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