Citation Nr: 1311507 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-02 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for left foot sprain prior to May 24, 2012, and a rating higher than 10 percent for the disability thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his January 2010 substantive appeal, the Veteran requested a hearing before the Board, but withdrew this request in a February 2010 signed statement. In a November 2012 rating decision, the RO increased the Veteran's rating for his left foot sprain from 0 to 10 percent disabling, effective May 24, 2012. Because a disability rating of 10 percent does not represent the maximum rating available for the Veteran's left foot disability, and because it does not cover the entire period from the initial grant of service connection, the propriety of the initial ratings remains an issue for appellate review, and the Board has identified this issue as listed on the cover page. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Since the August 14, 2008, date of service connection, the Veteran's left foot disability has been primarily manifested by mild, continuous left foot pain, aggravated with standing and walking, and occasional episodes of sharp pain when twisting his foot, and most closely approximates moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent for left foot sprain prior to May 24, 2012, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5276 to 5284 (2012). 2. The criteria for a disability rating higher than 10 percent for left foot sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5276 to 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson, 12 Vet. App. at 119. Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that 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). The Veteran's left foot disability is currently rated under Diagnostic Code (DC) 5284, for functional loss of the foot due to injury. Under DC 5284, moderate foot injury warrants a 10 percent evaluation, moderately severe foot injury warrants a 20 percent evaluation, severe foot injury warrants a 30 percent evaluation, and actual loss of use of the foot warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5284. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). See also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, by way of history, service treatment records reflect that, in October 1979, the Veteran was treated for a left foot injury that occurred while playing basketball, originally diagnosed as a ligament strain of the left foot. Subsequent X-rays revealed a fracture of the base of the left fifth metatarsal. VA treatment records beginning in October 2008 reflect occasional treatment for left foot pain and a diagnosis of left foot osteoarthritis. The report of a January 2009 VA examination indicates that the VA examiner reviewed the claims file prior to examination, and that the Veteran reported left foot pain with stiffness with no swelling, but reported episodic swelling in the left foot lateral border and earlier fatigue in the left foot, aggravated with standing and walking. He also reported periods of flare-up on prolonged ambulation without incapacitation, being able to walk about one-fourth of a mile and to stand for 15 minutes, and missing a few days of work in the last year. On physical examination, there were no abnormalities of the foot but tenderness in the lateral border of the foot at the junction of the hind foot and mid foot, without any swelling, and slightly antalgic gait. There were no hammertoes, high arch, clawfoot, hallux valgus, or other foot deformity. The diagnosis was left foot strain due to injury residual. The examiner opined that the Veteran had an injury to his left foot during service and continued to have pain without significant injuries in the interim, and it was therefore more likely than not that his current left foot strain was a continuation of the in-service left foot injury. A February 1, 2010, treatment record from the Veteran's treating VA physician, Dr. M., reflects a diagnosis of "left foot osteoarthritis history lateral foot, stemming from an old healed fracture, which [the Veteran] relates to his military service." A February 3, 2010, letter from Dr. M. expresses the opinion that the Veteran had been diagnosed with osteoarthritis of the left foot, which more likely than not was related to prior military service. The report of a May 24, 2012, VA examination reflects that the examining physician reviewed the claims file and noted that the Veteran had a current diagnosis of residual strain of a left fifth metatarsal fracture in service. The examiner stated that the Veteran had fractured the base of his left fifth metatarsal in 1979 and reported pain in the area of the fracture since then. The Veteran reported mild pain every day and occasional episodes of a sharp pain when he twisted his foot, that he was able to walk about one mile, and that he was able to work changing oil on his feet all day. There were no hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal or metatarsal bones, or bilateral weakfoot. The Veteran did not use any assistive devices to walk. He was noted to have had a fracture of the base of the left fifth metatarsal in 1979, with residual disability of moderate severity. Diagnostic testing showed mild degenerative changes in the first tarsometatarsal joint of the left foot, which the examiner noted was not in the area of the Veteran's previous fracture, but no other significant diagnostic test findings or results. It was noted that the Veteran's foot condition did not impact his ability to work. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a rating of 10 percent, but no higher, for left foot sprain prior to May 24, 2012, is warranted, but that a rating higher than 10 percent for the disability at any time since the August 14, 2008, date of service connection must be denied. The record reflects that, since the August 14, 2008, date of service connection, the Veteran's left foot disability has been primarily manifested by mild, continuous left foot pain, aggravated with standing and walking, and occasional episodes of sharp pain when twisting his foot. Such disability has resulted in functional impairment with use of the foot such as standing and walking. The Board finds that such disability has most closely approximates moderate foot injury under DC 5284. While the May 24, 2012, VA examiner initially characterized the severity of the Veteran's left foot disability as "moderate," the record reflects that the Veteran's symptomatology and the severity of his disability has been essentially the same since the August 14, 2008, date of service connection. There has been no medical evidence directly suggesting that such disability was at any time less than moderate, or less severe than it was at the time of the May 24, 2012, VA examination. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that an initial rating of 10 percent prior to May 24, 2012, is warranted. However, at no time beginning August 14, 2008, has the Veteran's left foot disability been shown to approximate "moderately severe" or "severe" foot injury. The May 24, 2012, VA examiner specifically characterized the Veteran's left foot disability as "moderate" rather than "moderately severe" or "severe," and indicated that the Veteran's foot disability did not impact his ability to work changing oil on his feet all day. Additionally, even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors, the Veteran's symptoms of mild, continuous left foot pain, aggravated with standing and walking, with occasional episodes of a sharp pain when twisting his foot, more closely approximate moderate foot injury than moderately severe or severe foot injury. Therefore, in light of the record as a whole, the Veteran's left foot disability more closely approximates the criteria for a 10 percent rating than those for a higher rating under the applicable rating criteria. The Board notes that there have been conflicting medical opinions as to whether the Veteran's left foot osteoarthritis is related to his service-connected foot disability. The February 3, 2010, letter from Dr. M. expresses the opinion that the Veteran's left foot osteoarthritis was more likely than not was related to prior military service. The May 24, 2012, VA examining physician opined that, while diagnostic testing showed mild degenerative changes in the first tarsometatarsal joint of the left foot, such changes were not in the area of the Veteran's in-service foot fracture, and there were no other significant diagnostic test findings or results. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds that the May 2012 VA examining physician's opinion is more persuasive than that of Dr. M. The May 2012 VA examiner provided the persuasive explanation that the Veteran's in-service foot fracture, of the base of the fifth metatarsal, was not in same area as the Veteran's current left foot osteoarthritis, occurring in the first tarsometatarsal joint of the left foot. Conversely, no rationale at all was provided for Dr. M.'s opinion. Also, while the May 2012 VA examiner reviewed the claims file and cited pertinent records therein, there is no indication that Dr. M. reviewed the claims file or any other pertinent records. This is relevant in this particular case because service treatment records, which reflect that the Veteran's left foot injury was a fracture of the base of the fifth metatarsal, support the May 2012 VA examiner's opinion, and there is no indication that Dr. M. was aware of the nature or location of the Veteran's in-service foot fracture. Rather, from the February 1, 2010, VA treatment record dated two days before Dr. M.'s opinion letter, it appears that Dr. M.'s opinion was largely based on the Veteran's reported history alone. Furthermore, and in any event, even assuming that the Veteran's left foot osteoarthritis is related to his service-connected foot disability, a higher or separately compensable rating would not be warranted. A rating higher than 10 percent under DC 5003 for osteoarthritis of one joint is not available, and no other symptomatology related to osteoarthritis of the left foot would warrant a higher rating under any other diagnostic codes. See 38 C.F.R. § 4.71a, DC 5003. Also, the Board has considered all of the Veteran's left foot symptomatology and functional impairment in evaluating his service-connected left foot sprain (including the Veteran's complaints of pain). See Mittleider v. West, 11 Vet. App. 181 (1998). For the reasons discussed above, the Board finds that such symptomatology and impairment most closely approximate moderate foot injury. Any separate rating for left foot arthritis would result in the "pyramiding" of benefits, as separate ratings would be for overlapping or duplication of symptomatology. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board has also considered DCs 5276 to 5283 for various disabilities of the foot. However, the record does not reflect, and the Veteran has not contended, that at any time during the appeal period there has been flatfoot, weak foot, claw foot, metatarsalgia, hammer toes, or malunion or nonunuion of tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, DCs 5276 to 5283. The Board has further considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 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, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran's service-connected left foot sprain is his only service-connected disability, and the Board recognizes that it has been productive of functional impairment. The assigned rating of 10 percent rating reflects that his disability has been productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by the assigned rating. The Veteran's left foot disability has been primarily manifested by mild, continuous left foot pain, aggravated with standing and walking, with occasional episodes of sharp pain when twisting his foot. Such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under DC 5284, which contemplates foot disability of the nature and severity of moderate foot injury. The record does not reflect that the Veteran's left foot disability has caused impairment in earning capacity above what would be average for such disability. If the Board had not taken into consideration the Veteran's complaints, the objective medical evidence would not support the current findings, let alone a higher rating. Also, the record does not reflect that the Veteran's disability has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. In this regard, the May 24, 2012, VA examiner noted that the Veteran worked changing oil on his feet all day, but indicated that his service-connected Veteran's foot disability did not impact his ability to work. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability. Again, the May 24, 2012, VA examiner noted that the Veteran worked changing oil on his feet all day, but indicated that his service-connected Veteran's foot disability did not impact his ability to work. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, a rating of 10 percent but no higher for left foot sprain prior to May 24, 2012, is warranted, but a rating higher than 10 percent for the disability has not been warranted at any time since the August 14, 2008, date of service connection, and there is no basis for staged rating of the Veteran's disability pursuant to Fenderson. In granting a higher rating, the Board has applied the benefit-of-the doubt doctrine; however, to the extent that the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, the award of service connection for left foot sprain represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with the initial rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, any defect as to notice is not prejudicial. See Dingess/Hartman, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (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 any downstream elements). Moreover, required notice was provided by letter dated in October 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical treatment records, and a letter from the Veteran's VA physician have been obtained. Also, the Veteran was provided VA examinations in January 2009 and May 2012. These examinations and accompanying reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who reviewed relevant medical records. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An initial compensable rating of 10 percent for left foot sprain prior to May 24, 2012, is granted, subject to the applicable regulations concerning the payment of monetary benefits. A rating higher than 10 percent for left foot sprain is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs