Citation Nr: 1237147	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  09-09 992	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for service-connected partial amputation of the left great toe, due to posttraumatic amputation and fracture. 

2.  Entitlement to a temporary total rating extension beyond February 29, 2008 for service-connected left great toe disability under the provisions of 38 C.F.R. § 4.30.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from April 1976 to October 1977.  This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO).

The issue of entitlement to a rating in excess of 10 percent for 
service-connected left great toe disability is remanded to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The evidence shows that the Veteran's left great toe disability warranted additional convalescence under the provisions of 38 C.F.R. § 4.30 (2012) until March 30, 2008.


CONCLUSION OF LAW

The criteria for a temporary total rating based on convalescence through March 30, 2008 for the service-connected left great toe disability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 &Supp. 2011); 38 C.F.R § 4.30 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  

Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable 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). 

An October 2011 letter provided the notice requirement for an increased rating.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman, 19 Vet. App. at 486.  Accordingly, this letter satisfied the notice requirements with respect to the issue on appeal. 

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained relevant treatment reports.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  A current examination is not relevant in a case for entitlement to a temporary total rating (TTR) based on convalescence due a prior period of convalescence. 

Although VA treatment records were added to Virtual VA after the most recent Supplemental Statement of the Case in May 2012, these records primarily involve treatment for disabilities other than the foot and are essentially cumulative of the medical evidence already on file.  Consequently, this case does not need to be remanded for RO review.  See 38 C.F.R. § 20.1304 (2012).

As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

The Veteran seeks a TTR under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence beyond February 29, 2008 due to the severity of his 
service-connected left great toe disability.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  An April 2003 rating decision granted service connection for left great toe disability and assigned a noncompensable evaluation, effective December 11, 2002.  A September 2008 rating decision granted a TTR of 100 percent, effective December 27, 2007, based on surgical or other treatment necessitating convalescence and an evaluation of 10 percent was assigned beginning March 1, 2008 .  The Veteran timely appealed the ending date of the grant of a TTR.

A temporary total disability rating will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required VA hospital treatment for a period in excess of 21 days.  38 C.F.R. § 4.29 (2012).  Moreover, under the provisions of 38 C.F.R. § 4.30, a temporary total rating will be assigned effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following hospital discharge or outpatient release if the treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  Extensions of one or more months up to six months beyond the initial six month period may be made under paragraph (2) or (3) above.

According to an August 2007 report from J. B., D.P.M., the Veteran had an old fracture of the left great toe, with degenerative joint disease of the left hallux interphalangeal joint.  Thereafter, the Veteran underwent surgery for posttraumatic arthritis of the left hallux interphalangeal joint and hammertoe deformity of the left fifth digit on December 27, 2007.  The procedures performed were derotational arthroplasty of the left fifth digit, removal of avulsion fracture of the left hallux, fusion of the left hallux interphalangeal joint, and lengthening of the left extensor hallucis longus tendon.  It was noted that the Veteran tolerated the procedure well without complication.  According to a January 2008 statement from Dr. B, osseous hypertrophy, as well as small bone fragments were removed from the left hallux.  His surgery had a healing time of three months, with the foot expected to be healed by March 27, 2008.  

When examined by VA in August 2008, the Veteran complained of constant pain in the left great toe.  He said that he could only walk about a quarter of a block and could not wear regular shoes.  Physical examination showed a complete fusion of the left great toe at 0 degrees, with no range of motion.   The impression was fracture of the left great toe, with complete fusion.

A TTR for convalescence from the date of his service-connected left great toe surgery was granted on December 27, 2007 through February 29, 2008, affording two months of convalescence.  Because the Veteran's private podiatrist, who also performed the December 2007 surgery, indicated in January 2008 that the Veteran's left foot would be expected to have healed by March 27, 2008, and because there is no evidence that the service-connected left great toe healed earlier than March 27, 2008, the evidence supports extending the TTR based on convalescence until March 30, 2008.  

An extension of a TTR beyond March 30, 2008 is not warranted.  The requirements of 38 C.F.R. § 4.30 are specific; there would need to be evidence of surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of wheelchair or crutches prohibiting regular weight-bearing prohibited; or there would need to be evidence of immobilization by cast, without surgery, of one major joint or more.  In this case, there was complete fusion of the left great toe, with no evidence of severe postoperative residuals.  Additionally, as the Veteran had surgery on his left great toe, the requirement of immobilization by cast of at least one major joint, without surgery, does not apply.   


ORDER

A TTR through March 30, 2008 for convalescence due to left great toe surgery under the provisions of 38 C.F.R. § 4.30 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. 


REMAND

The Board Veteran has consistently complained of significant pain and functional impairment due to his left great toe disability.  The most recent VA evaluation noted in March 2012 that the constant pain in his left foot required narcotics, which resulted in poor balance and the limited ability to stand which impacted the Veteran's ability to work.  The Veteran reported that he had to use a cane to walk.  This examination is inadequate for rating purposes as it fails to address whether the Veteran's service-connected left great toe disability is severe enough to result in loss of use of the foot.  

Accordingly, the case is remanded for the following action:

1.  The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his service-connected left great toe disability since March 2012, the date of the most recent medical evidence on file.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  Regardless of the Veteran's response, the RO must attempt to procure copies of all VA medical records which have not previously been obtained.  All attempts to secure this evidence must be documented in the claims files by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran and his representative must then be given an opportunity to respond.

2.  The Veteran must be afforded a VA examination to determine whether the Veteran has loss of use of his left foot.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  All indicated testing must be conducted.  The examiner must conduct all studies and test necessary.  After reviewing the evidence of record, clinical evaluation of the Veteran's left foot, and with consideration of the Veteran's statements, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairment of the left foot to such a degree that there is no effective function other than that which would be equally well served by an amputation stump with the use of a suitable prosthetic appliance.  This determination must be made on the basis of the actual remaining function of the foot, as to whether the functions of balance and propulsion could be accomplished equally as well by an amputation stump with a prosthesis.  A complete rationale for all opinions provided must be given.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report must be typed.

3.  The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 

4.  The VA examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this Remand.  If the report is deficient in any manner, the RO must implement corrective procedures. 
5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  The RO must consider 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2012), as well as 38 C.F.R. § 3.321(b) (2012), in its readjudication of this claim.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs