Citation Nr: 1123033	
Decision Date: 06/15/11    Archive Date: 06/28/11

DOCKET NO.  00-22 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for hammertoes, degenerative joint disease and hallux valgus of the left foot.

2.  Entitlement to a disability rating in excess of 10 percent for hammertoes, degenerative joint disease and hallux valgus of the right foot, for the period prior to April 19, 2010 and to a disability rating in excess of 30 percent thereafter.


REPRESENTATION

Appellant represented by:	Hugh D. Cox, Jr., Attorney at Law


WITNESSES AT HEARING ON APPEAL

The appellant and his spouse


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel


INTRODUCTION

The Veteran had active service from April 1962 to April 1965.  These claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2000 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina partially granted the Veteran's claim for a compensable evaluation for a bilateral foot disability by assigning the Veteran two separate 10 percent evaluations for his left and right foot disabilities.    

The Veteran and his spouse testified in support of these claims at hearings held before a Hearing Officer at the RO in December 2000 and Veterans Law Judges in Washington, D.C. in May 2002 and May 2004.  Transcripts of the hearing testimony are now of record.

The Board affirmed the RO's February 2000 rating decision in May 2005.  The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2006, based on a Joint Motion for Remand (joint motion), the Court issued an Order remanding the claims to the Board for compliance with the instructions in the joint motion.  

In November 2006, the Board in turn remanded the claims to the RO for additional action.  In May 2007, the Board partially granted one of the two claims on appeal by increasing the evaluation assigned for the Veteran's left foot disability to 30 percent, which was effectuated by the RO in a June 2007 rating decision, which assigned an effective date of September 27, 1999.  The Board also denied an evaluation in excess of 10 percent for the Veteran's right foot disability.  Thereafter, the Veteran again appealed the Board's decision to the Court.  In March 2008, based on a Joint Motion For Partial Remand (second joint motion), the Court issued an Order remanding that portion of the May 2007 decision denying an evaluation in excess of 30 percent for a left foot disability and an evaluation in excess of 10 percent for a right foot disability to the Board for compliance with the instructions in the second joint motion.  

Subsequently, the Veteran's claims were again before the Board in July 2008.  At that time, the Board again remanded the Veteran's case to the RO wherein the Board remanded the Veteran's claims for additional development and due process considerations.  The case was returned to the Board for appellate consideration.     

The issues of entitlement to an earlier effective date for a 30 percent disability evaluation for the left foot disability and entitlement to increased ratings for surgical scar of the left knee, post-operative residuals of right hernioplasty, degenerative joint disease of the left knee, instability of the left knee, degenerative joint disease of the left hip,  and left gluteus maximus hypertrophy, as well as the issues of entitlement to service connection for lumbar intervertebral disc syndrome, gout, and a right ankle disability, are the subject of a separate decision of the Board issued this date.


FINDINGS OF FACT

1.  The Veteran's hammertoes, degenerative joint disease and hallux valgus of the left foot is equivalent to a severe foot injury.

2.  The Veteran's hammertoes, degenerative joint disease and hallux valgus of the right foot is equivalent to a severe foot injury.


CONCLUSIONS OF LAW

1.  The criteria for a disability evaluation in excess of 30 percent for hammertoes, degenerative joint disease and hallux valgus of the left foot have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code (DC) 5284 (2010).

2.  The criteria for a disability evaluation of 30 percent for hammertoes, degenerative joint disease and hallux valgus of the right foot, but no higher, have been met for the entire rating period since September 27, 1999.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code (DC) 5284 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2010).  

Notice

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include:  (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.  Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

VA issued VCAA notice letters from the agency of original jurisdiction (AOJ) to the appellant.  These letters explained the evidence necessary to substantiate the Veteran's claims of entitlement to increased disability ratings, as well as the legal criteria for entitlement to such benefits.  The letters also informed him of his and VA's respective duties for obtaining evidence.  In addition, the April 2010 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  In the present case, the unfavorable AOJ decisions that were the basis of this appeal were decided prior to the issuance of an initial, appropriate VCAA notice.  However, the appellant's claims were readjudicated thereafter.  As such, the appellant has not been prejudiced and there was no defect with respect to timing of the VCAA notice.

The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  

Duty to Assist

With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination.  Additionally, the claims file contains the Veteran's own statements in support of his claims, including transcripts of his testimony before Veterans Law Judges (VLJ) of the Board.  The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. 

The record shows that the Veteran has been examined by VA in connection with his claims.  The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims.  Essentially, all available evidence that could substantiate the claims has been obtained.  There is no indication in the file that there are additional relevant records that have not yet been obtained

Legal Criteria

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes 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.  Hart v. Mansfield, 21 Vet App. 505 (2007).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the 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 it 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 that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2010).  See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).


Analysis

The Veteran is currently assigned disability ratings for hammertoes, degenerative joint disease and hallux valgus of the right and left feet by analogy to DC 5284.  See 38 C.F.R. § 4.20 (2010) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous).  Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate foot injury.  A 20 percent rating is assigned under this Code for a moderately severe foot injury and a 30 percent disability is assigned under this Code for a severe foot injury.  See 38 C.F.R. § 4.71a, Diagnostic Code 5284.

Considering the evidence relating to the Veteran's service-connected hammertoes, degenerative joint disease and hallux valgus of the right foot under the relevant rating criteria, Diagnostic Code 5284, the Board finds that the Veteran's disability picture is most consistent with the current 30 percent disability evaluation for the entire rating period since September 27, 1999, but that an increased disability evaluation beyond 30 percent is not warranted for any part of the rating period on appeal.  In addition, when considering these rating criteria in relation to the objective medical evidence for the Veteran's service-connected hammertoes, degenerative joint disease and hallux valgus of the left foot, the Board finds that the Veteran's disability picture is most consistent with the currently assigned 30 percent rating.  The objective clinical evidence of record indicates that the Veteran's right and left foot disabilities are equivalent to a severe foot injury.  In fact, the June 2003 and January 2007 VA examinations indicate that the Veteran had bony hammertoe deformities of each foot, with pain.  Although there was no evidence of weakness or abnormal weight-bearing of the right foot at these examinations, the Veteran's complaints were the same.  In addition, at these examinations and the Veteran's more recent October 2008 and April 2010 VA examinations, the Veteran's complaints remained the same, and the Veteran had bilateral hallux valgus, with reduced range of motion, tenderness, and effusion.  There was also evidence of fatigue, deformity, and degenerative joint disease with resorptive subluxation changes.   Therefore, the Board finds that the Veteran is entitled to a 30 percent disability evaluation, but no higher, for each of his service-connected hammertoes, degenerative joint disease and hallux valgus, for the entire rating period on appeal since September 27, 1999.

In reaching this decision, the Board also considered other applicable Diagnostic Codes, including Diagnostic Codes 5276 and 5278.  There is no evidence that the Veteran's hammertoes, degenerative joint disease and hallux valgus of the right and left feet resulted in pronounced bilateral flat foot with marked pronation and extreme tenderness of the plantar surfaces of the feet.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276.  In addition, there is no evidence that the Veteran has bilateral acquired claw foot with toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads.  See 38 C.F.R. § 4.71a, Diagnostic Code 5278.  As such, the Board does not believe that a compensable evaluation under Diagnostic Codes 5276 or 5278 is warranted.

The Board also has considered whether the Veteran is entitled to a higher rating on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).  See, too, 38 C.F.R. §§ 4.40, 4.45, and 4.59.  However, although the Veteran has complaints of pain, fatigue, and stiffness, there is no objective clinical indication he has any symptoms causing functional limitation (motion, etc.) to a degree that would support a higher, compensable rating his right and left foot disabilities.  Further, the current 30 percent disability evaluations contemplate the Veteran's complaints, as well as any limitation of motion due to pain.  

Finally, 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.  See 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 the schedular evaluations assigned for the Veteran's service-connected right and left foot disabilities are adequate in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected right and left foot disabilities; in this case, the Veteran's right and left foot disabilities have been manifested by pain which the Board specifically considered in rating his feet as being severe foot injuries.  Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization.  The April 2010 VA examiner indicated that the Veteran's foot disabilities effect on occupational impairment was decreased standing and walking, but that he did not require any assistive devices due to his foot disabilities.  The Veteran did not indicate, and the medical evidence does not show, that he was hospitalized for his service-connected hammertoes, degenerative joint disease and hallux valgus of the right and left feet at any time during the pendency of this appeal.  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).

In conclusion, the evidence of record reveals neurological manifestations consistent with a 30 percent evaluation, for the entire rating period on appeal for each of the Veteran's hammertoes, degenerative joint disease and hallux valgus of the right and left feet.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).



ORDER

The claim for a rating higher than 30 percent for hammertoes, degenerative joint disease and hallux valgus of the left foot is denied.  

A 30 percent disability rating is granted for the entire rating period on appeal, for hammertoes, degenerative joint disease and hallux valgus of the right foot, subject to the laws and regulations governing the payment of VA compensation.




____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs