Citation Nr: 1136831 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 07-08 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to March 8, 2007 and in excess of 20 percent from March 8, 2007, for degenerative joint disease (DJD) of the right foot. 2. Entitlement to a disability rating in excess of 10 percent for DJD of the left foot. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to July 1965. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the above Regional Office (RO). While the appeal was pending, and specifically in a November 2008 determination, the RO increased the rating for the Veteran's service-connected right foot disability from 10 percent to 20 percent effective from March 8, 2007. The Veteran has not expressed satisfaction with the 20 percent evaluation granted. As a result, he is presumed to be seeking the maximum possible evaluation, and the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993) (holding that, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available evaluations for that disorder). The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in July 2009. A transcript of the hearing is associated with the claims folder. The case was then Remanded by the Board in October 2009 for additional development and readjudication. FINDINGS OF FACT 1. Prior to March 8, 2007, the Veteran's DJD of the right foot was primarily manifested by pain but by no incapacitating episodes and no more than moderate functional impairment. 2. Since March 8, 2007, the Veteran's DJD of the right foot is primarily manifested by pain but by no more than moderately severe functional impairment. 3. The Veteran's DJD of the left foot is primarily manifested by pain but by no incapacitating episodes and no more than moderate functional impairment. CONCLUSIONS OF LAW 1. Prior to March 8, 2007, the criteria for a disability rating in excess of 10 percent for DJD of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a. Diagnostic Codes (DCs) 5010, 5284 (2010). 2. Since March 8, 2007, the criteria for a disability rating in excess of 20 percent for DJD of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a. DCs 5010, 5284 (2010). 3. The criteria for a disability rating in excess of 10 percent for DJD of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a. DCs 5010, 5284 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 notice from VA 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), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In letters dated in August 2003, April 2007, and October 2008, the RO informed the Veteran of its duty to assist him in substantiating his increased rating claims under the VCAA, and the effect of this duty upon his claims. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice in an increased rating claim need not be "veteran specific"). The October 2008 correspondence in particular notified the Veteran of the type of evidence that may reflect a worsening of his service-connected left and right foot disabilities, including the nature and symptoms of the conditions, the severity and duration of the symptoms, the impact of the conditions and symptoms on employment and daily life, on-going treatment records, recent Social Security determinations, and statements from employers and others who have witnessed how the claimed disabilities affect him and his ability to work. Collectively, these letters also informed the Veteran of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. The timing defect of the October 2008 letter was cured by the RO's subsequent readjudication of these increased rating claims and issuance of SSOCs in November 2008 and August 2011. The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claims adjudicated herein. His in-service and pertinent post-service treatment reports are of record, and relevant VA examinations were obtained in January 2005, May 2007, May 2010, and April 2011. 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 VA examinations conducted in the present appeal provide sufficient detail to rate the Veteran's service-connected bilateral foot disabilities and include a thorough discussion of the effect of his symptoms on his functioning. Further, review of the record reveals that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. While the RO did not obtain the associated records, additional development to do so in this case is unnecessary because there is nothing in the record that indicates the Veteran received medical treatment for his service-connected bilateral foot disabilities from health care providers other than those whose records are already included in his VA claims folder, and he has not contended that SSA records include findings that relate to or would provide a reasonable possibility of substantiating his increased rating claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA had no duty to request a Veteran's SSA records when there was no specific allegation that the evidence, reports, or evaluations in conjunction with the SSA decision are relevant to the current claim and the SSA decision found in the record also does not identify testimony, documents, and/or medical reports relating to the Veteran's claim). Thus, no useful purpose would be gained in further delaying a decision in this case by requesting SSA records in this instance. The Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed and in obtaining evidence pertinent to his increased rating claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. II. Law and Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the Veteran contends that his service-connected right foot and left foot disabilities are more disabling than their current disability ratings reflect. After considering these contentions, however, the Board finds that the pertinent medical findings, as shown in the examinations conducted during the current appeal, directly address the criteria under which these service-connected disability are evaluated and are, thus, more probative than the subjective evidence of complaints regarding the severity of the pertinent symptomatology. The Board notes that, historically, the 10 percent disability ratings under Diagnostic Code (DC) 5010 for DJD of the both feet have been in effect since September 2000. The Veteran filed his most recent claim for increase in August 2003. In November 2008, the disability rating for the Veteran's right foot was increased to 20 percent, under DC 5284 effective March 8, 2007. On December 17, 2009, the Veteran underwent right foot surgery. He was subsequently granted a temporary total rating (100 percent) from December 17, 2009 to February 28, 2010 for postoperative convalescence following the surgery 38 C.F.R. § 4.30 (2010). The 20 percent disability rating for the right foot was continued thereafter. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DCs 5003 and 5010. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Id. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints and two or more minor joint groups and there is occasional incapacitating exacerbation. Id. For the purposes of rating disability from arthritis, multiple involvement of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). There is no specific diagnostic code which describes restriction of motion of the foot. However DC 5284 provides ratings for residuals of foot injuries. Moderate foot injuries are rated 10 percent disabling; moderately severe foot injuries are rated 20 percent disabling; and severe foot injuries are rated 30 percent disabling. A Note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. The Board observes that the words "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2010). In the current appeal, the Board notes that the Veteran is also service-connected for osteoarthritis of his left ankle secondary to the DJD of his left foot, osteoarthritis of his right ankle secondary to the DJD of his right foot, as well as intermediate and medial dorsal cutaneous nerve neuropathy of his right foot. These disabilities are not on appeal and will, therefore, not be addressed in this decision. A. Analysis of the Right Foot DJD Evaluation In Excess of 10 Percent Prior to March 8, 2007 The evidence of record prior to March 8, 2007 shows treatment for right foot symptoms, but does not otherwise indicate that they met the criteria for a rating in excess of 10 percent. In December 2002, the Veteran was treated for an episode of right foot pain. Examination revealed bony deformity at the TMT (tarsometatarsal) junction and tenderness to palpation and passive range of motion. DP (dorsalis pedis) and PT (posterior tibial) pulses were good. X-rays dated in September 2003 show post traumatic or neuropathic changes in the mediotarsal and tarsal metatarsal joints on the right. During VA examination in January 2005, the examiner noted the Veteran's history of fractures of both feet in a motor vehicle accident during service. His primary complaint was of constant right foot pain much worse than the left foot. He described the pain as constant, sharp and burning. He complained of morning stiffness, but denied swelling, redness, or warmth. The pain was precipitated by walking or standing. The main alleviating factors were medication and staying off his feet. He had been prescribed arch supports and a cane for ambulation. He denied any limitations in ability to care for own activities of daily living. He had been medically retired for the last 2-1/2 years due to heart, back and feet. He was currently receiving Social Security benefits. Examination of the Veteran's right foot was negative for edema, erythema, or warmth of the joints or soft tissues of the right foot or ankle. There was tenderness palpating over the region of the cuboid and cuneiform regions of the right foot. There was bony hypertrophy noted over the cuboid region and the Veteran voiced subjective complaints of pain with palpation at this site. There was no tenderness over the remainder of the bones of the right foot including the plantar aspect, posterior heel, arch or the site of insertion of the plantar fascia. There was hair on the toes and the nails were normal in coloration and thickness and were neatly trimmed. There was a callous on the medial side of the right first phalange and one over the distal right first metatarsal, which were non-tender and slightly raised with dry keratonized skin. There were no rashes, or skin breakdown and no joint laxity, instability, or deformity. Range of motion was essentially normal. Repetitive motion did not increase pain, change range of motion, or cause fatigability. He was able to rise on the heels without pain, but rising up on the toes elicited complaints of pain. There were no foot deformities including hammertoe, high arch, pes planus, or clawfoot. There was no abnormality of the Achilles tendon. There was 2+ dorsalis and posterior tibialis pulses. Sensation via monofilament, vibratory, and position sense were all intact. X-rays showed osteophytes at the level of the midfoot, calcification at the insertion of the Achilles tendon upon the calcaneus, and a small calcaneal spur along the plantar surface. The diagnosis was traumatic arthritis of the right foot with osteophyte of the mid-foot and calcaneal spurs. Applying the regulations to the facts in the case, the Board finds that, prior to March 8, 2007, the criteria for a rating in excess of 10 percent for the Veteran's right foot DJD were not met. During the time period in question, the Veteran's right foot disability was comprised primarily of complaints of pain with any activity. Yet, despite these complaints, the Veteran remained fully ambulatory and functional. Objective clinical findings included degenerative changes, bony hypertrophy, and callouses. However, there was no medical evidence of any additional impairment suggestive of a 20 percent disability rating. In this case the Board is faced with findings of minimal symptomatology associated with DJD of the right foot and a diagnostic code that requires moderately-severe symptomatology in order to assign a higher rating. Thus, the Board finds that prior to March 8, 2007, the criteria for an evaluation greater than 10 percent under DC 5284 are not met. Although X-ray findings were consistent with degenerative changes in the mediotarsal and tarsal metatarsal joints, the examination did not demonstrate that the Veteran's service-connected right foot disability resulted in incapacitating exacerbations. Accordingly, DC 5010 cannot serve as a basis for a 20 percent disability rating prior to March 8, 2007. Evaluation In Excess of 20 Percent Since March 8, 2007 It was not until a VA outpatient evaluation on March 8, 2007, that clinical findings approximating the assignment of a 20 percent rating are noted. On this date the Veteran was evaluated for an exacerbation of right foot pain. Examination significant collapse of the medial midfoot and rearfoot with a palpable hypertrophic bone on the right foot, and severe flat foot deformity. The pertinent clinical assessment was post traumatic arthropathy and arthritis of the right foot. Thereafter, the RO determined that Veteran met the schedular criteria for a 20 percent disability under DC 5284 effective the date of the outpatient treatment record first showing the increase in pathology. Additional evidence relevant to the current level of the Veteran's right foot disability includes a May 2007 VA examination report. At that time, the Veteran had generalized swelling of the feet especially, the toes. He had 2+pedal edema and limited range of motion of the toes with pain on repetitive motion. Dorsiflexion of the toes was limited to 20 degrees and plantar flexion of the toes was limited to 10 degrees with pain bilaterally. He had pain in the heel areas of both feet as well as the forefoot areas. His gait was antalgic. Dorsalis and posterior tibial pulses were palpable bilaterally. There was no evidence of hammertoe, claw toe deformity, hallux valgus, or pes planus. X-rays of the feet revealed degenerative joint disease especially of the right foot in the mid tarsal bones, especially the cuneiform bones. There was aseptic necrosis of the cuneiform bones of the right foot with osteoporosis and marked destruction of the medial cuneiform bone. The diagnosis was traumatic arthritis of the feet with aseptic necrosis and degenerative joint disease of the tarsal bones of the right foot. VA outpatient treatment records show the Veteran was evaluated in February 2009 for incapacitating chronic severe debilitating pain on standing and walking. Examination showed palpable hypertrophic bone throughout the midfoot and rearfoot bilaterally with pain on palpation across the Lisfranc joint on the right side. There was also pain on joint range of motion. The clinical impression was posttraumatic arthropathy with osteoarthritis. X-rays of the right foot showed degenerative changes at multiple intertarsal joints within the midfoot. Subsequent records shows that on December 17, 2009 the Veteran underwent a right medial column arthrodesis and arthrodesis of the right second and third tarsometatarsals. During VA examination of the right foot in May 2010, the Veteran had significant moderate to moderately severe swelling of the right midfoot. There was also an abducted deformity and joint effusion noted in that area with increased calor. There was pain on palpation throughout the lateral tarsometatarsal joint complex. There was absolute fusion of the medial tarsometatarsal joints to include the first, second, and third metatarsal joints and medial midfoot. There was no pain however in that area on range of motion, but there was pain on the right fourth and fifth tarsometatarsal joints. There was right medial midfoot scar that measured 9.5 x 0.1 cm in diameter. The scar was not hypertrophic, but was fine and smooth without paresthesias on percussion. There was another scar on the dorsal central aspect of the midfoot that was S-shaped and measured 5 x 0.1 cm in diameter with no parasthesias on palpation. X-rays of the right foot showed a plate and screw system to the medial first tarsometatarsal joint and naviculocuneiform joint. There were also screws through the second and third tarsometatarsal joints. Osteoarthritic changes were noted throughout the tarsometatarsal joint complex along with the other intertarsal joints. The pertinent diagnosis was posttraumatic arthropathy and osteoarthritis of the right mid foot with tarsometatarsal joint capsulitis and fusion of an ankylosis of the right first, second, and third metatarsal joints and midfoot. The examiner noted the extent of the Veteran's degenerative joint disease was moderately severe considering the amount of radiographic evidence of osteoarthritis changes to the mid foot and rear foot complex and also the definite residual deformity noted in the right mid foot. The examiner also concluded that it was very unlikely that the Veteran would be able to tolerate any job that involved significant weightbearing to the right foot beyond 10 minutes. But rather would qualify for job that was completely sedentary where he could talk breaks or perform mild range of motion exercises. Considering the pertinent facts in light of the above-noted criteria, the Board finds that since March 8, 2007 there is no basis for assignment of a rating higher than 20 percent for the Veteran's right foot disability. Here the findings, such as those described during VA examinations in May 2007 and May 2010, do not amount to disability that warrants a characterization of severe, as that term is used in DC 5284. The term "severe" is not specifically defined by the regulation, but a review of other rating criteria relating to disabilities closely associated with the same anatomical area suggests that this term contemplates disability somewhat greater than that experienced by the Veteran. For example, a 30 percent rating may also be assigned in cases where the Veteran has claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. See 38 C.F.R. § 4.71a. Similarly, a 30 percent evaluation is assigned under the provisions of DC 5276, for marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. The Veteran's right foot disability, which primarily has been shown to cause pain with walking or prolonged standing, does not rise to such levels. Moreover, the May 2010 VA examiner opined that the Veteran's DJD was moderately severe, which is consistent with no more than a 20 disability rating under DC 5284. Entire Appeal Period-Right Foot With respect to both timeframes, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. It is not disputed that the Veteran has limitation of motion of the right foot and that there is significant pain on motion. According to the Veteran's own self report as well as the clinical findings of the VA examinations, he clearly experiences pain, discomfort, and some limitation of motion of the right foot. While the Board considers his reports of chronic pain very credible, indeed even objectively confirmed on VA examination, this complaint alone does not support a finding of additional functional loss for higher ratings. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for the assignment of higher ratings for any portion of the appeal period. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 10 and 20 percent disability ratings adequately compensate him for any painful motion and functional loss. Higher ratings may also be assigned to several other foot disabilities, if shown. These are flatfoot (DC 5276), weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280) and hammertoe (DC 5282). 38 C.F.R. § 4.71a. However, the medical evidence does not show that any of these conditions have been shown to be a manifestation of the service-connected DJD of the Veteran's right foot. B.. Analysis of the Left Foot DJD In support of the Veteran's recent claim for increase are VA outpatient treatment records, including a September 2003 X-ray report demonstrating minimal osteoarthrosis of the first metatarsal phalangeal joint of the left foot. On VA examination January 2005, the examiner noted the Veteran's history of fractures of both feet in a motor vehicle accident during service. His primary complaint was of constant left foot pain that had become noticeably worse in the last three years. He described the pain as constant, sharp and burning. He complained of morning stiffness, but denied swelling, redness, or warmth in the left foot. Prolonged walking and standing increased the pain and caused flare-ups which was alleviated to some degree by medication. The Veteran had been prescribed arch supports and a cane for ambulation. He denied any limitations in ability to care for own activities of daily living. He had been medically retired for the last 2-1/2 years due to heart, back and feet. He was currently receiving Social Security benefits. Examination of the left foot revealed 1+ edema over the entire left lower extremity with no evidence of erythema or warmth of the joints or soft tissues. The Veteran denied pain with palpation of the foot and ankle to include the dorsum of the foot, plantar aspect, posterior heel, arch or site of insertion of the plantar fascia. There were no abnormalities in alignment of the Achilles tendon. There was hair on the toes and the nails were normal in coloration and thickness and were neatly trimmed. There was a callous on the medial side of the left first phalange and one over the distal left first metatarsal, which were non-tender and slightly raised with dry keratonized skin. There were no rashes, or skin breakdown and no joint laxity or deformity. Range of motion was essentially normal. Repetitive motion did not increase pain, change range of motion, or cause fatigability. Rising on the heels caused no pain but rising on the toes did elicit complaints of pain. There were no foot deformities including hammertoe, high arch, pes planus, or clawfoot. There was 2+ dorsalis and posterior tibialis pulses. Sensation via monofilament, was intact. Vibratory and position sense were also intact. X-rays showed calcification at the insertion of the Achilles tendon upon the calcaneus and a small calcaneal spur along the plantar surface The diagnosis was traumatic arthritis of the left foot with calcaneal spurs. On VA examination in May 2007, there was generalized swelling of the feet especially, the toes. The Veteran had 2+pedal edema and limited range of motion of the toes with pain on repetitive motion. Dorsiflexion of the toes was limited to 20 degrees and plantar flexion of the toes was limited to 10 degrees with pain bilaterally. He had pain in the heel areas of both feet as well as the forefoot areas and an antalgic gait. However dorsalis and posterior tibial pulses were palpable bilaterally and there was no evidence of hammertoe, claw toe deformity, hallux valgus or pes planus. X-rays of the feet revealed degenerative joint disease. The diagnosis was traumatic arthritis. VA outpatient treatment records show evaluation and treatment for occasional episodes of foot pain 2007 and 2010. During one such evaluation in February 2009, the Veteran complained of pain on palpation toward the 5th metatarsal base and lateral sinus tarsi region on the left foot. There was also pain on joint range of motion. X-rays of the left foot showed periarticular erosion along the medial aspect of the articulation between the first cuneiform and the first metatarsal and a small erosion at the distal left first metatarsal head. The clinical impression was posttraumatic arthropathy with osteoarthritis. In April 2011, the Veteran underwent VA examination of the left foot. There was pain on palpation to the left dorsolateral and tarsometatarsal joints and on range of motion of those joints. There was pain on range of motion to the lateral and dorsal third, fourth, and fifth metatarsocuneiform and cuboid joints respectively. There was also pain to the plantar aspect of the arch and midfoot. There were no callosities noted to the forefoot. The Veteran's gait was antalgic favoring the right side and was apropulsive. There was severe pronatory collapse of the outsole of the shoe noted in terms of unusual shoe-wear pattern. He had some loss of protective sensation noted to the dorsomedial and dorsal central midfoot and rearfoot areas. X-rays revealed fairly well preserved joints in the forefoot area of the left foot with osteoarthritic changes noted to the dorsal talonavicular joint, the talonavicular and naviculocuneiform regions of the left foot with dorsal spurring and plantar and posterior calcaneal spurs. The clinical impression was left instep arthralgia. Applying the regulations to the facts in the case, the Board finds that the criteria for a rating in excess of 10 percent are not met. While the Veteran is clearly shown to experience constant pain and swelling, the evidence of record does not show that his left foot DJD is more than moderate in degree. Despite his complaints and symptoms, he has remained fully ambulatory and functional. The findings discussed above do not expressly or implicitly characterize the clinical severity of the Veteran's service-connected left foot disability as "moderately severe," nor do any other aspects of the VA examination reports otherwise show such severity of disability of the left foot. There is no indication of on-going examination and treatment of the left foot disability and there is no clinical evidence that it has resulted in incapacitation. Simply put, the evidence does not show the Veteran's left foot DJD is moderately severe. Accordingly, the next higher rating of 20 percent is not warranted under DC 5284. The Board has considered DeLuca supra, in reaching its conclusion in this case, and, although the Veteran's left foot is symptomatic, the medical evidence reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered. There is no evidence in the medical record of additional functional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Therefore the 10 percent disability rating adequately compensates him for his limitation of motion, pain, and functional loss. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but do not provide a basis for the assignment of a higher rating under these circumstances. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon supra. In this case, he is already being adequately compensated for pain. Although X-ray findings were consistent with degenerative changes in the mediotarsal and tarsal metatarsal joints, the examination did not demonstrate that the Veteran's service-connected right foot disability resulted in incapacitating exacerbations. Accordingly, DC 5010 cannot serve as a basis for a 20 percent disability rating prior to March 8, 2007. The Board has considered all other potentially applicable diagnostic codes; however, the Veteran has not been shown to have flatfoot, weak foot, claw foot, metatarsalgia, hallux valgus or hammertoe. Therefore, 38 C.F.R. § 4.71 DCs 5276, 5277, 5278, 5279, 5280, and 5282 are not for application in this case. Accordingly, there is no basis for higher ratings. C. Conclusion, Including Extraschedular Consideration In reaching these decisions, the Board has considered the Veteran's contentions including his testimony provided at the July 2009 hearing, when he reiterated previously submitted information regarding his symptoms and complaints made during VA examinations. As he is not competent to identify a specific level of disability as determined by the appropriate diagnostic codes, there is no means to increase the ratings based on the medical evidence currently of record, especially because none of the other codes of the rating schedule provide a basis for the application of higher ratings. The current level of disability shown is encompassed by the ratings currently assigned. With due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted at any time during the current appeal. See Hart, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's both increased rating claims. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). Moreover, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected right and left foot disabilities, but the required manifestations have not been shown in this case. Moreover, there is no evidence that the Veteran's bilateral foot disabilities have required frequent hospitalizations and VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Moreover, insofar as the Veteran did undergo right foot surgery in December 2009 and experienced a period of incapacitation, such additional functional loss was compensated for in the award of the temporary total rating. While the Board is sympathetic to the difficulties that the Veteran's service-connected bilateral foot disabilities cause him in maintaining employment, the evidence does not reflect that the average industrial impairment he suffers is in excess of that contemplated by the assigned evaluations, or that application of the schedular criteria is otherwise rendered impractical. The Board does not dispute the Veteran's contentions that his disabilities have caused him to alter his lifestyle and restrict his activities. Even so, such complaints have been taken into consideration in the decision to assign the current evaluations. In other words, the regular schedular standards contemplate the symptomatology shown. Accordingly, 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, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The holding of Rice is inapplicable here because the evidence of record does not demonstrate that the Veteran has been rendered unemployable due solely to his service-connected bilateral foot disabilities, nor has he so contended. Thus, at this point, there is no cogent evidence of unemployability due solely to these service-connected disabilities, and the issue of entitlement to a TDIU need not be addressed any further. ORDER A disability rating in excess of 10 percent prior to March 8, 2007 and in excess of 20 percent from March 8, 2007, for DJD of the right foot is denied. A disability rating in excess of 10 percent for DJD of the left foot is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs