Citation Nr: 1233744 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 04-10 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for status-post fusion of the right foot, first metatarsal phalangeal (MTP) joint, from August 1, 2003 to July 18, 2010 (with the exception of a temporary total evaluation of 100 percent, from May 28, 2004 to July 31, 2004), on a schedular basis. 2. Entitlement to a rating higher than 10 percent for status-post fusion of the right foot, first MTP joint, since July 19, 2010, on a schedular basis. 3. Entitlement to an initial rating higher than 10 percent from August 1, 2003 to July 18, 2010 (except May 28, 2004 to July 31, 2004), and a rating higher than 30 percent since July 19, 2010, for status-post fusion of the right foot, first MTP joint, on an extra-schedular basis. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to July 1989. This appeal to the Board of Veterans' Appeals (Board) is from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction over his claims was subsequently transferred to the RO in Atlanta, Georgia. The Veteran testified at a hearing at the RO in June 2007, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file. The Board previously remanded the claims listed on the brieface in January 2008 and again in December 2010 to the RO, via the Appeals Management Center (AMC), for additional development and consideration. An additional claim was previously before the Board, for entitlement to an extension beyond May 31, 2003, of a temporary total evaluation for right foot surgery performed on March 14, 2003, under the provisions of 38 C.F.R. § 4.30. As requested by the December 2010 Board remand directives, the AMC referred this latter claim in May 2012 to the Veterans Service Center Manager for possible entitlement to an extra-schedular evaluation under the provisions of § 4.30(b). Accordingly, in a May 2012 rating decision, the AMC granted an extension of the Veteran's temporary total evaluation beyond May 31, 2003 to July 31, 2003, as entitlement to an extra-schedular consideration for convalescence benefits for right foot surgery, under the provisions of § 4.30(b). As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). There is sufficient evidence in the file to determine whether the Veteran is entitled to a higher schedular rating for his right great toe disability. The additional question of whether he is entitled to an extra-schedular rating is a component of his claim for a higher initial rating for this disability on a schedular basis. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Regrettably, this ancillary issue of whether he is alternatively entitled to greater compensation for this disability on an extra-schedular basis, under the provisions of 38 C.F.R. § 3.321(b)(1) (2011), must be determined by the RO in the first instance. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). So the Board is remanding, rather than immediately deciding, this portion of the claim. The issues of entitlement to a rating higher than 10 percent for service-connected left hip strain; entitlement to service connection for a shoulder disability, hypertension, and gastroesophageal reflux disease (GERD); and entitlement to service connection for an acquired psychiatric disability, identified as anxiety and depression, including as secondary to hypertension and presently service-connected disabilities, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of a referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for his claim for higher ratings for his right great toe disability, and a referral for an extraschedular evaluation under 38 C.F.R. § 4.16(b) for his TDIU claim, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA's Office of General Counsel also has indicated that remanding the TDIU claim, partially based upon the service-connected right great toe disability, does not preclude the Board from going ahead and deciding the claim for a higher initial rating for the disability that formed the basis of the TDIU claim. See Locklear v. Shinseki, 24 Vet. App. 311 (2011); see also VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. From August 1, 2003 to July 18, 2010 (except May 28, 2004 to July 31, 2004), the Veteran's right foot, great toe disability does not show symptoms or manifest impairment sufficient to be characterized as a moderately-severe foot injury. 2. Since July 19, 2010, the Veteran's right foot, great toe disability has increased in severity, in light of two recent VA surgeries to treat this condition, and is now best characterized as a severe foot injury. 3. During the entire period of the appeal, the Veteran has two scars as residuals of surgeries to treat his service-connected right foot, first MTP joint disability. These scars are superficial (not adherent), do not cause limited motion, are small (less than 6 sq. inches/39 sq. cm), are not tender on examination, stable, and there is no indication the scars cause limitation of function of the affected part. CONCLUSIONS OF LAW 1. From August 1, 2003 to July 18, 2010 (except May 28, 2004 to July 31, 2004), the criteria are not met for an initial rating higher than 10 percent for status-post fusion of the right foot, first MTP joint disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5280, 5284 (2011). 2. Resolving any doubt in favor of the Veteran, since July 19, 2010, the criteria are met for a higher rating of 30 percent for status-post fusion of the right foot, first MTP joint disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5280, 5284 (2011). 3. The criteria are not met for a compensable disability rating for a scar, as a residual of status-post fusion of the right foot, first MTP joint disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.7, 4.10 (2011); 38 C.F.R. § 4.118, DCs 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Before addressing the merits of the issue decided below (higher initial, schedular rating for status-post fusion of the right foot, first MTP joint), the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by a letter from the RO issued in June 2003 of the criteria for establishing direct service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in September 2003, which then established service-connection for the Veteran's status-post fusion of the right foot, first MTP joint. The RO's notice was in the preferred sequence, without timing or content defects. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). He was provided additional notice compliant with the principles of 38 C.F.R. § 3.159(b)(1) in more recent April and October 2008 letters, and these letters also notified the Veteran of how VA determines disability ratings and effective dates if service connection is awarded, in compliance with Dingess. Since providing these notices, the AOJ has readjudicated the claim in the May 2012 SSOC - including considering the additional evidence received in response to this additional notice. So the timing defect in the provision of these additional notices, since they did not precede the initial adjudication of the claim, has been rectified ("cured"). See again Mayfield IV and Prickett, supra. The Veteran has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of his claim. The Veteran has this burden of proof as the pleading party, not VA. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claim during the course of this appeal. The RO has obtained service treatment records, service personnel records, and VA and identified private treatment records, and Social Security Administration (SSA) disability records. The Veteran also submitted additional records, written statements and personal hearing testimony in support of his claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Next, a VA medical examination was obtained in May 2009 to assess the severity of his service-connected status-post fusion of the right foot, first MTP joint disability. 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 Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. Nor does the Board find any inadequacy in that examination report. Rather, here, the VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. See 38 C.F.R. § 3.327(a) (2011); Caffrey v. Brown, 6 Vet. App. 377 (1994). The VA examination report, with the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Since July 19, 2010, the Veteran's right great toe disability has increased in severity, in light of two recent VA surgeries to treat this condition, so that the Board has awarded the highest applicable schedular rating of 30 percent, under DC 5284. Because the Veteran cannot establish entitlement to a higher schedular rating for his right great toe disability, there is no further duty to assist the Veteran with respect to attaining a higher rating for the latter period of his increased rating claim (since July 19, 2010 to the present). Nonetheless, the Board is remanding the right great toe disability claim for further development and consideration, but on an extra-schedular basis. This is further discussed below. Notably, the Board remanded this claim in December 2010 so the AOJ might obtain outstanding VA treatment records, which have since been obtained. The Board is therefore satisfied there was substantial compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis-Higher Initial Schedular Rating for Status-Post Fusion of the Right Foot, First MTP Joint The Veteran contends that current rating of his right great toe disability does not accurately reflect the severity of the condition. See August 2012 informal hearing presentation. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is reviewed when making a disability determination, but past medical reports do not have precedence over current medical findings. 38 C.F.R. § 4.1. In Fenderson v. West, 12 Vet. App. 119, 125-126 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Fenderson, 12 Vet. App. 125-126. A. Schedular Criteria for an Orthopedic Disability Under DC 5280, a maximum 10 percent rating is available for (1) hallux valgus operated with resection of the metatarsal head; and (2) severe unilateral hallux valgus with symptomatology equivalent to amputation of the great toe. 38 C.F.R. § 4.71a , DC 5280. Under the so-called "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. The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2011). Other foot injuries are rated under 38 C.F.R. § 4.71a, DC 5284. A 10 percent rating under DC 5284 requires a moderate foot injury; a 20 percent rating requires a moderately-severe foot injury; and a 30 percent rating requires a severe foot injury [italics added for emphasis]. 38 C.F.R. § 4.71a, DC 5284. Words such as "moderate," "moderately severe" and "severe" are not defined in the VA Schedule for Rating Disabilities (Rating 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." See 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. See 38 C.F.R. §§ 4.2, 4.6. 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). As background, the Veteran underwent right foot surgeries in March 2003 and May 2004. The Board's review of the VA medical treatment records shows that on March 14, 2003, he had a surgical procedure of right foot first metatarsal phalangeal (MTP) joint fusion, which was provided to treat his disabilities of right foot hallux valgus and hallux rigidus. It is worth mentioning that during the period of the first temporary total evaluation, the Veteran had underwent a VA examination of his right great toe disability in July 2003, albeit, prior to the establishment of his initial 10 percent rating. At the July 2003 VA examination, he reported some numbness in that toe. He also reported he was still recovering and just beginning to bear weight on the right foot. The July 8, 2003 VA examiner remarked that he had no significant disability to prevent employment. The examiner diagnosed "status post fusion right first metatarsal phalangeal joint, doing well, but still in recovery." Then, on May 28, 2004, the Veteran underwent a second surgical procedure of revision fusion of the first MTP joint with iliac crest bone graft and instrumentation. His preoperative and postoperative diagnoses were of nonunion of the right metatarsocuneiform joint. Following the two surgeries, the RO awarded temporary total ratings for postsurgical convalescence under 38 C.F.R. § 4.30. Temporary total ratings were in effect from March 12, 2003 to July 31, 2003 (following the March 2003 surgery) and again from May 28, 2004 to July 31, 2004 (following the May 2004 surgery). So, the Veteran's initial 10 percent rating for his status post fusion, right foot, first MTP joint, has been effective since August 1, 2003 (with the exception of a temporary total evaluation of 100 percent, from May 28, 2004 to July 31, 2004), and assigned under 38 C.F.R. § 4.71a, DC 5280 (unilateral hallux valgus). i. August 1, 2003 to July 18, 2010 (with the exception of a temporary total evaluation of 100 percent, from May 28, 2004 to July 31, 2004) At a January 2004 VA treatment session, the Veteran reported that prolonged periods of standing and walking increased pain in the right foot, but the physician indicated the Veteran was able to engage in standing and walking. The treating physician recommended that a sedentary job would be very beneficial to the Veteran due to chronic right foot pain. Subsequently, a March 2004 VA treatment record noted there was also X-ray evidence of partial nonunion at the proximal fusion site and suggestion of micro-motion at the fixation plate. The clinician also found that in spite of vocational rehabilitation training, the Veteran "will be unable in any event to return to his previous occupation as a chef due to anticipated restriction on prolonged standing." More recently, at the May 2009 VA examination, the Veteran reported a gradual history of right foot pain when starting in the service while in boot camp, with onset of 1985, and indicated he had an in-service surgery of his first right MTP joint, due to pain, swelling and redness in that joint. Also, the Veteran complained of current pain in his right foot, first MTP joint. He described the pain as constant, moderate in severity, worse for prolonged standing and also walking. However, he added that the pain is better when wearing comfortable shoes, taking prescription medicines and after rest. He denied incapacitating flare-ups in his right foot in over a year. On physical evaluation by the May 2009 VA examiner, the Veteran showed no evidence of weakness or abnormal weight bearing. However, he did show objective evidence of painful motion at the first MTP joint that limited range of motion, of swelling at this joint and of tenderness at this joint with palpation. The examiner indicated he had hallux valgus or rigidus, but he had no abnormal angulation of the first MTP joint and the joint was noted as fused. However, there was no evidence of malunion or nonunion of the tarsal or metatarsal bones. The Veteran had normal Achilles alignment, with no midfoot or forefoot mal-alignment and no pronation. He had no arch present on weight bearing and non-weight bearing, no pain on manipulation, and no muscle atrophy of the foot. On X-ray testing, the May 2009 examiner noted moderate pes planus deformity. The examiner also observed that hardware in the right great toe shows no evidence of loosening or failure, but there was mature arthrodesis of the great toe TMT and MTP joints. In summary, the examiner diagnosed: (1) right 1st toe hallux valgus with surgery, times three, and now with residuals of fixed MTP joint and associated pain and lack of range of motion; and (2) right foot pes planus. The May 2009 VA examiner further indicated that the Veteran has right foot pain associated with his diagnosed right foot, first toe hallux valgus, status post surgeries and right foot pes planus. These diagnoses were found to have severe effects on daily activities of chores, exercise and sports; and moderate effects on daily activities of shopping, recreation, and traveling. The May 2009 examiner recorded that the Veteran's usual occupation was that of a chef, and studying to be a chef. The Veteran had not been employed since December 2002, due to medical (physical) problems from his service-connected back and feet disabilities (recorded as "back and feet issues"). The examiner opined that the Veteran's current left hip, right foot and low back conditions "prevent him from performing employment of a physical but NOT sedentary nature." The Veteran's disability involving his right great toe has been rated under 38 C.F.R. § 4.71a, DC 5280, for unilateral hallux valgus. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). As mentioned, he is already in receipt of a 10 percent initial rating for this disability under 5280, which is the maximum rating available under this code provision. The Board considers all other potentially applicable diagnostic rating codes, which might also provide the Veteran a higher initial rating beyond 10 percent for his service-connected status post fusion, right foot, first MTP joint disability. The foregoing evidence shows that the service-connected right great toe disability is manifested by no more than swelling, tenderness on palpation and pain of the great toe of the right foot, as well as limitation of motion of the MTP joint of that toe. As noted, 10 percent is the maximum rating authorized under DC 5280, for hallux valgus. As set forth above, amputation of the great toe is rated under the criteria of DC 5171, which provides that a rating of 10 percent is warranted for amputation without metatarsal removal and a rating of 30 percent is warranted for amputation with removal of the metatarsal head. However, there are no clinical findings during the period of the appeal, including on review of his VA treatment records, which show that his disability manifests symptoms and impairment that would be equivalent to amputation of the right great toe, with or without removal of the metatarsal head. Indeed, despite his acknowledged symptoms of his right great toe of swelling, tenderness and painful motion, the Veteran nonetheless appears to have some range of motion, although limited. The impairment due to his service-connected right great toe disability is not in excess of that contemplated by a 10 percent rating under DC 5171. Moreover, there is not even any diagnostic code for rating his limitation of motion of the great toe. The Board has considered whether there is any other schedular basis for granting this claim, but has found none. In particular, the Board has considered whether a higher rating is warranted under DC 5284, for other foot disabilities. The service-connected impairment is limited to the right great toe and clearly does not more nearly approximate a moderately-severe foot disability for a higher 20 percent rating, let alone a severe foot for an even higher 30 percent rating. For instance, on physical evaluation by the May 2009 VA examiner, the Veteran showed no evidence of weakness or abnormal weight bearing; no abnormal angulation of the first MTP joint; no evidence of malunion or nonunion of the tarsal or metatarsal bones; normal Achilles alignment, with no midfoot or forefoot mal-alignment and no pronation; no arch present on weight bearing and non-weight bearing; no pain on manipulation; and no muscle atrophy of the right foot. VA treatment records also revealed no significant abnormalities that would warrant a characterization of at least a moderately-severe right great toe disability, under DC 5284. Further, the Board notes that the Veteran has some complaints of pain and functional limitation associated with his diagnosed right foot pes planus. The Veteran is not, however, in receipt of service-connection for pes planus, so the effects of this non-service-connected disability cannot be considered here. Therefore, a higher rating under Diagnostic Code 5284 is not warranted for either disability. The preponderance of the evidence is against the Veteran's claim for an initial disability rating higher than 10 percent for his service-connected for status-post fusion of the right foot, first MTP joint, on a schedular basis. Therefore, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ii. From July 19, 2010 to the Present During this latter period of the appeal and subsequent to the last VA examination in May 2009, the Board notes that the Veteran has had two recent surgeries by VA treating providers for his right great toe disability, on July 27, 2010 and again on March 15, 2011. At a July 19, 2010 VA treatment session, entitled "Surgical Service History and Physical Examination," the Veteran complained of painful retained hardware in his right foot. The treating clinician recorded, "[H]e complained of pain when wearing shoes due to the rubbing directly over the plate and would like the plates out..." Shortly thereafter, VA treatment records show that the Veteran underwent a surgical procedure on July 27, 2010 for removal of painful hardware of the right foot. A pre-surgical note found he had pain at the first metatarso-cuneiform joint with walking and pressure. In October 2010, a VA treating clinician at a follow-up treatment session stated the Veteran had significant improvement in pain and his surgical wound was well-healed. However, it appears that the Veteran's right great toe disability continued to produce significant impairment even after the July 2010 surgery. At a January 2011 VA treatment session, it was recorded that the Veteran stated having problems with his left hip and right foot. Notably, the Veteran "states that he is having difficulty walking. [Veteran] states that he has had surgery on his foot and is now having problems with it." Then, in February 2011, a VA treating surgeon observed that the Veteran was having discomfort between his right great toe and second toe, due to the prominence of his lateral interphalangeal (IP) joint of his great toe. It was noted he had solid fusions of his MTP and tarsometatarsal (TMT) joints of his toe. X-ray testing showed prominence of the lateral IP joint. It was noted he tried "spacers" without success. The treating surgeon concluded that an exostectomy (i.e., surgical procedure to remove bony bump) of lateral IP joint of great toe is possible if the Veteran desired it. By way of reference, "exostectomy" is defined as "excision of an exostosis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 668 (31st Ed. 2007). In turn, "exostosis" is defined as "1. a benign bony growth projecting outward from the surface of the bone. [and] 2. osteochondroma." Id. Also, "osteochondroma" is defined as "a benign tumor consisting of projecting adult bone capped by cartilage projecting from the lateral contours of endochondral bones." Id. A review of his Virtual VA treatment records shows he then underwent this suggested surgical procedural on March 15, 2011, namely an exostectomy to remove his diagnosed great toe exostosis. A March 28, 2011 VA treatment session records the Veteran had follow-up treatment for his surgery earlier that month. The treating physician, an orthopedic surgery resident, noted that he was doing quite well on that day from that procedure. He was still having some diffuse soreness and tenderness in the foot but was otherwise doing well. He was ambulating with the use of a cane on that day, and still wearing his post-operative shoe, but he remained neurovascularly intact. Most recently, at another follow-up VA treatment session on April 25, 2011, another orthopedic surgery resident also observed the Veteran healed well, but that he continued to have pain with weight bearing at right first MTP/IP joints. The VA treating physician diagnosed status-post right great toe MTP fusion and recent exostosis excision, well healed. Nonetheless, the VA treating physician recommended that he wear an orthotic insert with medial arch support, mortons extension, and 1st MTP padding as needed. The Board finds he has had a severe foot injury under DC 5284. Since the last examination, he has had increasing problems with his right great toe, including indications of greater pain, some difficulty walking, and even needing a cane and physician-recommended orthotic inserts to ambulate. The fact that he has needed two right great toe surgeries in just the last two years speaks to the severe nature of this disability. As noted, his right foot pes planus is not service-connected, so a higher rating is not available under DC 5276. Also, there is no contention or indication in the record that he has ever had claw foot/pes cavus, so a higher rating is also not available under DC 5278. Resolving any doubt in favor of the Veteran, since July 19, 2010, the Veteran warrants the highest available schedular rating that is applicable to his right great toe disability, namely a 30 percent rating under DC 5284. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49. B. Schedular Criteria for Scars In this case, the Veteran also has two scars as residuals of surgeries to treat his service-connected status-post fusion of the right foot, first MTP joint disability. Thus, the Board considers whether these scars warrant any separate compensable rating during the rating period of the appeal. During the pendency of the appeal, the regulations for rating scars were amended for applications received on or after October 23, 2008. 73 Fed. Reg. 54,708 (Sep. 23, 2008). The Veteran's claim was filed in March 2003, before the new scar regulatory criteria became effective, such that the former rating criteria apply here. Pertinent skin disability criteria provide that a compensable, 10 percent disability rating is warranted for a scar that is deep or that causes limited motion in an area or areas exceeding 6 square inches (39 square centimeters) (DC 7801); for a superficial scar that does not cause limited motion but which covers an area of 144 square inches (929 sq. cm.) or greater (DC 7802); for an unstable, superficial scar (DC 7803); for a superficial scar that is painful on examination (DC 7804); or for a scar that causes limitation of function of the affected part (DC 7805). 38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805 (2008). The Board need not consider the diagnostic criteria exclusive to disfigurement of the head, face or neck, found in 38 C.F.R. § 4.118, DC 7800. There equally is no indication the Veteran has dermatitis or eczema, precluding consideration of 38 C.F.R. § 4.118, DC 7806. Here, the most probative evidence of record comes from the May 2009 VA compensation examination. Notably, the May 2009 VA examiner found the Veteran had 2 scars over the first MTP joint, both nontender and not red. The first scar measured 1.0cm x 0.2cm and the second scar measured 8.0cm x 2.0cm. The Board calculates that the area of the two scars is 0.2 sq. cm. and 16.0 sq. cm., respectively; and 16.2 sq. cm. when combined. Overall, the VA examination and treatment records in the claims file fail to show any findings that would warrant a compensable disability rating for the right great toe scars. There is no indication on physical examination that the scars are deep, painful or tender on examination (indeed, the examiner specifically noted the two scars are nontender), unstable, or measuring at least 6 square inches/39 sq. cm. (only 16.2 sq. cm. total area of the two scars); and do not produce any limitation of motion or any other function. Review of the VA treatment records also fails to show any findings that would warrant a compensable disability rating for these scars on the right great toe, under the above criteria. Moreover, there are no lay statements to consider from the Veteran concerning these scars. This precludes the possibility of awarding a compensable, 10 percent rating under DCs 7801-7805. The preponderance of the evidence is against a separate compensable rating for his right great toe scars. Therefore, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49. ORDER From August 1, 2003 to July 18, 2010 (excluding May 28, 2004 to July 31, 2004), the claim for a schedular, initial rating higher than 10 percent for the Veteran's status-post fusion of the right foot, first MTP joint disability, is denied. Since July 19, 2010, a higher 30 percent rating for the Veteran's status-post fusion of the right foot, first MTP joint disability, is granted, subject to the laws and regulations governing the payment of VA compensation. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2011). There remains for consideration whether the Veteran is entitled to a higher ratings for the right great toe disability on an extra-schedular basis and whether he is entitled to a TDIU. I. Entitlement to Higher Rating for Status-Post Fusion of the Right Foot, First MTP Joint Disability, on an Extra-Schedular Basis Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors or circumstances that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(a), (b) (2011). According to § 3.321(b)(1), an extra-schedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court has held that the question of an extra-schedular rating is a component of a Veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996). Bagwell stands for the proposition that the Board may deny extra-schedular ratings, provided that adequate reasons and bases are articulated. See VAOPGCPREC 6-96 (Board may deny extra-schedular ratings, provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure). Bagwell left intact a prior holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996), wherein the Court had found that when an extra-schedular grant may be in order, that issue must be referred, pursuant to 38 C.F.R. § 3.321, to those "officials who possess the delegated authority to assign such a rating in the first instance." See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 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 Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. Notably, his disability picture may be exceptional and the available schedular evaluations inadequate. The Veteran describes a long history of severe pain due to his right great toe disability. At least in part due to the pain from his service-connected right great toe disability, the May 2009 VA examiner noted severe effects on daily activities of chores, exercise and sports; and moderate effects on daily activities of shopping, recreation, and traveling. Importantly, there are also indications that this right great toe disability markedly interfered with his ability to maintain any form of substantially gainful employment, so much so that it appeared to contribute to his medical retirement from his prior occupation as a chef/chef-in-training. A March 2004 VA clinician, in the context of treating his right great toe, found that in spite of VA vocational rehabilitation training, the Veteran "will be unable in any event to return to his previous occupation as a chef due to anticipated restriction on prolonged standing." The Veteran's testimony during his June 2007 Travel Board hearing indicated he was a cook in the military and post-discharge, went to culinary school to work as a chef, apparently through VA vocational rehabilitation therapy. However, he testified that he was not able to continue working as a chef and had to drop out of his culinary school because of his feet problems, because there was too much standing, too much walking and too much activity that was involved in that occupation. Indeed, the May 2009 examiner recorded that the Veteran's usual occupation was that of a chef, and studying to be a chef. The Veteran had not been employed since December 2002, due to physical problems from his service-connected back and feet disabilities. The May 2009 examiner opined that the Veteran's current left hip, right foot and low back conditions "prevent him from performing employment of a physical but NOT sedentary nature." So there is at least the suggestion of unemployability because of his right great toe disability, namely, on account of the extent of pain and functional limitation on standing, walking, and other activities. Also, although his service-connected right great toe disability did not require frequent periods of hospitalization, nonetheless, the March 2003 and May 2004 surgeries for this disability required extended periods of convalescence (for which he was awarded two periods of temporary total evaluation) and suggest that his case is not normal. Indeed, the Veteran has even had two more recent surgeries at VA facilities in July 2010 and March 2011, for continuing problems with his right great toe disability. So, the Board finds referral for extra-schedular consideration is warranted. See Thun, 22 Vet. App. at 111. Prior to referral, it is important for the AOJ to arrange for another VA examination to assess the current severity of the Veteran's service-connected right great toe disability. Indeed, the last VA examination was in May 2009, but since then, the Veteran has had two recent for his right great toe disability, on July 27, 2010 and again on March 15, 2011. Any change in the nature and severity of his disability, especially in light of recent surgeries, should be assessed and accounted for by a VA examiner. II. TDIU Claim A TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability(ies). See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2011). Consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. Id. Concerning the schedular criteria for consideration for entitlement to a TDIU, the evidence must show: (1) a single disability rated as 100-percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability(ies) and that - if there is only one service-connected disability, it is rated as at least 60-percent disabling, or, if more than one disability, at least one disability is rated as at least 40-percent disabling and the Veteran has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran's three presently service-connected disabilities are all orthopedic disabilities, namely: (1) back pain with muscle spasm, rated at 40 percent; (2) left hip strain, rated at 10 percent; and (3) status-post fusion of the right foot, first MTP joint disability, which thus far has received staged ratings of 10-percent initially disabling from August 1, 2003 to July 18, 2010 (excluding May 28, 2004 to July 31, 2004) and 30 percent-disabling from July 19, 2010. His overall disability rating is 50 percent, from August 1, 2003 to July 18, 2010. Applying the combined ratings table of 38 C.F.R. § 4.25 to his increased rating for right great toe disability of 30 percent (since July 19, 2010), his overall disability rating for these three service-connected disabilities is still only 60 percent from July 19, 2010. Thus, the current ratings of his service-connected disabilities, when taken individually or in combination, are simply insufficient to satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU. But even if a Veteran fails to meet these threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer the claim to the Director of Compensation and Pension Service for extra-schedular consideration if the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Here, to reiterate, a March 2004 VA treating clinician found that in spite of VA vocational rehabilitation training, the Veteran "will be unable in any event to return to his previous occupation as a chef due to anticipated restriction on prolonged standing." Also, the May 2009 examiner opined that the Veteran's current left hip, right foot and low back conditions "prevent him from performing employment of a physical but NOT sedentary nature." There is simply no indication that he had a prior post-service work history in employment of a sedentary nature. Rather, he worked in reverse chronological order, as a cook, maintenance, machine operator and security officer. See January 2003 TDIU claim (VA Form 21-8940). Because the performance of duties of a physical nature is inherent in his chosen occupation as a chef and his other prior employment, this tends to suggest that he would indeed be unable to secure or follow a substantially gainful occupation by reason of his three service-connected orthopedic disabilities. Therefore, the AOJ should consider whether an extra-schedular TDIU is warranted under § 4.16(b). The AOJ should also consider whether an extra-schedular rating for the right great toe disability is warranted under 38 C.F.R. § 3.321(b)(1). See also Thun v. Peake, 22 Vet. App. 111 (2008). III. Potentially Outstanding Treatment Records As an ancillary matter, the AOJ should confirm if there are any outstanding private or VA treatment records. Any additional VA or private treatment records that are potentially relevant would need to be obtained before deciding his appeal. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(1) and (2). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant VA, or private medical records that may be identified by the Veteran, that are not already of record. 2. After completing the requested development in paragraph #1, schedule the Veteran for an appropriate VA compensation examination to reassess the severity of the Veteran's service-connected right great toe disability (status-post fusion of the right foot, first MTP joint disability). The examination should include any diagnostic testing or evaluation needed. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. The examiner should describe in detail all symptomatology associated with the Veteran's service-connected right great toe disability, and indicate whether it is best characterized as moderate, moderately-severe, or severe. The examiner should provide a rationale for the assigned degree of severity. Describe all symptoms caused by the service-connected right great toe disability, as well as the severity of each symptom. All limitation of range of motion and/or limitation of function must be identified. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be expressly noted in the report. The examiner should identify all neurological manifestations. The examiner should identify the limitation of activity imposed by the Veteran's service-connected right great toe disability with a full description of the effects the disability has upon his ordinary activities. The examiner should also fully describe the impact the disability has on the Veteran's economic adaptability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Determine whether the Veteran is entitled to extra-schedular consideration under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b). If he is, refer this case to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this consideration. 4. If the claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs