Citation Nr: 1301206 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-36 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased evaluation (rating) greater than 20 percent for residuals of status post right foot stress fracture. 2. Entitlement to an increased evaluation (rating) greater than 20 percent for residuals of status post left foot stress fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the increased rating claims. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran's foot disabilities have been manifested by pain, scaly skin lesions and calluses on the great toes, in-toeing of his fifth toes, increased pain after prolonged walking, some limitation of motion, slight caving in of the heels of the shoes on the left worse than the right, and flat feet throughout the period relevant to the current appeal. 2. The level of impairment demonstrated by the Veteran's foot disabilities amounts to no more than a moderately severe level of impairment bilaterally for the entire rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for residuals of status post right foot stress fracture are not met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). 2. The criteria for a disability rating greater than 20 percent for residuals of status post left foot stress fracture are not met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 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). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental statement of the case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a March 2010 notice letter sent prior to the initial denial of the claims, the RO advised the Veteran that he may submit evidence showing that his claimed service-connected stress fracture residuals of the left and right foot had increased in severity, and described the types of information and evidence that he should submit in support of his claims. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his increased rating claims. The RO further explained how VA determines the disability rating and the effective date. The Veteran and his representative have been provided with copies of the above rating decision, the August 2010 SOC, and the October 2010 and September 2011 SSOCs, which collectively include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with a VA medical examination in connection with his increased rating claims in March 2010. The medical examination report includes all relevant findings and medical opinions needed to evaluate fairly the Veteran's claims. Although no claims file was available for review at the time of the medical examination, the VA examiner took a thorough history of the disabilities from the Veteran, including history of onset, diagnosis, report of pain, worsening of pain, other symptoms and limitations, and treatment. The VA examiner had adequate facts and data regarding the history and condition of the Veteran's foot disabilities. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The VA medical examiner also considered the Veteran's subjective complaints as it related to his current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran's feet, to include x-rays. There has been no credible allegation or indication that there has been a material change in condition of the Veteran's foot disabilities since the examination. For these reasons, the Board finds that the medical examination report is adequate for rating purposes, and there is no need for further medical examination. See also Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (stating that, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). Also, post-service treatment records adequately identified as relevant to the Veteran's claims have been obtained to the extent possible, or otherwise submitted, and are associated with the record. There are no additional treatment records pertinent to the Veteran's claims found in the Virtual VA folder. Records from the Social Security Administration (SSA) and past treatment records pertaining to the Veteran's feet are included in the record. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the claims decided herein. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rating Foot Disabilities Service connection for residuals of status post right and left foot stress fractures was originally awarded with separate 10 percent evaluations for each foot in a final August 2002 rating decision. Increased evaluations of 20 percent for each foot disability were later granted by the Board in a final November 2007 decision. The Veteran filed the current claim seeking an increased rating for each of his foot disabilities in February 2010. Each of the Veteran's foot disabilities is currently evaluated as 20 percent disabling under the criteria found at 38 C.F.R § 4.71a, Diagnostic Code 5284 for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for a foot injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In this case, in order for the Veteran to receive a higher rating than 20 percent under Diagnostic Code 5284, the evidence must show that his foot disabilities more closely approximate severe impairment (30 percent rating for a severe foot injury) or are manifested by actual loss of use of the foot (40 percent rating). 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that the criteria for a higher disability rating than 20 percent have not been met for any period. The evidence shows that the Veteran's foot disabilities have been manifested by pain, scaly skin lesions and calluses on the great toes, in-toeing of his fifth toes, increased pain after prolonged walking, some limitation of motion, slight caving in of the heels of the shoes on the left worse than the right, and flat feet throughout the period relevant to the current appeal. The level of impairment demonstrated by the Veteran's foot disabilities amounts to no more than a moderately severe level of impairment bilaterally for the entire rating period on appeal. When the Veteran underwent a medical examination in March 2010, he complained of pain, stiffness, weakness, and fatigability in his feet. He reportedly had constant throbbing pain in his feet at a level of 8 out of 10 and had flare-ups anytime he walked or stood for more than 45 minutes. He stated that the pain during flare-ups was at the level of 10 out of 10 lasting for approximately twenty 20 to 30 minutes after he got off his feet. The Veteran also stated that the pain was precipitated by standing or walking for over 45 minutes or applying pressure on his feet. He further stated that had the same range of motion during flares but with more pain and had to sit down until the pain subsided before he attempted to walk again. He reported that he used a cane during flare-ups. He additionally reported that he experienced some relief with rest and Tylenol as well as shoe inserts. On physical examination in March 2010, the Veteran demonstrated ankle dorsiflexion from 0 to 10 degrees with pain at 10 degrees bilaterally, plantar flexion from 0 to 15 degrees with pain at 15 degrees bilaterally, inversion from 0 to 10 degrees with pain at 5 degrees bilaterally, and eversion from 0 to 5 degrees with pain at 5 degrees bilaterally. Thus, the Veteran showed a 50 percent loss of dorsiflexion and a 67 percent loss of plantar flexion bilaterally at the medical examination. See 38 C.F.R. § 4.71, Plate II (normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion). However, even with considerations of additional limitation due to pain and other factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, the overall disability picture does not more closely approximate severe impairment of the left or right foot. In considering the Deluca factors, the VA medical examiner wrote that there was no limitation by pain on motion and no additional limitation due to pain, weakness, fatigue, or lack of endurance following repetitive motion on examination. Also, while the VA medical examiner noted that there was tenderness across the feet, there was no weakness or edema of the feet or ankles. Additionally, the Veteran's gait was noted to be slow but steady with a barely noticeable limp. There was further only a slight caving in of the heels of the Veteran's shoes shown with the left seemingly worse than the right. This evidence weighs against finding that the Veteran's right or left foot disabilities are manifested by severe impairment or that he has actual loss of use of the foot to warrant an increased evaluation under Diagnostic Code 5284. Moreover, at the examination, the Veteran objectively demonstrated very dry and scaly yellowish skin lesions on both feet but had no vascular changes. He also had no deformities such as hammertoes, clawfoot, or high arch and his weight bearing and non-weight bearing alignment of the Achilles tendon was normal. He further did not demonstrate hallux valgus on examination and the noted impression on the x-ray report was "negative bilateral foot exam." This provides further evidence against finding that the Veteran's right or left foot disabilities more closely approximate severe impairment or loss of use of the foot such that an increased rating under Diagnostic Code 5284 is warranted. Notably, the Veteran wrote in an April 2010 statement that taking Tylenol did not alleviate his symptoms and he did not have flare-ups, which contradicted statements made at the VA medical examination conducted the prior month. However, the Veteran also reiterated in the same statement that he had constant pain in both feet and more wear on the inside soles of his shoes than the outside, which were factors previously considered by the March 2010 VA medical examiner. Even when there was objectively demonstrated some tenderness across the feet on examination, the Veteran was able to dorsiflex to 10 degrees and plantar flex to 15 degrees bilaterally with pain only beginning at 10 and 15 degrees, respectively. Also, the Board notes that the Veteran admitted that he had the same range of motion when he had flares of pain at that time. Although the Veteran has provided inconsistent statements regarding flare-ups, there is no indication that his complaint of constant pain in the feet is not credible. Nonetheless, the evidence does not show that manifestations of either of his foot disabilities results in any additional functional loss so as to more closely approximate a severe level of impairment, or worse, to warrant entitlement to a higher disability rating under Diagnostic Code 5284 for any period. VA treatment records relevant to the claim/appeal period contain no findings contradictory to those noted in the March 2010 VA medical examination report. Thus, the evidence shows that the Veteran's foot disabilities are manifested by pain, scaly skin lesions and calluses on the great toes, in-toeing of his fifth toes, increased pain after prolonged walking, some loss of dorsiflexion and plantar flexion, slight caving in of the heels of the Veteran's shoes on the left worse than the right, and flat feet throughout the period relevant to the current appeal. The Veteran is also able to walk slowly with a barely noticeable limp. The Board has considered the evidence and finds that such disability picture does not more nearly approximate a severe level of impairment or actual loss of use of the foot. Therefore, the preponderance of the evidence weighs against the assignment of an increased rating under Diagnostic Code 5284 for any period. 38 C.F.R. §§ 4.3, 4.7. In making the above determination, the Board has considered the February 2011 statement from a registered nurse, G.D., wherein he related that the Veteran had an unsteady gait and fell at home, did not use mobility aids at that time, and had limited range of motion with the right lower extremity, as well as similar statements made by the same nurse in September 2010 and October 2010. However, the Veteran did not demonstrate an unsteady gait at the VA medical examination. It was merely described as slow with a barely noticeable limp. Also, in the 2010 statements, the nurse generally attributed the Veteran's symptoms to chronic orthopaedic problems without providing any rationale for the conclusion or any specific linkage to the Veteran's service-connected foot disabilities. The Board also notes that the Veteran had previously reported that he used a cane during flare-ups of his disability at the VA medical examination despite later stating that he did not have flare-ups. Assuming the credibility of the Veteran's assertion at the VA medical examination that he did use a cane, it is certainly curious that the Veteran, according to the nurse's statements, did not use a mobility aid despite purportedly having an unsteady gait and falling at home. It stands to reason that if his gait was unsteady and causing frequent falls, as he contends, that he would have used his cane or some other mobility aid as he reportedly had done in the past. Thus, due to the inconsistencies noted above and the absence of adequate medical opinion linking the Veteran's unsteady gait and falls to his foot disabilities, the Board does not find the nurse's statements to be credible evidence, and affords them no probative value. Furthermore, there are no other diagnostic codes pertinent to the foot that would provide a basis for a higher rating. As stated above, the Veteran does not have foot weakness, acquired claw foot, hallux valgus, or hammer toe. Therefore, a higher evaluation under Diagnostic Code 5277 for bilateral weak foot, Diagnostic 5278 for acquired claw foot, Diagnostic Code 5280 for hallux valgus, or Diagnostic Code 5282 for hammer toe is not warranted. Also, as the maximum disability rating available under Diagnostic Code 5279 for anterior metatarsalgia, unilateral or bilateral, and under Diagnostic Code 5281 for severe unilateral hallux rigidus is 10 percent, no higher rating is available under either of those codes. There is further no evidence of malunion or nonunion of the tarsal or metatarsal bones such that an increased rating under Diagnostic Code 5283 is warranted. 38 C.F.R. § 4.71a. As stated above, the x-ray conducted in connection with the March 2010 VA medical examination showed a negative bilateral foot exam. Regarding Diagnostic Code 5276 for acquired flatfoot, the Board notes that the Veteran essentially argued that he was entitled to a 30 percent rating for each of his feet under this code when filing his claim in February 2010. However, that diagnostic code specifically contemplates whether a veteran's foot disability is unilateral or bilateral. A single disability rating is prescribed for impairment affecting both feet; therefore, separate ratings are not available under this diagnostic code. Rather, in order for the Veteran to receive the next higher and maximum rating of 50 percent under Diagnostic Code 5276 for acquired bilateral flatfoot, the evidence must show that his bilateral foot disability more closely approximates pronounced bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. However, no such disability picture is shown by the evidence. When the Veteran underwent VA medical examination in March 2010, the VA medical examiner noted that he demonstrated tenderness across both feet, which, perhaps, indicates that the Veteran demonstrates extreme tenderness of plantar surfaces of the feet. Nonetheless, there is no evidence of marked pronation or marked inward displacement resulting from the Veteran's bilateral foot disability. The VA medical examiner noted that the Veteran's weight-bearing and non-weight bearing alignment of the Achilles tendon was normal and wrote "No" when asked if the Veteran had hallux valgus. The VA medical examiner also described the Veteran's gait as slow but steady with a barely noticeable limp. There is also no evidence severe spasm of the tendo Achillis on manipulation as evidenced by the normal weight-bearing and non-weight bearing alignment of the Achilles tendon previously noted. Furthermore, there is no evidence to indicate that the Veteran's feet are not improved by orthopedic shoes or appliances. In fact, the Veteran told the VA medical examiner that he did have some relief with inserts. Thus, the findings as noted at the VA medical examination provide evidence against concluding that the Veteran's bilateral foot disability more closely approximates pronounced bilateral pes planus such that the assignment of a 50 percent disability rating is warranted under Diagnostic Code 5276. Extraschedular Consideration The Board has further considered whether the increased rating claims warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. However, the Board does not find any symptoms or functional impairment that is not already encompassed by the currently assigned 20 percent schedular ratings. As stated above, the Veteran's foot disabilities are manifested by pain, scaly skin lesions and calluses on the great toes, in-toeing of his fifth toes, increased pain after prolonged walking, some loss of dorsiflexion and plantar flexion, slight caving in of the heels of the Veteran's shoes on the left worse than the right, and flat feet. The schedular criteria under Diagnostic Code 5284 does not delineate such symptomatology in the criteria and, instead, more generally considers the overall disability picture, without limitation of factors for consideration; therefore, these more specific findings and impairments may be considered when assessing the overall degree of severity for a rating under Diagnostic Code 5284. In this case, the Board finds that the Veteran's right and left foot stress fracture residuals are appropriately considered to more nearly approximate a moderately severe level of impairment and, accordingly, contemplates all of the encompassed symptomatology. The criteria and factors at 38 C.F.R. §§ 4.40, 4.45, 4.59, and Deluca are incorporated as part of the schedular rating criteria and are considered in the currently assigned schedular rating. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's disabilities of the feet, and referral for consideration of extraschedular rating is not necessary. Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the RO denied the Veteran's TDIU claim in a February 2011 rating decision. Although the Veteran subsequently stated in a February 2011 statement that he was unemployable, he specifically told a VA employee in March 2011 that he wanted to withdraw his claim for individual unemployability. Thus, as the issue of individual unemployability has not since been raised, it is not considered part of the Veteran's increased rating claims and is not reasonably raised by the record. ORDER An evaluation greater than 20 percent for residuals of status post right foot stress fracture is denied. An evaluation greater than 20 percent for residuals of status post left foot stress fracture is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs