Citation Nr: 1126909	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO. 07-21 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to a rating in excess of 10 percent for residuals of right foot fractures of the second, third, fourth, and fifth metatarsals and great toe proximal phalanx.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to August 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

The Veteran provided testimony at a February 2010 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

This case was the subject of a Board remand dated in April 2010. 


FINDING OF FACT

For the full pendency of the Veteran's appealed increased rating claim he has experienced moderate to moderately severe residuals of right foot fractures to the second, third, fourth, and fifth metatarsals and great toe proximate phalanx.


CONCLUSION OF LAW

The criteria for an increased disability rating of 20 percent, but no more, for residuals of right foot fractures to the second, third, fourth, and fifth metatarsals and great toe proximate phalanx are approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Codes 5283, 5284 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision the Board finds that for the full pendency of the Veteran's appealed increased rating claim he has experienced moderate to moderately severe residuals of right foot fractures to the second, third, fourth, and fifth metatarsals and great toe proximate phalanx. Accordingly, the Board affords the benefit of the doubt in favor of the Veteran and grants an increased rating of 20 percent for the Veteran's service-connected right foot disability. This is a full grant of the benefit sought on appeal. See February 2010 Board hearing transcript, pages 14 and 17 (in which Veteran asserts that he seeks a rating of 20 percent but no more for his service-connected right foot disability).

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 

VCAA letters dated in March 2005 and April 2010 explained the evidence necessary to substantiate the Veteran's claim for an increased rating for right foot disability. These letters also informed him of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the April 2010 VCAA notice letter 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 v. Nicholson, 19 Vet. App. 473 (2006). 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. 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. Here, it is arguable that not all required VCAA notice was accomplished prior to initial adjudication of the Veteran's increased rating claim in June 2005. However, after all required VCAA notice was accomplished in April 2010, the claim was readjudicated by a supplemental statement of the case in April 2011. Any perceived deficiency in timing of VCAA notice therefore constitutes no more than harmless, non-prejudicial error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With regard to the duty to assist, the claims file contains service treatment records, reports of VA post-service treatment, reports of private treatment, and reports of VA examinations. The Veteran was requested to provide information of any additional treatment received by a VA letter in April 2010, but has not indicated in response that there are additional records of treatment to be sought. See 38 U.S.C.A. § 5103A(a)-(d).

At VA treatment in November 2009 a VA podiatrist recounted that he had previously treated the Veteran in July 2006, at which time the Veteran was provided orthotics for his service-connected right foot disability. The July 2006 VA treatment records are not associated with the claims file. However, as the Board grants the full benefit sought on appeal in this decision, this defect in accomplishment of the duty to assist is no more than harmless, nonprejudicial error.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The July 2010 VA examination in this matter reflects a detailed review of the claims file and examination of the Veteran, addresses the relevant rating criteria, and contains an adequate rationale for the conclusions reached as to the nature and severity of the Veteran's disability. The examination report is therefore adequate for adjudication of the Veteran's claim.

The Agency of Original Jurisdiction substantially complied with the Board's April 2010 remand directives by requesting the Veteran to identify any additional records of treatment and providing the Veteran with an adequate VA examination and opinion pertaining to his claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Additionally, the Board is granting a rating of 20 percent for the Veteran's service-connected right foot disability for the full rating period on appeal, which constitutes a full grant of the benefit sought on appeal. See February 2010 Board hearing transcript, pages 14 and 17 (in which Veteran asserts that he seeks a rating of 20 percent but no more for his service-connected right foot disability). Thus, any defect in notice or assistance constitutes no more than harmless, nonprejudicial error. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. 


Merits of the Claim

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 

In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The effective date of an award of increased compensation to a veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if the application for an increased rating is received within one year of the date of increase in disability. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses, or 'pyramiding' of ratings, are to be avoided. 38 C.F.R. § 4.14. 
 
Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5283, a 10 percent rating is assigned for moderate malunion of or nonunion of the tarsal or metatarsal bones. A 20 percent rating is assigned for moderately severe malunion of or nonunion of the tarsal or metatarsal bones. A 30 percent rating is assigned for severe malunion of or nonunion of the tarsal or metatarsal bones. 

Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, moderate residuals of 'other' foot injuries warrant a 10 percent rating. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. 38 C.F.R. § 4.71a, DC 5284.

Service treatment records reflect that the Veteran experienced fractures of the second through fifth metatarsals and of the right great toe when he fell from a roof while serving in Vietnam. He underwent surgery and was treated with Kirschner wires that were inserted and later removed. Treatment during service included a lumbar sympathectomy block for relief of right foot pain symptoms, but with little success. He was granted service connection for the resultant disability in March 1970, effective from August 1969, immediately after his discharge from active service. His service-connected right foot disability has been rated as 10 percent disabling from the date of his discharge from service forward.

At a November 1976 special orthopedic examination the Veteran was found to have an observable deformity by inspection of the right foot with malunion of metatarsal IV and V and probably of III with resulting relative adduction of that portion of the forefoot. The area was not remarkably tender. There was no swelling, redness, inflammation, etc. He walked essentially without a limp but with some intoeing on the right. X-rays showed the malunion and deformity of the metatarsals.

The RO received the Veteran's claim for an increased rating for his service-connected right foot disability in January 2005. He indicated he had not received any treatment for the disability in the past twelve months. He asserted that the foot hurt when he walked, "almost like a toothache," especially when walking barefoot.

A March 2005 VA examination was conducted without the benefit of the claims file or the relevant service or post-service treatment records. The examination was conducted by a physician's assistant rather than a more specialized or expert clinician such as an orthopedist, other physician, or podiatrist. The diagnosis of the service-connected right foot disability was status post open reduction internal fixation for fractures of the first, second, third, fourth and fifth toes on the right foot, with residuals third and fourth synostosis confirmed on X-rays. The examiner opined that "it is within reason to believe this patient would get repetitive movement flares after standing or walking, where he would lose between ten percent and [fifteen] percent of his range of motion, strength, coordination, and endurance associated with the pain. This does not affect his home life, and he is retired."  Although the examination findings are detailed, the Board finds the examination report of only limited probative value due to the lack of expertise of the examiner, his not having the relevant medical evidence available for review, and the limited rationale for his findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008).

The Veteran received VA treatment for his right foot in July 2006, as recounted by a VA podiatrist who again treated the Veteran in February 2009. In July 2006 the Veteran was provided orthotics for his service-connected right foot disability. The July 2006 VA treatment records are not associated with the claims file. However, as the Board grants the full benefit sought on appeal in this decision, this defect in accomplishment of VA's duty to assist is no more than harmless, nonprejudicial error.

In February 2009 the Veteran contacted VA by telephone to request treatment for swelling of the right foot that had lasted for three days. He described having a pain level of 5 of 10. He described the right foot as red and warm to the touch on top of the foot.

Upon VA treatment eleven days later in February 2009 for soft tissue swelling of the right foot below the lateral malleolus, there was no increased warmth or redness. The ankle had full range of motion and no crepitus. The assessment was right foot pain and swelling. 

February 2009 VA X-rays showed old healed fractures of the third through fifth metatarsals, as seen on a prior study dated in July 2006. (The July 2006 VA X-ray report is not associated with the claims file.)  The impression was old fractures with deformity involving the third through fifth metatarsals.

At a VA examination in July 2010, the Veteran indicated that his baseline pain was 2/10, but that when he walked more than six blocks his pain flared up to 6/10. The examiner noted that he had seen the Veteran walking in the hall with a mild limp. On examination of the foot there was some widening of the forefoot area relative to the heel. There was no discoloration, redness, or swelling of the foot on the day of the VA examination. There was dorsal enlargement due to the fractures and callus formation dorsally on the second, third and fourth metatarsals. He had normal motion of all toes with full flexion, full extension passively and actively, and no cock up toes, hammertoes, bunions, or other deformities. He had some minimal discomfort over compressing the MTP joint of the great toe. There were no calluses or corns on the bottom of the foot, and the Veteran's foot pad was not tender to palpation in the sole of the foot. 

The July 2010 VA examiner diagnosed the Veteran as having healed metatarsal fractures of the right foot with some deformity of the metatarsal shafts. The examiner noted that X-rays showed that the Veteran had developed synostosis or bony bridge between the third and fourth metatarsals. He opined that this bony bridge may be responsible for some of the Veteran's pain on standing and walking and may eventually need to be resected. The examiner asserted that the Veteran was coping and dealing with this discomfort fairly well and was still able to walk six blocks. It was recommended that the Veteran be seen again by VA podiatry  and obtain a set of new custom-formed insoles and arch supports. The examiner concluded that the Veteran's condition of the right foot was moderately functionally incapacitating.

The Board finds that for the full period on appeal the Veteran's service-connected right foot disability has been moderate to moderately severe. The original in-service injury was such as to require surgery and temporary wires in his foot. The Veteran has permanent deformity of multiple toes and an overall deformity and widening of the forefoot as a result of his in-service foot injury. Further, the Veteran has shortening of the fourth metatarsal, degenerative changes, and a synostosis between the fourth and fifth metatarsals. From the date of his January 2005 claim for an increased rating he has described constant ongoing pain with significantly greater pain upon moderate exertion. 

The July 2010 VA examiner opined that the synostosis may have to be resected and recommended a new set of custom orthotics for the Veteran. The Veteran indicated at his February 2010 Board hearing that running to help stay in shape was not a realistic possibility for him. The November 2009 VA treatment provider described the Veteran's disability as a "painful malunion of the right foot."  On most occasions he has been noted not to have swelling, though he did have soft tissue swelling of the right foot during treatment in February 2009. At his July 2010 VA examination the Veteran was noted to have a mild limp in the hall prior to the examination, and the Veteran, although observed at times not to limp, has provided competent and credible accounts of increased pain and limping after periods of moderate exertion. The accounts are consistent with the medical opinion evidence of record.

Although the Veteran generally walks unassisted for limited distances, after taking into account his increased pain, fatigue, and limping on extended use of the foot his overall disability level is not merely moderate but falls within the moderate to moderately severe range. See DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Affording the benefit of the doubt to the Veteran, the Board finds that a 20 percent rating for moderately severe disability under either of the two most directly applicable rating codes, which best characterize the Veteran's service-connected right foot disability, is warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5283 (Tarsal, or metatarsal bones, malunion of, or nonunion of) and Diagnostic Code 5284 (Foot injuries, other). 

Separate ratings under both Diagnostic Codes 5283 and 5284 may not be awarded as this would constitute impermissible pyramiding of ratings for the same symptoms and manifestations under different rating codes. See 38 C.F.R. § 4.14.

The effective date for the higher rating of 20 percent will be January 13, 2005, the date the RO received the Veteran's claim for an increased rating, since the Veteran at that time indicated that he had not received any treatment for the prior twelve months and there is no evidence that the condition increased in severity during that time period. See 38 C.F.R. § 3.400(o)(1).

The next higher rating of 30 percent is not warranted because the Veteran's service-connected right foot disability does not meet or approximate a severe level of disability. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5283 and 5284. On most occasions he has full range of motion of all toes, is able to walk unassisted, and has no swelling, redness or warmth of the foot. Although at times he has significant difficulty walking, he is by his own account at his July 2010 VA examination able to walk six blocks after being rested. At times he has been observed to walk without a limp. Based on factors such as these the Board finds that the evidence of record indicates that the Veteran's service-connected disability of the right foot is better described as moderately severe rather than severe.

As the preponderance of the evidence indicates that the disability is moderately severe rather than severe, the benefit of the doubt rule is not for application in determining whether the criteria for a rating of 30 percent are  met. See Alemany v. Brown, 9 Vet. App. 518 (1996), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected residuals of right foot fractures of the second, third, fourth, and fifth metatarsals and great toe proximal phalanx. The governing norm in such exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating criteria directly address residuals of fractures of the foot, to be rated on the severity of those residuals. The Veteran has pain and difficulty walking distances as a result of his healed fractures and resultant deformity of the bones of the right foot. There is nothing exceptional or unusual with respect to the Veteran's residuals of his in-service foot injury that would render his disability outside of the norm of other claimants similarly disabled. Accordingly, referral to the Director, Compensation and Pension, is not warranted.

Moreover, the award of a schedular rating of 20 percent for residuals of right foot fractures of the second, third, fourth, and fifth metatarsals and great toe proximal phalanx for the full pendency of the Veteran's increased rating claim constitutes a complete grant of the benefit sought on appeal. See February 2010 Board hearing transcript, pages 14 and 17.


ORDER

An increased rating of 20 percent, but no more, is granted for residuals of right foot fractures of the second, third, fourth, and fifth metatarsals and great toe proximal phalanx.



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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs