot bunionectomy and 2nd hammer toe correction have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.7, 4.71a including Diagnostic Codes 5276-5284 (2007). 2. The criteria for the assignment of an evaluation of 20 percent for the service-connected patellofemoral stress syndrome of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.7, 4.71a including Diagnostic Codes 5256-5263 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA and Applicable regulations On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. The regulations implementing the VCAA provisions have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist him with the development of facts pertinent to his claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the RO has obtained records of treatment reported by the veteran and has afforded him comprehensive VA examinations addressing his claimed disorders. There is no indication from the record of additional medical treatment for which the RO has not obtained, or made sufficient efforts to obtain, corresponding records. The Board is also satisfied that the RO met VA's duty to notify the veteran of the evidence necessary to substantiate his claims in a July 2003. By this letter, the RO also notified the veteran of exactly which portion of that evidence was to be provided by him and which portion VA would attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his or her possession that pertains to a claim. In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, the VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. Here, the noted VCAA letter was issued prior to the appealed September 2003 and January 2004 rating decisions. However, as indicated above, the RO has taken all necessary steps to both notify the veteran of the evidence needed to substantiate his claim and assist him in developing relevant evidence. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, the absence of such notification by VCAA letter is not prejudicial in this case. The veteran was fully notified that he was awarded disability evaluations and an effective date for those evaluations in the appealed September 2003 and January 2004 rating decisions. Further, in a March 2006 letter the RO notified the veteran of the evidence necessary to establish both disability ratings and effective dates in compliance with these requirements. Id. In this case, the Board also is aware that the July 2003 VCAA letter does not contain the level of specificity as discussed in Vazquez-Flores. However, any such procedural defect does not constitute prejudicial error in this case because of evidence of actual knowledge on the part of the veteran. The notification provided the necessary information so that a reasonable person could be expected to understand what was needed to substantiate the claims. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the Board is aware of the veteran's various lay statements and his March 2006 hearing testimony describing the effects of the service-connected disabilities on his employability and daily life. These statements clearly reflect the veteran's awareness that information about such effects is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim." Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge satisfies the first and fourth requirements of Vazquez- Flores. As the veteran makes assertions about the effects of the service-connected disability on his employability and daily life, the Board finds that the second requirement of Vazquez- Flores is not applicable. Accordingly, no further analysis in this regard is necessary. Finally, the September 2003 and January 2004 rating decisions include a discussion of the rating criteria used in this present case. The criteria was further enumerated in the October 2005 Statement of the Case (SOC). Thus, the veteran was made well aware of the necessary requirements for increased evaluations pursuant to the applicable diagnostic codes. Such action thus satisfies the third notification requirement of Vazquez-Flores. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). 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. See 38 C.F.R. § 4.7. II. Factual Background The RO granted service connection in April 1996 and assigned a 10 percent evaluation for the right foot disability and a noncompensable evaluation for the right knee disability. In September 2003, the RO increased the evaluation for the service-connected right knee disability to 10 percent, effective in June 2003. The 10 percent evaluation for the service-connected right foot disability remained unchanged. The VA treatment records from August 2003 to August 2006 are replete with reference to treatment for the right knee and right foot disorders. During an August 2003 VA examination, the veteran complained of a constant pain in his right knee. The veteran rated the severity of the pain as 4 out of 10 normally. With flare-ups, it was 6-7. The veteran noticed the pain when he stood up after sitting down for long periods of time, navigated up and down stairs and had increased bending and lifting at work. Aleve and rest provided some relief, but did not alleviate the pain completely. The veteran had flares of pain on a daily basis. He took Aleve an average of 2-3 times per week and complained of a popping sensation and an occasional feeling of instability in the right knee. He denied any locking. He had stiffness after sitting and also in the morning. He did not have swelling, heat, redness or fatigability related to the knee function or use a knee brace or other device. He worked through his flares of pain, and his knee condition did not interfere with daily activities. On examination of the knee, there was no noted area of tenderness or swelling. He had normal range of motion (0-140 degrees). McMurray, Lachman, anterior, and posterior Drawer tests were all negative. The collateral ligaments appeared stable. His gait was normal. The X-ray report showed no evidence of fracture or dislocation. There was no gross patellar or patellofemoral joint abnormality. There was minimal narrowing of the medial knee joint space. The veteran was diagnosed with right knee patellofemoral stress syndrome with continued right knee pain. The examiner observed the x-ray report showed early arthritic changes. With respect to the right foot, a history of right foot surgery in service was recorded. Postoperatively, he had developed metatarsalgia. He complained of pain on the bottom of his foot in the sole area medially and laterally, especially when walking barefoot. He had no discomfort of the second toe. Because the toe was straightened and raised in the surgical procedure, the veteran's weight was noted to have shifted over the metatarsophalangeal joint of the great toe and over the lateral area of the sole of the foot. He had no stiffness, swelling, heat, redness or symptoms of fatigability. The veteran took Aleve an average of 2-3 times per week; but this was also for his knee pain. On a daily basis, he had pain on the bottom of his foot laterally and medially over the sole that rated at 7 out of 10 in level of severity. Rest provided some pain relief. His pain was primarily present when he was on his feet or would navigate up and down stairs. He did not use corrective shoes or inserts because in the past these devices did not provide any relief. The veteran worked at a paper mill, and his job duties included a lot of walking and standing and wearing steel boots. At work, he noticed his foot symptoms the most. His foot did not interfere with daily activities as he was able to work through the foot pain. On examination of the foot, there was no evidence of any recurrent bunion. There was no tenderness over the second toe where he had the hammertoe correction. The toe was straight. There were healed scars over the second toe and the big toe dorsally. He had tenderness laterally and medially on the bottom of the foot and the sole area under the metatarsophalangeal areas, primarily over the third and fourth toes of the foot. The veteran's great toe turned laterally about 10-15 degrees. He had plantar flexion of the big toe to at least 50-60 degrees. He had dorsiflexion of 20 degrees. His gait and peripheral pulses were normal. There was no evidence of any swelling affecting the distal right foot or corns on the bottom of the feet. He had some thickened callus-like skin on the bottom of the feet in the area of the soles. There was no evidence of skin breakdown. The X-ray report showed right hallux valgus deformity with some associated arthritic changes at the MP joint level of the right great toe. Moderate old appearing deformity of the distal right 1st and 2nd metatarsals was noted. There was focal spurring off the medial aspect of the head of the right 4th metatarsal. There was also some calcification at the insertion of the Achilles tendon. Some hypertrophic changes were noted at the medial malleolar region. The examiner found that the veteran had a right foot bunionectomy and second hammertoe correction with pain in the sole of the foot secondary to shifting weight as a result of the surgical elevation of the right second toe. The examiner reported this was termed metatarsalgia as previously diagnosed. In a June 2004 VA treatment record, the veteran complained of right knee and foot pain. He had pain of the right big toe and between the first and second right toes. He reported his previous surgical history and stated that he had never been pain free. He also complained of pain in the right knee and that the knee would give out suddenly. He did not have swelling, erythema or locking. On examination, the examiner noted the right large toe still deviated and had a surgical scar. There was no swelling, but he had tenderness between the toes. In the right knee, the patella tilted and there was grinding. Pain was elicited under the patella. The diagnosis of femoro-patellar syndrome was confirmed. The veteran was advised to ice the knee. With regard to the right foot, the examiner noted possible neuroma. The veteran was referred for podiatry consultation. In an October 2004 VA podiatry treatment record, the veteran complained of right foot pain that had been ongoing for some time. He was on his feet for long periods of time during the day and had a past right foot surgical history. On examination, the examiner noted pain in the 2nd and 1st interspace with palpable click indicative of a positive molder sign. The X-ray studies revealed degenerative changes to the 1st metacarpophalangeal joint (MPJ) of the right foot. No dislocations or fractures were noted. DP and PT pulses were 2/4, bilaterally. The X-ray studies showed no real definitive changes from the previous August 2003 X-ray report. The veteran was diagnosed with neuroma and his metatarsalgia was confirmed. He was injected with Lidocaine, Marcaine, Dexamethasone and Triamcinolone. He was scheduled for physical therapy. In March 2005, the veteran underwent surgical procedure to remove a bone spur in the right 2nd metatarsal. During an October 2005 VA examination, the veteran complained of continued right great toe and second toe pain. Conservative treatment with custom shoe inserts had failed, and the veteran underwent surgical intervention in March 2005. The surgical intervention was complicated by a suture reaction and possible wound infection requiring a longer period of convalescence. The veteran complained of a shooting pain into the right great toe and 2nd toe. He was considering further surgery to remove the sesamoid bones of the great toe. He complained of a constant low level of pain and a much more severe level of pain during the episodes of shooting pain. The veteran did not have weakness; but complained of stiffness and relatively fixed swelling, heat and redness of the toes. He did not report a lack of endurance. His foot pain symptoms were primarily present with standing and walking and occasionally at rest. The veteran also complained of having numbness around the surgical scars and in the first web space. He was prescribed Darvocet and Diclofenac for pain management, and this was effective and had no side effects. The veteran had episodes of sharp pain lasting "a couple of seconds" about 24 times per day, with a lower level of discomfort between the episodes of sharp pain. He had no lasting periods of pain. His pain symptoms were aggravated by standing and walking, particularly walking up slopes or squatting with toes pushed into dorsiflexion. His pain was relieved by elevation, use of inserts and pain medication. The veteran's pain did not interfere with his function, but did lead him to walk up slopes backwards when carry objects at work because pain was provoked when he walked forward. He did not have significant problems with stairs. He was able to walk without impairment, but had to give up squatting with heavy lifting. His walking pace was slowed somewhat due to the foot pain. On examination, the veteran was noted to have scars over the dorsum of the right great toe metatarsophalangeal joint and a scar with keloid formation over the 2nd toe and 2nd and 3rd interspace. The scar over the 2nd and 3rd web space was very tender to touch but there was no tenderness to palpation elsewhere. Tenderness was elicited at the base of the 2nd toe with full flexion and to a lesser extent with full extension. The range of motion testing was performed four times. He had dorsiflexion to between 12 to 15 degrees in the great toe. He had plantar flexion to between 38 to 42 degrees in the great toe. Great toe interphalangeal joint extension was to 0 degrees. He had flexion to between 15 to 16 degrees in the great toe. The second toe had extension to 0 degrees and flexion to between 19 to 24 degrees. There was no significant difference in active and passive flexion and extension for either toe. The proximal and distal interphalangeal joints were relatively fixed at 10 and 25 degrees of flexion, respectively; this constituted a mild claw toe deformity. Slightly milder claw toe deformities were noted for the 3rd through 5th digits of the right foot. There was no evidence of flat foot. There was mild hallus valgus present, bilaterally, measured at 15 degrees. Sensation was absent to a 10 gram filament over the 1st and 2nd toes on the right foot. The examiner opined that the chronic foot pain did not appear to constitute a significant impairment in terms of job functioning, except when carrying heavy objects up an incline. Further, the foot disorder did not interfere with standing or walking tolerance or stair climbing. In combination with the right knee condition, it slowed his pace. With regard to the right knee, the veteran complained of retropatellar pain and crepitus which he described as "snapping." He had sharp pains when standing from a deep squat. Occasionally, he felt like something "let go" in the knee. He did not have locking in the knee, but did have stiffness that required some time to release. He did not have swelling or redness. The knee did not give out when he walked; he did not complain of fatigability or lack of endurance. He took Darvocet, primarily for his foot problems, but noted benefits for his knee as well. The veteran did not have periods of flare up of his knee problem, but the knee was worse at work with standing, walking and stair climbing. He did not use a supportive device or report any episodes of dislocation or subluxation. There was nothing in the history to suggest inflammatory arthritis. His knee problem interfered with his weight lifting and prevented him from kneeling for long periods of time. On examination, there was no abnormality of the knee, and the gait was symmetrical. There was no tenderness to palpation, but mild tenderness on patellar grind maneuver. There was no bursal swelling, joint effusion or relative warmth. His knee range of motion was measured over four trials. He had extension to 0 degrees and flexion to between 125 and 128 degrees. There was no pain on range testing. Lachman's and McMurray's testing was negative. He was able to squat and rise with symmetrical physiological crepitus noted in the knees. Manual muscle testing showed normal strength. The knee jerk reflexes were normal. The diagnosis of patellofemoral pain syndrome was confirmed and noted to be stable. The examiner noted the pain syndrome interfered with the veteran's ability to tolerate work requiring kneeling on hard surfaces. It did not appear to interfere with his job or with standing or walking. He did not require medication, bracing or other intervention for the knee problem. The veteran reported that his knee condition was essentially unchanged since the August 2003 examination. During a March 2006 VA examination, the veteran reported having to occasionally use a cane to aid in walking. He was able to stand for more than 1 hour but less than 3 hours. He was able to walk more than 1/4 mile but less than 1 mile. He complained of pain, instability and a giving way feeling in his right knee. He did not have stiffness, weakness, locking, effusion or episodes of dislocation or subluxation. He reported having weekly flareups of a moderate degree. He rated the flare ups of pain as 9 out of 10. He complained the pain would last hours. On examination, there was no evidence of abnormal weight bearing. He had extension to 0 degrees. His measured flexion was to between 121 and 123 degrees. He had no significant increase in pain or additional loss of motion on repetitive use due to pain, fatigue, weakness or lack of endurance. The veteran had tenderness to palpation in the lateral collateral ligament. There was no bursal swelling, bulge sign or joint effusion. He had stable Lachman's anterior drawer test. He had noted clicking and snapping with squatting and rising. He had mild crepitus with palpation of the patella. He had no other objective evidence of right knee abnormality. An X-ray report showed no evidence of acute fracture or joint effusion. He had slight narrowing of the medial tibiofemoral space. Bone density appeared normal. The diagnosis of patellofemoral syndrome with degenerative changes was confirmed. The examiner noted the right knee disorder had significant effect on occupational function in that decreased his mobility and caused problems with lifting and carrying objects. Additionally, the veteran had difficulty navigating inclines at work. The knee disorder also had moderate to severe impact on many of the veteran's activities of daily living, including exercise, sports, recreation, traveling, bathing and toileting. A June 2006 MRI report showed mild to moderate cartilage thinning involving the medial femorotibial compartment and patellofemoral articulation. There was mild medial meniscal subluxation. The report showed more focal cartilage irregularity involving the lateral femorotibial compartment tibial surface. There was a small Baker's type cyst. A. Toes of the Right Foot. In this case, the RO has evaluated the service-connected right foot disability under the provisions of 38 C.F.R. § 4.71a including Diagnostic Code 5279 (2007). These criteria provide for a 10 percent evaluation for anterior metatarsalgia whether unilateral or bilateral. As noted, only a 10 percent evaluation is assignable for a disability classified as metarsalgia. However, given the medical evidence of record, including complaints of multiple daily episodes of sharp pain aggravated by standing and walking, particularly walking up slopes or squatting with toes pushed into dorsiflexion as noted in the October 2005 VA examination, the Board finds that the service-connected disability picture more nearly approximates that of a moderately-severe foot injury warranting a 20 percent evaluation under Diagnostic Code 5284 (2007). Here, significantly, the veteran is employed at a paper mill and his job function requires that he be on his feet much of the day, thus aggravating his foot pain. In this regard, the examiner opined that the chronic foot pain did constitute a significant impairment in terms of his job functioning when carrying heavy objects up an incline. As the veteran is not shown to have severe disability, an evaluation higher than 20 percent is not assignable under any other potentially applicable rating criteria. B. Right Knee Patellofemoral syndrome In this case, the RO has evaluated the service-connected right knee disability under 38 C.F.R. § 4.71a including Diagnostic Codes 5257 (2007). Under Diagnostic Code 5257, a 10 percent evaluation is assigned for slight impairment of the knee. A 20 percent evaluation is assigned for moderate impairment of the knee. A 30 percent evaluation is assigned for severe impairment of the knee. Given the veteran's complaints of continuous knee problems as noted in the March 2006 VA examination (pain, feeling of instability and giving way, difficulty with activities of daily living, crepitus, tenderness in the lateral collateral ligament, X-ray findings of narrowing of the medial tibiofemoral space), the Board finds that the service- connected right knee disability picture currently is productive of a level of disablement that more nearly approximates that of moderate impairment of the knee. In this regard, the examiner noted the right knee disorder had significant effect on the veteran's occupational function. The disorder decreased mobility and caused problems with lifting and carrying objects. The Board in this case is unable to find evidence of a limitation of flexion to 15 degrees, malunion of the tibia and fibula with marked knee disability, limitation of extension to 20 degrees or ankylosis of the knee. Thus, an evaluation in excess of 20 percent for either service-connected knee disability is not assignable under any potentially applicable rating criteria. ORDER An increased evaluation of 20 percent, but not higher for the service-connected right foot disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased evaluation of 20 percent, but not higher for the service-connected right knee disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs