Citation Nr: 1300205 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-50 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased rating for status post fracture of the right third toe, status post right first metatarsophalangeal joint surgery with residual of hallux rigidus, post surgical numbness of the fourth and fifth toes, chronic forefoot pain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2009, the Veteran testified at an RO hearing, as well as at a Board video conference hearing before the undersigned Veterans Law Judge in September 2010. Transcripts of these proceedings are associated with the claims file. In August 2011 the Board remanded this matter for further development. The Board acknowledges the recent judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. The Veteran has been denied such benefit on several occasions and did not appeal, nor has she raised a TDIU issue during the course of her appeal on the right foot disability rating issue. FINDINGS OF FACT 1. From February 12, 2008, to October 30, 2008, the Veteran's right foot disability was productive of symptomatology and limitation of function resulting in a disability picture more nearly approximating severe disability; there was no actual loss of use of the right foot. 2. From January 1, 2009, the Veteran's right foot disability has been productive of symptomatology and limitation of function resulting in a disability picture more nearly approximating moderately severe disability CONCLUSIONS OF LAW 1. From February 12, 2008, to October 30, 2008, the criteria for entitlement to a disability rating in excess of 30 percent for status post fracture of the right third toe, status post right first metatarsophalangeal joint surgery with residual of hallux rigidus, post surgical numbness of the fourth and fifth toes, chronic forefoot pain were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). 2. From January 1, 2009, the criteria for entitlement to a disability rating of 20 percent (but no higher) for status post fracture of the right third toe, status post right first metatarsophalangeal joint surgery with residual of hallux rigidus, post surgical numbness of the fourth and fifth toes, chronic forefoot pain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify and assist claimants. Duty to Notify The VCAA provides that VA has a duty to notify claimants of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court's decision in Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in April 2008. This notification substantially complied with the requirements of Quartuccio, 16 Vet. App. 183, identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The claimant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA. The Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The Board points out that the U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Reviewing the April 2008 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a)-compliant notice as to her increased rating claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records and VA treatment records are on file. The Board has reviewed "Virtual VA". [There are no pertinent records therein that are not associated with the claims files. There is no indication of available, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran was afforded VA examinations in August 2008, June 2009, and August 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports are thorough and contain sufficient detail so that the Board's evaluation is a fully informed one. Thus, the Board finds that further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist her have been fulfilled, and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Briefly, the Veteran contends that the severity of her service-connected right foot disability warrants a higher disability rating. Her right foot disability is currently rated as 10 percent disabling under Diagnostic Code 5284. 38 C.F.R. § 4.71a. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated as 10 percent disabling. Moderately severe residuals of foot injuries are rated as 20 percent disabling. Severe residuals of foot injuries are rated as 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated as 40 percent disabling. 38 C.F.R. § 4.71a. In addition, arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5010, traumatic arthritis, directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis 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. 38 C.F.R. § 4.71a. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, x- ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. Id. at Note 1. Factual Background & Analysis The present appeal involves the Veteran's claim that the severity of her service-connected right foot disability warrants a higher disability rating. Historically, service connection was granted for status post fracture, 3rd toe right foot, in June 2002, with an assigned 10 percent disability rating, effective August 13, 2001. In March 2004, the Veteran filed a claim for a temporary 100 percent disability rating due to surgery on her service-connected right foot disability. An October 2004 rating decision assigned a temporary total evaluation based on surgical treatment necessitating convalescence and extended until June 30, 2004; an evaluation of 10 percent was reassigned from July 1, 2004. In February 2008, the Veteran filed a claim for an increased disability rating for her service-connected right foot disability. A January 2009 rating decision assigned a disability rating of 30 percent for the period from February 12, 2008, to October 30, 2008, a disability rating of 100 percent for the period from October 30, 2008 to January 1, 2009, and a disability rating of 10 percent for the period from January 1, 2009. For purposes of the present appeal, the Board must look to whether a rating in excess of 30 percent was warranted for the period from February 12, 2008, to October 30, 2008, and whether a rating in excess of 10 percent is warranted from January 1, 2009. Initially, the Board notes that it has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (stating that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board's decision focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (stating that the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). An August 2008 VA examination report documents that the Veteran fractured her 3rd right toe in 1985 by hitting an object. She was treated for six weeks and the pain persisted. She had podiatry reconstructive surgery in 1999 and was in a boot for months; the pain never resolved. At that time, she complained of forefoot pain with weight bearing. She was told by podiatry that she needed another surgery. She reported pain and stiffness of the metatarsophalangeal joints while standing and walking. There was no fatigability, weakness, lack of endurance, or other symptoms. There were no flare-ups of foot joint disease. She was able to stand up to one hour and was able to walk a quarter of a mile. On physical examination there was no objective evidence of painful motion, swelling, instability or weakness. There was no skin or vascular foot abnormality, or muscle atrophy of the foot. There was tenderness over all metatarsophalangeal joints (worse at the 1st and 5th). There were callosities, indicating abnormal weight bearing. Extension of the right great toe metatarsophalangeal joint was limited to 20 degrees. Flexion was to 30 degrees. X-rays showed degenerative changes at the first metatarsophalangeal joint, the appearance of the head of the 5th metatarsal was unchanged. The diagnoses were status post fracture of the right 3rd toe, status post right 1st metatarsophalangeal joint surgery with residual of hallux rigidus, post-surgical numbness of the 4th and 5th toes, chronic forefoot pain. It was noted that the Veteran was employed full-time, but had decreased mobility due to pain. She had lost six weeks from work during the 12-month period due to back and right foot pain. The examiner described the effects of her right foot disability on daily activities were moderate for chores and recreation, and severe for shopping, exercise, sports, and traveling. An October 2008 VA operation report shows the Veteran was symptomatic for right first metatarsophalangeal joint with locking, pain and two prior procedures in the past. The preoperative and postoperative diagnoses were right foot first metatarsophalangeal joint significant degenerative disease/arthrosis. She underwent a right foot primus total joint replacement. In a November 2008 VA postoperative report there was no erythema. There was minimal edema and the Veteran had minimal discomfort. The hallux was in a rectus position and there was good passive range of motion without pain. The assessment was status post total joint replacement right first metatarsophalangeal joint, healing normally for eleven days. On June 2009 VA examination, the Veteran reported an increased severity following fractures of the right 3rd toe, right 1st metacarpophalangeal joint, surgery with residuals of hallux rigidus, postsurgical numbness of the fourth and fifth toes, and chronic forefoot pain. She complained of pain, weakness and stiffness of all the toes of the right foot, especially of the 1st, 2nd and 5th with constant numbness of the 5th right toe along the lateral aspect of the toe and the forefoot plantar surface under the 4th and 5th toes. She had pain discomfort at rest but it decreased in intensity with standing and with walking, increased intensity occurred. Precipitating events included prolonged standing and walking over hard surfaces. She had been placed on restrictions to avoid any heavy impact such as running and jumping activities. She could no longer play contact or physical sports or walk over a hard surface for any period of time. In addition, she had difficulty walking over uneven terrain and no longer hiked or walked on trails due to the instability and stiffness of the toes of the right foot. Since her recovery from the initial surgery, she had not experienced incapacitating episodes over the past six months. However, due to the prolonged convalescence she lost her job and was taking classes as a student at a local college for vocational rehabilitation. She reported that she used shoe inserts in her gym shoes. It was noted that she was precluded from jobs that required prolonged walking on cement floors, had hard impact to the feet, required running or jumping, or lifting and carrying heavy objects. Her activities of daily living had not been affected; she was able to drive. With regard to functional limitations, she could stand for a maximum of 45 minutes and walk for a maximum of one mile over flat and level land. She could not walk over uneven terrain. Prolonged walking caused increased pain discomfort and affected her gait. On physical examination she had a healing surgical incision 2-1/2 inches over the anterior midline of the 1st metatarsophalangeal joint, and a well healed 2-inch slightly curved lateral incision over the 5th metatarsophalangeal of the right foot. Tenderness was present over the incisional scar. Slight erythema was present also. Healing was not completed over the 1st metatarsophalangeal joint. The surgical scar over the 5th metatarsophalangeal joint was mature and nontender. There was objective evidence of painful motion over the proximal and distal interphalangeal joint of the 5th and 3rd toes, and mild pain discomfort was present over the 1st metatarsophalangeal joint, right foot. She walked with a slightly guarded gait. There was slight gait disturbance due to recent surgery of the 1st metatarsophalangeal joint. She could not toe-gait due to pain and stiffness. Heel-gait was performed without pain complaints. She was unable to complete a full squat due to pain and stiffness of the toes of the right foot. There were calluses on the soles of the right foot. There was swelling present of the 1st metatarsophalangeal joint due to recent surgery and prosthetic implant. The 5th right toe was varus angulated 15 degrees and slightly under rides the 4th toe. There were no hammertoes, high arches, or claw feet. She did not have pes planus. The Achilles tendon was in neutral position in alignment of the calcaneus. She did not have hallux valgus. Dorsiflexion and plantar flexion of the 1st metatarsophalangeal joint were 0 to 15. The 2nd, 3rd, and 4th toes dorsiflexion were 0 to 25 degrees, the 2nd and 3rd toes plantar flexion were 0 to 25 degrees, and plantar flexion of the 4th and 5th metatarsophalangeal joints were 0 to 15 degrees. Pain discomfort was noted with repetitive movement and pressure over the toes at those levels. There was no diminished sensory perception along the forefoot involving the 4th and 5th toes of the right foot. In support of her claim the Veteran submitted an October 2009 letter from a VA physician, who noted that the Veteran underwent right foot 1st metatarsophalangeal joint replacement (total joint) on October 30, 2008 and she was now ambulatory and in regular footwear. She had done well in her recovery. Her convalescent period was from October 30, 2008 to October 26, 2009, and no further treatment was required. In a May 2010 VA outpatient treatment report it was noted that the Veteran had done well postoperatively (right 1st metatarsophalangeal total joint arthroplasty). X-rays reviewed showed some proximal phalanx bony exostosis, but the Veteran was asymptomatic at the time of the evaluation. The Veteran reported that she has had a "Charlie horse" in her digits, especially while she was in shoe gear. She was wearing soft over-the-counter inserts. In support of her claim, the Veteran submitted a September 2010 letter from a VA physician, who noted that the Veteran underwent right foot surgery, total joint replacement on October 30, 2008 and had suffered degenerative arthritis. Since the surgery she has had severe limitation of right hallux dorsiflexion to only 15 degrees which severely limits her ambulation in a normal fashion and her activity level. She was restricted from any high impact activity, long-term standing or walking, going up and down steps, and unable to go barefoot. She was advised not to run and was unable to use a small step stool for house cleaning. The Veteran provided detailed testimony regarding her disability during her September 2010 Board video conference hearing. She testified that she was issued special shoes for her right foot, every six months to try and help with the symptoms. She stated that her right foot disability affects her balance and she has fallen down the stairs in her home. She cannot jog, run, or do normal stuff in the house because of her right foot disability. She stated that she gets very painful charley horses "out of the blue" with any movement if she stretches out her foot. She stated that her right foot disability has gotten worse since she had surgery on it. The top of the right foot from the surgery on the right and left sides of the large toe was numb and it had been like that since the surgery. She stated that all of the treatment for her right foot had been with VA and there have been no private doctors. She stated that she had to be selective on her job because of her right foot disability. She had to make sure she got a desk job. In a December 2010 VA podiatry consult report, it was noted that the Veteran underwent an arthrectomy with total joint replacement of the right 1st metatarsophalangeal joint in 2008. The joint was doing exceptionally well, and she had passive dorsiflexion to approximately 25 degrees. She was able to actively move the toe with no discomfort. At the time of the evaluation, she had complaints of spasm and "charley horses" in the dorsal aspect in the top of her foot. She stated that it comes and goes. Her pain level was about a 3 to 4, and sometimes up to a 5 out of 10. She reported that she was working, but the cramps could come on at any time. Objectively, her pulses were palpable, there were no overt deformities and no wounds noted. The assessment was chronic muscle spasms, right foot. In a December 2010 letter, it was noted that the Veteran was seen at a VA clinic, and was excused from work from November 29, 2010 to December 3, 2010. She would return to work on December 2010 with no work restrictions. In an April 2011 VA primary care note, it was noted that the Veteran had been ill, and to excuse her from work April 11, 2011 to April 15, 2011. She was able to return to work at full duty April 18, 2011. On April 2011 VA podiatry consult report, it was noted that the Veteran was a longstanding patient of the podiatry clinic who underwent an arthrectomy with total joint replacement in October 2008. The Veteran reported that she sometimes had occasional pain in the right foot. On examination the right 1st metatarsophalangeal joint had approximately 40 degrees of dorsiflexion to where the joint was replaced. She had absolutely no pain in the joint and was fully active. She had been relating, in the last two visits, that she was getting cramping and charley horses, but at that time she was more specific that it was in the bottom part of the foot. To palpation, she had a very small fibroma, but it was in the central band of the plantar fascia. The medial band was not tight. The central band was very painful to palpation with maybe a 0.5 centimeter size fibroma in the part of the central band. She was scanned for a new orthotic. She was told that she may discontinue her Flexeril for the "muscle spasms." On August 2011 the Veteran had a VA examination to determine the severity of her service-connected right foot disability (status post fracture of the right 3rd toe, status post right 1st metatarsophalangeal joint surgery with residual of hallux rigidus, post surgical numbness of the 4th and 5th toes, chronic forefoot pain). She reported symptoms of pain of the whole right foot while standing, walking and at rest, swelling of the forefoot while walking, redness of the forefoot, while standing and walking, stiffness while walking, fatigability of the whole foot, while standing and walking, weakness of the whole foot while standing and walking, lack of endurance of the whole foot while standing and walking, and numbness on both sides of the foot. She did not have flare-ups of foot joint disease. She could stand up to one hour and walk one block. She had an orthotic insert for foot pain. On physical examination of the right foot, there was no evidence of painful motion, swelling, tenderness, instability, weakness or abnormal weight bearing. There was numbness over the lateral side of the foot. Regarding hallux valgus or rigidus, angulation and dorsiflexion at the 1st metatarsophalangeal joint was 10 degrees and there was stiffness. The examiner found no evidence of malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy of the foot, or foot deformity. Her gait was normal. X-rays of the right foot showed postoperative changes about the right foot, stable from August 18, 2009. The diagnoses were status post fracture of the right 3rd toe, status post right 1st metatarsophalangeal joint replacement with an implant surgery with residual of hallux rigidus, post-surgical numbness of the 4th and 5th toes, chronic forefoot pain. It was noted that the impact on occupational activities was decreased mobility, which resulted in increased absenteeism. There were moderate effects on daily activities such as chores and recreation, and severe effects on shopping, exercise, sports and traveling. It was noted that the Veteran's usual occupation was that of a claims representative for a government agency, but she retired in May 2011 due to back and foot problems. The Board has considered the Veteran's contentions carefully and acknowledges that in advancing this appeal, suggests that her service-connected right foot disability is more severe than the currently assigned 10 percent disability rating under Diagnostic Code 5284. The Board finds that the Veteran's right foot disability is rated most appropriately under Diagnostic Code 5284. After reviewing the medical records together with the Veteran's statements and testimony, it is clear that she has experienced significant problems with her right foot disability. The Board notes that the RO assigned a 30 percent rating for the period from February 12, 2008, to October 30, 2008, in recognition of a significant increase in right foot disability which led to another surgical procedure (for which a temporary total rating was assigned from October 30, 2008, to January 1, 2009). The 30 percent rating reflects severe disability. It is noted that a higher rating of 40 percent is only warranted if there is actual loss of use of the foot. The preponderance of the evidence is against a finding that there was actual loss of use of the foot during the period from February 12, 2008, to October 30, 2008. The August 2008 examination report showed that the Veteran was able to stand and walk for a short distance. There was no actual loss of use of the foot. Turning to the period from January 1, 2009, the medical evidence does suggest some improvement as a result of the surgical procedure. In this regard, the VA physician in his October 2009 letter revealed the Veteran had done well post surgery and was ambulatory, in regular shoes and required no further treatment. In a May 2010 VA outpatient treatment report, regarding the right foot, it was noted that the Veteran was asymptomatic at the time of the evaluation. She did however report having had a Charlie horse in her digits. In a December 2010 VA podiatry consult report it was noted that the Veteran's joint (1st metatarsophalangeal) was doing exceptionally well and she had passive dorsiflexion to approximately 25 degrees. She was able to actively move the toe with no discomfort, although she had complained of spasm and charley horses in the dorsal aspect at the top of her foot. During an April 2011 VA podiatry consult, the Veteran reported only occasional pain in the right foot. She had approximately 40 degrees of dorsiflexion of the right 1st metatarsophalangeal. She reported having cramping and charley horses. On August 2011 VA examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness or abnormal weight bearing. Her gait was normal. Also at that examination, the Veteran reported that she could stand up to one hour and could walk a block. She did report having numbness over the lateral side of the foot. Nevertheless, the Veteran asserts that the surgical procedure did not diminish the disability picture to the point where it was during the period prior to early 2008 when she initiated her claim. The Veteran's representative has directed the Board to the VA examiner's report of a mix of moderate and severe interference with the Veteran's daily activities (a moderate effect on chores and recreation, and a severe effect on shopping, exercise, sports, and travelling) and has argued that a 20 percent evaluation for a moderately severe disability is supported. The Board has considered this report as well as the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, 8 Vet. App. 202 as to the possibility of additional functional loss during flare-ups. After weighing the overall evidence, the Board does believe that there is a state of equipoise as to whether the resulting disability picture more nearly approximates moderate versus moderately severe disability. Pursuant to 38 U.S.C.A. § 5107(b), the benefit of the doubt goes to the Veteran. Accordingly, a 20 percent rating is warranted from January 1, 2009. In her substantive appeal, the Veteran clearly limited her appeal to a 20 percent rating. However, in an August 2012 informal hearing presentation, the representative argues for a finding of severe disability. The Board finds that the preponderance of the evidence is against a finding of severe right foot disability from January 1, 2009. All of the medical evidence for this period shows no more than moderately severe disability. As discussed above, the objective clinical findings actually show some improvement from the disability picture the Veteran was experiencing prior to the surgical procedure in late 2008. A December 2010 report is to the effect that the Veteran was doing exceptionally well, and examination in August 2011 showed a normal gait and no objective evidence of painful motion, swelling, tenderness, instability, weakness or abnormal weight-bearing. The evidence is against a rating in excess of 20 percent from January 1, 2009. The Board also recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disability on her work functioning. However, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the medical evidence and the symptoms described by the Veteran fit within the criteria found in the diagnostic codes. In short, the rating criteria contemplate not only her symptoms but the severity of her disability. For these reasons, referral for extraschedular consideration is not warranted. In conclusion, a preponderance of the evidence is against a ratings in excess of 10 percent for the Veteran's service- connected status post fracture of the right third toe, status post right first metatarsophalangeal joint surgery with residual of hallux rigidus, post surgical numbness of the fourth and fifth toes, chronic forefoot pain. As the preponderance of the evidence weighs against the claim, the benefit-of-the- doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating in excess of 30 percent for the period from February 12, 2008, to October 30, 2008, for right foot disability is not warranted. To this extent, the appeal is denied. Entitlement to a 20 percent rating (but no higher) is warranted for the period from January 1, 2009. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs