Citation Nr: 1314503	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  08-24 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to an evaluation in excess of 40 percent for the service-connected lumbar spine degenerative disc disease with disc herniation.   

2.  Entitlement to a disability rating in excess of 10 percent for residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint prior to February 22, 2008 and from October 1, 2008, and entitlement to a disability rating in excess of 10 percent for residuals of surgery to the left second toe with metatarsalgia from September 18, 2007.  

3.  Entitlement to an extension of a temporary total rating based upon convalescence for the service-connected residuals of surgery to the left great toe with hallux valgus and the left second toe from October 1, 2008.  


REPRESENTATION

Appellant represented by:	Penelope Gronbeck, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran had active military service from June 1979 to September 1979, from June 1980 to June 1983, and from March 1988 to March 1992, with additional service in the Army Reserves.

The appeal comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision in which the RO denied the Veteran's claim for a rating in excess of 40 percent for the service-connected lumbar spine disability and the claim for a rating in excess of 10 percent for the residuals of surgery to the left second toe, hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint.  The January 2008 rating decision denied entitlement to a total rating due to individual unemployability due to service-connected disabilities.  

Rating decisions dated in September 2008 and December 2008 granted entitlement to a temporary total rating for the residuals of surgery to the left second toe, hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint, based on surgical or other treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30, effective July 25, 2008 through August 31, 2008, and effective February 22, 2008 through March 31, 2008.  

In an August 2009 rating decision, entitlement to a temporary total rating for residuals of surgery to the left second toe, hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint based on surgical or other treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30 was granted effective February 22, 2008.  At 10 percent rating was assigned from October 1, 2008.  The RO indicated that this was a substantive grant of the claim.  However, after notice of this decision, the Veteran argued that he should have an extension of the temporary total rating from October 1, 2008 for the left foot and toe surgery.  In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded.  Because an extension of the temporary total rating is possible under 38 C.F.R. § 4.30(b)(2), this appeal continues. 

The matter on appeal was remanded to the RO in September 2011 for additional development.  The development was completed, and the case was returned to the Board.

In an April 2012 rating decision, the RO recharacterized the issue on appeal pertinent to the left foot and toe as entitlement to a rating in excess of 10 percent for residuals of surgery to the hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint prior to February 22, 2008 and from October 1, 2008.  The RO also assigned a separate 10 percent rating for residuals of surgery to the left second toe with metatarsalgia from September 18, 2007.  The Board finds that issue perfected on appeal includes both the left great toe and the left second toe and the issue has been recharacterized as above.  

In an April 2012 rating decision, the RO granted entitlement to a total rating due to individual unemployability due to service-connected disabilities from April 20, 2007, the date of receipt of the claim for this benefit.  This grant constitutes a complete grant of the benefit sought on appeal.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  Therefore, this issue has been resolved and is no longer in appellate status. 

The Veteran testified during a May 2011 videoconference hearing before an Acting Veterans Law Judge at the RO; a copy of the hearing transcript is associated with the record.  The Acting Veterans Law Judge who conducted the hearing subsequently left the Board's employ.  The RO contacted the Veteran in September 2012 and offered him an opportunity to testify at another hearing before a Veterans Law Judge who would decide the claim on appeal.  See 38 C.F.R. §20.707 (2012).  In a written response, received at the Board in October 2012, the Veteran's attorney indicated that the Veteran may not need a new hearing if the Board sent them a copy of the hearing transcript.  A copy of the transcript for the May 2011 hearing was sent to the Veteran in November 2011.  Neither the appellant nor his attorney have requested another hearing and the Board finds that this matter is ready for appellate review.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  For the entire appeal period, the service-connected lumbar spine disability is manifested by subjective complaints of pain and a limitation of motion or functional loss due to pain with restriction of forward flexion of the thoracolumbar spine to 20 to 45 degrees and moderate radiculopathy of the left and right lower extremities and there is no evidence of incapacitating episodes lasting a duration of at least 6 weeks during a 12 month period or ankylosis of the lumbar spine.  

2.  Prior to February 22, 2008 and from October 1, 2008 to November 10, 2011, the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint were principally manifested by pain on use and with motion, swelling, and tenderness to palpation and are productive of mild to moderate disability. 

3.  From November 11, 2011, the service-connected residuals of surgery to the left great toe, hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint are manifested by pain on use, with motion, and on weight bearing, swelling, and tenderness to palpation and this disability is productive of severe disability with no effective function remaining in the left foot.  

4.  From September 18, 2007, the service-connected residuals of surgery to the left second toe with metatarsalgia are manifested by pain on use and with motion, swelling, and tenderness to palpation and are productive of mild to moderate disability. 

5.  In an April 2012 rating decision, the RO granted entitlement to a total rating due to individual unemployability due to service-connected disabilities from April 20, 2007.


CONCLUSIONS OF LAW

1.  For the entire appeal period, the criteria for the assignment of a disability evaluation in excess of 40 percent for the service-connected lumbar spine disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243, 8520 (2012).  

2.  Prior to February 22, 2008 and from October 1, 2008 to November 10, 2011, the criteria for a disability rating in excess of 10 percent for the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280, 5284 (2012).


3.  Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent rating, but no greater, for the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint have been met from November 11, 2011.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code 5276 (2012).

4.  From September 18, 2007, the criteria for a disability rating in excess of 10 percent for the service-connected residuals of surgery to the left second toe with metatarsalgia have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5279, 5280, 5284 (2012).

5.  The claim for an extension of a temporary total rating beyond October 1, 2008 based on convalescence following surgery on the left great toe and left second toe is dismissed.  38 U.S.C.A. §§ 7104, 7105, 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.30 (2012).   


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA) 

As provided for by VCAA, VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2007, prior to the adjudication of the claims, and in May 2008, and October 2011.  The letters fully addressed all three notice elements and informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  In this case, notice consistent with the Court's holding in Dingess was provided in September 2007.   

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained all pertinent treatment records identified by the Veteran.  All available service treatment records are associated with the record.  VA treatment records are associated with the claims folder in addition to Social Security Administration (SSA) records and workers compensation records.  

The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims.  Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled.  

The RO afforded the Veteran VA examinations in 2007, 2010, and 2011 in order to obtain medical evidence of the nature and severity of the service-connected lumbar spine and left foot and toe disabilities.  The examinations were adequate.  The evaluations were performed by medical professionals based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor representative has challenged the adequacy of the examinations obtained.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  The VA examination findings are accurate and fully descriptive and address the rating criteria in the rating schedule.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the May 2011 Board hearing, the Acting Veterans Law Judge specifically noted the issues on appeal.  Then, having heard the Veteran's evidence, the Acting Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  Both the Acting Veterans Law Judge and the Veteran's attorney specifically queried the Veteran regarding any evidence the Veteran might have showing that the service-connected disabilities are more severe than currently rated.  In this case, the Acting Veterans Law Judge substantially complied with the requirements of Bryant.  

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).



Legal Criteria Regarding Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2012).  

Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2).  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

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.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  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.  Id.  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 or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45.  

Under 38 C.F.R. § 4.59, 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 the 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.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination.  

II.  Entitlement to a Higher Rating for the Lumbar Spine Disability

Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242,  Degenerative arthritis of the spine; are rated under the following general rating formula for diseases and injuries of the spine.  The disability is rated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2012).  

A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  Id.  

A 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 40 percent evaluation will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.

A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine.  Id.

A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine.  Id.

Note (1):  Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.   Id.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees.  Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.

Note (4):  Round each range of motion measurement to the nearest five degrees.  Id.

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.  Id.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2011).  

Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  

Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  

A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  

Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  Id.  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.  

Analysis

The Board notes that service connection was initially established for chronic back strain.  The evidence of record shows that the Veteran sustained a post-service work related back injury in 2007 and this injury led to degenerative disc disease.  The November 2011 VA examination report indicates that the examiner opined that chronic back strain did not cause the degenerative disc disease.  However, the examiner further stated that he was unable to differentiate the separate effects of the chronic back strain from the symptoms and manifestations of the nonservice-connected degenerative disc disease.  The Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability.  See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.).  In an April 2012 rating decision, the RO re-characterized the service-connected lumbar spine disability as lumbar spine degenerative disc disease with disc hernia ton at L4-5.  

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the service-connected lumbar spine disability for the entire appeal period, and the appeal is denied.  

Under Diagnostic Codes 5235, in order for a 50 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire thoracolumbar spine.  In order for a 100 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.  

The medical evidence of record does not document unfavorable ankylosis of the spine.  The VA examinations dated in November 2011, February 2010, and December 2007 and the VA treatment records establish that the Veteran has limited motion of the lumbar spine, but there were no findings of ankylosis.  The VA examination reports indicate that forward flexion of the lumbar spine ranged from 20 degrees to 45 degrees.  The November 2011 VA examination report indicates that range of motion testing revealed forward flexion to 45 degrees with pain at 45 degrees.  The examiner noted that the functional impairment due to the lumbar spine was less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing.  The examiner indicated that the Veteran had effective function in the extremities.  The February 2010 VA examination report indicates that the Veteran had forward flexion of the lumbar spine to 40 degrees.  He had a normal gait and the lumbar spine disability had a moderate effect on some activities of daily living.  The December 2007 VA examination report notes that the Veteran had forward flexion of the lumbar spine to 20 degrees.  The Veteran had an antalgic gait.  The examination report noted that the Veteran had a work-related back injury a few months prior.  The Veteran was able to perform minimal activities of daily living.  There are no examination findings of ankylosis.  Thus, on this basis, a higher rating is not warranted under Diagnostic Codes 5235 to 5242.

The rating criteria are intended to take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation.  68 Fed. Reg. 51454-5 (Aug. 27, 2003).  In any event, additional functional limitation warranting a higher evaluation is not been shown.

There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The VA examination reports do not establish any additional limitation of range of motion of the lumbar spine with repetition or due to pain, weakness, excess fatigability and incoordination.  The limitation of motion of the lumbar spine does not approximate ankylosis or no motion.  There is no evidence that the service-connected lumbar spine disability causes additional limitation of motion or ankylosis.  

The current 40 percent rating contemplates the functional loss due to pain, less movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing caused by the lumbar spine disability.  There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  

Higher ratings are not warranted under Diagnostic Code 5243.  As discussed, the evidence does not establish that the service-connected lumbar spine disability causes incapacitating episodes having a total duration of at least six weeks during the past 12 months.  The November 2011 VA examination report indicates that the Veteran reported having an incapacitating episode of less than one week in the last 12 months.  The February 2010 and December 2007 VA examination reports and the VA treatment records do not serve to document any incapacitating episodes.  

The medical evidence of record does not show physician-prescribed bed rest, which is the requirement for an incapacitating episode.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  Thus, the Board finds that a disability evaluation in excess of 40 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  

The evidence preponderates against the claim for a disability evaluation in excess of 40 percent for the service-connected lumbar spine disability for the entire appeal period, and the appeal is denied.

The Board notes that separate 20 percent evaluations have been assigned for radiculopathy of each lower extremity from April 20, 2007.  See the April 2012 rating decision.  

Under Diagnostic Code 8520, an 80 percent evaluation is assigned for complete paralysis of the sciatic nerve with foot dangle and drop, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.  A 60 percent evaluation is assigned for incomplete paralysis of the sciatic nerve that is severe with marked muscular dystrophy, a 40 percent evaluation is assigned for incomplete paralysis that is moderately severe, a 20 percent evaluation is assigned for moderate incomplete paralysis, and a 10 percent evaluation is assigned for mild paralysis.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2011).

The Board finds that a disability evaluation in excess of 20 percent is not warranted for the radiculopathy of either the left or right lower extremity.  The medical evidence does not show findings of more than moderate incomplete paralysis or impairment.  The November 2011 VA examination report indicates that the severity of the radiculopathy was moderate.  VA examination reports indicate that the radiculopathy is manifested by intermittent pain; mild to moderate numbness; paresthesias and dysesthesias; and decreased sensation.  See the November 2011 and February 2010 VA examination reports.  

Neurological examinations were otherwise normal.  38 C.F.R. § 4.124a indicates that the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less that the type picture for complete paralysis given with each nerve...When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  There is no evidence of moderately-severe or severe incomplete paralysis.  There is no evidence of complete paralysis.  

Thus, the Board finds that ratings higher than 20 percent are not warranted for the radiculopathy of the left and right lower extremities under Diagnostic Code 8520.  

The Board further finds that a staged rating is not warranted in this case.  The Board has examined the record in its entirety and, as discussed, finds that a 40 percent evaluation is warranted for the service-connected lumbar spine disability for the entire period of the appeal.  

The medical evidence shows that the lumbar spine disability has been essentially stable for the entire appeal period.  Accordingly, a staged rating under Hart is not warranted. 

Finally, the Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012).  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 the service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  

When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

As discussed, the Veteran's service-connected lumbar spine disability has been manifested by back pain, painful motion, limitation of flexion to 20 to 45 degrees, and lower extremity radiculopathy.  These symptoms or impairments due to the lumbar spine disability are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate.  The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  The rating criteria for spine disabilities contemplate limitation of motion of the spine and symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  The schedular rating criteria, the General Rating Formula for Diseases and Injuries of the Spine and the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, specifically provide for disability ratings based on limitation of motion (flexion and combined ranges of motion, including ankylosis), including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21 , 4.40, 4.45, 4.59; DeLuca), other objective findings such as muscle spasm, tenderness, altered gait, abnormal spinal contour, and loss of height of vertebral body.  Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted.  


III.  Increased Rating for the Residuals of the Left Great Toe and Left Second Toe Surgery

Under Diagnostic Code 5279, metatarsalgia, anterior (Morton's disease), a 10 percent evaluation is assigned for unilateral or bilateral metatarsalgia.  38 C.F.R. 4.71a, Diagnostic Code 5279. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5280, hallux valgus, a 10 percent rating is assigned for unilateral hallux valgus for severe hallux valgus if equivalent to amputation of the great toe or hallux valgus if operated with resection of the metatarsal head.    

Under Diagnostic Code 5284, other foot injuries, a 10 percent rating is assigned for moderate disability, a 20 percent disability rating is assigned for moderately severe disability, and a 30 percent is assigned for severe disability.  A 40 percent rating is assigned when the evidence establishes a foot injury with actual loss of the use of the foot.  38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012).

Analysis

The Veteran contends that he is entitlement to a higher disability rating in excess of 10 percent for the left great toe and left second toe disabilities.  A 10 percent rating is assigned to the residuals of surgery to the left great toe disability with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint prior to February 22, 2008 and from October 1, 2008.  The 10 percent disability rating is assigned under Diagnostic Code 5284, foot injuries, for moderate foot injury or moderate impairment.  A separate 10 percent rating is assigned to the residuals of surgery to the left second toe with metatarsalgia from September 18, 2007 under Diagnostic Code 5279.  The Board will consider whether higher ratings are warranted for the left great toe disability and the left second toe disability.    

After review of all of the evidence of record, the Board finds that the weight of the competent and credible evidence weighs against the assignment of a disability evaluation in excess of 10 percent for the service-connected left great toe disability with hallux valgus and osteoarthritis of the metatarsophalangeal joint for the time period prior to October 1, 2008.  The weight of the competent and credible evidence establishes that the left great toe disability picture is productive of mild to moderate impairment.  The December 2007 VA examination report indicates that the left foot disability causes mild functional impact.  The VA examination report indicates that the Veteran reported having pain in the left toes and he reported that his foot was bothering him more because of his gait disturbance from the back pain.  The Veteran reported that the left foot felt weak and he had stiffness, swelling, and redness.  The Veteran indicated that the symptoms improved with rest and he had flare-ups from standing and walking.  X-ray examination of the left foot revealed prominent hallux valgus and extensive deformity with shortening of the second metatarsophalangeal joint.  Physical examination of the left foot revealed visible shortening of the second digit.  The metatarsophalangeal joint was tender and there was a bony abnormality.  The Achilles turned medially when standing.  There was bilateral pes planus.  There was hallux valgus on the first metatarsophalangeal joint with tenderness to palpation and antalgic gait.  The Veteran was unable to toe heel gait.  The diagnosis was residuals of surgery to the left second toe, hallux valgus deformity of the left first mtp (metatarsophalangeal) joints, stable.  The examiner opined that the left toe and foot disability was productive of mild functional impact on physical and sedentary employment.  The examiner indicated that the Veteran was able to fully accomplish his activities of daily living.  VA treatment records dated in 2007 and in January and February 2008 show that the Veteran had complaints of pain in the left great toe and left second toe.  

The weight of the evidence establishes that prior to February 22, 2008, the service-connected left great toe disability with hallux valgus and osteoarthritis is productive of mild to moderate symptoms, not moderately-severe symptoms.  The medical evidence for this time period does not establish moderately-severe or severe disability of the left great toe.  Thus, a rating in excess of 10 percent is not warranted for the service-connected left great toe disability with hallux valgus and osteoarthritis prior to February 22, 2008.  

A temporary total rating based upon convalescence was assigned to the service-connected residuals of surgery to the left second toe and hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint, from February 22, 2008 and from October 1, 2008.  The issue to entitlement to an extension of the temporary total rating under 38 C.F.R. § 4.30 beyond October 1, 2008 is discussed below.    

The Board has considered whether a rating in excess of 10 percent is warranted for the left great toe disability with hallux valgus and osteoarthritis from October 1, 2008.  The Board has carefully reviewed the evidence of record and finds that from November 11, 2011, a 30 percent rating is warranted for the service-connected left great toe disability with hallux valgus and osteoarthritis based upon the findings of the November 11, 2011 VA examination.  The November 2011 VA examination report indicates that the Veteran reported having pain in the left foot with weight bearing.  Physical examination revealed flatfeet and left metatarsalgia.  There were no hammertoes, Morton's neuroma, hallux ridgidus, claw foot, malunion or nonunion of the metatarsal bones, or weakfoot.  After examining the left foot and left toes, the examiner opined that the left foot disability was severe.  The examiner noted that the Veteran occasionally used a cane for ambulation for his foot and back disabilities.  The examiner further noted that no effective function remained in the left foot and function was so diminished that amputation with prosthesis would equally serve the Veteran.  The diagnosis was limited range of motion due to degenerative joint disease of the left first metatarsophalangeal joint with arthroplasty with a total joint replacement of the left second metatarsophalangeal joint, metatarsalgia, and mild to moderate hallux valgus.    

The Board finds that based upon the November 11, 2011 VA examination, the criteria has been met for a 30 percent rating for the left great toe disability with hallux valgus and osteoarthritis from November 11, 2011.  The November 2011 VA medical opinion indicates that no effective function remains in the left foot due to the service-connected disabilities.  However, a 40 percent rating is not warranted under Diagnostic Code 5284 because of the amputation rule found in 38 C.F.R. § 4.68.  The "amputation rule," set forth at 38 C.F.R. § 4.68, provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed.  The regulation elaborates that, for example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165.  

Under Diagnostic Code 5164, amputation of the leg not improvable by a prosthesis controlled by natural knee action warrants a disability rating of 60 percent.  Under Diagnostic Code 5165, amputation of the leg at a lower level permitting prosthesis warrants a disability rating of 40 percent.  Under Diagnostic Code 5166, amputation of the forefoot, proximal to the metatarsal bones (more than one-half of metatarsal loss) warrants a disability rating of 40 percent.  Under Diagnostic Code 5167, loss of use of the foot warrants a disability rating of 40 percent.  38 U.S.C.A. § 4.71a, Diagnostic Codes 5164 to 5167.  The amputation rule does not apply to the ratings assigned for scars under Diagnostic Codes 7804 (in effect prior to October 23, 2008).  

Although the criteria for a 40 percent rating under Diagnostic Code 5284 for the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis is shown by the medical evidence, the 40 percent rating may not be assigned due to the amputation rule.  A separate 10 percent rating is currently assigned to the service-connected second left toe disability with metatarsalgia under Diagnostic Code 5279.  Under 38 C.F.R. § 4.25, the 40 percent rating under Diagnostic Code 5284 combined with the 10 percent rating assigned under Diagnostic Code 5279 results in 46 which is rounded up to 50 percent, which exceeds amputation of the leg below the knee or amputation of the forefoot.  Thus, under the amputation rule, a 40 percent rating may not be assigned under Diagnostic Code 5284 to the service connected left great toe disability.  However, the assignment of a 30 percent rating is not prohibited under the amputation rule.  Thus, a 30 percent rating is assigned to the service-connected left great toe disability from November 11, 2011 based upon the findings of severe impairment.   

After review of all of the evidence of record, the Board finds that the weight of the competent and credible evidence weighs against the assignment of a disability evaluation in excess of 10 percent for the service-connected left great toe disability with hallux valgus and osteoarthritis for the time period from October 1, 2008 to November 10, 2011.  The weight of the competent and credible evidence establishes that the left great toe disability picture is productive of mild to moderate impairment for this time period.  VA treatment records show that upon examination on October 2, 2008, there was mild swelling of the left toe.  There was no edema or erythema.  An October 15, 2008 record indicates that range of motion of the left toe was restoring and the Veteran was progressing well.  Range of motion was not guarded; it was half to normal range of motion.  The edema of the feet was decreased.  A November 2008 VA treatment record indicates that the Veteran as wearing regular shoes and he had decreased pain in the left foot and toes.  There was no significant erythema or edema.  Range of motion was present with discomfort.  VA podiatry treatment records dated in January 2009 indicate that the Veteran had reduced range of motion on the left foot but he had good push off.  A March 2009 VA treatment record indicated that the Veteran had joint pain of the left foot due to multiple surgeries.  

A February 2010 VA examination report indicates that the Veteran had normal gait.  The Veteran reported having pain in the left great toe and left second toe, and pain in the bottom of the left second toe.  He stated that he was unable to stand for more than a few minutes or walk more than a few yards.  Physical examination revealed no painful motion, swelling, instability, weakness, or abnormal weightbearing.  There was tenderness on the left great toe, left second toe and on the bottom of the left second toe.  There was no muscle atrophy or foot deformity.  X-ray examination revealed mild hallux valgus.  A July 2010 VA examination report indicates that the Veteran walked with a mild antalgic gait due to his back disability, left great toe, and right great toe.   

The weight of the evidence establishes that from October 1, 2008 to November 10, 2011, the service-connected left great toe disability with hallux valgus and osteoarthritis is productive of mild to moderate symptoms and mild to moderate functional impairment, not moderately-severe or severe impairment.  Thus, a rating in excess of 10 percent is not warranted for the service-connected left great toe disability with hallux valgus and osteoarthritis for this time period.  The claim for an increased rating for this time period is denied.   

The Board has considered whether a rating in excess of 10 percent is warranted for the residuals of surgery to the left second toe with metatarsalgia from September 18, 2007 to February 21, 2008 and from October 1, 2008.  A 10 percent rating is the highest possible rating under Diagnostic Code 5279.  A higher rating may be assigned under Diagnostic Code 5283, malunion or nonunion of the metatarsal bones.  Under this diagnostic code, a 10 percent rating is assigned for moderate impairment and a 20 percent rating is assigned for moderately-severe impairment.  See 38 C.F.R. § 4.71a, Diagnostic Code 5283.  

For the time period from September 18, 2007 to February 21, 2008, the weight of the competent and credible evidence shows that the service-connected second left toe disability is productive of mild functional impairment.  The December 2007 VA examination report indicates that the Veteran had complaints of pain in the left second toe and complaints of stiffness, redness, and swelling.  X-ray examination revealed extensive deformity of the left second toe with shortening of the second metatarsophalangeal joint.  Examination revealed tenderness of the second left toe with bony deformity.  The examiner opined that there was mild functional impact on sedentary and physical employment and the Veteran was able to fully accomplish his activities of daily living.  

The weight of the evidence does not establish moderately-severe or severe symptoms or impairment.  Thus, a rating in excess of 10 percent is not warranted for the service-connected left second toe disability from September 18, 2007 to February 21, 2008.   

The Board has considered whether a rating in excess of 10 percent is warranted for the service-connected left second toe disability from October 1, 2008 under Diagnostic Code 5283.  For this time period, the weight of the evidence establishes that the service-connected left second toe disability is productive of mild to moderate symptoms and impairment, not moderately-severe impairment.  The February 2010 VA examination report indicates that upon physical examination, there was no painful motion, swelling, instability, weakness, or abnormal weightbearing.  Examination revealed tenderness of the second toe and the bottom of the second toe.  There was no muscle atrophy or foot deformity.  The July 2010 VA examination report indicates that the Veteran walked with a mild antalgic gait.  The weight of the evidence establishes that from October 1, 2008, the service-connected left second toe disability is productive of mild to moderate impairment, not moderately-severe impairment.  Thus, a rating in excess of 10 percent is not warranted for the service-connected left second toe disability from October 1, 2008.    

For the reason discussed above, the assignment of a rating in excess of 10 percent for the service-connected left second toe disability from November 11, 2011 is prohibited under the amputation rule pursuant to 38 C.F.R. § 4.68 in light of the assignment of a 30 percent rating to the service-connected left great toe disability under Diagnostic Code 5284 from November 11, 2011.  

A rating in excess of 10 percent is not warranted for the service-connected left second toe disability under Diagnostic Code 5284 because, as discussed above, the weight of the evidence shows that this disability is productive of mild to moderate impairment not moderately severe or severe impairment.  Further, the service-connected left great toe disability is rated under Diagnostic Code 5284.  Disabilities rated under Diagnostic Code 5284 are rated on impairment and loss of use of the foot due to the disability.  The ratings assigned to the service-connected left great toe disability under Diagnostic Code 5284 contemplates impairment of function and use of the left foot.  

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation.  38 C.F.R. § 4.14 (2012); see Esteban v. Brown, 6 Vet. App. 259 (1994).  The critical inquiry in making such a determination is whether any of the symptomatology is duplicative of or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate.  Esteban, 6 Vet. App. at 262.  Thus, two ratings under Diagnostic Code 5284 for the same foot is prohibited because the evaluations would contemplate the same manifestations.  

The Board finds that the weight of the competent and credible lay and medical evidence establishes that, from September 18, 2007, the Veteran's service-connected left second toe disability is productive of mild to moderate impairment, not moderately-severe impairment.   A disability rating in excess of 10 percent is not warranted.  

Finally, the Board has considered whether referral for an extraschedular evaluation is warranted.  See 38 C.F.R. § 3.321 (2012).  The Veteran's symptoms and functional limitations due to the left great toe disability and the left second toe disability are contemplated by the rating schedule; therefore, the assigned schedular evaluations are adequate to rate the disability.  The record shows that the service-connected left great toe and left second toe disabilities are manifested by pain on use and with standing, and tenderness.  The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  The rating criteria for toe and foot disabilities provide ratings for moderate to severe impairment and provide a rating for actual loss of use of the foot.  Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted.  


IV.  Entitlement to an extension of a temporary total rating pursuant to 38 C.F.R. § 4.30 for left foot surgery from October 1, 2008. 

A temporary total convalescent rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery.  38 C.F.R. § 4.30.  A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (3) immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30(a).  Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3) and extensions of 1 or more months up to a 6 month period may be made under § 4.30(a)(2) or (3). 

Entitlement to a temporary total rating for residuals of surgery to the left second toe, hallux valgus deformity, and osteoarthritis of the left first metatarsophalangeal joint based on surgical or other treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30 was granted from February 22, 2008 to September 30, 2008.    

In an April 2012 rating decision, the RO granted entitlement to a total rating due to individual unemployability due to service-connected disabilities from April 20, 2007.  Thus, in the instant case, the Board finds that the issue of entitlement to an extension of a temporary total rating beyond October 1, 2008 for residuals of surgery to the left great toe and left second toe necessitating convalescence under the provisions of 38 C.F.R. § 4.30 is moot.  The claims file demonstrates that the Veteran has been in receipt of a total (100 percent) rating since April 20, 2007, the date of the claim for an increased rating.  A disability rating higher than 100 percent is not assignable on any basis, as 100 percent is the maximum available rating.  38 U.S.C.A. § 1114.  In other words, the Veteran was already in receipt of a 100 percent disability rating, and a separate 100 percent disability rating (on a temporary basis or otherwise) could not be assigned.  See 38 C.F.R. § 4.1, et seq.  

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  The appeal on the merits of the Veteran's claim of entitlement to an extension of a temporary total rating beyond October 1, 2008 has become moot, as the above decision awarded the Veteran a total rating based upon individual unemployability and would encompass the period of the requested extension of a temporary total rating.  There remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the claim for an extension of a temporary total rating for a period of convalescence from October 1, 2008 under the provisions of 38 C.F.R. § 4.30 is dismissed as no benefit remains to be awarded, and no controversy remains.  See 38 U.S.C.A. §§ 7104(a), 7105(d)(5).  

	(CONTINUED ON NEXT PAGE)





ORDER

An increased evaluation in excess of 40 percent for the service-connected lumbar spine degenerative disc disease with disc herniation is denied.  

Prior to February 22, 2008 and from October 1, 2008 to November 10, 2011, a disability rating in excess of 10 percent for the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint is denied. 

From November 11, 2011, a 30 percent rating for the service-connected residuals of surgery to the left great toe with hallux valgus deformity and osteoarthritis of the left first metatarsophalangeal joint is granted subject to the laws and regulations governing the payment of monetary benefits.  

From September 18, 2007, a disability rating in excess of 10 percent for the service-connected residuals of surgery to the left second toe with metatarsalgia is denied.  

The claim for an extension of the temporary total rating based convalescence beyond October 1, 2008 for surgery to the service-connected left great toe and left second toe is dismissed.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs