Citation Nr: 1308265 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-41 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for the residuals of a fracture to the right foot, 2nd, 3rd, and 4th metatarsals, with degenerative joint disease (right foot disability), currently rated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of a fracture to the right tibia and fibula, currently rated as 10 percent disabling. 3. Entitlement to an increased compensable rating for hypertension. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied increased ratings for the issues on appeal. Although the Veteran requested a hearing on his October 2010 Form 9, Formal Appeal, in August 2012, it was confirmed with his custodian that he would not be able to attend any hearing because he was living in a nursing home, and such request was thus withdrawn. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's right foot disability has been manifested by subjective complaints of pain, with objective evidence of limitation of flexion of the ankle and x-ray evidence of callosities with normal digits. There is no evidence of malalignment of the midfoot or forefoot. The right foot disability results in no more than a moderate disability. 2. Throughout the pendency of the appeal, the Veteran's fracture of the right tibia and fibula has been manifested by subjective complaints of pain. There is no medical evidence of instability and giving way of the knee or decreased limitation of motion of the knee due to the previous fracture. 3. Throughout the pendency of the appeal, the Veteran's hypertension has not been manifested by blood pressure readings of diastolic pressure that was predominantly 100 or more, requiring continuous medication for control, or by systolic pressure that was predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5284 (2012). 2. The criteria for a rating higher than 10 percent for fracture of the right tibia and fibula have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Codes 5003, 5010, 5262 (2012). 3. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In the instant case, the Board finds that VA satisfied its duty to notify with a November 2009 letter. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and private records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. A review of the Virtual VA claims file has been completed. Additionally, the Veteran was scheduled for a VA examination in September 2012 that he canceled without providing a reason. However, it appears that the Veteran resides at a nursing home, is an incomplete quadriplegic, and has a state-appointed custodian who represents him in this case. In August 2012, his custodian stated that she did not believe the Veteran would be able to present for a VA examination. When asked, the VA medical center replied that it would not be feasible to send an examiner to the Veteran's nursing home to conduct the examinations. The VA medical center also replied that the Veteran appeared for an annual examination in their physical therapy clinic and thus felt that the Veteran may be transportable. The Veteran was advised in the November 2012 supplemental statement of the case that he may obtain private examinations using a downloadable VA DBQ form at his convenience. The law states that when a claimant fails to report without good cause for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). However, in light of the Veteran's circumstances, and when taking into account his custodian's request, the Board finds that there is good cause in this case as to why the Veteran was unable to appear for his examinations and the Board will rate the claim based upon the record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Residuals of Fracture to Right Foot and to Right Tibia and Fibula Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2012) should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the toes are considered a minor joint group and the knee is considered a major joint. 38 C.F.R. § 4.45 (2012). 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 group of minor joints so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Diagnostic Code 5010, used for rating 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. 38C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are not to be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1 (2012). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as severe by VA examiners and others, although an element 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. 38 C.F.R. §§ 4.2, 4.6 (2012). VA treatment records reflect that in February 2009, the Veteran had custom orthotics fitted. His toenails were thick and yellow and he had a bandage on the right fourth toe. On follow-up, he was unhappy with his orthotics but it was shown that he was wearing them incorrectly. In June 2009, the Veteran had painful thick toenails that he debrided frequently. He had burning, numbness and tingling in his lower extremities secondary to being an incomplete quadriplegic. He was able to walk without assistance. There was no edema or varicosities noted. Pulses were 2/4, bilaterally. Protective sensation was absent. On the toes, there was a small dried eschar on the distal tip of the right third digit. The ulcer was lxl millimeters. The right forefoot was entirely normal. There was mild edema noted to the distal third toe. All toenails were myocotic. The Veteran had thin, bony feet. Toes two to five were contracted. There was no other gross foot abnormality. His feet were very sensitive to palpation. X-ray examination showed no bony or joint abnormality of the fourth right digit. There was soft tissue swelling. The assessment was onychomycosis, hammertoes, superficial ulcer of the right distal third digit, and noncompliance with treatment in terms of debriding the toes. The physician felt that due to the way that the Veteran was debriding his toes, it was possible that he was causing the condition in the first place. On December 2009 VA examination, the Veteran reported that he had pain, weakness, stiffness, swelling, heat, redness, instability, giving way, fatigability, and lack of endurance due to his right foot and leg fractures. He could not stand for more than 15 minutes and used a motorized scooter when shopping. Range of motion of the right ankle was 0 to 10 degrees dorsiflexion and 0 to 20 degrees plantar flexion, with no difference on repetitive testing. There was pain and weakness following the final range of motion test. His gait was abnormal in that he shuffled and limped. X-ray testing showed demineralization suggesting osteopenia and evidence of an old tibia/fibula fracture. The severity of his right ankle disability was assessed as moderate. There was a related scar at the right ankle that was eight centimeters by one centimeter and atrophic. The scar was superficial, with no other abnormalities. There was a second scar at the right shin that was two by two centimeters and was atrophic. That scar was also superficial without any other abnormalities. The diagnosis was fractured right foot, second, third, and fourth metatarsals with degenerative joint disease. He used pain relievers for his symptoms, as well as corrective shoes, shoe inserts, and a cane. The right foot had callosities and skin breakdown. The right foot had hammertoes. The symptoms related to the service-connected foot injuries were pain, swelling, and callosities. VA treatment records dated to August 2010 demonstrate continuing care for orthotic-related adjustments, symptoms related to his quadriplegia that include notations of lack of reflexes of the ankle, and counseling as to incorrect debridement of a toe ulceration. Right Foot Disability The Veteran is currently in receipt of a 20 percent rating for a moderate foot disability under DC 5284, which pertains to other foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). DC 5284 provides for a 20 percent rating for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. 38 C.F.R. § 4.71a, DC 5284. In this case, based upon the evidence as outlined above, the Board finds that a higher rating is not warranted for the Veteran's right foot disability. The Veteran's service-connected foot disability results in pain and swelling. However, the VA treatment records show that x-ray of the toes has been normal. The Veteran has ongoing yellowed toenails and a wound that he chooses to debride, but the available medical evidence does not demonstrate that those symptoms are related to his service-connected fracture of the toes and without a new VA examination, such a connection cannot be made based upon the evidence of record. Rather, the Board finds that his service-connected right foot disability, based upon the 2009 VA examination results and VA treatment records, results in a less than severe residual. Simply, the evidence does not show that the Veteran's previous fracture to the toes results in an inability to walk or tend to activities of daily living and has not been described as a severe limitation. The Board finds no better code upon which to rate the Veteran's residual right foot injury as he is already in receipt of a 20 percent rating for a moderately severe foot injury. There is no indication of related flat foot, claw foot, or malunion or nonunion of the metarsal bones upon which a higher rating would be warranted. 38 C.F.R. § 4.71a, DC 5276, 5278, 5283 (2012). Although he has been shown to have hammertoes, he is already in receipt of a 20 percent rating and thus DC 5282 does not offer a higher rating. 38 C.F.R. § 4.71a, DC 5282 (2012). Fracture to Right Tibia and Fibula The Veteran's fracture of the right tibia and fibula has been rated as 10 percent disabling under Diagnostic Code 5262. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. Under DC 5262, a 20 percent rating is warranted for a moderate knee or ankle disability and a 30 percent rating is warranted for a marked knee or ankle disability. 38 C.F.R. § 4.71a, DC 5262 (2012). The Board finds that a higher 20 percent rating for the fracture of the right tibia and fibula is not warranted. Although the 2009 VA examiner found that the Veteran had a moderate disability of right ankle, for which he is not service-connected, the examiner did not find evidence of a moderate knee disability. Nor did the examiner find that the malunion of the tibia and fibula resulted in a moderate disability. Rather, no particular residual was identified with regard to fracture of the right tibia and fibula. The VA treatment records also do not reflect symptoms specific to that disability. In this case, there is no medical evidence to support a finding that the Veteran has instability of the right knee or has limitation of motion of the knee, as none was shown on 2009 VA examination or in the VA treatment records. Therefore, there is no better rating code upon which to award the Veteran an increased award. Lastly, the Board observes that although the Veteran has osteopenia related to his right foot disability and fracture of the right tibia and fibula, such arthritis is included in the finding that the Veteran had a moderate foot injury and slight malunion of the right tibia and fibula. Therefore, to also grant ratings under DC 5003 would amount to impermissible pyramiding. Moreover, there is no indication that fracture of the toes or fracture of the right tibia and fibula has resulted in occasional exacerbating episodes. 38 C.F.R. § 4.71a, DCs 5003; 38 C.F.R. § 4.14 (2012). Furthermore, the Board finds that separate evaluations for the surgical scars associated with the disabilities on appeal are not warranted because the scars were described as superficial, less than eight centimeters in length, and, while atrophic, not painful or tender. There was no indication of elevation of depression of surface contour or any other disfigurement and they were not unstable. The Board has determined that the Veteran is entitled to no more than a 20 percent disability rating for a right foot disability and 10 percent disability rating for a fracture of the right tibia and fibula under the applicable orthopedic criteria. The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the effect of pain and weakness on the basis of limitation of motion has been considered because although VA examinations and treatment records have shown that the Veteran reports pain on motion of the toes and knee, there is no evidence to suggest that the functional loss is the equivalent to flexion of the knee to less than 45 degrees flexion or 10 degrees extension, or of a severe foot injury. Evidence of pain is an important factor for consideration. However, the United States Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. Thus, the Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to higher ratings based upon additional pain or weakness on repetitive testing. Hypertension The Veteran's hypertension is rated as 0 percent disabling under Diagnostic Code 7101, which pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a 0 percent evaluation, as in DC 7101, a 0 percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Diagnostic Code 7101 defines hypertension as diastolic blood pressure predominantly 90 or greater. Isolated systolic hypertension is defined as systolic blood pressure predominately 160 or greater with a diastolic blood pressure of less than 90. A 10 percent rating is warranted where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating may be assigned with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Diastolic pressure of 120 or more is rated as 40 percent disabling, and a maximum 60 percent rating is warranted for diastolic pressure of 130 or more. 38 C.F.R. § 4.104, DC 7101 (2012). On December 2009 VA examination, the Veteran's blood pressure was 98/65, 103/71, and 106/72. The diagnosis was hypertension. The remainder of the VA treatment records do not demonstrate elevated blood pressure, blood pressure monitoring, or medication for blood pressure control. Based on the evidence, the Board finds that the Veteran's hypertension does not warrant a 10 percent rating. The evidence fails to indicate diastolic blood pressure readings of predominantly 100 or more or systolic blood pressure readings of predominantly 160 or more as required for a 10 percent rating. The evidence instead shows diastolic blood pressure readings which are all below 100 and systolic blood pressure readings which are all below 160, despite the Veteran's contentions. Therefore, a 10 percent rating is not warranted. 38 C.F.R. § 4.104, DC 7101 (2012). III. Other Considerations A claim for total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has not stated, and the evidence does not suggest, that the Veteran is unemployable due to his service-connected right foot, right tibia/fibula, and hypertension disabilities. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right foot disability, fracture of the tibia and fibula, and hypertension with the established criteria found in the rating schedule. The discussion above reflects that the symptoms of the Veteran's right foot and leg disabilities are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the right foot and leg disabilities are primarily manifested by pain and swelling and malunion of the tibia and fibia. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. There is a higher rating available under the diagnostic code for hypertension, but the Veteran's hypertension is not productive of the manifestations that would warrant the higher rating. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against the claims for increased ratings for right foot disability, fracture of the tibia and fibula, hypertension at anytime during the pendency of the appeal, the claims must be denied. 38 U.S.C.A. § 5107(b)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 20 percent for residuals of a fracture to the right foot, 2nd, 3rd, and 4th metatarsals, with degenerative joint disease is denied. A rating in excess of 10 percent for residuals of a fracture to the right tibia and fibula is denied. A compensable rating for hypertension is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs