Citation Nr: 1122889	
Decision Date: 06/14/11    Archive Date: 06/28/11

DOCKET NO.  10-09 438	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from March 1951 to March 1953.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO confirmed and continued a previously assigned noncompensable rating for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot.

When the case was initially before the Board on appeal in June 2010, the issue of entitlement to a compensable rating for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot was remanded back to the RO for additional development of the record.  Upon completion of the requested development, the Appeals Management Center issued a rating decision in March 2011 in which the noncompensable disability rating was increased to 10 percent for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot, effective from June 20, 2008, the date on which the RO received the Veteran's claim for an increased (compensable) rating.  As the award is not a complete grant of benefits, the issue of entitlement to an increased disability rating, in excess of 10 percent, for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The competent medical and lay evidence of record is credible, and it establishes that the Veteran's service-connected residuals of a ganglion cyst removal on the dorsum of the left foot are manifested by pain, stiffness and swelling, with fatigue and lack of endurance, productive of an overall disability picture that cause no more than moderate functional impairment of the left foot.  



CONCLUSION OF LAW

The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot have not been met at any time during the period of time covered by this claim.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

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 appellant pre-adjudication notice by letter dated July 2008.  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.  The notice also specifically provided notice of how VA assigns ratings and effective dates in compliance with the holding in Dingess.  

Moreover, that information was reiterated in subsequent notices to the Veteran sent throughout the course of this appeal.  Additionally, the RO has, during the course of the appeal, provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claim.  In a letter sent to the Veteran in April 2009, notice of the specific rating criteria (Diagnostic Code 5284) used to rate the Veteran's service-connected left foot disability was provided.  The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  In fact, the Veteran has indicated, in a July 2010 statement that he had no additional evidence to support his claim and requested that his claim be decided as soon as possible.  

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of the 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; and the Veteran has not contended otherwise.  

The claim was remanded in June 2010, and there has been substantial compliance with the remand instructions.  Additional medical evidence was associated with the claims folder on remand and a VA examination was performed which addressed the severity of the service-connected condition and whether there were any additional disabilities caused or aggravated by the service-connected disability.  As the agency of original jurisdiction (AOJ) substantially complied with the June 2010 remand orders, no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).   

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

II.  Increased Rating

The Veteran seeks a disability rating in excess of 10 percent for the service-connected residuals of removal of ganglion cyst from the dorsum of the left foot.

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

When there is a question as to which of two evaluations should 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.

Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.

It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's service-connected right residuals of the removal of a ganglion cyst of the left foot are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284.  Diagnostic Code 5284 provides criteria for rating other foot injuries.  A moderate foot injury warrants a 10 percent disability evaluation.  A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation.  A note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot.  38 C.F.R. § 4.71a, Diagnostic Code 5284.

Disabilities of the foot are rated under Diagnostic Codes 5276 to 5284.  38 C.F.R. § 4.71a.  All of these codes have been considered to determine which code provides the Veteran's service-connected residuals of the removal of a ganglion cyst of the dorsum of the left foot with the most appropriate disability rating.  

Under Diagnostic Code 5276 for flatfoot, a 10 percent rating, regardless of whether the condition is unilateral or bilateral, indicates it is moderate with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet.  Higher ratings are assigned for more severe pes planus.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

Diagnostic Code 5277 rates bilateral weak foot.  A minimum rating is 10 percent and the underlying condition is to be rated otherwise.  This is characterized by a systematic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness.  

Diagnostic Code 5278 for claw foot (pes cavus) provides for a maximum 50 percent disability rating when there is bilateral marked contraction of plantar fascia with a dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity.  A maximum 30 percent disability rating is assignable when the preceding symptoms are unilateral.  A 30 percent disability rating may also be assigned when there is a tendency toward bilateral dorsiflexion of all toes, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  A 20 percent disability rating is assignable when the preceding symptoms are unilateral.  A 10 percent disability rating is assignable when the great toe is dorsiflexed, there is some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads, either bilaterally or unilaterally.

Further, Diagnostic Code 5279 for Metatarsalgia, anterior (Morton's Disease) provides for a maximum evaluation of 10 percent, whether the disability is unilateral or bilateral.

Diagnostic Code 5280 provides for a 10 percent disability rating for unilateral hallux valgus with resection of the metatarsal head, or severe enough to be equivalent of amputation of the great toe.  38 C.F.R. § 4.71a, Diagnostic Codes 5279, 5280.

Diagnostic Codes 5281, 5282 and 5283 apply to disabilities involving hallux rigidus (Diagnostic Code 5281), hammer toe (Diagnostic Code 5282) or malunion or nonunion of tarsal or metatarsal bones (Diagnostic Code 5283).

The evidence in this case indicates that the Veteran has multiple problems associated with both feet that are unrelated to the service-connected residuals of removal of the ganglion cyst of the dorsum of the left foot.  The medical evidence shows that the Veteran has bilateral diabetic neuropathy, bilateral vascular insufficiency, and bilateral toe nail fungus of all toe nails.  The VA examiner in 2010 opined that these conditions are unrelated to the service-connected disability.  However, the examiners in July 2008 and August 2010 noted that the Veteran had pain, swelling, stiffness, fatigue and lack of endurance in his left foot, that may or may not be residuals of the service-connected ganglion cyst removal on the dorsum of the left foot.  The examiner in July 2008 also noted that the Veteran had a non-tender scar associated with the removal of the ganglion cyst on the dorsum of the left foot, which was 3.5 cm long by .3 cm wide.  The examiner specifically stated that it caused no functional impairment.  

In July 2008, the examiner recorded the Veteran's reports of experiencing pain, swelling, stiffness, weakness, lack of endurance, inability to stand for more than a few minutes and walk more than a few yards.  The examiner noted that the Veteran used a walker although the Veteran's history was unclear as to which condition(s) necessitated use of the walker.  Physical examination revealed evidence of pain on motion but no evidence of swelling, tenderness, instability, weakness, or abnormal weight bearing.  His gait was antalgic, with a slow pace, and assisted by a walker.  
It was noted that the Veteran was retired.  The examiner noted that the disability had a significant effect on occupational activities due to decreased mobility and pain. 
 
However, the examiner in August 2010 rationalized that the complaints exhibited by the Veteran during the August 2010 examination were similar to those exhibited back in 1962, when the Veteran was having a flare-up of the original condition.  The examiner indicated that the Veteran used diabetic shoes and a walker due to arthritis and neuropathy, which was present in both lower extremities.  Although the examiner noted that an magnetic resonance imaging (MRI) would be necessary to conclusively support these findings, it appeared that the Veteran's symptoms were consistent with residuals of a ganglion cyst removal at the dorsum of the left foot.  The examiner noted that because of the swelling of the Veteran's foot, there was a possibility that the Veteran could have a recurrent cyst on that foot, as he did exhibit in 1962 and 1965.  That notwithstanding, the examiner opined that the Veteran had residual pain and tenderness related to his service-connected condition which caused a mild to moderate functional impairment.  Thus, the examiner determined that the Veteran's overall level of functional impairment attributable to the service-connected disability was mild to moderate.  In this regard, however, the examiner specifically indicated that the neuropathy of the lower extremities and venous insufficiency of the lower extremities had nothing to do with his service-connected condition and were not caused by or aggravated by his service-connected condition.  The examiner indicated that there significant occupational effects due to decreased mobility and pain.  It was noted that the Veteran retired in the 1980s due to age or duration of work.  

A July 2010 statement from his caregiver indicates that his left foot has given him more difficulty and pain over the years.  Currently, he had trouble walking due to regular swelling and severe pain of his foot.   His control of the foot while walking was limited so he had to use canes and walkers.  In addition, his outings were limited due to the left foot.  
 
In light of these findings, the RO assigned a 10 percent rating pursuant to Diagnostic Code 5284 for moderate disability of the left foot.  The criteria for the assignment of a rating in excess of 10 percent are not met, however, because there has never been more than moderate functional impairment shown that has been attributed to the service-connected disability of residuals of ganglion cyst removal on the left foot.  

The Veteran asserts that his left foot is barely functional.  

Although the examiner in July 2008 noted that the Veteran had severe functional impairment, this was clearly attributed to non-service-connected disabilities, given that the July 2008 examiner opined that there were no residuals associated with the status post removal of a ganglion from the dorsum of the left foot.  On the other hand, the examiner of August 2010 noted that the Veteran had moderate functional impairment, and specifically indicated that it was due to the service-connected disability, and did not include the other, non-service-connected conditions when making that determination.  The examiner considered the Veteran's reports of pain, stiffness, weakness, swelling and lack of endurance and the physical findings and opined that the functional impairment due to the service-connected disability was mild to moderate.  The Board finds the August 2010 report to be entitled to great probative weight concerning the objective functional impairment resulting from the service-connected disability as the examiner reviewed the medical history, conducted a physical examination and specifically identified the functional impairment resulting from the service-connected disability as distinguished from nonservice-connected disabilities.  

The Board has considered the Veteran's reported symptoms and the assertions by his caregiver to be credible, probative, and competent.  These statements support the assigned 10 percent evaluation.  However, to the extent that the Veteran and his caregiver assert that his foot is barely functional and that control of his foot was limited due to the service-connected disability, the statements are outweighed by the medical evidence.  The August 2010 examiner found that there were nonservice-connected conditions affecting the foot and set forth the functional impairment resulting from the service-connected condition alone.  In addition, the examiner noted that it was nonservice-connected conditions that required the use of diabetic shoes and a walker.  Accordingly, while the Veteran's statements and that of his caregiver support the currently assigned evaluation, the findings on the August 2010 examination report concerning the symptoms and functional impairment due to the service-connected disability alone outweigh the lay statements that a higher rating is warranted.  The reason for this is that the examiner reviewed the history of the service-connected condition, conducted an examination and provided specific information concerning the level of disability due to the service-connected condition alone.  Thus, a rating in excess of 10 percent is not for application under Diagnostic Code 5284.  The Board has considered whether distinct facts show that different ratings are warranted during different periods of time, however, the evidence does not support the assignment of a rating in excess of 10 percent at any point in time covered by this claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Moreover, the Veteran does not exhibit pes planus, weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toe or malunion of the tarsal or metatarsal bones, that has been connected to the service-connected residuals of the ganglion cyst removal on the dorsum of the left foot, such that rating in excess of 10 percent under any of those codes would be appropriate in this case.

As noted above, the Veteran is currently assigned a 10 percent rating under Diagnostic Code 5284 for "other foot injuries.  To warrant the next higher, 20 percent rating, there must be a moderately severe foot disability.  Given the examiner's opinion, as well as the other disabilities, which are bilateral in nature, the Veteran's service-connected left foot disability is not shown to be more than moderately disabling in this case.  

The Veteran's assertions regarding a connection between the pain and nerve damage in the left foot ever since the in-service cyst removal, as well as the development of other disabilities and their relationship to the service-connected disability have been considered.  The Veteran is certainly competent to report his symptoms, and there is no reason to doubt his credibility in this regard; however, the Veteran does not possess the requisite medical expertise necessary to provide an opinion requiring such medical knowledge as the complex medical nexus question in this case.  The Veteran's account of his symptoms, alone, does not provide enough evidence to show that the Veteran's neuropathy, venous insufficiency, and degenerative arthritis are related to the service-connected ganglion cyst of the left foot.  This is not a case where symptoms alone can define a medical condition or the onset, or etiology thereof.  Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition").  In addition, the RO, in the September 2008 rating decision, denied service connection for onychomycosis, peripheral artery disease, arthritis of the left foot, diabetes mellitus type II and hypertension as secondary to the service-connected disability.  The Veteran did not file a notice of disagreement with respect to these determinations.  

For these reasons, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the service-connected disability of residuals of ganglion cyst removal on the dorsum of the left foot.  As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.  

III.  Extra Schedular Consideration

Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered.  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  However, there has been no showing that the service-connected left foot residuals of a ganglion cyst removal under consideration here have otherwise rendered impracticable the application of the regular schedular standards.  The regular schedular standards contemplate the symptomatology shown in this case.  The examiner in August 2010 specifically noted that the Veteran's service-connected left foot disability resulted in mild to moderate functional impairment, and the 10 percent rating currently assigned specifically contemplates moderate overall foot impairment.  While both examiners noted that there were significant effects on occupational functioning due to decreased mobility and pain, these symptoms/manifestations are considered by the schedular criteria.  In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular schedular standards.  As such, referral for consideration for an extraschedular evaluation is not warranted here.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

IV.  Total Rating for Compensation Purposes Based on Individual Unemployability

Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  TDIU may be a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran retired many years ago and has not alleged that he was unemployable during the course of the claim due to the service-connected disability alone.  Moreover, there is no evidence of unemployability, accordingly, TDIU is not raised by the record.


ORDER

A disability rating in excess of 10 percent for the service-connected residuals of a ganglion cyst removal on the dorsum of the left foot is denied.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs