Citation Nr: 1312628 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 07-23 229 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California THE ISSUE Entitlement to a higher disability evaluation for post-operative left foot exostosis residuals, in excess of 0 percent for the period prior to October 7, 2011, and in excess of 10 percent for the period on and after October 7, 2011. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had honorable active service from June 5, 1985 to December 24, 1991. Additionally, the Veteran had active service under other than honorable conditions from December 25, 1991 to June 27, 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Los Angeles, California, Regional Office (RO) which, in pertinent part, granted service connection for a post-traumatic left foot exostosis; assigned a noncompensable evaluation for that disability; and effectuated the award as of December 17, 2004. In March 2006, the Veteran entered a notice of disagreement with the initial rating assigned. In November 2011 during the initial rating appeal, the RO granted a 10 percent evaluation for the initial rating period starting October 7, 2011, thus creating a stated initial rating. In July 2012, the Board, in pertinent part, remanded the issue of the evaluation of the Veteran's post-operative left foot exostosis residuals to the RO for additional action. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The Board observes that the Veteran has appealed from the initial evaluation assigned for his service-connected post-operative left foot exostosis residuals. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation; however, the Court did not provide a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction and because the adjudication derived from the initial rating assignments with subsequent adjudications, the Board has framed the issue as entitlement to an initial compensable disability evaluation for post-operative left foot exostosis residuals for the period prior to October 7, 2011 and in excess of 10 percent for the period on and after October 7, 2011, thus creating a "staged" initial rating for the different periods. The Veteran is not prejudiced by such action. The Board has not dismissed any issue, and the law and regulations governing the evaluation of disabilities are the same regardless of how the issue is styled. An October 2012 written statement from the Veteran may be reasonably construed as an informal claim for an increased evaluation for right ankle traumatic arthritis. The issue has not been adjudicated by the RO. Additionally, the Board observes that the July 2012 Board decision referred the issues of increased evaluations for right ear hearing loss and tinnitus to the RO for adjudication. The record does not reflect that these issues have been adjudicated by the RO; therefore, the Board does not have jurisdiction over them. These issues are referred to the RO for appropriate action. FINDINGS OF FACT 1. Prior to October 7, 2011, post-operative left foot exostosis residuals were objectively shown to be manifested by no more than chronic foot pain with associated limitation of motion and exostectomy residuals including well-healed surgical scars. 2. On and after October 7, 2011, post-operative left foot exostosis residuals have been objectively shown to be manifested by no more than chronic foot pain with associated limitation of motion and exostectomy residuals including well-healed surgical scars. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the schedular criteria for a 10 percent evaluation for post-operative left foot exostosis residuals for the period prior to October 7, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5015, 5284 (2012). 2. The criteria for an evaluation in excess of 10 percent for post-operative left foot exostosis residuals for the period on and after October 7, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5015, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The notice, as required by 38 U.S.C.A. § 5103(a), 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. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In this case, VA has issued several VCAA notices to the Veteran, including an April 2005 notice which informed him of the evidence generally needed to support a claim for service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The April 2005 VCAA notice was issued to the Veteran prior to the July 2005 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the April 2007 statement of the case and the multiple supplemental statements of the case. The Court has held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). VA has secured or attempted to secure all relevant documentation to the extent possible. The Veteran has been afforded adequate VA examinations for compensation purposes. The examination reports are of record. All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). For these reasons, the Board finds that in this case VA has fulfilled the duties to notify and assist the Veteran. Initial Evaluation of Left Foot Exostosis The Veteran's service treatment records note that he was seen for left foot complaints. VA clinical documentation dated in 2002 conveys that the Veteran was diagnosed with a post-traumatic left foot exostosis. An exostosis is a benign bony growth projecting outward from the surface of a bone; bone spurs. Dorland's Illustrated Medical Dictionary 593 (28th ed.1994). In July 2005, the RO granted service connection for a post-traumatic left foot exostosis; assigned a noncompensable evaluation for that disability; and effectuated the award as of December 17, 2004. The Veteran entered a notice of disagreement with the initial rating assigned, and this initial rating appeal ensued. VA clinical documentation dated in May 2005 indicates that the Veteran underwent a left dorsal mid-foot exostectomy. In November 2011, the RO granted a 10 percent initial disability evaluation for the post-operative left foot disability as of October 7, 2011, thus creating the staged initial rating on appeal. Benign new bone growths are to be evaluated as degenerative arthritis on the basis of limitation of motion of the affected joints. 38 C.F.R. § 4.71a, Diagnostic Code 5015. Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by the limitation of motion. These 10 percent evaluations are combined and not added. In the absence of limitation of motion, a 10 percent disability evaluation will be assigned where there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent evaluation requires moderately severe residuals. A 30 percent evaluation requires severe residuals. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Initial Rating Period prior to October 7, 2011 After a review of all the evidence, the Board finds that, for the entire initial rating period, including prior to October 7, 2011, post-operative left foot exostosis residuals were objectively shown to be manifested by no more than chronic foot pain with associated limitation of motion and exostectomy residuals including well-healed surgical scars. Resolving reasonable doubt in the Veteran's favor, the schedular criteria for a 10 percent evaluation for post-operative left foot exostosis residuals for the period prior to October 7, 2011 have been met under either Diagnostic Code 5003 or Diagnostic Code 5284. 38 C.F.R. § 4.71a. The evidence includes a December 2004 VA treatment record, which states that the Veteran complained of bilateral foot pain. An assessment of a symptomatic left foot post-traumatic exostosis was advanced. VA clinical documentation dated in May 2005 indicates that the Veteran complained of chronic left foot pain which limited his range of motion and activities. Conservative treatment was noted to have failed to alleviate his left foot pain. The Veteran underwent a left dorsal mid-foot exostectomy. In his March 2006 notice of disagreement, the Veteran advanced that his left foot disability was manifested by severe chronic foot pain and necessitated a May 2005 VA surgical procedure. A January 2008 VA podiatric evaluation states that the Veteran reported that "some" of his left foot "bump" had returned. On examination of the left foot, the Veteran exhibited well healed surgical scars. Prior to October 7, 2011, the Veteran's post-operative left foot exostosis residuals were objectively shown to be manifested by no more than chronic foot pain which limited his range of motion and exostectomy residuals including well-healed surgical scars. No specific left foot limitation of motion was noted. The failure of conservative treatment to alleviate the Veteran's left foot pain necessitated the May 2005 VA left foot exostectomy. Such findings merit assignment of at least a 10 percent evaluation under the provisions of 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5015, or 5284. The clinical record does not establish that the Veteran exhibited either actual or functional left foot impairment associated with his exostosis alone which is consistent with a moderately severe left foot injury such as an impaired gait or the need for significant orthotics. In the absence of such impairment, the Board finds that a 10 percent evaluation and no higher is warranted for post-operative left foot exostosis residuals during the period prior to October 7, 2011. In making this determination, the Board has considered the Veteran's left foot functional loss due to pain in conjunction with the schedular criteria, but finds that, even with such considerations of additional limitation of motion or function, the criteria for the next higher disability rating have not been met or more nearly approximated. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Initial Rating Period from October 7, 2011 After a review of all the evidence, the Board finds that, for the entire initial rating period, including for the period from October 7, 2011, post-operative left foot exostosis residuals were objectively shown to be manifested by no more than chronic foot pain with associated limitation of motion and exostectomy residuals including well-healed surgical scars, consistent with a 10 percent evaluation for this period under all potentially applicable Diagnostic Codes. 38 C.F.R. § 4.71a. In addition to the evidence already considered, including the entire history of the Veteran's disability, at the October 2011 examination for compensation purposes conducted for VA, the Veteran complained of chronic left foot mid-foot pain, weakness, stiffness, swelling, and fatigue which were exacerbated by prolonged standing. He denied experiencing "any overall functional impairment" from his service-connected left foot disability. The Veteran was noted to not require "any type of support with his shoes" and to have no "limitation with standing and walking." On examination of the left foot, the Veteran exhibited painful motion and no edema, weakness, musculature atrophy, tenderness, or instability. The diagnosis was left foot post-traumatic exostosis. The examiner assessed that the Veteran's left foot pain limited his ability to stand and to walk for prolonged periods and, thereby, limited his occupational pursuits. On and after October 7, 2011, the post-operative left foot exostosis residuals have been objectively shown to be manifested by no more than chronic foot pain which limits the range of motion and ability to stand and to walk for prolonged periods. No specific left foot limitation of motion was noted. Such a disability picture more nearly approximates "moderate residuals of foot injury," which merits not more than a 10 percent evaluation under Diagnostic Code 5284. The clinical record does not establish that the Veteran has either actual or functional left foot impairment associated with his post-operative exostosis residuals alone which is consistent with moderately severe left foot injury. In the absence of such impairment, the Board finds that a 10 percent evaluation and no higher is warranted for post-operative left foot exostosis residuals during the period on and after October 7, 2011. In making this determination, the Board has considered the Veteran's left foot functional loss due to pain in conjunction with the schedular criteria, but finds that, even with such considerations of additional limitation of motion or function, the criteria for the next higher disability rating have not been met or more nearly approximated. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Extra-Schedular Consideration Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular criteria are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case 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). The Board has evaluated whether the Veteran's claim should be referred for consideration of an extra-schedular evaluation for the service-connected left foot disability under 38 C.F.R. § 3.321(b)(1). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate to rate the service-connected disability. A comparison between the level of severity and symptomatology of the Veteran's post-operative left foot disability with the established criteria found in 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5015, 5284 reflects that the diagnostic criteria reasonably describes the Veteran's disability level and symptomatology, namely, the actual and functional left foot impairment. Although the Board recognizes the Veteran's complaints and foot difficulties, the evidence does not show that his disability is unusual or exceptional. The schedular criteria reasonably describe his disability level and associated occupational impairment. The schedular rating criteria provide for ratings based on limitation of motion or function, including limitations due to painful motion, and potentially for separate ratings for scars. The schedular rating criteria incorporate and provide for ratings based on limiting factors such as pain, stiffness, weakness, incoordination, fatigability, and, though not shown, instability. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. The potentially alternative schedular rating criteria also provide for ratings based on the severity of the foot injury residuals, whether moderate, moderately severe, or severe. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. Such residuals are to be considered under Diagnostic Code 5284 without limitation; therefore, the Veteran's primary complaint and limiting factor of chronic foot pain and limitation of motion of the left foot has been considered as part of the schedular rating criteria. For these reason, the Board has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER A 10 percent evaluation for post-operative left foot exostosis residuals for the period prior to October 7, 2011 is granted; an evaluation in excess of 10 percent for the period on and after October 7, 2011 is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs