Citation Nr: 0813396 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-16 413A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for arthritis of the right great toe, rated as 20 percent disabling from March 27, 2003, to August 14, 2003, October 1, 2003, to March 18, 2004, and from May 1, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Samadani, Associate Counsel INTRODUCTION The veteran served on active duty from August 1977 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision rendered by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA). In May 2005, the veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this hearing is of record. When this case was before the Board in January 2007, it was remanded for further development. It is now before the Board for further appellate action. In March 2007 the veteran was afforded a VA examination to determine the current degree of severity of his service- connected disability of the right great toe. On that examination, he was also found to have right foot strain. If the veteran believes that service connection is warranted for the right foot strain, he should so inform the RO, which should respond appropriately to any such clarification from the veteran. FINDING OF FACT The veteran's arthritis of the right great toe is manifested by moderately severe impairment. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for arthritis of the right great toe have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010 and 5284 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking an increased disability rating for arthritis of the right great toe. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he 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; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that 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, the notice letter must provide at least general notice of that requirement. The notice letter 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. In this case, a February 2007 letter informed the veteran that he 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 his employment and daily life. It also informed him to submit any pertinent evidence in his possession and provided appropriate notice with respect to the effective-date element of the claim. It also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the veteran's employment, and statements from persons concerning their observations of how the disability has affected the veteran. It also informed the veteran of the assistance that VA would provide to obtain evidence on his behalf. This is not a case in which a noticeable worsening or increase in severity of the disability would not establish the veteran's entitlement to an increased rating. In any event, the veteran was provided the specific criteria for rating the disability in the Statement of the Case. In the February 2008 informal hearing presentation, the veteran's representative cited to the pertinent diagnostic codes, demonstrating that these requirements were understood, and demonstrating actual knowledge of the evidence necessary to substantiate the claim. Although the veteran was not provided adequate VCAA notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that after the provision of the required notice and completion of all indicated development, the claim was readjudicated. There is no indication or reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. The record reflects that the veteran's service medical records have been obtained, as have post-service treatment records. The veteran has also been afforded an appropriate VA examination. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2007). 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2007). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran is currently assigned a 20 percent disability rating for arthritis of the right great toe under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5284. Diagnostic Code 5284 provides that a 20 percent evaluation is warranted for moderately severe foot impairment and a 30 percent evaluation is warranted for severe foot impairment. In an April 2003 outpatient treatment record, a VA podiatrist found that the veteran had pain with rotation of motion of the right hallux metatarsal phalangeal joint. The podiatrist stated that the X-ray showed joint space narrowing of the first metacarpal phalangeal joint and the interphalangeal joint with sclerosis. Also, in April 2003, the veteran was afforded a VA examination. The examiner agreed that the X-ray of record showed changes that were consistent with osteoarthritis of the meta[tarsal] phalangeal joint and the interphalangeal joint. Upon examination, the right great toe looked normal but extension and flexion of the right great toe were to only 60 percent of the normal range of motion. In August 2003, the veteran underwent surgery for his right great toe. In October 2003, the surgery incision was well healed and the veteran was able to rotate his right great toe without pain. In February 2004, a VA podiatrist opined that the veteran had decreased rotation of motion in his right hallux distal interphalangeal joint (DIPJ). On March 19, 2004, the veteran was scheduled to have a right hallux DIPJ fusion with sesamoidectomy. In November 2004 and December 2004, a VA nurse practitioner and VA physician wrote letters to the RO stating that the veteran's had fusion of the bones in his right foot and that he had pain upon ambulation and prolonged standing. They recommended that the veteran change his employment to a position that would support no steady ambulation or prolonged standing. In October 2006, the veteran had an ingrown toe nail removed from his right great toe. In March 2007, the veteran was afforded another VA examination. Upon examination, the examiner noted an L shaped scar at the level of the interphalangeal joint of the right great toe. Each side of the L measured 2 centimeters by .3 centimeters. The scar was not tender and not painful. It was slightly adherent to the adjacent tissue with mild disfigurement from it. The scar was mildly elevated. There was mild loss of subcutaneous tissue. There was no inflammation, edema, or keloid formation, though there was a slight increase in pigmentation in the surrounding tissue by the scar site. There was also a 5 centimeter by .3 centimeter vertical scar on the medial edge of the right big toe. The scar was also nontender, not painful, not adherent to the subcutaneous tissue and had a smooth texture. There were no evidence of inflammation and only slight increase in pigmentation along the surgical scar site. There was also no disfigurement from the scar. The examiner opined that the scars were asymptomatic. The Board will first address the scars on the veteran's right foot. The evidence does not show that a separate rating for either scar is warranted. Neither scar is painful upon examination. 38 C.F.R. 4.118, Diagnostic Code 7804. Neither scar is large enough to meet the criteria under Diagnostic Code 7802. Also, neither scar is unstable. 38 C.F.R. 4.118, Diagnostic Code 7803. The Board has considered whether any other diagnostic codes would be appropriate. However, due to the location of the veteran's scars on his right foot, Diagnostic Code 7800 is not for application. Diagnostic Code 7801 requires a showing that the scars are deep or cause limited motion. The March 2007 examination report does not indicate that the scars are deep. The evidence also fails to show that the scars are productive of any functional impairment. In any event, functional impairment of the right great toe is the basis for the currently assigned rating of 20 percent. Accordingly, Diagnostic Codes 7801 and 7805 are not for application. Therefore, a separate rating for either scar is not warranted. As to the functional impairment of the right great toe, the veteran complained of pain in his right toe when standing or walking. The examiner noted mild deformity of the veteran's right foot and mild deformity of the nail of the right great toe in the lateral margin. Active range of motion testing of the right foot showed dorsiflexion to be 0-20 degrees, plantar flexion to be 0-30 degrees, and inversion to be 0-30 degrees. Eversion was not determined due to pain. The examiner found no abnormality in the veteran's gait. The veteran could stand on both heels but not on the right toes because of his right toe condition. The examiner noted that there were no abnormal weight bearing changes noted. With repetitive use x3, the range of motion of the toes on the right foot were not additionally limited by pain, fatigue, weakness or lack of endurance. The veteran had fusion at the interphalangeal joint in the right great toe so that he has no movement at this joint. The veteran reported pain on flare-ups. The examiner diagnosed the veteran with foot strain that was mildly active at the time of the examination and status post fusion of the interphalangeal joint of the right great toe with postoperative changes and residual scar. The Board finds that the overall functional impairment of the foot as a result of the service-connected disability is not more than moderately severe. In this regard, the Board notes that the service-connected disability is limited to the great toe. It has resulted in limitation of motion, to include fusion of the interphalangeal joint. However, it has not resulted in any significant gait impairment. The Board has considered the November and December 2004 letters from the VA nurse practitioner and physician that recommend that the veteran work at a job where there would be no steady ambulation or prolonged standing. In the Board's view, such a recommendation is in complete accord with the evidence reported and discussed. The recommendations do not, however, provide any basis to assign a rating higher than 20 percent, as they do not indicate or suggest that the veteran's foot impairment due to his right great toe symptomatology is more than moderately severe. The Board has considered whether another diagnostic code is appropriate and would afford a higher rating, but has identified none. The veteran has arthritis of the right great toe; however, a rating under Diagnostic Code 5003 or 5010 would not provide a rating higher than already assigned. The veteran has also been diagnosed with a foot strain; however, that disability is not service-connected. The Board that Diagnostic Code 5171 provides that amputation of the great toe warrants a 10 percent rating if there is no metatarsal involvement and a 30 percent rating if there is metatarsal involvement. The impairment from the veteran's service-connected disability is not comparable to an amputation with metatarsal involvement. The Board has also considered additional functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007); DeLuca, 8 Vet. App. 202. However, the veteran's pain has already been considered as a principal component of his "moderately severe" impairment. There is no objective evidence of weakness, instability or incoordination. The examiner noted in the March 2007 examination that after repetitive use, the right foot was not additionally limited by pain, fatigue, weakness or lack of endurance. With consideration of all pertinent disability factors, the Board never the less concludes that the right great toe impairment is not more than moderately severe. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007); Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, an evaluation in excess of 20 percent is not in order. ORDER Entitlement to an increased rating for arthritis of the right great toe is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs