Citation Nr: 1045895 Decision Date: 12/08/10 Archive Date: 12/20/10 DOCKET NO. 07-23 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating greater than 10 percent for post-operative left bunionectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active service from September 1975 to September 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). As a consequence of rating decisions issued since November 2007, the Veteran's service-connected post-operative left bunionectomy is assigned a 10 percent rating from August 2006, a 100 percent rating under 38 C.F.R. § 4.30 from February 7, 2007 through March 2007, a 10 percent rating from April 1, 2007, a 100 percent rating from July 18, 2007 through October 2007 under 38 C.F.R. § 4.30, a 10 percent rating from November 1, 2007, a 100 percent rating from November 19, 2008 through February 2009 under 38 C.F.R. § 4.30, and a 10 percent rating from March 1, 2009. FINDING OF FACT The Veteran's left bunionectomy symptoms are consistent with no more than a moderate foot injury. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for post-operative left bunionectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in September 2006. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding effective date and degree of disability, was given. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran examinations in February 2007, July 2008, and August 2009, obtained medical opinions as to severity of disability, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. In summary, the Board finds that VA substantially has complied with the notice and assistance requirements of the VCAA and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran contends that her service-connected post-operative left bunionectomy is more disabling than currently evaluated. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3 (2010). If there is a question as to which evaluation to apply to the Veteran's disability, 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 (2010). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-28. The RO has rated the Veteran's post-operative left bunionectomy under DC 5280 for hallux valgus. There is no higher rating under DC 5280 than the 10 percent rating currently assigned for the entirety of the rating period outside of the temporary total ratings. Accordingly, the Board finds that DC 5284 (other foot injuries) also should be considered. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). Under DC 5284, moderate foot injuries warrant a 10 percent rating and moderately severe foot injuries warrant a 20 percent rating. See 38 C.F.R. § 4.71a, DC 5284. On VA evaluation in October 2006, the Veteran had a grossly deviated hallux with 50 percent articulation with the head of the metatarsal. On X-rays, it was without fixation. The assessment was recurrent bunion deformity with secondary hammertoe. The February 2007 VA examination results and other outpatient treatment which occurred during periods of a temporary total 100 percent disabling rating under 38 C.F.R. § 4.30 for left foot bunionectomy surgery are not being reported in this decision because this treatment occurred during periods when a 100 percent rating was assigned for the disability at issue. As such, these records contain no significant information pertinent to the issue at hand. On VA evaluation in May 2007, the Veteran had prominence of the 1st metatarsal head. X-rays suggested medial subluxation of the proximal phalanx. Motion was restricted with fixation in place. The assessments were hallux rigidis and 1st metatarsophalangeal joint subluxation. The Veteran had a plantar flexed hallux in June 2007. On VA examination in July 2008, the Veteran limped to a certain degree on both feet, left more than right. She had no unusual shoe pattern and no skin or vascular change. There was no hammertoe or other deformity. Achilles tendon alignment was normal and there was no forefoot or hindfoot malalignment. The left hallux had a valgus of 20 degrees of angulation at the first metatarsophalangeal joint. Calluses indicated some abnormal weightbearing. On VA evaluation in March 2009, the Veteran stated that she was having some achiness with prolonged weight bearing and otherwise was doing fine. Her incision was smooth and she had no swelling. She was to continue to minimize prolonged weight bearing activities for 6 months at her discretion. On VA examination in August 2009, the Veteran complained of pain, stiffness, and lack of endurance. She also complained of pain, swelling, and fatigability plus lack of endurance and stiffness on standing and walking. Examination revealed the left foot to have painful motion, edema, and tenderness. Her gait was abnormal in that it was unsteady and she used a cane for balance. The left foot had callosities and an unusual shoe wear pattern, and there was hyperpigmentation distally. The Veteran had flatfoot of both feet but her weightbearing and non-weightbearing alignment of the Achilles tendon was normal. There was no pain on manipulation of the Achilles tendon. The left foot had no valgus or forefoot malalignment. She had no left hallux valgus and the angulation of the left first metatarsophalangeal joint was normal. The left first metatarsophalangeal joint was ankylosed in a neutral position. The left foot was moderately abnormal with evidence of arthritis, post surgical changes, calcaneal spur, and plantar and posterior osteophyte. The diagnosis were post bunionectomy of the left foot, fusion of the first metatarsophalangeal and proximal interphalangeal joint, post surgery for hammertoe, 2nd toe, with fusion of the proximal interphalangeal joint, multiple surgeries on the left foot with residual scars, plantar fasciitis, plantar osteophyte, and pes planus. VA examination in August 2009 also indicated that there were scars related to the surgery. There was scar tenderness on examination. The scarring was deep and adherent to underlying tissue. There was no frequent loss of covering of skin over the scar, such as from ulceration or breakdown. The underlying soft tissue damage was 6.5 centimeters by 0.5 centimeter. There was no limitation of motion caused by the scar. There was a second scar over the left foot over the metatarsophalangeal joint of the 2nd toe. It was 3 centimeters by 0.1 centimeter. It was tender. It was not adherent to underlying tissue and there was no frequent loss of covering of skin over the scar. The scar was not superficial. It was deep. There was no limitation of motion caused by the scar. The Board finds that the preponderance of the evidence is against assigning a disability rating greater than 10 percent for the Veteran's service-connected post-operative left bunionectomy. The Veteran's symptoms more nearly approximate a moderate foot injury than a moderately severe foot injury. The Veteran has a hallux valgus which has had limited motion and ankylosis in a neutral position during the course of the claim. There has been some abnormal weightbearing as reflected by calluses. Left foot motion has been painful and there have been painful deep scars. There is no valgus or forefoot malalignment. On examination in 2009, the Veteran had no more than a moderately abnormal left foot. There are no findings suggestive of a moderately severe foot injury; it was even categorized as only moderately abnormal on VA examination in 2009. As for the Veteran's scars, if they were superficial, then a separate 10 percent rating could be assigned for them under 38 C.F.R. § 4.118, DC 7804 (2008), which provides for a 10 percent rating for painful superficial scars. The evidence shows, however, that the Veteran's scars are deep. Deep scars have different rating criteria. See 38 C.F.R. § 4.118, DC 7801. For a 10 percent rating under DC 7801, there must be a scar that is deep or that causes limited motion and it must exceed 6 square inches. The evidence shows that the Veteran's scars do not exceed 6 square inches. Thus, the Board finds that the Veteran's scars associated with her left bunion surgery are not separately compensable under the applicable rating criteria for evaluating scars. To accord the Veteran's scars a 10 percent rating under DC 7804 also would constitute pyramiding, as pain from the same disability would be compensated twice. Pyramiding specifically is prohibited by 38 C.F.R. § 4.14 (2010). The Board finally finds that, because the disability attributable to the Veteran's service-connected post-operative left bunionectomy has not changed significantly during the pendency of this appeal, a uniform rating is warranted. See Fenderson, 12 Vet. App. at 119. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected post-operative left bunionectomy. 38 C.F.R. § 3.321 (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). As discussed above, the Veteran currently is in receipt of the maximum schedular 10 percent rating available under DC 5280 for his service-connected post-operative left bunionectomy. See 38 C.F.R. § 4.71a, DC 5280. An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluation assigned for the Veteran's service-connected post-operative left bunionectomy are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of this disability. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating greater than 10 percent for post-operative left bunionectomy is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs