Citation Nr: 0811616 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-07 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating higher than 10 percent for a left foot disability, residuals of a sesamoidectomy. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1983 to September 1987 and from October 1987 to November 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection and assigned a noncompensable rating for a left foot disability, residuals of a sesamoidectomy, effective November 2004. The veteran appealed the noncompensable rating. In January 2007, the Board remanded the claim for additional development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). While on appeal in a rating decision in September 2007, the RO increased the rating to 10 percent, effective from November 2004. FINDING OF FACT Throughout the period of the appeal, the left foot disability, residuals of a sesamoidectomy, is manifested by complaints of chronic foot and great toe pain with normal range of motion of the toe, foot, and ankle, except for slight limitation of dorsiflexion and plantar flexion of the left metatarsophalangeal joint accompanied by pain; metatarsalgia localized to the first metatarsophalangeal joint; minimal functional impairment of the disability upon the veteran's occupation and daily activities; and no X-ray evidence of degenerative arthritis. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for left foot disability, residuals of a sesamoidectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.20, 4.40. 4.45, 4.71a, Diagnostic Codes 5279, 5284 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements include notice of the type of evidence needed to substantiate a claim, namely, 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. Also, 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the veteran with content-complying VCAA notice on the underlying claim of service connection for left foot disability, residuals of a sesamoidectomy. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim of service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for a higher rating for left foot disability, residuals of a sesamoidectomy. Dingess at 19 Vet. App. 473. Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A.§ 5103A (a), (b) and (c). The veteran was afforded the opportunity to testify at a personal hearing, but he declined to appear for a formal hearing. The RO has obtained the veteran's service medical records. The veteran himself has submitted private treatment records from Dr. K. and from the Darnall Army Hospital. He has not identified any additionally available evidence for consideration in his appeal. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A.§ 5103A(d). The veteran was afforded a VA examination in August 2004, just prior to his discharge from service, specifically to evaluate the nature and severity of any left foot disability. Then, in February 2007, the veteran was afforded another VA examination, in light of his post-service claims that his foot disability has interfered with employment. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that the duty-to- assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the veteran's service-connected left foot disability, residuals of a sesamoidectomy, is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5279, effective from the date that service connection was established in November 2004. The veteran also has a separate rating for the scar, which is not before the Board. Under Diagnostic Code 5279, the maximum schedular rating is 10 percent for metatarsalgia (Morton's disease), whether unilateral or bilateral. The veteran is already evaluated at the maximum allowable rating under Diagnostic Code 5279. Another potentially applicable Diagnostic Code is Diagnostic Code 5284, relating to foot injuries. Under Diagnostic Code 5284, the criterion for the next higher rating, 20 percent, is a moderately severe foot injury. After reviewing the record, the Board finds that the veteran does not meet the criterion for an initial rating higher than 10 percent for the left foot disability. The relevant medical evidence includes service medical records, a pre- discharge VA examination, a VA examination report of February 2007, and medical records from Dr. K. and the Darnall Army Hospital. Service medical records show that in July 2002 after conservative measures had failed the veteran underwent a left foot hypertrophic fibular sesamoidectomy without complication. Following surgery, he was seen with repeated complaints of pain in the left big toe or left foot in October 2002, January 2003, February 2003, March 2003, September 2003, December 2003, March 2004, April 2004, and July 2004. In October 2002, he was fitted with custom orthotics to treat metatarsalgia. X-rays in September 2003 showed no arthritic change or fracture. In March 2004, he was assigned a permanent profile for chronic sesamoiditis of the left foot. X-rays that month revealed a left fibular sesamoidectomy. In May 2004, he went before a Medical Evaluation Board with a chief complaint of left plantar forefoot pain. On physical examination, the left foot was neurologically intact, but there was pain to palpation at the plantar aspect of the lateral first metatarsal head. Range of motion at the left first metatarsophalangeal (MTP) joint was full with mild pain in dorsiflexion. Weight bearing examination revealed pain with bare feet. X-rays showed one sesamoid medially at the first metatarsal (MT) head. The diagnosis was symptomatic left first MTP joint, status post sesamoidectomy. The veteran was then referred to the Physical Evaluation Board, which found him to be physically unfit on account of his chronic left foot pain and recommended disability retirement. At the time of a pre-discharge VA examination in August 2004, the veteran complained of pain in the left foot especially over the left great toe, which he claimed was worse than it was prior to his foot surgery. He indicated that he used an insert but had a lot of problems in walking, particularly on prolonged walking when he sometimes limped and felt pain and tenderness on the ball of the left great toe. He also complained of pain on range of motion of the left great toe. On clinical evaluation of the left foot, the examiner found that there was full range of motion of the left great toe. There was also normal range of motion of the left ankle and foot. Otherwise, the examination was unremarkable. The diagnosis was residuals of left foot surgery. The veteran was discharged from service in November 2004. In a March 2005 statement, the veteran indicated that since his separation from service his left foot condition has caused him to leave two jobs. Records of the Darnall Army Hospital, dated in 2005, show that the veteran complained of aching pain in the first MTP joint of the left foot. In May 2005, it was noted that the veteran had a steady gait, but he did not lead a very active life due to foot problems, which were worse with activity. In September 2005, it was noted that the veteran was on medication, which provided significant improvement, and that he used inserts that made him feel much better. In a February 2007 statement, Dr. K. indicated that he treated the veteran for foot pain. At the time of a VA examination in February 2007, the veteran complained of constant daily, continuous pain in the MTP joint of the left great toe, which increased with activity or weightbearing. He reported that the pain precluded recreational activities. He related that his left great toe swelled and was painful for several days, accompanied by limping about once or twice a month when he was up walking for more than one mile. His left foot disability was reportedly not incapacitating, but it altered his gait and decreased his endurance. It did not prohibit his usual daily activities or occupation, which was sedentary. It was estimated that the veteran had minimal functional impairment in his occupation and usual daily activities, despite that his condition altered his gait and made him more uncomfortable. He took an anti-inflammatory medication daily with benefit and wore custom orthotic shoe inserts. On examination, the veteran's gait appeared almost normal with a trace of favoring of the left foot. The feet were symmetrical. There was a trace of tenderness upon at the operative site. There was only a slight difference in the ranges of motion when comparing the first MTP joints of the feet. The left MTP joint actively extended (dorsiflexed) to 65 degrees (70 was considered normal for this veteran) and passively extended to 80 degrees, with pain from 70 degrees to 90 degrees. The left MTP joint actively flexed (plantar flexed) to 25 degrees (30 was considered normal for this veteran) and passively extended to 55 degrees, with pain from 45 degrees to 55 degrees. The remaining ranges of motion of the foot to include the great toe, interphalangeal joints, lesser toes, as well as the ankle, were all normal, painless and unaffected by the left foot condition. Of that which was limited in motion, there was no change upon repetition and resisted movements. There was tenderness to palpation at the left first MT head and in the dorsal and plantar aspect of the left first MTP joint. There was no weakness in rising on the toes. Gait was normal, and except for a slight tendency to bear more weight on the lateral aspect of the left foot, posture was also normal. X-rays of the left foot were normal without significant degenerative joint changes at the first MTP joint or any other bone or joint abnormalities in the operative site. The diagnosis was sesamoidectomy with residuals consisting of chronic MTP joint pain and slightly decreased motion, as well as localized metatarsalgia of the first MT. The examiner commented that it was likely that the tenderness noted on palpation of the operative site was due to residuals of surgery in the deeper structures than the scar. On the basis of the evidence, the left foot disability is not so disabling as to meet the criteria for a rating higher than 10 percent under the Diagnostic Codes 5284. As previously explained, the left foot disability is currently rated at the maximum rate of 10 percent under Diagnostic Code 5279. In considering the rating criteria of Diagnostic Code 5284, the left foot disability is not shown to be comparable to a moderately severe foot injury. Rather, the condition is productive of no more than moderate dysfunction. The veteran has had complaints of left foot or big toe pain from the time of his surgery in 2002. Despite the complaints of chronic left foot and or great toe pain, the findings at the time of a Medical Board Evaluation in May 2004 and the pre-discharge VA examination in August 2004 show that the ranges of motion of the toe, foot, and ankle were full. Moreover, at the time of the February 2007 VA examination, the range of motion of the left MTP joint was only slightly limited in dorsiflexion and plantar flexion accompanied by pain at the endpoints with all other foot movements having normal range of motion. The left foot condition was also manifested by metatarsalgia that was localized to the first MT and by only a slight tendency to bear more weight on the lateral aspect of the left foot. There is no radiological evidence to show degenerative changes. Further, the VA examiner estimated that the functional impairment of the left foot disability on the veteran's occupation and daily activities was minimal. Accordingly, the criterion for a higher rating under Diagnostic Code 5284 has not been met. Also, there is no additional disability due to functional loss due to pain under 38 C.F.R. § 4.40 or additional disability due to functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The examiners who performed the VA examinations in August 2004 and February 2007 specifically noted the complaints of pain on prolonged walking, but found on clinical observation that ranges of motion of the left ankle, foot, and great toe were normal or near normal. The VA examiner in February 2007 also noted that there was no further loss of range of motion upon repetition of movements and that there was no weakness demonstrated upon rising on the toes. Based on this evidence, the Board finds that the evidence of record establishes that the veteran's left foot disability does not cause additional functional impairment due to pain on use so as to warrant the assignment of a higher disability rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board has considered other potentially relevant rating criteria as found in Diagnostic Code 5280 (hallux valgus, unilateral) and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). However, Diagnostic Code 5280 does not provide for a rating higher than the 10 percent at which the veteran is already evaluated, and Diagnostic Code 5283 provides for essentially the same criteria (moderate, moderately severe, severe) as that found in Diagnostic Code 5284, which has been considered. In sum, there is no basis under any of the applicable rating codes for a higher initial disability rating for the veteran's left foot disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The governing norm in an exceptional case 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. The record contains no objective evidence that the veteran's left foot disability has resulted in marked interference with employment beyond that interference contemplated by the assigned evaluation or has necessitated frequent periods of hospitalization. The veteran's statement to the effect that his foot disability has caused him to leave two jobs since his service separation in November 2004 was not accompanied by any documentation in support of the claim, such as employment or medical records. And there is no evidence of frequent hospitalization. For these reasons, the disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. Therefore, referral of the claim for extraschedular consideration is not warranted. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App.337 (1996). ORDER An initial rating higher than 10 percent for a left foot disability, residuals of a sesamoidectomy, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs