Citation Nr: 1142467 Decision Date: 11/16/11 Archive Date: 11/30/11 DOCKET NO. 08-19 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for hallux valgus of the left foot with osteoarthritis. 2. Entitlement to service connection for residuals of brain injury (TBI) also characterized as residuals of frontal lobe injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In December 2010, the case was remanded for further development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran has residuals of TBI sustained during active duty 2. The Veteran's left foot disability approximates amputation of the great toe, but not amputation with removal of the metatarsal head. CONCLUSIONS OF LAW 1. Residuals of TBI were incurred in active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 2. The criteria for a rating in excess of 10 percent for postoperative left hallux valgus with osteoarthritis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5280 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by correspondence dated in April 2002, May 2007, and May 2008. Although the Veteran was not provided complete notice until after the initial adjudication of the underlying service connection claim for a left foot disability, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in regard to the claims. The Veteran's service treatment records (STRs) are of record, as are treatment records from those VA and non-VA medical providers identified by the Veteran as having relevant records. The Veteran has been afforded VA medical examinations in response to the claims herein decided. In sum, any procedural errors in the originating agency's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Service Connection Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he incurred a frontal lobe injury during service from a weapon malfunction. When firing the weapon, it did not recoil and this caused a head injury, as well as hearing loss and tinnitus. Service treatment records (STRs), do not show specific treatment for a head injury, although there are many records showing significant complaints of headaches. He was also noted to have right ear hearing loss due to a weapon firing. These headaches were variously identified as vascular, migraine, occipital, and right-sided. The Veteran has credibly asserted that he has had problems related to his head injury since service. He is currently diagnosed as having TBI. Ultimately, the Board finds that the Veteran's testimony concerning the onset of headaches in service, and the continuity of symptomatology following service to be credible. Additionally, the Veteran underwent a VA TBI examination in February 2011. The examiner opined that assuming the Veteran is a credible historian, his claimed TBI is at least as likely as not etiologically related to his head injury during service. There is no clinical opinion to the contrary. In light of the Veteran's credible testimony and the medical evidence linking his TBI residuals to an injury during service, the Board concludes that the preponderance of the evidence supports the Veteran's claim. Initial Rating General Rating Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability on appeal. Hallux valgus is rated under the criteria of 38 C.F.R. § 4.71a, DC 5280 (hallux valgus, unilateral). A rating of 10 percent is awarded for hallux valgus operated with resection of the metatarsal head, as well as for severe hallux valgus equivalent to amputation of the great toe. There is no provision for a rating higher than 10 percent. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Amputation of the great toe is rated under the criteria of DC 5171, under which a rating of 10 percent is awarded for amputation without metatarsal removal. A rating of 30 percent is awarded for amputation with removal of the metatarsal head. Historically, a June 2006 rating decision implemented the March 2006 Board decision awarding service connection for left hallux valgus. He was assigned a 10 percent rating, effective January 2002. The Veteran appealed the initial rating assigned. The Veteran underwent a VA examination in June 2002, during which he reported a long history of bunion on the left foot. The Veteran's left foot disability has been treated with shoe modifications, and without surgical intervention. He was noted to have significant guarding during hallux range of motion testing. Left foot plantar flexion was to 30 degrees, and dorsiflexion was to 50 degrees bilaterally. The Veteran reported pain during active and passive range of motion testing. He was diagnosed as having bilateral hallux valgus, with left greater than right. VA podiatry treatment records reflect complaints of severe pain in the left foot due to bunion deformity as well as ulcerations due to modified shoes. It was noted that the Veteran was advised that he could undergo surgery for his left bunion, but has declined to follow through with it. VA treating personnel have identified the left bunion deformity as "severe" in nature. The most recent VA treatment records reflect that the Veteran now uses a power wheelchair for ambulation. The Veteran had another VA examination of the feet in July 2007, during which he complained of significant pain in the left foot and treatment with use of larger shoes. He reported that it feels like bones are floating or moving in his left foot, and the course of his disability has progressively worsened. The examiner noted that the Veteran's response to current treatment was fair, and it only partially relieved symptoms. The Veteran endorsed pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance in the left foot and left bunion area. He described periods of flare-ups occurring at least once weekly, and was unable to perform normal activities such as walking and standing during periods of flare-ups. Functional limitations include the Veteran's inability to walk or standing for any period of time, and his use of corrective shoes and a cane for assistance. He reported not being employed and had retired in 1993. He contended that his retirement was medical in nature, including due to his left foot disability. On examination, there was objective evidence of painful motion regarding left bunion dorsiflexion and plantar flexion at end range of motion. There was also objective evidence of swelling, tenderness, and weakness, but no objective evidence of instability. There was evidence of abnormal weightbearing as shown by callosities, and unusual shoe-wear pattern. Examination for hallux valgus revealed angulation of 18 degrees with moderate stiffness in the joint. Dorsiflexion was to 40 degrees, and plantar flexion was to 10 degrees. There was hallux limitus with overlapping of the great toe. Vascular testing revealed cool temperature pulses and redness of the toes dorsally and on the left bunion. There was evidence of mild muscle atrophy of the entire left foot. The examiner noted objective evidence of painful motion during and at the end ranges of motion. X-rays revealed hallux valgus and claw toe deformity with degenerative changes of the first metatarsophalangeal joint. The Veteran was diagnosed as having severe hallux valgus on the left with osteoarthritis of the first metatarsophalangeal joint. The Veteran underwent another VA examination of the left foot in December 2010, during which he reported similar symptoms as in the previous VA examination, but they had worsened in nature. The Veteran stated that his symptoms were progressively worse, he could no longer walk, and was wheelchair bound. On examination, the Veteran's left foot exhibited pain, heat, redness, stiffness, fatigability, weakness, lack of endurance, abnormal weight bearing, color changing, cramping, lack of sensation, swelling, tenderness, callosities, skin breakdown, and unusual shoe wear pattern. There was no evidence of instability. Hallux valgus examination revealed 20 degrees valgus deviation of the left great toe on the metatarsophalangeal joint with severe stiffening of the joint and crepitus upon range of motion. There was less than 5 degrees available dorsiflexion and plantar flexion available from a neutral position respectively. Vascularly there were pale skin on elevation, erythema, rubor, and cold skin on the left foot. The examiner diagnosed hallux valgus of both feet with severe osteoarthritis and hallux limitus. He indicated that the Veteran could not work even sedentary jobs due to chronic severe pain in his feet. His foot disability also prevents him from performing most activities of daily living. On review of the evidence above, the Board notes the Veteran's current 10 percent rating is the highest evaluation available under the applicable rating criteria; it is also the highest evaluation available under the "amputation rule." The Veteran was shown on examination to have DJD of the left metatarsophalangeal joint. Where medical evidence shows claimant has arthritis, and where the diagnostic code applicable to the disability is not based on limitation of motion, as in this case, a separate rating may be assigned if there is additional disability due to limitation of motion. VAOPGCPREC 23-97 (July 1, 1997); see also Hicks v. West, 8 Vet. App. 417 (1995). However, there is no indication in this case that there is additional disability due to limitation of motion of the great toe. Painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran's current 10 percent rating satisfies Lichtenfels. The Board has considered whether a "staged rating" may be assigned, but the criteria for higher evaluation are not shown during any definable period during the period of the claim. Extra-schedular Evaluation and TDIU The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected disability are contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321 is not in order. Finally, the Board notes that a claim for a total disability rating based on unemployability (TDIU) may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject(s) of the increased rating claim. If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2007). In this case, it appears that the Veteran has claimed entitlement to a TDIU based on all of his service-connected disabilities. Therefore, the TDIU claim is not a component of the rating claim on appeal. Additionally, the Veteran's claim for a TDIU was denied in a May 2011 rating decision, and he filed a notice of disagreement that same month. A Supplemental Statement of the Case was issued in September 2011, and the timeframe for the Veteran's submission of a Substantive Appeal has not yet run. Therefore, the Board does not have jurisdiction over the TDIU issue at this time. ORDER Service connection for TBI residuals is granted. A rating higher than 10 percent for postoperative left hallux valgus with osteoarthritis is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs