Citation Nr: 1311549 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-44 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for residuals of stress fracture of the third metatarsal, right foot, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from September 1988 to July 1990, from October 2001 to September 2002, and from May 2005 to December 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas that continued a 0 percent rating for the service-connected residuals of stress fracture of the third metatarsal, right foot. Subsequently in a July 2012 rating decision, the RO increased the Veteran's rating from 0 percent to 10 percent, effective January 12, 2010; this action did not satisfy his appeal. The record reveals that the Veteran requested a videoconference hearing in conjunction with his appeal. See the Veteran's October 2010 substantive appeal (VA Form 9). The Veteran was scheduled for a hearing on January 8, 2013, but he did not report. The Veteran has not requested another hearing and, therefore, the Veteran's hearing request was deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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. The issue of service connection for a left knee disability, secondary to the service-connected residuals of stress fracture to the third metatarsal of the right foot have been raised by the record via the Veteran's statement in October 2010, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's impairment from his service-connected residuals of stress fracture of the third metatarsal, right foot is moderately severe. CONCLUSION OF LAW The criteria for a rating of 20 percent, but not higher, for the residuals of stress fracture of the third metatarsal, right foot have not been met, effective January 12, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in January 2010 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his foot disability had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The January 2010 letter also provided the Veteran with information on how VA determines and assigns effective dates. As such, the January 2010 letter satisfied VA's duty to notify. The duty to assist the Veteran has also been satisfied to the extent possible. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (b), (c), (d) (setting forth Secretary's various duties to claimant). In this regard, the Board notes that the Veteran's service treatment records and pertinent post-service treatment records are of record. Moreover, he was afforded VA examinations in February 2010 and June 2012. The VA examinations revealed findings that are adequate for rating the Veteran's residuals of stress fracture of the third metatarsal, right foot. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Finally, the Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist him in developing the facts pertinent to the claim adjudicated herein. In view of the foregoing, there was no prejudice to the Veteran in proceeding with appellate review. Disability Rating The RO originally granted service connection for residuals of fracture to the third metatarsal of the right foot assigning a noncompensable rating. Subsequent requests for increase were denied in April 2003, August 2007, and March 2008. The Veteran filed his present increased rating claim in January 2010. In an October 2010 statement he indicated that he had more than moderate symptoms and that they were at least moderately severe. He noted that he had severe pain when walking and had to have steroid injections to remove scar tissue and relieve pain, which was increased since his surgery. He also said that when he curls his toes there is a large bump from the bone in his foot never being properly set. He noted that he had to wear custom inserts and braces and that he has difficulty running due to the pain. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, in this case, the record reflects that the Veteran's disabilities have remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's service-connected disability has been rated under Diagnostic Code 5284 for foot injuries. Under Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent evaluation requires moderately severe residuals. A 30 percent evaluation is warranted when severe residuals of foot injuries are shown. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. 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. Rather, it is the Board's responsibility to evaluate all the medical evidence and determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etcetera. See 38 C.F.R. §§ 4.2, 4.6 (2012). When evaluating musculoskeletal disabilities, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45, under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. The Board notes that the "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68 (2012). In this case, the evaluation for amputation of the forefoot, amputation proximal to metatarsal bones (more than one-half of metatarsal loss) is 40 percent. By an August 1990 decision, the Veteran was granted service connection for the residuals of stress fracture of the third metatarsal, right foot. The Veterans Administration assigned a 0 percent disability rating under Diagnostic Code 5284, effective from July 4, 1990. The Veteran filed the instant claim for an increased rating on January 12, 2010; subsequently, the RO increased the Veteran's rating from 0 percent to 10 percent, effective January 12, 2010. The Veteran was afforded a VA examination in February 2010 in which he reported dull pain that was worse with running and standing, that he wore shoe inserts, that his walking and standing were limited, and that he would get flare-ups on and off with cold weather and prolonged standing. The Veteran also reported swelling, stiffness, fatigability, weakness, and lack of endurance. He stated that he was able to stand for 15-30 minutes and walk for 1-3 miles without assistive devices. Physical examination showed normal gait with no evidence of swelling, instability, weakness, or abnormal weight bearing; there was evidence of painful motion and tenderness. There was no malunion or nonunion of the tarsal or metatarsal bones. The Veteran reported working in security, requiring him to be on his feet 8 hours in a 12 hour day, with his disability causing decreased mobility, pain, and increased absenteeism (8 times in the past 12 months). The VA examiner diagnosed residuals of stress fracture third metatarsal, right; possible neuroma third metatarsal; and osteoarthritis. The Veteran also reported an inability to run great distances because of pain in a February 2010 VA report. X-rays taken at this time showed no sign of fracture or dislocation; joints were intact; soft tissue outlines appeared unremarkable; however, the VA examiner diagnosed "possibly a traumatically-induced nerve compression to the common digital nerve, right third interspace region with significant pain and inability to function at this highest level, given his job demands." VA treatment records in May 2010 show that the Veteran underwent external neurolysis of a nerve in the foot due to entrapment. Virtual VA also contains other VA treatment records after the surgery showing complaints of pain increased since the surgery, tenderness, and slight paresthesia in the interspace region involving the common popliteal nerve. The Veteran was afforded a VA examination in June 2012 in which the examiner noted no Morton's neuroma but found metatarsalgia of the right foot; no malunion or nonunion of tarsal or metatarsal bones; and no bilateral weak foot. The Veteran reported using custom orthotics for foot pain and that he "probably" missed a couple of days of work in the last 12 months related to right foot disability appointments/follow-ups. The Veteran was also afforded an examination for his peripheral nerves in which he reported moderate right lower extremity pain (usually dull). Strength, reflex, sensory, and all nerve testing were normal; however, the Veteran reported moderate, intermittent pain as attributable to a peripheral nerve condition. The examiner opined that based on clinical experience and rationale as noted, nerve compression was mostly likely traumatically-induced from service-connected (sc) stress fracture, right third metatarsal. The Veteran maintains that his current rating does not adequately address the manifestations of his right foot disability. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Symptoms, however, must be viewed in conjunction with the objective medical evidence of record. The Board has reviewed the evidence of record in light of the rating criteria under Diagnostic Code 5284 and finds that the evidence supports a finding that the Veteran has moderately severe symptoms in his right foot. The Board recognizes that pain and tenderness are the predominant aspects of the Veteran's right foot disability. The Veteran also has complaints of paresthesia and has a neuropathy component to his foot disability that was first identified in February 2010. The rating criteria for a severe foot disorder are not met, however, as the Veteran reported in February 2010 that he was able to walk 1 to 3 miles and work in a job that requires him to be on his feet 8 hours in a 12 hour day. Although it was noted that the Veteran's right foot disability had significant effects on his occupation resulting in decreased mobility, pain, and increased absenteeism, the Board notes that it was also reported that he only missed 8 days of work due to his right foot disability. In addition, the strength, reflex, sensory, and all nerve testing were normal in 2012. The Board has considered whether a separate rating should be considered for neurological impairment but determines that the impairment caused by the neurological impact has been compensated by the rating criteria for a moderately severe foot disorder. The Veteran cannot be rated twice for the same impairment. See 38 C.F.R. § 4.14. Moreover, a rating higher than 20 percent would not be warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8524, as the medical evidence does not demonstrate more than moderate neurological impairment. In this regard, the Board recognizes that the June 2012 examiner stated that the 2010 nerve compression was mostly likely traumatically-induced from service-connected (sc) stress fracture, right third metatarsal. However, as stated above, in the June 2012 VA examination report, the examiner specifically noted that the sensory examination and the nerve study were both normal. The Board notes that during the course of the claim, some records reflect other diagnosed foot disabilities including osteoarthritis and metatarsalgia. However, such disabilities are not service-connected, and the evidence does not suggest that these conditions are in any way associated with his service-connected residuals of stress fracture of the third metatarsal, right foot. Thus, these disabilities are not for consideration in evaluating his service-connected disability. 38 C.F.R. § 4.14. The RO granted a separate 0 percent rating for scar residuals of the right foot post neurolysis in July 2012, effective May 7, 2010, the date of the Veteran's surgery. The record does not show that a higher rating is warranted for the scar, as there is no evidence of tenderness to palpation or instability. The size of the scar is 0.1 squared inches (0.5 cm squared) and is superficial and linear. See 38 C.F.R. § 4.118. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012), and the holding in DeLuca, 8 Vet. App. at 202. However, an evaluation in excess of 10 percent for the Veteran's right foot disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board recognizes that the Veteran experiences chronic pain and tenderness in his right foot. However, there has been no objective evidence of swelling, instability, weakness, or abnormal weight bearing. As such, the Board finds that the Veteran is not entitled to an increased disability rating under DeLuca, supra. The Board also notes that the Veteran has not been found to have weak foot, claw foot (pes cavus), pes planus (flatfoot), hallux valgus, malunion or nonunion of the metatarsal bones, hallux rigidus, or hammer toes secondary to the service-connected right foot disability. Therefore, Diagnostic Codes 5277, 5278, 5279, 5280, and 5282 are not for application in this case. 38 C.F.R. Part 4 (2012). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence discussed above the Board has carefully considered the lay statements offered by the Veteran, to include his coorespondence to VA and statements to medical examiners. The Board has also considered the correspondence from his representative to VA, including the informal hearing presentation submitted in February 2012 in which it was generally asserted that the Veteran's claim should be granted. In this case the Board finds the statements by the Veteran, generally that his disability is worse than the 10 percent rating, to be credible, and have considered his statements in assigning the next higher 20 percent rating. However, even affording those statements full credibility, they do not show symptoms more closely approximating the schedular criteria for a rating higher than 20 percent. In light of the foregoing, the Board finds that the Veteran is entitled to an increased rating of 20 percent, but not higher, for his service-connected right foot disability. Notwithstanding the Veteran's reports of increased pain since his surgery in May 2010, the Board determines that the Veteran's foot disorder more closely approximates the criteria for a moderately severe foot injury for the entire appeals period. Therefore, the assignment of staged ratings is not for application. See Hart, 21 Vet. App. 505. The 20 percent rating is the highest rating warranted for the appeal period. Therefore, the Veteran's increased rating claim is granted. However, to the extent that any further increase is denied, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extraschedular Rating Extraschedular ratings under 38 C.F.R. § 3.3.21(b)(1) are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. The Board does not have the authority to assign, in the first instance, higher ratings on an extraschedular basis under 38 C.F.R. § 3.321(b) (1). When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, Vet. App. 377 (1996). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's right foot disability is inadequate. The Veteran's foot disorder is manifested by complaints of pain and paresthesia, which is considered under the criteria for a moderately severe foot injury. The evidence does not present such an exceptional or unusual disability picture that available schedular evaluations are inadequate. The evidence does not show functional impacts which affect the Veteran's life in an exceptional or unusual way. There is no evidence of marked interference with employment or frequent periods of hospitalization due to the right foot disability. The Board recognizes that due to the Veteran's right foot disability he had significant effects on his occupation resulting in increased absenteeism. However, the Board notes that the examiner also reported that in the last year, the Veteran only missed 8 days of work due to his right foot disability. Moreover, the fact remains that he has worked full-time. Accordingly, the Board finds that referral for consideration of an extraschedular rating is not warranted. Finally, as the Veteran is not shown to be unable to obtain or maintain substantially gainful employment due to his right foot disability, no claim for a total disability rating based on individual unemployability (TDIU) is reasonably raised by the record in this case. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Entitlement to an increased rating of 20 percent, but not higher, for residuals of stress fracture of the third metatarsal, right foot is granted, effective January 12, 2010, subject to the rules governing the payment of monetary benefits. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs