Citation Nr: 1309702	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO. 09-30 872	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Entitlement to an initial disability evaluation in excess of 10 percent for osteoarthritis, status postoperative fracture of the sesamoid, first metatarsophalangeal (MTP) joint of the left foot with plantar fasciitis (left foot disability). 

2. Entitlement to an initial disability evaluation in excess of 20 percent for degenerative disc disease (DDD) of the thoracic spine with musculoligamentous strain of the lumbar spine (back disability). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from March 1988 to March 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The rating decision granted service connection for the disabilities listed above and assigned initial noncompensable evaluations. His claims file was subsequently transferred to the VA RO in San Diego, California. His claims were processed as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. 

During the pendency of the appeal, the RO increased the Veteran's initial evaluations for his back and left foot disabilities to 10 percent in a July 2011 Supplemental Statement of the Case (SSOC). In a January 2012 SSOC, the RO increased the Veteran's evaluation for his low back disability to 20 percent. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). 

A review of the Virtual VA paperless claims processing system reveals VA treatment records. In the July 2011 Supplemental Statement of the Case (SSOC), the RO stated that it reviewed VA treatment records through June 2011.  Further, the treatment records following June 2011 are cumulative with regard to descriptions of the Veteran's left foot disability. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. 

The Veteran testified at a hearing in June 2012 before the undersigned. A copy of the transcript has been associated with the claims file. 

This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issue of entitlement to an initial disability evaluation in excess of 20 percent for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

The Veteran's left foot disability manifests as pain on use, limited and painful dorsiflexion, antalgic gait, and tenderness to palpation over several areas of the foot. 


CONCLUSION OF LAW

The criteria for an initial 20 percent disability evaluation for a left foot disability have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5284 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. The Veteran originally received VCAA notice in November 2007. The letter advised the Veteran of what evidence was required to substantiate a claim for service connection, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations in December 2009 and December 2011. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. He testified at a video conference hearing before the undersigned in June 2012. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Increased Evaluation Claim

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

The Veteran's left foot disability is currently evaluated as 10 percent disabling under Diagnostic Codes 5010-5284 (traumatic arthritis and other foot injuries, respectively). 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5284 (2012). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27 (2012).

Under DC 5010, the rater is instructed to rate traumatic arthritis as degenerative arthritis, DC 5003. Under DC 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. For the purposes of rating disabilities from arthritis, the following are considered major joints: shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). The following are considered minor joint groups of the lower extremities: interphalangeal, metatarsal and tarsal joints. Id. 

Although there is not a specific code addressing limitation of motion of the feet, Diagnostic Code 5284 relates to foot injuries. Foot injuries that are moderate warrant a 10 percent disability rating. Moderately severe foot injuries warrant a 20 percent rating. Severe foot injuries warrant a 30 percent rating. 38 C.F.R. § 4.71a. 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 . It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The VA General Counsel noted that Diagnostic Code 5284 is a more general Diagnostic Code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, the General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40  and 4.45. VAOPGCPREC 9-98. 

The Veteran underwent a VA examination for his left foot disability in December 2009. He reported an in service fracture of the distal portion of his metatarsal or sesamoid. After the injury, wearing steel toed shoes increased his pain. The examiner noted that the Veteran had plantar fasciitis of the left foot and had been using orthotic inserts and a cane for pain relief. The Veteran reported flare ups after prolonged walking. Upon examination, he walked with an antalgic gait favoring his left leg. He had tenderness to palpation over the medical calcaneal tuberosity with his great toe dorsiflexed and over his first MTP joint. His hind foot was normal in relation to his Achilles tendon. He was unable to bear full body weight on his left heel. The range of motion of his first MTP joint was limited to 10 degrees with pain throughout the entire range of motion. After repetitive motion, it was not additionally limited by weakness, incoordination, fatigue, or lack of endurance. 

The Veteran underwent a second VA examination in December 2011. He was diagnosed with plantar fasciitis of the left foot. He had left foot pain that was accentuated on use. He had no pain on manipulation, no swelling, and no characteristic calluses of flat feet. He used orthotic inserts but they did not completely relieve his symptoms. He had decreased longitudinal arch height on weight bearing. There was no objective evidence of marked deformity such as pronation or abduction. His weight bearing line did not fall over or medial to his great toe. He did not have inward bowing of his Achilles tendon. The examiner concluded that the Veteran's left foot disability impacted his ability to work by preventing activities such as prolonged standing and walking. 

The Veteran's VA treatment records contain references to left foot pain. In August 2009, he reported than he ran one mile twice per week, and that the distance he could run was limited by his foot pain. In October 2009, he stated that his left foot pain was worse after exercise. He described it as throbbing and non-radiating. It was located at his first MTP joint and his arch. 

The Veteran testified at a hearing in June 2012. He stated that he used an orthotic insert for his left foot. On a scale of 0 (not painful) to 10 (most painful), he described his pain as a 7. His pain was located in the outside of his arch, his mid foot, and the top of his foot. He stated that it hurt to walk even though he used orthotic inserts. He stated that he went to physical therapy but that it did not help. He used a cane to walk. He testified that his foot swelled when he engaged in too much physical activity. He stated that he could walk for approximately one half mile. 

Based upon the findings of the VA examiners and the Veteran's competent, credible hearing testimony, the Board finds that his left foot symptoms more closely approximate a moderately severe injury and therefore warrant a 20 percent evaluation under Diagnostic Code 5284. His first MTP joint has limited, painful motion. Further, he has tenderness to palpation over several areas of his feet. Although he uses orthotic inserts for some relief, he still has pain which limits the distance he is able to walk. He uses a cane for assistance. For these reasons, an increased evaluation is warranted. To this extent, the appeal is granted. 

However, even when considering functional loss under 38 C.F.R. §§ 4.40 and 4.45, his disability picture does not more closely approximate a 30 percent evaluation under Diagnostic Code 5284 because the evidence does not show that his injury is severe. Although he experiences pain while walking, he stated that he was able to walk half a mile. He uses orthotic inserts for partial relief of symptoms. His limitation of motion in his first MTP joint is not additionally limited by weakness, incoordination, fatigue, or lack of endurance. He has no foot deformities. The criteria for a 30 percent evaluation under Diagnostic Code 5284 are not met. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against an initial disability evaluation in excess of 20 percent. 38 C.F.R. § 4.3. 

Other potentially applicable Diagnostic Codes for disabilities of the feet are discussed below. The Veteran's left foot disability does not meet the criteria for a disability evaluation in excess of the 20 percent under any of them. 

At his December 2011 VA examination, the Veteran was diagnosed with pes planus, which is evaluated under Diagnostic Code 5276, acquired flatfoot. 38 C.F.R. § 4.71a. Although service connection has not been established for pes planus, the Veteran's left foot disability may nonetheless be rated by analogy.  See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it is permissible to rate that condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Under Diagnostic Code 5276, a 20 percent evaluation is warranted for unilateral severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. A 30 percent evaluation is warranted for unilateral flatfoot that is pronounced with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, and symptoms are not improved by orthopedic shoes or appliances. Id. The December 2011 VA examiner specifically found that the Veteran did not have pain on manipulation of the left foot. Further, he did not have swelling or characteristic calluses. He had extreme tenderness of the plantar surface of his left foot, but the examiner found that this pain was improved, although not completely relieved, by the use of orthotic inserts. The examiner found that there was no objective evidence of deformity such as marked pronation or abduction. As the criteria set forth in Diagnostic Code 5276 are not based upon limitation of motion, it is not necessary to consider 38 C.F.R. §§ 4.40  and 4.45. The criteria for a 30 percent evaluation for unilateral pes planus are not met and Diagnostic Code 5276 is not for application. Id. 

There is no medical evidence that the Veteran currently has weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. The December 2011 VA examiner specifically found that the Veteran did not have these conditions. Accordingly, an evaluation in excess of 20 percent is not warranted under the Diagnostic Codes corresponding to these symptoms, nor are separate evaluations warranted under any of these Diagnostic Codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277- 5283 (2012).

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left foot condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony, however, has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

In summary, an initial 20 percent evaluation is warranted for the Veteran's left foot disability under Diagnostic Code 5284. His symptoms do not meet the criteria for a 30 percent evaluation under Diagnostic Code 5284. Further, his symptoms do not meet the criteria for a higher evaluation under the other potentially applicable Diagnostic Codes for disabilities of the feet. The preponderance of the evidence is against a disability evaluation in excess of the 20 percent granted by this decision, so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms from his left foot disability have not met the criteria for a rating higher than 20 percent at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. 

The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's left foot disability are contemplated by the schedular criteria set forth in Diagnostic Code 5284; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. 

Total Rating Based Upon Individual Unemployability (TDIU)

When entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's left foot disability has caused unemployability. Although he was unemployed at the time of his June 2012 hearing, he stated that he was a full time college student. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 


ORDER

An initial 20 percent disability evaluation is granted for osteoarthritis, status postoperative fracture of the sesamoid, first metatarsophalangeal (MTP) joint of the left foot with plantar fasciitis, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. 

At his June 2012 hearing, the Veteran stated that he was treated for his back disability by Dr. N., a private physician in Wildomar, California. The RO has not attempted to obtain these private medical records. As these records may be pertinent to the Veteran's claim, the RO must attempt to obtain them. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with a release form for medical records generated by Dr. N. in Wildomar, California. If the Veteran returns the form, attempt to obtain these records and associate them with the claims file. If the records are not obtainable, the Veteran should be notified and the record clearly documented. 

2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs