Citation Nr: 1135537 Decision Date: 09/22/11 Archive Date: 10/03/11 DOCKET NO. 08-00 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a compensable rating for hammertoes of the right foot. 2. Entitlement to a compensable rating for hammertoes of the left foot. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1975 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO) that continued service connection for left and right hammertoe release each rated 0 percent. FINDINGS OF FACT 1. A hammertoe deformity of all toes of the right foot is not shown. 2. A hammertoe deformity of all toes of the left foot is not shown. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a right hammertoe disability are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2010). 2. The criteria for a compensable rating for a left hammertoe disability are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2010). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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); 38 C.F.R. § 3.159(b); 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. 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. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified of VA's duties to notify and to assist in the development of his claims. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a letter in June 2006 letter, the Veteran was notified of the evidence necessary to substantiate the claims for increase , the evidence VA was responsible for providing, and the evidence he was responsible for providing. In the supplemental statement of the case in October 2010, the claims were readjudicated. The Veteran was provided general-type notice described in Vazquez-Flores. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been obtained. The Veteran was afforded VA examinations in June 2006 and in April 2010. The examination in April 2010 is adequate for rating the disabilities as it considered the evidence of record, noted the history of the disabilities and included a thorough physical examination of the Veteran and notation of all clinical findings necessary for a proper rating. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. Criteria, Evidence and Analysis In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations applies, 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. The right and left foot hammertoe disabilities are rated noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5282, for hammertoes of the third, fourth, and fifth toes. Under Diagnostic Code 5282, the criteria for a 10 percent rating are hammertoe deformity of all toes of the foot without claw foot. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). "Staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has not assigned staged ratings for the Veteran's right and left hammertoe disabilities and a noncompensable rating has been assigned for each foot for the entire appeal period. As the ratings currently assigned encompass the greatest level of impairment shown during the appeal period, a staged rating is not warranted. Service connection for right and left foot hammertoes was established by an October 2003 rating decision, at which time noncompensable ratings were assigned, effective October 26, 1998. The Veteran asserts his disabilities are more severe than what is represented by the noncompensable ratings. Postservice VA treatment records dated from January 2004 to October 2010 show intermittent treatment for service-connected hammertoes, as well as treatment for other nonservice-connected foot disability. On June 2006 VA examination, the Veteran stated that he currently was employed as a supervisor at the Post Office, and that he was only able to walk about a mile before his feet hurt. He stated that he wore orthopedic shoes to help manage his foot pain. There were no calluses or abnormal show wear of the feet. The Achilles tendon was midline on each foot. There was a small healed scar over the bilateral fifth PIP joint. The Veteran had no pain with toe flexion or extension and was able to stand on his toes and stand on his heels without difficulty. The Veteran's bilateral foot range of motion was not limited by pain, weakness, fatigability, incoordination, lack of endurance with repetitive motion or flares. X-rays revealed previous bilateral fifth PIP arthroplasty. In January 2007, the Veteran indicated that he experienced pain and discomfort on a daily basis and that he limited his walking and standing because of pain. He stated that the level of pain he experienced affected his ability to work. On April 2010 VA examination, the Veteran stated that he was currently employed fulltime as a post office supervisor and that he had not lost any time from work due to hammertoe disability. He complained of bilateral foot pain. There was no swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance or other symptoms. The Veteran stated that he was able to stand for one hour and he was able to walk about one-fourth mile. Physical examination of the feet revealed bilateral hammertoes of the third, fourth, and fifth toes without claw foot. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was no muscle atrophy of the feet. There was no evidence of abnormal weight bearing. An X-ray in May 2009 X-ray, attached to the report, showed minimal hammertoe deformity, bilaterally, of the 3rd, 4th, and 5th toes As compensable rating for hammertoes under Diagnostic Code 5282 requires hammertoes where all the toes on the foot are hammertoes and there is no evidence of claw foot. Although the Veteran has reported painful symptoms, a hammertoe deformity all toes of either the right or left foot have not been shown. The record by physical finding and by X-ray show that the 3rd, 4th, and 5th toes are hammertoes of each foot. As Diagnostic Code 5282 provides a 10 percent for hammertoe of all toes, the criteria for a compensable rating of either foot is not warranted. In summary, the Veteran has been awarded noncompensable disability ratings for his right and left foot hammertoe disabilities. At no time, however, is the Veteran shown to have hammertoe of all toes, the criteria for the next higher rating, 10 percent. Accordingly, the Board finds that a compensable rating for right and left foot hammertoe disabilities are not warranted. Extraschedular Consideration The Board also has considered whether the Veteran's claims warrant referral for extraschedular consideration. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's right and left foot hammertoe disabilities with the applicable schedular criteria, the Board finds that severity of the manifestations and associated impairment shown throughout are wholly encompassed by the schedular criteria. Consequently, the schedular criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt standard of proof does not apply. ORDER A compensable rating for hammertoes of the right foot is denied. A compensable rating for hammertoes of the left foot is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs