Citation Nr: 0813130	
Decision Date: 04/21/08    Archive Date: 05/01/08

DOCKET NO.  03-25 062A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUES

1.  Entitlement to an increased rating for right heel spurs, 
currently evaluated as 10 percent disabling.

2.  Entitlement to an increased rating for left heel spurs, 
currently evaluated as 10 percent disabling.

3.  Entitlement to a compensable evaluation for residuals of 
a fracture of the left great toe. 


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Tanya A. Smith, Counsel

INTRODUCTION

The veteran had active service from March 1975 to March 1995.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a May 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Oakland, California.

In December 2006, the Board remanded this case for further 
evidentiary development.  The requested development has been 
completed.  The case has now been returned to the Board for 
further appellate action.  


FINDINGS OF FACT

1.  The veteran's bilateral heel spurs do not cause 
limitation of motion of the ankles that more nearly 
approximates marked than moderate; the overall impairment 
associated with the spurs does not more nearly approximate 
moderately severe than moderate. 

2.  The veteran has no disabling symptoms associated with the 
healed fracture of the left great toe.  


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for 
right heel spurs have not been met.  38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Codes 5015, 5271, 5284 (2007).

2.  The criteria for a rating in excess of 10 percent for 
left heel spurs have not been met.  38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. §§ 4.1-4.14, 4.31, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Codes 5015, 5271, 5284 (2007).

3.  The criteria for a compensable evaluation for residuals 
of a fracture of the left great toe have not been met.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 
4.45, 4.59, 4.71a, Diagnostic Code 5282 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2007)) redefined VA's duty to assist a 
claimant in the development of a claim.  VA regulations for 
the implementation of the VCAA were codified as amended at 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).

The notice requirements of the VCAA require VA to notify the 
veteran of what information or evidence is necessary to 
substantiate the claim; what subset of the necessary 
information or evidence, if any, the claimant is to provide; 
what subset of the necessary information or evidence, if any, 
the VA will attempt to obtain; and a general notification 
that the claimant may submit any other evidence he or she has 
in his or her possession that may be relevant to the claim.  
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  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/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  Such 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, insufficiency in the timing or content of 
VCAA notice is harmless if the errors are not prejudicial to 
the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. 
Cir. 2004) (VCAA notice errors are reviewed under a 
prejudicial error rule); see also Sanders, supra.

In this case, in March 2002, November 2003, March 2006, and 
January 2007 letters, the RO and Appeals Management Center 
(AMC) provided notice to the veteran regarding what 
information and evidence was needed to substantiate the 
claims, as well as what information and evidence must be 
submitted by the veteran, what information and evidence would 
be obtained by VA, and the need for the veteran to advise VA 
of any further evidence that pertains to the claims.  The 
notice letters advised the veteran that the evidence needed 
to show that his disabilities had become worse or increased 
in severity.  The March 2006 and January 2007 notice letters 
conform to the additional notice requirements most recently 
set forth in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. 
App. January 30, 2008).  In addition, therein, the veteran 
was also provided with notice of the information and evidence 
needed to establish an effective date.  The claims were last 
readjudicated in July 2007. 

The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
veteran.  Specifically, the information and evidence that 
have been associated with the claims file includes the 
veteran's post-service treatment records, and VA examination 
reports.

As discussed above, the veteran was notified and aware of the 
evidence needed to substantiate his claims, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  There is no additional notice that 
should be provided, and there has been a complete review of 
all the evidence.  Moreover, as the Board concludes below 
that the preponderance of the evidence is against the 
veteran's claims, any question as to an appropriate effective 
date to be assigned is rendered moot.  Any error in the 
sequence of events or content of the notice is not shown to 
have any effect on the case or to cause injury to the 
veteran.  Thus, any such error is harmless and does not 
prohibit consideration of this matter on the merits.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see 
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998).


Analysis

The Board has reviewed all the evidence in the veteran's 
claims file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claims and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule) and are intended to represent the average 
impairment of earning capacity resulting from disability.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007).  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1 (2007).  Other applicable, general policy 
considerations are:  interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2 (2007); resolving any reasonable doubt regarding the 
degree of disability in favor of the claimant, 38 C.F.R. § 
4.3 (2007); where there is a question as to which of two 
evaluations apply, assigning a higher of the two where the 
disability picture more nearly approximates the criteria for 
the next higher rating, 38 C.F.R. § 4.7 (2007); and, 
evaluating functional impairment on the basis of lack of 
usefulness, and the effects of the disabilities upon the 
person's ordinary activity, 38 C.F.R. § 4.10 (2007).  See 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Disability of the musculoskeletal system is primarily the 
inability, due to damage or inflammation in parts of the 
system, to perform normal working movements of the body with 
normal excursion, strength, speed, coordination and 
endurance.  The functional loss may be due to absence of part 
or all of the necessary bones, joints and muscles, or 
associated structures, or to deformity, adhesions, defective 
innervation, or other pathology, or may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior of the claimant undertaking the motion.  Weakness is 
as important as limitation of motion, and a part which 
becomes painful on use must be regarded as disabled.  See 
DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 
(2007); see also 38 C.F.R. § 4.45 (2007).

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. 
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although 
the regulations do not give past medical reports precedence 
over current findings, the Board is to consider the veteran's 
medical history in determining the applicability of a higher 
rating for the entire period in which the appeal has been 
pending.  Id.; Powell v. West, 13 Vet. App. 31, 35 (1999).  
Indeed, the United States Court of Appeals for Veterans 
Claims (Court) most recently held in Hart v. Mansfield, 21 
Vet. App. 505 (2007) 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.  As 
such, the Board will consider whether staged ratings are 
appropriate in evaluating the veteran's service-connected 
disabilities. 

1.	Heel Spurs

In a March 1996 rating decision, the RO granted service 
connection for bilateral heel spurs and assigned a 
noncompensable evaluation under Diagnostic Code 5015, 
effective April 1, 1995, the day following the veteran's 
discharge from service.  The veteran filed a claim for an 
increased rating on December 11, 2001.  In an August 2003 
rating decision, the RO assigned separate ratings of 10 
percent for heel spurs of the right foot and left foot, 
effective December 11, 2001. 

Under Diagnostic Code 5015, benign new growths of the bones 
will be rated on limitation of motion of the affected parts 
as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic 
Code 5015 (2007).  

Under Diagnostic Code 5271, a 10 percent rating is prescribed 
for moderate limitation of motion of the ankle, and a 20 
percent rating is prescribed for marked limitation of motion 
of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271 
(2007). Normal ankle dorsiflexion is to 20 degrees, and 
normal ankle plantar flexion is to 45 degrees.  38 C.F.R. § 
4.71, Plate II (2007).

Under Diagnostic Code 5284, a 10 percent rating is assigned 
for other foot injuries with residual moderate symptoms.  A 
20 percent rating is assigned for moderately severe symptoms.  
A 30 percent rating is assigned for severe symptoms.  
38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007).  With actual 
loss of use of the foot, a 40 percent rating is prescribed.  
38 C.F.R. § 4.71a, Diagnostic Code 5284, Note (2007).  

The April 2002 VA joints examination report shows that the 
veteran complained of pain and swelling in his heels.  Flare-
ups of pain could last about a week and occurred about every 
one to two months.  The condition limited his walking.  The 
physical examination revealed a bony, nontender prominence of 
the right posterior heel.  There was no tenderness, swelling, 
or erythema of the heels.  There was no pain with passive 
extension and dorsiflexion of the big toe and ankle.  Distal 
pulses were 2.  X-rays revealed bilateral calcaneal spurs and 
calcifications of the Achilles tendons.  The examiner noted 
an impression of bilateral heel pain with spurs.  

A July 2004 VA treatment record indicated that a physical 
examination revealed no swelling, erythema, limitation of 
range of motion, or pain in the veteran's "foot joints."  

The March 2005 VA examination report shows that the examiner 
reviewed the claims file, including the veteran's history of 
a fracture of the left great toe.  The physical examination 
revealed some local tenderness over the mid-calcaneal areas, 
consistent with the veteran's history of heel spurs.  The 
examiner noted an impression of history of heel spurs with 
recurrent local pain in the posterior foot with moderate-to-
prolonged weight-bearing activity.  The examiner also noted 
an impression of history of gout associated with chronic 
bilateral foot pain.  The examiner maintained that it 
appeared that a significant portion of the veteran's 
bilateral foot pain was secondary to gout.  The examiner 
indicated that there did not seem to be a direct connection 
with the veteran's prior reported foot injury and his current 
symptoms in that area.  With regard to the DeLuca factors, 
the examiner noted that when the veteran was symptomatic in 
his lower extremities, he appeared to have approximately a 30 
percent decrease in function secondary to reported pain and 
reduced endurance.  X-rays revealed "unusually" mild 
degenerative changes with a large calcaneal heel spur on the 
left side, and an old injury of the left first digit.   

In a statement received by the RO in January 2006, the 
veteran maintained that he had to switch jobs and take less 
pay because he could not climb up and down aircraft on 
account of his service-connected knee disability.   

The February 2006 VA examination report shows that the 
veteran complained of pain in his ankles.  When he was asked 
what caused him increased pain in his ankles, he was unable 
to specify any "aggravators or flares."  He was symptomatic 
with prolonged weight-bearing, and sometimes he had 
difficulty wearing shoes.  He no longer participated in 
sports.  He reported that he had worked as a helicopter pilot 
until 2004 when he quit due to the strain on his body and the 
inability to climb ladders to get into the helicopter.  The 
physical examination revealed no erythema or heat in his 
feet.  There was no deformity, tenderness, erythema, or heat 
in the ankles.  Range of motion was the following:  
dorsiflexion on the right to 20/20, on the left to 15/20; 
plantar flexion on the right to 40/45, on the left to 45/45; 
abduction on the right and left to 10/10; adduction on the 
right to 20/20, on the left to 15/20; inversion to 0/5 
bilaterally; and eversion to 10 bilaterally.  There was some 
stiffness, but no pain on range of motion or with 
manipulation.  The examiner was unable to determine the 
DeLuca factor as the veteran was unable to report if he had 
flare-ups of pain in his ankles.  The examiner noted only a 
diagnosis of gout.  

The veteran clearly experiences chronic intermittent pain in 
his feet from his bilateral spurs.  The currently assigned 10 
percent ratings contemplate such pain.  In addition, on VA 
examination in February 2006, the veteran demonstrated only 
a mild loss of dorsiflexion on the left and plantar flexion 
on the right with normal range of dorsiflexion on the right 
and plantar flexion on the left.  The range of motion 
examination did not elicit any pain from the veteran, and the 
examiner indicated that she was unable to determine any 
additional functional loss.  The March 2005 VA examiner 
acknowledged that the veteran experienced pain from his spurs 
but maintained that a significant portion of his pain was 
secondary to his gout.  In considering the DeLuca factors, he 
estimated that the veteran experienced a 30 percent decrease 
in his function, but that assessment was based on the 
combined effect of the veteran's right knee, spurs, and gout 
disabilities.  Not only is service connection in effect for 
bilateral heel spurs, but also gout, rated as 20 percent 
disabling, and a right knee disability, rated as 10 percent 
disabling.  Thus, the evidence does not show that the 
veteran's heel spurs cause marked limitation of motion of the 
ankles even with consideration of the DeLuca factors.  Also, 
at worst, only a mild loss of range of ankle motion was 
demonstrated on VA examination and even with consideration of 
the DeLuca factors, the overall level of impairment 
associated with his bilateral heel disabilities does not more 
nearly approximate moderately severe than moderate.  For 
these reasons, the Board finds that the veteran is not 
entitled to disability ratings for bilateral heel spurs in 
excess of 10 percent under Diagnostic Codes 5271 and 5284.  

2.	Left Great Toe Fracture

In a March 1996 rating decision, the RO granted service 
connection for left great toe fracture and assigned a 
noncompensable evaluation under Diagnostic Code 5299-5282 
effective April 1, 1995.  The veteran filed a claim for an 
increased rating on December 11, 2001. 

Under Diagnostic Code 5282, a 10 percent rating is assigned 
for hammertoe of all toes, unilateral without claw foot.  
Single toes are assigned a 0 percent rating.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5282 (2007).  

In every instance where the schedule does not provide a 0 
percent rating for a DC, a 0 percent rating shall be assigned 
when the requirements for a compensable rating are not met.  
38 C.F.R. § 4.31.

The April 2002 VA joints examination report further shows 
that the veteran complained of intermittent pain and chronic 
swelling in his left great toe.  He experienced increased 
pain when he stood and put weight on his leg and after 
prolonged walking.  Flare-ups of pain lasted 30 to 60 minutes 
and occurred once a day.  He maintained that he did not take 
any medications for this problem.  It was noted that the big 
toe had decreased range of motion and strength.  The physical 
examination revealed extension of the metatarsophalangeal 
joint to 0 degrees and flexion to 10 degrees.  
Interphalangeal joint extension was to 0 degrees and flexion 
to 25 degrees.  There was no swelling, erythema, or warmth, 
but there was diffuse tenderness.  There was a callus of the 
toe.  X-rays revealed a healed fracture with a small 
sclerotic line of the left great toe.   The examiner noted an 
impression of status post fracture of the left great toe.  

A July 2002 VA treatment record noted that the veteran 
complained of an inflamed left metatarsophalangeal joint.  
The examiner noted that the veteran clearly had gout and 
acute podagra.  

The February 2006 VA examination report shows that the 
veteran complained of gouty attacks in his great toes.  The 
physical examination revealed full range of motion in the 
toes without pain on manipulation.  

VA treatment records dated through to March 2007 document 
recurrent bouts of gout of the toes, which were accompanied 
by complaints of pain and swelling.

The medical evidence of record shows that there are no 
disabling symptoms due to the healed fracture of the left 
great toe.  Rather, the veteran's complaints of pain and 
swelling are attributable to gout.  Therefore, the veteran is 
not entitled to a compensable evaluation for his fracture of 
the left great toe. 

3.	Other Considerations

The Board has not assigned staged ratings as the factual 
findings do not show distinct time periods where the service-
connected disabilities exhibited symptoms that warranted 
different ratings.  See Hart, supra.

The Board has considered whether the veteran's service 
connected bilateral heel spurs and left great toe 
disabilities present an exceptional or unusual disability 
picture as to render impractical the application of the 
regular schedular standards such that referral to the 
appropriate officials for consideration of an extra-schedular 
rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2007); 
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  In this 
regard, the Board notes that the veteran's service-connected 
left and right heel spurs and residuals of a fracture of the 
left great toe, in and of themselves, have not been shown to 
objectively interfere markedly with employment (i.e., beyond 
that contemplated in the assigned rating), to warrant 
frequent periods of hospitalization, or to otherwise render 
impractical the application of the regular schedular 
standards.  Therefore, the Board finds that the criteria for 
submission for consideration of an extra-schedular rating are 
not met.

In reaching the conclusion above, the Board has considered 
the applicability of the benefit of the doubt doctrine.  
However, as the preponderance of the evidence is against the 
veteran's claims, that doctrine is not applicable in the 
instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); 
Gilbert, 1 Vet. App. at 55-57.


ORDER

A rating in excess of 10 percent for right heel spurs is 
denied.

A rating in excess of 10 percent for left heel spurs is 
denied.

A compensable evaluation for residuals of a fracture of the 
left great is denied.



____________________________________________
K. J. ALIBRANDO
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs