Citation Nr: 0811278	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  03-31 394	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUES

1.  Entitlement to an increased rating for right foot pes 
planus, third degree, with claw toes and history of 
osteomyelitis and amputation of the right great toe (right 
foot disability), currently evaluated as 40 percent 
disabling.

2.  Entitlement to an increased rating for left foot pes 
planus, third degree, with claw toes, postoperative (left 
foot disability), currently evaluated as 30 percent 
disabling.

3.  Entitlement to a total rating based on unemployability 
due to service-connected disabilities (TDIU).



REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Sorisio, Associate Counsel


INTRODUCTION

The veteran had active service from March 1974 to February 
1975.    

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2003 rating decision in which the 
Detroit, Michigan, Regional Office (RO) of the Department of 
Veterans Affairs (VA) awarded the veteran a temporary total 
(100 percent) rating for bilateral pes planus, for the period 
from January 10, 2003, through February 28, 2003.  Prior to 
January 10, 2003, this disability had been rated as 50 
percent disabling.  As of March 1, 2003, this disability was 
again rated as 50 percent disabling, with an additional 
separate 10 percent rating assigned for amputation of the 
right great toe, and a noncompensable rating assigned for 
osteomyelitis of the right great toe.  In that rating action, 
the RO also denied entitlement to TDIU compensation.

In September 2003, the RO assigned a separate 40 percent 
rating for the veteran's right foot disability, and a 
separate 30 percent rating for his left foot disability, as 
characterized on the first page of this decision.  These 
ratings were effective as of March 1, 2003.

This case was previously before the Board in April 2006 when 
it was remanded for additional development.  The Board 
remanded this case again in August 2007 to afford the veteran 
a Travel Board hearing before a Veterans Law Judge.  The 
veteran was notified of such a hearing scheduled for October 
24, 2007 via a notice letter dated September 24, 2007, but 
the veteran failed to report.  The veteran did not offer to 
show good cause for his failure to attend and did not request 
that another hearing be scheduled.  See 38 C.F.R. §§ 20.702, 
20.704 (2007).  As such, the Board will consider the request 
for a hearing to be withdrawn.  The case has now been 
returned to the Board for further appellate consideration.

In August 2003, a Decision Review Officer (DRO) hearing was 
held at the RO and a transcript of that hearing is of record.  

As a final preliminary matter, the Board notes that 
statements made by the veteran in the notice of disagreement, 
dated in June 2003, reflect his assertion that he is entitled 
to special monthly compensation due to the loss of use of his 
foot.  As the RO has not yet adjudicated this issue, and it 
is not inextricably intertwined with the issues adjudicated 
on the merits, herein.  As such, it is not properly before 
the Board and is referred to the RO for appropriate action.


The issue of entitlement to TDIU is addressed in the REMAND 
portion of the decision below and is REMANDED to the agency 
of original jurisdiction (AOJ) via the Appeals Management 
Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.   The 40 percent rating currently assigned for the 
veteran's service-connected right foot disability is the 
maximum evaluation for an amputation of a leg below the knee; 
and factors warranting extraschedular consideration have not 
been shown.  

2.  There has not been demonstration by competent clinical 
evidence that the veteran's left foot disability results in 
functional impairment equivalent to the loss of use of the 
left foot.




CONCLUSIONS OF LAW

1.  The schedular criteria for a disability rating in excess 
of 40 percent for right foot pes planus, third degree, with 
claw toes and history of osteomyelitis with amputation of the 
right great toe have not been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.68, 4.71a, 
Diagnostic Codes 5165-67, 5276, 5278 (2007).

2.  The schedular criteria for a disability rating in excess 
of 30 percent for left foot pes planus, third degree, with 
claw toes, postoperative, have not been met.  38 U.S.C.A. §§ 
1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 
4.63, 4.71a, Diagnostic Codes 5165-67, 5276, 5278 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).  

Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 
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; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable AOJ decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for 
Veterans Claims (Court) issued its decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  The Court in Dingess/Hartman held that the 
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a "service 
connection" claim.  As previously defined by the courts, 
those five elements include:  (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.  Upon 
receipt of an application for "service connection," 
therefore, VA is required to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and/or an effective date will 
be assigned in the event of award of benefits sought.  
Because the Court's decision is premised on the five elements 
of a service connection claim, it is the consensus opinion 
within VA that the analysis employed can be analogously 
applied to any matter that involves any one of the five 
elements of a "service connection" claim, to include an 
increased rating claim.

In the present case, VA issued a VCAA notice letter in May 
2006 from the VA to the appellant.  The letter informed the 
appellant of what evidence was required to substantiate the 
claims and of his and VA's respective duties for obtaining 
evidence.  He was requested to submit any relevant evidence 
in his possession to VA.  The May 2006 letter also informed 
the veteran as to the law pertaining to assignment of a 
disability rating and effective date as the Court required in 
Dingess/Hartman. 

According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), 
for an increased-compensation 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.  Further, if the 
Diagnostic Code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation, e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability. 

In the case currently before the Board, the VCAA notice did 
not make specific reference to the relevant diagnostic codes 
and other applicable information.  In Sanders v. Nicholson, 
487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated 
that all VCAA notice errors are presumed prejudicial and 
require reversal unless the VA can show that the error did 
not affect the essential fairness of the adjudication.  To do 
this, the VA must show that the purpose of the notice was not 
frustrated, such as by demonstrating that any defect was 
cured by actual knowledge on the part of the claimant, that a 
reasonable person could be expected to understand from the 
notice what was needed, that a benefit could not have been 
awarded as a matter of law, or perhaps where the claimant has 
stated that he or she has no further evidence to submit, or 
where the record reflects that VA has obtained all relevant 
evidence.  There must be a demonstration that there was no 
prejudice.  See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 
333, 337 (3d Cir.1974) ("[N]o error can be predicated on 
insufficiency of notice since its purpose had been served.").  
In order for the Court to be persuaded that no prejudice 
resulted from a notice error, "the record must demonstrate 
that, despite the error, the adjudication was nevertheless 
essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 
118 (2007).   

The Court has stated that "[n]othing in law or common sense 
supports a conclusion that the Court should put on blinders 
and ignore [the 'extensive administrative appellate process'] 
or a conclusion that a notice error prior to the initial 
decision by the Secretary could not be rendered non-
prejudicial when the full panoply of administrative appellate 
procedures established by Congress are provided to the 
claimant.  It is well settled that a remand is not warranted 
when no benefit would flow to the claimant."  See Vazquez-
Flores.  

A statement of the case under the heading "Pertinent Laws; 
Regulations; Rating Schedule Provisions," set forth the 
relevant diagnostic codes for rating the disabilities at 
issue, and included a description of the rating formulas for 
all possible schedular ratings under those diagnostic codes.  
The appellant was, thus, informed of what was needed not only 
to achieve the next-higher schedular rating, but also to 
obtain all schedular ratings above the evaluation that the RO 
had assigned.  Also, in the present case, the claimant 
demonstrated that there was actual knowledge of what was 
needed to establish the claim.  Actual knowledge is 
established by statements by the claimant and the claimant's 
representative, to include sworn testimony and arguments 
presented at the August 2003 DRO hearing on appeal, that 
demonstrates awareness of what was necessary to substantiate 
the claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 
(2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 
344 (2005).  (See also DRO Transcript "Tr." at 1-3).

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court 
held that compliance with 38 U.S.C.A. § 5103 required that 
VCAA notice be provided prior to an initial unfavorable 
agency of original jurisdiction decision.  Because the VCAA 
notice in this case was not completed prior to the initial 
AOJ adjudication denying the claims, the timing of the notice 
does not comply with the express requirements of the law as 
found by the Court in Pelegrini.  Here, the Board finds that 
any defect with respect to the timing of the VCAA notice was 
harmless error.  Although the notice was provided to the 
appellant after the initial adjudication, the claim was 
readjudicated thereafter, and the appellant has not been 
prejudiced thereby.  The content of the notice fully complied 
with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), and Dingess/Hartman.  After the notice was 
provided, the case was readjudicated and a Supplemental 
Statement of the Case was provided to the veteran in March 
2007.  The veteran has been provided with every opportunity 
to submit evidence and argument in support of his claims, and 
to respond to VA notices.  Therefore, not withstanding 
Pelegrini, to decide the appeal would not be prejudicial to 
him.

Duty to assist

With regard to the duty to assist, the claims file contains 
the veteran's service medical records and reports of post-
service VA treatment and examination.  Additionally, the 
claims file contains the veteran's and lay statements in 
support of his claims, to include testimony at a local RO 
hearing.  The Board has carefully reviewed his statements and 
testimony and concludes that there has been no identification 
of further available evidence not already of record.  The 
Board has also perused the medical records for references to 
additional treatment reports not of record, but has found 
nothing to suggest that there is any outstanding evidence 
with respect to the veteran's claims.

Based on the foregoing, the Board finds that all relevant 
facts have been properly and sufficiently developed in this 
appeal and no further development is required to comply with 
the duty to assist the veteran in developing the facts 
pertinent to his claims.  Essentially, all available evidence 
that could substantiate the claims has been obtained.

Legal criteria

Disability evaluations are determined by comparing a 
veteran's present symptomatology with criteria set forth in 
VA's Schedule for Rating Disabilities, which is based on 
average impairment in earning capacity.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. Part 4 (2007).  When a question arises 
as to which of two ratings applies under a particular 
Diagnostic Code, the higher evaluation is assigned if the 
disability more closely approximates the criteria for the 
higher rating.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  After careful consideration of the 
evidence, any reasonable doubt remaining is resolved in favor 
of the veteran.  Id. § 4.3.  

Further, a disability rating may require re-evaluation in 
accordance with changes in a veteran's condition.  It is thus 
essential in determining the level of current impairment that 
the disability is considered in the context of the entire 
recorded history.  Id. § 4.1.  Nevertheless, the present 
level of disability is of primary concern.  Francisco v. 
Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that 
staged ratings are 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.  Hart v. Mansfield, 21 Vet. 
App. 505 (2007).

Amputation of the leg at a lower level, permitting 
prosthesis, warrants a 40 percent rating.  38 C.F.R. § 4.71a, 
Diagnostic Code 5165 (2007).  A loss of use of foot also 
warrants a 40 percent rating.  38 C.F.R. § 4.71a, Diagnostic 
Code 5167 (2007).    

Analysis

The Board has reviewed all of the evidence in the veteran's 
claims file, with an emphasis on the evidence relevant to 
this appeal.  Although the Board has an obligation to provide 
reasons and bases supporting this decision, there is no need 
to discuss, in detail, the extensive evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's analysis 
below will focus specifically on what the evidence shows, or 
fails to show, as to the claims.

The veteran contends that higher ratings are warranted for 
his service-connected right and left foot disabilities.  

I.  Increased rating- right foot disability

Historically, an October 1975 rating decision granted service 
connection for bilateral pes planus, third degree, acquired 
with claw toes, postoperative, and assigned a 10 percent 
rating from February 4, 1975, then a total temporary (100 
percent) rating from April 13, 1975, and then resumed the 10 
percent rating from June 1, 1975.  A June 1981 rating 
decision increased the evaluation to 30 percent disabling, 
effective October 31, 1980.  A September 1997 rating decision 
granted a temporary total rating from March 15, 1996.  After 
the convalescence period for the total temporary rating 
ended, the RO increased the veteran's service-connected 
bilateral pes planus disability to a 50 percent evaluation 
from June 1, 1996.  The May 2003 rating decision on appeal 
awarded the veteran a temporary total rating for bilateral 
pes planus, for the period from January 10, 2003, through 
February 28, 2003.  As of March 1, 2003, this disability was 
again rated as 50 percent disabling, with an additional 
separate 10 percent rating assigned for amputation of the 
right great toe, and a noncompensable rating assigned for 
osteomyelitis of the right great toe.  In September 2003, the 
RO assigned a separate 40 percent rating for the veteran's 
service-connected right foot pes planus, third degree, with 
claw toes and history of osteomyelitis with amputation of the 
right great toe disability under Diagnostic Codes 5278-5165, 
and a separate 30 percent rating for his left foot 
disability, both effective March 1, 2003.

In this regard, VA regulations provide that "[t]he combined 
ratings for disabilities of an extremity shall not exceed the 
rating for the amputation at the elective level, were 
amputation to be performed."  38 C.F.R. § 4.68 (2007).  Since 
the schedular criteria provide for a maximum 40 percent 
disability for the amputation of a leg below the knee, 
including amputation of the foot, under 38 C.F.R. § 4.71a, 
Diagnostic Codes 5165-5167, a combined evaluation in excess 
of 40 percent for the veteran's right foot disability may not 
be granted under any schedular regulatory provision from 
March 1, 2003.  As this is the maximum rating possible for 
the right foot, consideration of 38 C.F.R. §§ 4.40 and 4.45 
is unnecessary.  See Johnston v. Brown, 10 Vet. App. 80, 85 
(1997).  Therefore, any evaluation for the veteran's right 
foot disability in excess of 40 percent is only justified on 
an extraschedular basis.

In this regard, the Board notes that ratings shall be based 
as far as practicable, upon the average impairment of earning 
capacity with the additional proviso that the Secretary shall 
from time to time readjust this schedule of ratings in 
accordance with experience.  To accord justice, therefore, to 
the exceptional case where the schedular evaluation is found 
to be inadequate, the Under Secretary for Benefits or the 
Director, Compensation and Pension Service, upon field 
station submission, is authorized to approve on the basis of 
the criteria set forth in this paragraph an extraschedular 
evaluation commensurate with the average earning capacity 
impairment due exclusively to the service-connected 
disability or disabilities.  The governing norm in these 
exceptional cases is:  "A finding that the case presents 
such an exceptional or unusual disability picture with such 
related factors as marked interference with employment or 
frequent periods of hospitalization as to render impractical 
the application of the regular schedular standards."  38 
C.F.R. § 3.321(b)(1) (2007).

The Board has considered entitlement to an extra-schedular 
evaluation pursuant to the provisions of 38 C.F.R. § 
3.321(b)(1) is warranted.  In the instant case, however, the 
evidence does not show that the veteran's right foot 
disability alone interferes with employment beyond that 
contemplated in the currently assigned evaluation.  Moreover, 
the evidence does not demonstrate that the right foot 
disability has resulted in the need for frequent periods of 
hospitalization.  The evidence gathered at the August 2006 VA 
examination showed the veteran's shoe wear pattern is normal 
and that he had a cane to ambulate.  The examiner noted that 
the veteran was healthy looking and did not appear to be in 
any pain.  Further, it was noted that the veteran was working 
part-time as a parking lot attendant at the VA hospital for 
that last two months.  The VA examiner opined that veteran's 
moderate pes planus is not of such severity as to preclude 
him from obtaining gainful employment.  In light of the 
foregoing, the Board finds that the application of the 
regular schedular standards has not been rendered 
impracticable as the Board finds that his right foot 
symptomatology is contemplated by the schedular criteria of 
his current rating.  Accordingly, the Board finds that an 
evaluation in excess of 40 percent for right foot disability, 
based on extraschedular entitlement, is not warranted.  See 
Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 
9 Vet. App. 337 (1996).

In conclusion, the veteran has been assigned the maximum 
schedular disability rating of 40 percent for his service-
connected right foot disability throughout the rating period 
on appeal period and the clinical evidence does not show 
distinct time periods exhibiting symptoms warranting staged 
evaluations.  38 C.F.R. § 4.68; Hart, 21 Vet. App. at 509-10.

II.  Increased rating- left foot disability

As noted above, the veteran's service-connected left foot 
disability is currently rated as 30 percent disabling, under 
Diagnostic Code 5278.  This Diagnostic Code provides for a 30 
percent evaluation for unilateral pes cavus with marked 
contraction of the plantar fascia with dropped forefoot, all 
toes hammer toes, very painful callosities, and marked varus.  
A 50 percent evaluation is warranted for bilateral pes cavus 
with marked contraction of the plantar fascia with dropped 
forefoot, all toes hammer toes, very painful callosities, and 
marked varus.  38 C.F.R. § 4.71a, Diagnostic Code 5278.  In 
this regard, the Board notes that bilateral claw foot 
(Diagnostic Code 5278) and flatfoot (Diagnostic Code 5276) 
could afford the veteran a 50 percent rating, but the record 
reflects that the veteran has already been assigned separate 
ratings for his service-connected right and left foot 
disabilities.  As such, a 50 percent rating for bilateral 
flatfoot or claw foot would constitute pyramiding.  38 C.F.R. 
§ 4.14 (2007) (noting that the evaluation of the same 
disability or the same manifestations of a disability 
constitutes pyramiding and is prohibited); see also Brady v. 
Brown, 4 Vet. App. 203, 206 (1993) (noting that a claimant 
may not be compensated twice for the same symptomatology as 
"such a result would overcompensate the claimant for the 
actual impairment of his earning capacity").

The Board notes that no other diagnostic code for rating the 
foot (Diagnostic Codes 5276-5284) can provide a rating 
greater than 30 percent and it also finds no alternative 
Diagnostic Code is more appropriate for rating the left foot 
disability at issue.

The Board has also considered whether this case presents 
other evidence that would support a higher rating on the 
basis of functional limitation due to weakness, fatigability, 
incoordination, or pain on movement of a joint.  See 38 
C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. 
App. 202 (1995).  Functional loss due to pain must be 
supported by adequate pathology and evidenced by the visible 
behavior of a claimant.  Johnston v. Brown, 10 Vet. App. 80, 
85 (1997).  Pain is a listed criterion for Diagnostic Codes 
5276 and 5278 and the record does not otherwise denote 
fatigability or incoordination.  As the evidence of record 
otherwise indicates that the 30 percent rating assigned 
adequately compensates the veteran for the level of 
impairment demonstrated, including pain on manipulation, the 
assignment of a schedular evaluation in excess of 30 percent 
is not found to be warranted on the basis of 38 C.F.R. §§ 
4.40, 4.45, 4.59, or DeLuca.  The pain documented in the 
record has been appropriately accounted for in the veteran's 
currently assigned 30 percent evaluation for his service-
connected left foot disability.

The Board has further considered whether the veteran's 
service-connected left foot disability is equivalent to the 
loss of use of the foot to warrant a 40 percent rating under 
38 C.F.R. § 4.71a, Diagnostic Code 5167.  The loss of use of 
a foot will be held to exist when no effective function 
remains other than that which would be equally well served by 
an amputation stump at the site of election below the knee 
with use of a suitable prosthetic appliance.  See 38 C.F.R. 
§§ 3.350(b) and 4.63 (2007).  Upon physical examination of 
the veteran's left foot, the VA examiner, in August 2006, 
stated that the veteran had moderate flatfoot with no clawing 
of the toes.  The examiner noted that the heel and the 
Achilles tendon were neutral and there was no pain on 
manipulation of the foot.  As previously stated, the VA 
examiner noted the veteran's shoe wear pattern was normal and 
that he had a cane to ambulate.  The Board acknowledges the 
severity of the veteran's service-connected left foot, but it 
observes that the veteran retains effective function in his 
left foot.  As such, the Board finds that the competent 
medical evidence does not show the equivalent of loss of use 
of the left foot.

Additionally, it is noted that the veteran's disability 
involves a scar on his left foot.  Therefore, the Board has 
considered whether the veteran is entitled to a separate 
rating for a scar.  Disabilities of the skin are addressed 
under 38 C.F.R. § 4.118.  Throughout the entirety of the 
appeal, evidence of a superficial and painful scar is 
required in order to achieve a rating under Diagnostic Code 
7804.  Here the evidence does not establish that such 
criteria have been met.  Upon VA examination in August 2006, 
a surgical scar was noted over the dorsum of the second and 
third toes.  The VA examiner did not provide any further 
description of the scar.  Even so, the Board notes that the 
veteran has not raised any complaints regarding the scar.  In 
view of the foregoing, the Board finds that a separate 
compensable evaluation for a left foot scar is not 
appropriate here.  Esteban v. Brown, 6 Vet. App. 259 (1994).

In conclusion, throughout the rating period on appeal, the 
competent clinical evidence does not demonstrate that the 
veteran's left foot disability results in functional 
impairment equivalent to the loss of use of the left foot and 
the clinical evidence does not show distinct time periods 
exhibiting symptoms warranting staged evaluations.  Hart, 21 
Vet. App. at 509-10.  As the preponderance of the evidence is 
against the claim, the benefit of the doubt rule is not 
applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 
1 Vet. App. 49, 54-56 (1990).

Finally, the evidence does not reflect that the left foot 
disability at issue causes marked interference with 
employment (i.e., beyond that already contemplated in the 
assigned evaluation), or necessitated any frequent periods of 
hospitalization, such that application of the regular 
schedular standards is rendered impracticable.  Hence, 
assignment of an extra-schedular evaluation under 38 C.F.R. § 
3.321 (2007) is not warranted.  See Floyd v. Brown, 9 Vet. 
App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).




ORDER

Entitlement to a rating in excess of 40 percent for right 
foot pes planus, third degree, with claw toes and history of 
osteomyelitis with amputation of the right great toe, is 
denied.

Entitlement to a rating in excess of 30 percent for left foot 
pes planus, third degree, with claw toes, postoperative, is 
denied.


REMAND

In April 2006, the Board noted that the record reflected VA 
vocational rehabilitation treatment as of September 2003.  It 
was noted that the claims file was devoid of evidence 
pertaining to vocational rehabilitation after that date.  The 
Board instructed that the veteran's VA vocational 
rehabilitation records be associated with the claims folder.  
An e-mail of record, dated in May 2006, indicates that the 
requested "CER [was] mailed."  The March 2007 supplemental 
statement of the case lists records from vocational 
rehabilitation in the "EVIDENCE" section of that document.  
However, after reviewing of the record, the Board cannot 
locate the aforementioned vocational rehabilitation records.  
Without such records, the Board is precluded from proper 
appellate review of the veteran's TDIU claim.  As such, the 
Board finds that a remand is necessary to obtain the 
vocational rehabilitation records and associate them with the 
claims folder.

Additionally, while this case was pending on appeal, the 
Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008), which held that for an increased-compensation 
claim (to include a TDIU), 38 U.S.C.A. § 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.  Further, if the Diagnostic Code under which the 
claimant is rated contains criteria necessary for entitlement 
to a higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or increase 
in severity of the disability and the effect that worsening 
has on the claimant's employment and daily life (such as a 
specific measurement or test result), the Secretary must 
provide at least general notice of that requirement to the 
claimant.  Additionally, the claimant must be notified that, 
should an increase in disability be found, a disability 
rating will be determined by applying relevant Diagnostic 
Codes, which typically provide for a range in severity of a 
particular disability from noncompensable to as much as 100 
percent (depending on the disability involved), based on the 
nature of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation, e.g. competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6.  However, in 
this case, the Board notes that the veteran has not been 
adequately provided such notice, and thus, the case must also 
be remanded for proper notice pursuant to Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008).

Accordingly, the case is REMANDED for the following action:

1.  Issue a VCAA notice letter for the 
issue of entitlement to TDIU in 
accordance with 38 U.S.C.A. §§ 5102, 
5103, and 5103A (West 2002 & Supp. 2007), 
38 C.F.R. § 3.159 (2007), Quartuccio v. 
Principi, 16 Vet. App. 183 (2002), 
Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), Vazquez-Flores v. Peake, 
No. 05-0355, (U.S. Vet. App. January 30, 
2008) and any other applicable legal 
precedent.  Specifically, notify the 
claimant that, to substantiate the TDIU 
claim, he must provide, or ask the 
Secretary to obtain, medical or lay 
evidence demonstrating a worsening or 
increase in severity of the service-
connected disabilities and the effect 
that worsening has on the claimant's 
employment and daily life.  Further, if 
the Diagnostic Code under which the 
claimant is rated contains criteria 
necessary for entitlement to a higher 
disability rating that would not be 
satisfied by the claimant demonstrating a 
noticeable worsening or increase in 
severity of the disability and the effect 
that worsening has on the claimant's 
employment and daily life (such as a 
specific measurement or test result), 
provide at least general notice of that 
requirement to the claimant.  
Additionally, the claimant must be 
notified that, should an increase in 
disability be found, a disability rating 
will be determined by applying relevant 
Diagnostic Codes, which typically provide 
for a range in severity of a particular 
disability from noncompensable to as much 
as 100 percent (depending on the 
disability involved), based on the nature 
of the symptoms of the condition for 
which disability compensation is being 
sought, their severity and duration, and 
their impact upon employment and daily 
life.  The notice must also provide 
examples of the types of medical and lay 
evidence that the claimant may submit (or 
ask the Secretary to obtain) that are 
relevant to establishing entitlement to a 
TDIU, e.g. competent lay statements 
describing symptoms, medical and 
hospitalization records, medical 
statements, employer statements, job 
application rejections, and any other 
evidence showing an increase in the 
disability or exceptional circumstances 
relating to the service-connected 
disabilities.

2.  Associate with the veteran's claims 
file all documentation/records prepared 
pursuant to VA vocational rehabilitation 
accorded him on and after September 2003.

3.  Thereafter, readjudicate the issue of 
entitlement to TDIU on appeal.  If the 
benefit sought is not granted, issue a 
supplemental statement of the case and 
afford the appellant and his 
representative an appropriate opportunity 
to respond.  Thereafter, the case should 
be returned to the Board, as warranted.

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).  Claims that are remanded 
by the Board for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 
U.S.C.A. §§ 5109B and 7112 (West Supp. 2007).





______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs