Citation Nr: 1311786	
Decision Date: 04/09/13    Archive Date: 04/19/13

DOCKET NO.  03-18 715	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1.  Entitlement to an initial rating higher than 20 percent for post-traumatic midfoot arthritis with multiple hammertoes and Morton's neuroma, left foot, on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU), also including on an extra-schedular basis but, instead, under the provisions of 38 C.F.R. § 4.16(b).

REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active military service from July 1964 to May 1966.  He also had a period of active duty for training (ACDUTRA) at Officer Candidate School (OCS) from August 17, 1963 to September 13, 1963.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for a Morton's neuroma of the left foot.

The Veteran testified in support of this appeal during hearings held before three different Veterans/Acting Veterans Law Judges (VLJs/AVLJs), including in August 2004 in Washington, DC, in August 2009 at the RO, and in August 2012 by videoconference.

In December 2004, the Board reframed the issue on appeal as entitlement to service connection for a bilateral (i.e., left and right) foot disorder to reflect more accurately and encompass the entirety of the Veteran's contentions.  The Board then proceeded to remand this claim for further development. 

In January 2006, while the case was on remand, the RO granted service connection for a Morton's neuroma of the left foot and assigned the disability an initial 10 percent rating retroactively effective from December 4, 2002, the date of receipt of this claim.  In response, the Veteran appealed for a higher initial rating for this left foot disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).  See also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter 

must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).  

In a December 2009 decision, a three-member panel of the Board, including the VLJ and AVLJ who had presided over the Veteran's first two hearings, denied an initial rating higher than 10 percent for the Morton's neuroma of his left foot.  38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (VLJs who conduct hearings must participate in making the final determination of the claim involved); see also 38 U.S.C.A. § 7102(a) (West 2002) (appeals can be assigned only to an individual VLJ or to a panel of not less than three members).  As well, the panel granted service connection for bilateral post-traumatic mid-foot arthritis with multiple hammertoes.

By rating decision dated in January 2010, the RO effectuated the Board's December 2009 grant of service connection for bilateral post-traumatic mid-foot arthritis with multiple hammertoes, but recharacterized the disability as two, one affecting the right foot and the other affecting the left, but including the previously service-connected Morton's neuroma.  The RO confirmed and continued the 10 percent disability rating initially assigned the latter condition.

The Veteran appealed the Board's December 2009 decision denying an initial rating higher than 10 percent for his left foot disability, then recharacterized as left posttraumatic midfoot arthritis with multiple hammertoes and Morton's neuroma, to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).  In granting a Joint Motion for Partial Remand filed in August 2010, the Court remanded this claim to the Board for compliance with the instructions in the Joint Motion.  Those instructions included considering whether the Veteran's post-surgical scarring associated with his Morton's neuroma warranted a compensable schedular rating pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805.


In turn, in March 2011 and again in March 2012, the Board remanded the claim for an initial rating higher than 10 percent for the left foot disability, including as concerning the question of whether a separate rating was warranted for the surgical scarring.  The remands to the RO for the additional development of this claim were via the Appeals Management Center (AMC).  The third member of the Board panel who signed the March 2012 remand had not heard the Veteran's testimony during the first two hearings and, as a result, the Veteran was provided a third hearing, this time before the undersigned VLJ.  When an appellant has had a hearing before two separate VLJs and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing concludes.  In such a case, an appellant has a right to testify before all three members of the panel.  38 U.S.C.A. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2012); Arneson v. Shinseki, 24 Vet. App. 379 (2011).

In September 2012, the undersigned VLJ increased the initial 10 percent schedular rating assigned for the Veteran's left foot disability to 20 percent, but denied a separate schedular rating for associated surgical scarring.  That issue thus is no longer before the Board seeing as though it has been decided and apparently not appealed to the higher Court, at least not as of yet.  As well, the VLJ recharacterized the claims on appeal to include those noted on the title page of this decision and remanded the added claims to the RO via the AMC for still further development.  The VLJ explained that, during a May 2011 VA compensation examination, so while this claim was previously on remand, the Veteran had reported that his foot pain prevented him from working.  The VLJ also observed that, during his third hearing, the Veteran had testified that he had been retired for about 18 years, in part, because he had pain and discomfort in his foot.  He thus had raised a derivative claim of entitlement to a TDIU, including on an extra-scheduler basis under the provisions of 38 C.F.R. § 4.16(b).  See Rice v. Shinseki, 22 Vet. App. 447 (2011).  As well, he had raised a claim of entitlement to a higher initial rating for his left foot disability, also on an 
extra-schedular basis, but instead under the provisions of 38 C.F.R. § 3.321(b)(1).


The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)  . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.")

The claim of entitlement to a TDIU, including on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b), requires still further development before being decided on appeal, so the Board is again remanding this claim, whereas the Board instead is going ahead and deciding the claim for a higher initial rating for the left foot disability on an extra-schedular basis.

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The schedular rating criteria reasonably describe and contemplate the level of severity and symptomatology of the Veteran's left foot disability.

2.  His left foot disability picture is not so exceptional or unusual with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.



CONCLUSION OF LAW

The criteria are not met for an initial rating higher than 20 percent for the post-traumatic midfoot arthritis with multiple hammertoes and Morton's neuroma, left foot, on an extra-schedular basis.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321(b)(1) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A.  Duty to Notify

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103.


These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this particular case at hand, it is important to keep in mind the claim arose in the context of the Veteran trying to establish his underlying entitlement to service connection for his left foot disability, which since has been granted.  He, then, has appealed a "downstream" issue - namely, the initial rating assigned for this disability.  But as the underlying claim has been substantiated, so proven, the initial intended purpose of his VCAA notice has been served, thereby rendering § 5103(a) notice no longer required.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  So, in this situation, according to the holding in Goodwin and its progeny,VA is not required to provide him additional VCAA notice concerning the "downstream" disability rating element of his claim.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And the RO provided him this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for assigning the particular rating.

He also nonetheless received additional VCAA notice concerning this claim by way of a letter dated in November 2011.  This letter was not sent in the preferred sequence, having been provided after, rather than before, the initial adjudication of this claim.  But the RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claim in a January 2013 SSOC.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

The content of this letter reflects compliance with the pertinent statutory and regulatory provisions and case law.  In the letter, the RO acknowledged his claim, notified him of the evidence needed to substantiate it, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claim pursuant to this duty.  The RO also provided him all necessary information on "downstream" effective dates, in the event a higher rating is granted for his disability.

As well, the RO identified the evidence it had received in support of his claim and the evidence it was responsible for obtaining.  The RO indicated it would make reasonable efforts to assist him in obtaining all other outstanding evidence, provided he identified the sources of it.  The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence.

The RO specifically asked that he authorize the release of confidential information from his employer so that VA could request and obtain employment information or, in the alternative, that he submit copies of employment records showing he had to use leave without pay because of his service-connected disability.  The RO explained that, if his disability picture was exceptional or unusual, resulting, for instance, in marked interference with employment, he might be able to establish entitlement to a higher initial rating on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1).

Typically VA provides additional notice during hearings.  In this case, the Veteran testified at three hearings during the course of this appeal, but during those hearings the Board did not address the question of an extra-schedular rating, focusing instead on a higher initial schedular rating.  As the Board indicated in its September 2012 REMAND, however, the Veteran did not raise such a claim until undergoing a VA compensation examination in May 2011, during which he reported that his foot pain prevented him from working.  Thereafter, during the third hearing, the undersigned Veterans Law Judge (VLJ) of the Board elicited testimony confirming this assertion (foot pain/discomfort as one of the reasons for retiring).  In a subsequent REMAND, this additionally raised potential basis of entitlement was noted.  The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ who chairs a hearing must satisfy two duties:  (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  No VLJ or AVLJ satisfied these duties as the hearings they chaired occurred prior to the creation of this claim.  Even assuming otherwise, the Board's decision to proceed in adjudicating this claim, rather than remanding it for a fourth hearing, is harmless, not prejudicial to the Veteran or affecting the essential fairness of the adjudication of this claim.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993). 


Following the hearing, in its September 2012 REMAND, the Board fully explained to the Veteran the nature of a claim for an extra-schedular rating and, in essence, mentioned outstanding evidence that needed to be submitted in support of this claim.  It specifically outlined the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted and instructed the RO/AMC to obtain a medical opinion discussing his employability and the effect or impact of his service-connected disability on his employment, even in the somewhat lesser sense of marked impairment versus outright or total unemployability.  Thereafter, the RO issued the previously noted, content-complying, VCAA notice.

The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  Conway v. Principi, 353 F.3d at 1374.  Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements set forth in Bryant.

B.  Duty to Assist

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012).

In this case, the RO attempted to obtain all evidence the Veteran identified as being potentially pertinent to his claim, including post-service treatment records.  The RO asked that he authorize the release of confidential employment information, but he did not comply, thereby hindering the RO's ability to assist him further in securing all necessary records concerning his work, job performance, etc.

The RO also afforded him three hearings, during which he had opportunities to testify as to the severity of his left foot symptoms, and VA examinations, during which one examiner discussed the Veteran's employability in light of his service-connected left foot disability.  There is now the required evidence needed to determine whether referral for extra-schedular consideration is necessary.

In a Written Brief Presentation dated in January 2013, the Veteran's representative claims that the opinion the examiner provided on employability in his report of examination is inadequate to decide this claim as it does not include rationale.  As explained in the REMAND section of this decision, the examiner discussed the Veteran's multiple service-connected disabilities individually and, indeed, with regards to some of them, did not provide rationale.  But as concerning the left foot disability, in particular, he provided the required rationale allowing for a decision on this claim.

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he has submitted or which VA has obtained on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).


II.  Analysis

The Veteran claims that his service-connected left foot disability hinders his employability, thereby raising a claim for a higher initial rating for this disability on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1).  According to a report of VA examination performed in May 2011, his left foot pain prevents him from working.  According to his August 2012 hearing testimony, foot pain/discomfort is one reason he retired 18 years ago.  According to a report of VA examination more recently performed in December 2012, he retired in 1994 because of eye-related problems and difficulty walking and standing.

In written statements submitted earlier in the appeal, when he was pursuing a higher initial rating for his left foot disability on a schedular (rather than extra-schedular) basis, he indicated that, while working as a Naval dentist he would kick off his shoes to relieve his foot pain.  A doctor indicated that he had developed a Morton's neuroma, which necessitated surgery, but thereafter, his foot gradually worsened, making it difficult to walk or run without pain and discomfort, causing tender scarring and occasional cramps, requiring approximately 30 pairs of custom-made orthotics, and resulting in an inability to walk without orthotics.  Allegedly, multiple doctors have told him that his foot will get worse and that surgery will not cure the problem.

In certain circumstances, a claimant may be assigned an increased/higher initial rating on an extra-schedular basis.  The question of whether such a rating may be assigned on such a basis is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign a rating on an extra-schedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321(b)(1) for consideration of the matter.  Barringer v. Peake, 22 Vet. App. 242 (2008).  He is authorized to approve the assignment of an extra-schedular rating if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).

If the claimant or the evidence raises the question of entitlement to an increased/higher initial rating on an extra-schedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the Rating Schedule pertaining to that disability.  Thun v. Peake, 22 Vet. App. 111, 118 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate and no referral is necessary.  Id.  If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the Rating Schedule and the assigned schedular rating is inadequate.  The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization".  Id.

In this case, the rating criteria reasonably describe the level of severity and symptomatology of the Veteran's left foot disability.  This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 (2012), which characterizes the level of residuals of a foot injury very specifically, as either moderate, moderately severe or severe.  DC 5284 does not describe the symptomatology necessary to establish moderately severe residuals such that the Board cannot determine with certainty whether all of the Veteran's left foot symptoms are contemplated in the 20 percent rating initially assigned his left foot disability.  Given the left foot abnormalities at issue in this case, however, the Board believes that such is likely the case.  

He complains of pain and discomfort in his left foot and examiners have noted that he has limitation of motion secondary to the pain and discomfort.  Examiners have also noted these symptoms are attributable to a Morton's neuroma, which, alone, at maximum, would warrant the assignment of a 10 percent rating under DC 5279, severe hammertoes (thought to be due, at least in part, to his multiple sclerosis), which too, at maximum, would warrant the assignment of a 10 percent rating under DC 5282, and mild arthritis with limited motion, which, at maximum, would warrant the assignment of a 10 percent rating under DCs 5003 and 5010.

Even assuming the broad rating criteria in this case do not contemplate the symptomatology of his left foot disability, a referral for extra-schedular consideration would not be warranted.  His left foot disability picture is not so exceptional or unusual with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  

In a report of VA examination conducted in December 2012, a VA examiner found that, of the Veteran's service-connected disabilities, his left foot disability had the most impact on his ability to maintain substantial gainful employment as it causes more discomfort when standing or walking for long periods.  The examiner also found, however, that despite this disability the Veteran is still able to do some type of work, work that does not call for long periods of standing.  Hence, less physically demanding or sedentary employment apparently remains a viable option.

The Veteran has not submitted a medical opinion refuting that of the VA examiner.  In addition, VA outpatient treatment records corroborate that the Veteran is capable of at least one type of employment and not markedly impaired from an occupational standpoint secondary to his left foot disability.  On multiple occasions during VA treatment visits beginning in 2004, the Veteran reported that, although retired, he was working as a medical missionary all over the world, traveling extensively to various continents in this capacity, and experiencing no difficulty ambulating.  Medical professionals noted either that he had no difficulty ambulating or that he used a walking stick with which he had no difficulty ambulating.

He now alleges that his left foot disability interferes with his employability, indeed what he says amounts to markedly.  Although he is competent to state that he has experienced certain left foot symptoms that are capable of lay observation, such as pain and discomfort, and describe how they hinder him from satisfying his work duties and responsibilities, with no training or expertise in medicine, he is not competent to attribute complete or marked occupational impairment to these symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition, if not a "simple" condition, or to provide probative comment on its etiology).

Even assuming he was, the Board would not find his assertions probative as they lack credibility.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).  First of all, they are inconsistent.  See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, 
self-interest, malingering, desire for monetary gain, and witness demeanor).  Initially he asserted that his left foot disability, alone, rendered him unable to work.  Subsequently, however, he admitted that his left foot disability was only one of the reasons for which he retired and that eye-related problems also played a role in the decision.  Secondly, as previously indicated, on multiple occasions since 2004, he has reported that he is working, albeit voluntarily, as a medical missionary all over the world.

It certainly is commendable he is working in a volunteer capacity to offer worldwide medical services, but to the extent his non-credible assertions could be interpreted as claiming marked interference with employment, the medical evidence for the most part does not substantiate this degree of interference.  Although he might have retired in part due to foot pain and discomfort, these symptoms have not interfered, markedly or otherwise, with his ability to continue working as a medically trained professional.

He does not assert, and there is no medical evidence of record suggesting, that there are any other unusual factors at play, which would warrant referral for extra-schedular consideration.  Although he claims that physicians have told him surgery might be in his future, his left foot disability does not now necessitate frequent hospitalization.  Indeed, most, if not all, of the evaluation and treatment he has received for this disability has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient.

For these reasons and bases, there is no obligation to refer this claim for 
extra-schedular consideration.  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA.  VA is responsible for considering all such evidence, lay and medical.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In this case, the evidence is not in relative equipoise.  Rather, as a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application.


ORDER

An initial rating higher than 20 percent for the post-traumatic midfoot arthritis with multiple hammertoes and Morton's neuroma, left foot, on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) is denied.



REMAND

Prior to adjudicating the remaining claim of entitlement to a TDIU, also including on an extra-schedular basis but, instead, under the provisions of 38 C.F.R. § 4.16(b), additional development is necessary.  See 38 C.F.R. § 19.9 (2012).

As previously noted, under 38 U.S.C.A. § 5103A, VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  During the course of this appeal, most recently in response to the Board's September 2012 remand instructions, VA assisted the Veteran by affording him a VA examination.  The VA examiner was to discuss the extent to which the Veteran's service-connected disabilities, including of his left foot, affected his employability.  This opinion is inadequate to decide this claim. 

The VA examiner discussed the Veteran's employability, as instructed, but considered each of the Veteran's service-connected disabilities individually in determining whether he is able to work.  The VA examiner did not discuss whether the Veteran's service-connected disabilities, considered collectively, render him unable to secure and follow a substantially gainful occupation.

In addition, in his report, the examiner recorded the Veteran's history of having been told by doctors that his multiple sclerosis (MS) might be contributing to his service-connected bilateral radiculopathies.  However, given that the radiculopathies are service connected, the question of what caused them is not of concern and the examiner must consider all symptoms of the radiculopathies in determining the extent to which the Veteran's service-connected disabilities hinder his employability. 


Finally, in a Written Brief Presentation dated in January 2013, the Veteran's representative asserts that the opinion is inadequate as the VA examiner did not provide rationale to support it.  Indeed, with regard to some of the Veteran's service-connected disabilities, the VA examiner failed to explain why such disabilities do not hinder the Veteran's ability to work in a substantially gainful capacity.

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  A health care provider's opinion is never conclusive and is not entitled to absolute deference.  Rather, the Board must weigh the opinion based upon the reasoning employed to support the conclusion and the extent to which the health care provider reviewed prior clinical records and other pertinent evidence of record.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Provided the opinion in a particular case includes adequate statements of reasons or bases, the Board may favor one over another. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).  In this case, the VA examiner's opinion, at least in part, does not include reasons and bases, let alone adequate.

When VA affords a Veteran a VA examination or obtains a VA opinion concerning a claim, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Due to the inadequacy of the December 2012 opinion with regards to the Veteran's claim for a TDIU, which necessarily must consider the aggregate effect of his service-connected disabilities on his employability, not just individually or in isolation, the Board must obtain an addendum opinion.  


Accordingly, this TDIU claim is REMANDED for the following additional development and consideration.

1.  Transfer the Veteran's claims file to the VA examiner who evaluated the Veteran's service-connected disabilities in December 2012 for an addendum opinion as to whether these disabilities, considered collectively, render him unable to secure and follow a substantially gainful occupation.  Request that the examiner do the following prior to expressing any further opinion:

a.  Review the claims file, including the evidence cited in this remand and those prior; 

b.  Indicate in writing in the report that the review included all pertinent information; 

c.  Considering the Veteran's service-connected disabilities collectively and without regards to their etiologies, offer an opinion as to whether they render the Veteran unable to secure and follow a substantially gainful occupation; .

d.  Do not discuss the individual effect of each service-connected disability on the Veteran's employability, rather, the collective effect; 

e.  Provide detailed rationale with references to the record for all opinions expressed; and 

f.  If an opinion cannot be expressed without resorting to speculation, indicate in writing in the record why such is the case and whether there is additional evidence that should be secured to aid in providing such an opinion. 

2.  Review the addendum opinion to ensure it includes all requested information and, if not, return it to the examiner for correction.  38 C.F.R. § 4.2.

3.  Then readjudicate this TDIU claim in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran and his representative an SSOC and provide them time to submit additional evidence and/or argument in response.  Thereafter, return the file to the Board for further appellate consideration of this claim.  

The Board intimates no opinion as to the ultimate disposition of this claim warranted, but advises the Veteran that he has the right to submit additional evidence and argument concerning this claim.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).  

This claim must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs