Citation Nr: 0812155 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 95-24 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date prior to May 8, 1998 for the grant of service connection for post-traumatic stress disorder (PTSD), including the question of whether a timely substantive appeal was filed relative to an April 1995 rating decision. 2. Entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD. 3. Entitlement to an initial compensable evaluation for service-connected residuals of a fracture of the right fifth (little) toe. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from June 1981 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The veteran testified at an RO hearing in August 1999. This matter was previously before the Board and was remanded in December 2005. The issue of entitlement to an effective date prior to May 8, 1998 for the grant of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As the issue of entitlement to a higher initial evaluation for PTSD is partly dependent upon a determination of the date of the claim for entitlement to service connection for PTSD, the Board finds this issue is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(Observing that a claim is inextricably intertwined only if the RO would have to reexamine the merits of any other claim that has been denied by the Board, or the appellate courts, which is pending on appeal pursuant to the same action. As such, the Board will defer adjudication of the issue of entitlement to a higher initial evaluation for PTSD until after the issue of entitlement to an effective date prior to May 8, 1998 for the grant of service connection for PTSD is readjudicated by the RO on remand and returned to the Board. FINDING OF FACT The veteran's right little toe disability is manifested by pain on palpation and some limitation of motion without impairment of ambulation, gait or stance. CONCLUSION OF LAW The criteria for entitlement to a compensable evaluation for the veteran's service- connected residuals of a fracture of the right little toe have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.72, Diagnostic Codes 5276-5284 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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 October 2002 and December 2005 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate service connection claims, increased rating claims, and earlier effective date claims, as well as specifying what information and evidence must be submitted by him, what information and evidence will be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertains to his claims. The notices were not provided until after the rating decisions on appeal were issued. However, the veteran was not prejudiced from this timing error because the veteran's claim was readjudicated (see the September 2006 supplemental statement of the case) after the veteran received appropriate VCAA notice in December 2005. As such, the Board finds that the timing error regarding VCAA notice did not affect the essential fairness of the adjudication process. The notices did not comply with all the requirements articulated in the holding of Vazquez-Flores v. PeakeI. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." In this case, the Board again finds that the notice error did not affect the essential fairness of the adjudication process because the veteran's claim was readjudicated in March 2005 and September 2006 Supplemental Statements of the Case after he received appropriate notice of the rating criteria for rating foot injuries in the July 1997 Statement of the Case. In any event, the issuances of the Statements of the Case were comprehensive and correct, and after such advisements, a reasonable person could have been expected to know what evidence would have substantiated the claim in question. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes service records, VA treatment records, and appropriate VA medical examinations. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide this claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with the claim. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim. Analysis The present appeal involves the veteran's claim that the severity of his service-connected right toe disability warrants a higher disability rating. Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). When the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of his disability is to be considered during the entire period from the initial assignment of the rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. A March 1999 VA examination report shows that the veteran reported moderate pain on the right little toe associated with occasional locking. He reported no surgery and no other symptomatology associated with the right little toe. The veteran reported that he had not seen a physician for treatment of his right little toe in the past year and the only treatment he had was use of over the counter pain medication. The veteran reported that he could walk unassisted but he had difficulty running and during cold weather. There was no objective evidence of deformity, angulation, false motion, shortening or intra-articular involvement of the right little toe. There was no malunion, nonunion, loss of motion, false joints, or ankylosis and there was no objective evidence of tenderness, drainage, edema, painful motion, weakness, redness, or heat in the joint. Range of motion of the toe was flexion to 90 degrees and extension to 0 degrees. A February 2005 VA examination report refers to a fracture in the little toe of his left foot. In December 2005, the Board remanded this issue for clarification on whether the right or left foot was examined with instructions to arrange for another examination if the February 2005 VA examiner was not available to clarify the findings in the February 2005 VA examination report. The RO arranged for another examination in January 2006. This examination report reflects that the veteran complained of sporadic pain accompanied by stiffness and sometimes swelling of the right toe. The veteran denied having drainage, instability, a giving away sensation, or locking. The veteran noted occasional flare-ups, but the examiner stated that such flare-ups did not cause additional impairment. The examiner noted that the veteran did not wear corrective shoes and that the veteran's right foot had no evidence of deformity, angulation, false motion, shortening or intra-articular involvement. There was also no evidence of malunion, nonunion, loose motion or false joint. There was tenderness upon palpation of the right foot and some pain on motion, but there was no evidence of drainage, edema, weakness or redness. There were no callosities, breakdown, or unusual shoe pattern. There was no evidence of ankylosis in the right foot. Dorsiflexion and plantar flexion of the right foot was normal and without pain or functional loss. The right toe showed dorsiflexion from 0 to 30 degrees, painful in the last 10 degrees, with no functional loss, and a plantar flexion to 40 degrees, painful in the last 20 degrees, with a functional loss of 20 degrees due to pain. There were no symptoms of fatigue or evidence of further loss of motion, functional loss, or incoordination upon repetitive movement. The examiner noted that the veteran was not limited by his right toe disability in ambulation, standing or gait. The diagnosis was right little toe fracture with residual pain, metatarsalgia, and mild loss in range of motion. The veteran's service-connected right little toe disability has been rated by analogy to other foot injuries under Diagnostic Code 5284. See 38 C.F.R. § 4.20 [when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous]. Under this Diagnostic Code, a 10 percent rating is awarded for moderate foot injuries. 38 C.F.R. § 4.72, Diagnostic Code 5284. The medical evidence shows that the veteran has almost full use of his foot, with only pain on palpation and some limitation of motion of the right little toe. His ambulation, gait and stance are not limited by his right toe disability and he maintains almost full function of his right foot. The veteran himself notes that he currently receives no medical treatment for his right toe disability, other than use of pain medications. The February 2005 VA examination report showed that there were no symptoms of fatigue or evidence of further loss of motion, functional loss, or incoordination upon repetitive movement. As such, the Board finds that the veteran's right foot disability, arising from residuals of a fracture of the right little toe, does not rise to the level of a moderate foot disability. It follows that a compensable disability rating is not warranted. As for other Diagnostic Codes applicable to disabilities of the feet, the Board notes that there is no competent medical evidence of flatfoot, weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones attributable to the residuals of the right little toe fracture to warrant a compensable disability rating under Diagnostic Codes 5276-5283. See 38 C.F.R. § 4.72, Diagnostic Codes 5276-5283. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER An initial compensable evaluation for service-connected residuals of a fracture of the right fifth (little) toe is denied. REMAND In a December 2005 decision, the Board remanded the issue of entitlement to an effective date prior to May 8, 1998 for the grant of service connection for post-traumatic stress disorder (PTSD), including the question of whether a timely substantive appeal was filed relative to an April 1995 rating decision, in order to provide the veteran with notice of the regulations governing the filing of substantive appeals. By way of a September 2006 supplemental statement of the case, the RO notified the veteran of such regulations, to include 38 C.F.R. § 20.302(b), which states, inter alia, that a substantive appeal must be filed within 60 days from the date that the agency of orginial jurisdiction mails the statement of the case to the appellant, or the remainder of the one- year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. As the RO correctly noted in the September 2006 supplemental statement of the case, the record shows that the veteran filed a June 1995 notice of disagreement to the April 1995 rating decision denying service connection for PTSD and that the RO issued a May 1996 statement of the case which was followed by the veteran filing a substantive appeal in August 1996. The RO determined that the August 1996 substantive appeal was not timely filed as it was filed more than one year after the April 1995 rating decision and more than 60 days after the May 1996 statement of the case. The RO then went on to note that it had issued a subsequent rating decision denying service connection for PTSD in October 1996, and this was followed by the veteran filing a notice of disagreement in December 1996, and the RO issuing a statement of the case in May 1997, and the veteran filing a substantive appeal in May 1998. The RO then concluded that the May 1998 substantive appeal was timely filed with respect to the October 1996 rating decision. However, the Board cannot ascertain the legal basis for this determination as May 1998 is clearly outside the one-year filing period from the date of the October 1996 rating decision and is also clearly outside the 60-day filing period following issuance of the May 1997 statement of the case. Therefore, the Board is remanding this issue for clarification. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should review the issue of entitlement to an effective date prior to May 8, 1998 for the grant of service connection for post-traumatic stress disorder (PTSD), including the question of whether a timely substantive appeal was filed relative to an April 1995 rating decision, and should provide the legal basis and reasoning for its determination contained in the September 2006 supplemental statement of the case that the May 1998 substantive appeal was timely filed as to the October 1996 rating decision denying service connection for PTSD. 2. After completion of the above, and any additional development of the evidence that the agency of original jurisdiction may deem necessary, the AMC/RO should review the record and readjudicate the claim. If any benefits sought remain denied, the veteran should be issued an appropriate supplemental statement of the case, and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs