Citation Nr: 1309937 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-37 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an initial compensable evaluation for right great toe fracture with arthritis. 3. Entitlement to an initial compensable evaluation for hypertension. 4. Entitlement to an initial evaluation in excess of 20 percent for low back spondylosis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issues of whether initial increased ratings are warranted for hypertension and low back spondylosis are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In October 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he did not wish to appeal the claim for entitlement to service connection for sinusitis. 2. The Veteran's service-connected right great toe fracture with arthritis is manifested by subjective and objective evidence of pain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal regarding the issue of entitlement to service connection for sinusitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for a 10 percent disability rating, but no more, for service-connected right great toe fracture, with arthritis, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he did not wish to appeal the claim for entitlement to service connection for sinusitis. As he has withdrawn his appeal concerning this claim, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning this claim and it is dismissed. VA's Duties To Notify And Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). In this case, the Veteran is disagreeing with the rating assigned for right great toe fracture, with arthritis, after service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained service treatment records; assisted the Veteran in obtaining evidence, to include private treatment records; afforded the Veteran an adequate examination to determine the severity of his disability; and afforded the Veteran the opportunity to give testimony at a hearing before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Increased Rating For Right Great Toe Fracture, With Arthritis Disability evaluations are based upon the average impairment of earning capacity as determined by a Schedule For Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. Id. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Service connection for right great toe fracture, with arthritis, was granted by the RO by a rating decision dated in December 2008, and a noncompensable evaluation was assigned, effective June 1, 2008. 38 C.F.R. § 4.71a, Diagnostic Code 5010. The Veteran contends that he is entitled to a compensable rating because his toe causes him great pain and discomfort; it limits his movement and level and activity, to include running, lifting weights, standing, and walking for extended periods of time; he experiences frequent swelling after standing for several hours or driving a car for greater than two to three hours; he experiences stiffness and poor range of motion in the morning; he walks with a limp for several hours and requires over-the-counter medications in order to comfortably work, drive, stand and walk; and he needs to wear orthopedic inserts in all of his shoes. The Veteran and his wife, who is a registered nurse, testified in October 2011 at a hearing before the Board that in addition to over-the-counter medications, he took prescription medication for his right toe, due to pain. They also indicated that the Veteran tried different foot inserts, with only minor relief of the constant pain and that his normal everyday routine was a problem if he stood too long, which resulted in pain. The Veteran and his wife also reported that normal walking caused pain and that his right toe disorder interfered with his work because he could not lift. He indicated that he had to take approximately 240 sick hours, in part due to his toe, in conjunction with his back. The Veteran's wife testified that manifestations of his toe disorder was intermittent. She was unsure if that was in relation to how much he was using the toe versus how often he took medication to relieve the pain. She also believed that the Veteran's toe was better when medicated and that the Veteran used more medication, rather than being inactive. Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. 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, Diagnostic Code 5003 (2012). When, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. There is no rating code available that addresses limitation of motion of the toes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284 (2012). The Veteran underwent a VA examination in June 2008. The Veteran reported pain when he started moving his foot from a quiet position, either sitting or standing. The Veteran also reported shooting pain from the proximal right great joint of the toe to the midfoot on the top of the midfoot. At the time of the examination, he denied swelling, the use of medication for discomfort, the use of shoe inserts, and the use of a cane or crutch. Physical examination revealed right great toe proximal joint flexion to 10 degrees, without pain, and extension to 10 degrees, with pain. There was no edema or erythema, the nail bed was good color, and there was no deformity of the joint. The impression was status post dislocation of the right great toe, with arthritis. There was no fracture or dislocation shown on x-ray. In an addendum, the VA examiner reported that there was no additional limitation of joint movement due to pain, fatigue, weakness or lack of endurance following repetitive use. X-ray showed bilateral pes planus, status post open reduction internal fixation of a talar fracture, no fracture line visible, no hardware demonstrated, and likely old avulsion injury involving the medial malleolus. A February 2009 private treatment record reveals that the Veteran was seen with complaint of intermittent right great toe pain. Physical examination revealed pain on flexion and extension of the right great toe. The assessment was right great toe pain and degenerative joint disease. The Veteran was advised to take Tylenol. An addendum to a November 2010 VA treatment record reveals that the Veteran had complained of chronic right foot pain, especially along the great toe. It was noted that he had been using inserts, with some relief. Physical examination of the right foot revealed no edema, tenderness or erythema. A September 2011 VA treatment record reveals that the Veteran was seen for "toe pain." It was noted that right great toe pain was chronic, but was worse over the previous several days. The Veteran denied re-injury, a change in shoes or activity, swelling, heat, or redness. It was noted that he was taking Tylenol for the pain. Examination revealed no edema, bruising or erythema, but the right great toe was tender to palpation. Range of motion was positive and sensation was intact. The assessment was chronic toe pain, with episodic exacerbation of pain. The evidence of record supports the assignment of a 10 percent rating for service-connected right great toe fracture, with arthritis. With any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59 (2012). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and as entitled to at least the minimum compensable rating for the joint. During the June 2008 VA examination, the Veteran reported subjective complaints of pain and exhibited pain with extension. He exhibited pain with both flexion and extension of his toe in the February 2009 private treatment record. Additional treatments, as well as the Veteran's lay statements and testimony, indicate that the pain he experiences has been constant. Accordingly, with consideration of painful motion, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5010 for right great toe fracture with arthritis. As noted above, there is no rating code available that addresses limitation of motion of the toes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284. Where a particular disability that has been service-connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. See 38 C.F.R. § 4.20 (2012). In that vein, the Board has considered the other diagnostic criteria related to the feet to determine whether an increased rating is warranted for the right great toe under those provisions that provide for ratings in excess of 10 percent. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5278, 5283, 5284. Diagnostic Codes 5278 and 5283 are not for application because there is no evidence of acquired claw foot or malunion or nonunion of the tarsal or metatarsal bones, respectively. 38 C.F.R. § 4.71a. Although bilateral pes planus was shown in a June 2008 x-ray, there is no indication that this pes planus is associated with the service-connected right great toe disorder so as to make Diagnostic Code 5276 applicable. Id. Lastly, there is no evidence that the Veteran's service-connected right great toe is moderately severe so as to support the assignment of a 20 percent rating under Diagnostic Code 5284. Id. Edema, erythema, or joint deformity was not shown at the time of the June 2008 VA examination, and the examiner reported that x-ray revealed no fracture or dislocation. In addition, the absence of edema and erythema was also noted in VA treatment records dated in November 2010 and September 2011, and while tenderness to palpation of the right great toe was reported in September 2011, both range of motion and sensation were intact at that time. Consideration has also been given to any functional impairment and any effects of pain on functional abilities. The objective pain exhibited by the Veteran has already been considered in implementing a 10 percent rating under Diagnostic Code 5010, and the June 2008 VA examiner reported that there was no additional limitation of joint movement due to pain, fatigue, weakness or lack of endurance following repetitive use. In light of the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for service-connected right great toe fracture with arthritis based on functional impairment. See 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202, 204-6 (1995). Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2011). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected right great toe disability picture is not so unusual or exceptional in nature as to render the 10 percent rating assigned herein for this disorder inadequate at any time period on appeal. The Veteran's service-connected right great toe, with arthritis, is evaluated under musculoskeletal disorders, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology, to include consideration of pain. 38 C.F.R. §§ 4.59, 4.71a. The Veteran's right great toe disorder was manifested by subjective and objective evidence of pain. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 10 percent disability rating assigned herein for his service-connected right great toe disorder. A rating in excess of 10 percent is provided for certain manifestations of the service-connected right great toe disorder, but the medical evidence of record did not demonstrate that such manifestations were present in this case. The criteria for the 10 percent disability rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. After review of the evidence of record, there is no evidence of record that would warrant a rating in excess of the 10 percent evaluation assigned herein for the Veteran's service-connected right great toe disorder at any time during the period pertinent to this appeal. 38 C.F.R. §38 U.S.C.A. § 5110 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected right great toe disorder, the evidence shows no distinct periods of time since service connection became effective, during which the manifestations of the Veteran's right great toe disorder has varied to such an extent that a rating greater or less than the 10 percent assigned herein would be warranted. Cf. 38 C.F.R. § 3.344 (2011) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Accordingly, an evaluation greater than 10 percent assigned herein for the manifestations of the Veteran's service-connected right great toe disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against a rating in excess of the 10 percent evaluation assigned herein, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to the issue of entitlement to service connection for sinusitis is dismissed. An initial 10 percent disability rating for service-connected right great toe fracture with arthritis is granted, subject to regulations governing the award of monetary benefits. REMAND Additional development is needed before the Board can adjudicate the claims for an initial compensable evaluation for hypertension and an initial evaluation in excess of 20 percent for low back spondylosis. The Veteran's Virtual VA claims folder contains VA treatment records that were associated with it in March 2012 and July 2012. Several of these treatment records are relevant to the claims for increased ratings for hypertension and low back spondylosis, yet neither the paper claims folder, nor the Virtual VA claims folder, contains a supplemental statement of the case. This must be rectified on remand. See 38 C.F.R. § 19.31 (2012). The last VA examination for hypertension was in June 2008, more than four years ago, and the Veteran's service-connected low back spondylosis was last examined in April 2010, almost three years ago. When a Veteran claims that service-connected disorders are worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, the VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Moreover, the Veteran's complete VA treatment records and any additional private treatment records should also be obtained. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for increased ratings for his service-connected hypertension and low back spondylosis. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's treatment records from the Charleston VA Medical Center. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine the current severity of his service-connected hypertension. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must state the predominant diastolic pressure, the predominant systolic pressure, and whether continuous medication is necessary for control of the service-connected hypertension. The report prepared must be typed. 3. The Veteran must be afforded an examination to determine the current severity of his service-connected low back spondylosis. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings, to include any complaints of radiating pain, must be reported in detail. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected low back, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after consideration of the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected low back. The examiner must state whether there is ankylosis and any neurological abnormality associated with the low back disability. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims for initial ratings in excess of those currently assigned for hypertension and low back spondylosis must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs