Citation Nr: 1314718	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  07-06 331A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for disability of the left foot from May 25, 2005 through August 15, 2006.  

2.  Entitlement to an initial rating in excess of 30 percent for disability of the left foot since August 16, 2006.  

3.  Entitlement to an initial rating in excess of 30 percent for disability of the right foot.  

4.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity.

5.  Entitlement to an initial rating in excess of 10 percent peripheral neuropathy of the right lower extremity. 



REPRESENTATION

Appellant (the Veteran) is represented by: Vietnam Veterans of America


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from December 1977 to August 1990.  

This appeal comes before the Board of Veterans' Appeals (Board) from June 2006, June 2007, and October 2007 rating decisions of the RO in St. Louis, Missouri.

The Veteran requested a personal hearing before the Board and the RO.  However, he withdrew both requests by correspondence dated in December 2008 and April 2009.  38 C.F.R. § 20.702(e) (2012).  

In a December 2010 decision, the Board, in relevant part, denied an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity; denied an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity; granted an initial 30 percent rating for right foot disability, effective May 25, 2005; and granted an initial 30 percent rating for left foot disability, effective August 16, 2006.  The issue of entitlement to an initial rating in excess of 10 percent for left foot disability from May 25, 2005 through August 15, 2006 was remanded for evidentiary development.  

The Veteran appealed the Board's December 2010 decision to the Court of Appeals for Veterans Claims (CAVC).  In a January 2012 Order, the CAVC granted the parties' Joint Motion for Remand and remanded the issues of entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, an initial rating in excess of 10 percent peripheral neuropathy of the left lower extremity, an initial rating in excess of 30 percent for right foot disability, and an initial rating in excess of 30 percent for left foot disability since August 16, 2006.  

In an April 2012 rating decision, the RO granted an initial 20 percent rating for left foot disability from May 25, 2005 through August 15, 2006.  In July 2012, the Board remanded the appeal for additional evidentiary development.  It has since been returned to the Board for further appellate action.  

In July 2012, the Board also denied entitlement to an initial compensable rating for diabetic retinopathy prior to January 5, 2009 and entitlement to an initial rating in excess of 10 percent for diabetic retinopathy from January 5, 2009.  The Board's decision with respect to those claims is final.  See 38 C.F.R. § 20.1100 (2012). 

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  From May 25, 2005 through August 15, 2006, the Veteran's left foot disability was manifested by all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.

3.  Since August 15, 2006, the Veteran's left foot disability has been manifested by limited function of the left foot due to pain, weakness, and fatigue, with effective function remaining other than that which would be equally well served by an amputation stump with use of a suitable prosthetic appliance.   

4.  For the entire period of this appeal, the Veteran's right foot disability has been manifested by limited function of the right foot due to pain, weakness, and fatigue, with effective function remaining other than that which would be equally well served by an amputation stump with use of a suitable prosthetic appliance.  

5.  For the entire period of this appeal, the Veteran's peripheral neuropathy of the right lower extremity has been manifested by incomplete paralysis of the sciatic nerve that is mild.

6.  For the entire period of this appeal, the Veteran's peripheral neuropathy of the left lower extremity has been manifested by incomplete paralysis of the sciatic nerve that is mild. 


CONCLUSIONS OF LAW

1.  From May 25, 2005 through August 15, 2006, the criteria for a disability rating higher than 20 percent for left foot disability have not been met for any portion of that period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5278 (2012).

2.  Since August 15, 2006, the criteria for a disability rating higher than 30 percent for left foot disability have not been met for any portion of that period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012).

3.  The criteria for a disability rating higher than 30 percent for right foot disability have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012).

4.  The criteria for a disability rating higher than 10 percent for peripheral neuropathy of the right lower extremity have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2012).

5.  The criteria for a disability rating higher than 10 percent for peripheral neuropathy of the left lower extremity have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability Ratings - Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that the pain actually sets in.  See VAOPGCPREC 9-98. 

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.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or particular 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.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

Analysis of Rating for Right Foot Disability Since May 25, 2005, and Left Foot Disability Since August 16, 2006

In a June 2006 rating decision, the Veteran was awarded service connection for left pes cavus and assigned a zero percent initial rating, effective May 25, 2005, pursuant to Diagnostic Code 5278.  In August 2006, the Veteran underwent metatarsal head excision of the 2nd toe, metatarsal capsulotomy of the 3rd toe, and proximal interphalangeal joint arthroplasty of the 2nd and 3rd toes.  In a February 2007 rating decision, the RO granted an increased 10 percent rating for left pes cavus, effective August 16, 2006.  In a June 2007 rating decision, the RO granted service connection for right pes cavus, and assigned a combined 10 percent rating for the bilateral condition, effective May 25, 2005.  

In an April 2009 rating decision, the RO increased the initial rating assigned to his bilateral foot disability from 10 percent to 30 percent, effective January 9, 2009.  The RO noted in its April 2009 rating decision that the medical evidence reflected that, as of January 9, 2009, the Veteran's disability was more akin to pes planus; thus, it assigned a 30 percent rating based on the diagnostic criteria applicable to such disability.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  

In a January 2011 rating decision, which implemented the Board's December 2010 decision, the RO granted separate disability ratings for the right and left foot pes cavus, with a 30 percent rating for the right foot pes cavus, effective May 25, 2005, and a 30 percent rating for left foot pes cavus, effective August 16, 2006.  The Board remanded the issue of the initial rating for the left foot between May 25, 2005, and August 16, 2006.  

The Joint Motion did not disturb the Board's decision not to separately rate each component of foot disability (painful scarring associated with surgical correction of the pes cavus deformity, limitation of motion of the right ankle, and symptoms associated with pes planus), and to assign a rating at the maximum 30 percent level under that code.  Accordingly, that portion of the Board's December 2010 decision will not be revisited.  It is also the agreement of the parties to the Joint Motion that Diagnostic Code 5284 is the most appropriate diagnostic code.  

The Parties to the Joint Motion stipulated that the Board did not provide adequate reasons or bases in support of its finding that a rating higher than 30 percent was not warranted under 38 C.F.R. § 4.71 a, Diagnostic Code 5284, which provides for a 40 percent rating for loss of use of the foot.  According to the Joint Motion, the Board relied on the definition of loss of use of a foot in 38 C.F.R. § 4.63, which is "when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below [...] knee with use of a suitable prosthetic appliance."  The Board found that the Veteran's feet do not satisfy this requirement because he is still able to use both of his feet to walk, albeit with significant pain.  According to the Joint Motion, this explanation does not address why, in light of the evidence of record regarding the severity of the Veteran's pain, the loss of pain that would be accompanied by amputation and use of prostheses would not equally serve the Veteran, such that the definition in 38 C.F.R. § 4.63 would be satisfied, citing an April 2009 statement describing severe pain, including that "[w]hen standing[,] the pain becomes unbearable and he is experiencing the effects of becoming crippled"; January 2009 treatment note describing need for crutches and immobilization when swelling increases.  The parties to the Joint Motion stipulated that the Board shall account for this evidence and provide adequate supporting reasons or bases if it finds that the Section 4.63 definition remains unsatisfied.

Ratings in excess of 30 percent require actual loss of use of either foot.  See 38 C.F.R. § 4.71a, Diagnostic Code 5284.  Loss of use of a foot is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election with use of a suitable prosthetic appliance.  38 C.F.R. § 4.63.  

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran has not lost the use of either foot as contemplated for a 40 percent rating under 38 C.F.R. § 4.63, 38 C.F.R. § 4.71a, Diagnostic Code 5284.  In essence, while the evidence demonstrates that the Veteran's feet have caused constant pain, at times severe, that his feet and ankles have been unstable, requiring the use of braces, and that he has undergone repeated surgery on his feet during the period of this claim, neither the clinical evidence nor the Veteran's assertions substantiate an actual loss of use of either foot or symptoms approximating loss of use of either foot.  

Regarding the clinical evidence, a December 2012 primary care note reveals that, although the Veteran was requesting a consultation for a scooter due to lower extremity pain, the Veteran was able to ambulate with a slow, steady gait.  
A treatment note in October 2012 also reveals that the Veteran was ambulatory.  
A May 2012 treatment note reveals that ambulation was observed with a slow, steady gait.  An April 2012 treatment note reveals ambulation with a steady gait.  

An October 2011 rehab medicine note reveals that the Veteran was walking with an ataxia gait.  An October 2011 pharmacy note reveals that the Veteran had walked a far distance the previous weekend and experienced severe swelling in his feet and ankles.  An August 2012 note reveals that the Veteran was ambulatory with a slow uneven gait.  An August 2011 prosthetics evaluation shows that the Veteran was measured for shoes, foam insoles, and a pair of white-laced walkers.  A July 2011 nurse summary shows that the Veteran was ambulatory.  An April 2011 primary care note reveals that the Veteran had been riding a bike in an attempt to lose weight.    

An October 2010 physical therapy consultation reveals that the Veteran often stumbles, but had experienced no falls.  His balance was found to be minimally impaired.  Range of motion and strength were found to be functional for ambulation.  His endurance was normal.  His only assistive device was a single-point cane.  A May 2010 nurse summary shows that the Veteran was ambulatory.  

A VA examination report dated in January 2009 reveals that the Veteran had been prescribed braces for both of his feet to help alleviate the pain, but due to difficulty ambulating with both simultaneously, he was only able to wear one at a time.  The Veteran identified his left foot symptoms as pain, weakness, and lack of endurance associated with standing and walking.  His right foot symptoms were pain, swelling, stiffness, fatigue, weakness, spasms, and lack of endurance associated with standing and walking, and at rest.  The examiner found no evidence of instability or weakness of the left foot, but found evidence of painful motion, swelling, tenderness, and abnormal weight bearing.  There was no muscle atrophy of either foot.  The examiner noted that the Veteran has problems with walking due to pain.  However, the examiner noted that the Veteran is able to stand for 15 to 30 minutes; and he is able to walk between 1/4 mile and one mile.  The examiner observed a slight limp to the left.  

A November 2008 nurse summary shows that the Veteran was ambulatory.  A January 2008 orthopedic clinic note reveals that the Veteran was ambulating with an ankle-foot orthosis on his right ankle.  It was noted that the Veteran was fairly noncompliant with the use of orthotic devices because they prevented him from climbing ladders at work.  He was advised not to climb ladders.  Other restrictions were no prolonged standing, running, climbing, or prolonged walking.  

A September 2007 orthopedics note reveals that the Veteran was ambulating with an ankle-foot orthotic on the right and reported that he had good luck and is very content with the right side.  An April 2007 private report reveals daily pain and swelling requiring a compression garment.  A brace was fabricated for the right side.  The Veteran's gait was altered with a limp.  

The report of VA examination in December 2006 reveals that the Veteran had a severe antalgic gait with a limp to the right and that he walked cautiously in an attempt to avoid pain.  Private orthopedic records dated following the December 2006 VA examination indicate the use of compression garments (in addition to the orthotic braces) to help with activity-related swelling and daily pain.  

The evidence, as summarized in pertinent part above, reflects that the Veteran's post-surgical pes cavus deformities have resulted in severe functional limitations, such as near-constant pain, increased pain with use of the feet, development of stress fractures and fibromas, limitation of motion in the feet and ankles, and swelling with use of the feet.  There is also evidence that the Veteran has required the use of assistive devices such as orthotic braces and compression stockings to alleviate pain and swelling associated with his service-connected foot disabilities.  Occupationally, the Veteran has complained throughout this appeal of increased pain and functional limitations associated with performing his work duties.  And, in January 2009, the VA examiner indicated that the Veteran's foot disabilities have a "significant [occupational] effect."  Nevertheless, the evidence demonstrates that the Veteran still retains effective function of each foot.  This is demonstrated by repeated references to his ability to ambulate despite the presence of pain and other symptoms.  Significantly, as noted in the October 2010 physical therapy consultation, range of motion and strength of the feet were found to be functional for ambulation.  Accordingly, the weight of the evidence demonstrates that the criteria for a 40 percent rating under 38 C.F.R. § 4.63 are not met for either foot.

The Board has considered whether higher ratings are warranted under other diagnostic codes pertinent to the feet.  While there is evidence of pes planus in this case, the maximum rating for a bilateral condition is 50 percent; the maximum rating for a unilateral condition is 30 percent.  The same is true for pes cavus, under which the Veteran was originally rated.  Application of these codes or any other code pertinent to the feet would not be advantageous to the Veteran as ratings are not provided that are higher than those currently assigned.

The parties to the Joint Motion assert that the Board's finding in December 2010 that there was not loss of use of either foot did not address why, in light of the evidence of record regarding the severity of the Veteran's pain, the loss of pain that would be accompanied by amputation and use of prostheses would not equally serve the Veteran, such that the definition in 38 C.F.R. § 4.63 would be satisfied.  See, April 2009 statement describing severe pain, including that "[w]hen standing[,] the pain becomes unbearable and he is experiencing the effects of becoming crippled"; January 2009 treatment note describing need for crutches and immobilization when swelling increases.  

In essence, the suggestion of the parties is that the Board should consider the Veteran's foot pain outside of its effect on function.  However, this is inconsistent with VA law governing evaluation of joint disability.  See 38 C.F.R. § 4.40, 4.45, 4.59, Deluca.  The CAVC has held that, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 38; see 38 C.F.R. § 4.40.  Here, the evidence set out above excludes the possibility that the function of either foot was so impaired by pain or orthopedic factors as to be equally well served by an amputation stump with use of a suitable prosthetic appliance.  In fact, the clinical evidence reflects that, despite the presence of pain, the Veteran's feet are still functional for ambulation.  The assertion put forth in the Joint Motion that the theoretical relief of pain that might come from an amputation, to the extent this could ever be calculated in the abstract, should be considered in determining whether any effective function remains in the feet runs counter to longstanding precedent establishing that, while pain must be considered, its significance is in its demonstrable effect on function and not as an element of disability that can be evaluated and weighed in the abstract.  

To reiterate, the Board acknowledges that the Veteran experiences constant or near-constant pain in his feet, and that this pain, and other symptoms of the feet, affect and severely impair his use of the feet.  However, in spite of the Veteran's pain, he is still able to stand and ambulate.  Thus, he still retains effective function of each foot.  As effective function remains, the criteria for a 40 percent rating are not more nearly approximated than those for the current 30 percent rating.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against these claims, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Analysis of Rating for Left Foot Disability 
from May 25, 2005 through August 15, 2006.

As previously noted, in the January 2011 rating decision, which implemented the Board's December 2010 decision, the RO granted separate disability ratings for the right and left foot disabilities, with a 30 percent rating for the right foot, effective May 25, 2005, and a 30 percent rating for left foot, effective August 16, 2006.  The Board remanded the issue of the initial 10 percent rating for the left foot between May 25, 2005, and August 16, 2006, finding that there was insufficient evidence for that period.  The RO subsequently increased the rating for the left foot prior to August 16, 2006 to 20 percent.  While the Veteran did not respond to a request to provide the appropriate releases to obtain private records, the RO did obtain updated VA records.  

Under Diagnostic Code 5278 (pes cavus), acquired, a 30 percent rating is available with marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity, a 20 percent rating is available where all toes tend to dorsiflexion, there is limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads; a 10 percent rating is available where the great toe is dorsiflexed, there is some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads; a 0 percent rating is available for slight impairment.  38 C.F.R. § 4.71a, Diagnostic Code 5278.

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that, prior to August 16, 2006, the criteria for a 30 percent rating under Diagnostic Code 5278 for the left foot were not met.  In essence, while the evidence prior to August 15, 2006 shows significant symptoms for the right foot, in particular a fracture of the right 5th metatarsal in 2004, the evidence demonstrates that the left foot was not manifesting equivalent symptomatology at that time, but manifested symptoms of lesser severity than the right foot.  

Regarding the specific rating criteria for a 30 percent rating, while the Veteran was diagnosed with plantar fasciitis, there is no assertion of, and no clinical manifestation consistent with, marked contraction of the plantar fascia with a dropped forefoot or marked varus deformity.  Regarding hammer toes, the evidence indicates that not all of the toes of the left foot were hammer toes.  A June 2006 private treatment report from Kansas University Physicians reveals that the 2nd proximal interphalangeal joint was fixed in flexion, and there was some plantar prominence under the 3rd; however the fourth and fifth toes were fine.  

A VA examination in February 2006 reveals complaint of bone pain rated at 8 out of 10 in the morning, decreasing to 3-4 out of 10 after moving around some.  There was burning in the arch of the left foot and intermittent swelling.  The Veteran was not able to run, and his foot made it difficult to perform job duties requiring standing.  On examination, plantar flexion was measured to 40 degrees; dorsiflexion was to 10 degrees; eversion was to 10 degrees; and inversion was to 20 degrees.  There was mild pain with motion.  The diagnosis was pes cavus with chronic pain and decreased function.

A July 2005 report shows that the Veteran felt like he was developing a similar situation on the left as he had on the right.  Examination revealed a cavus foot with a partially correctible deformity.  A VA examination in August 2004 also revealed a cavus left foot as well as pain and tenderness.  An October 2004 examination, primarily for the right foot, revealed tenderness to the left foot, but specifically noted that the right foot was more affected than the left.  

An October 2005 urgent care note reflects a complaint of worsening left foot pain.  The Veteran reported that he had been on his feet more than usual four days prior and he heard a pop.  The Veteran was slowly ambulatory and in no acute distress.  There was swelling noted on the left lateral foot.  There was full range of motion of the toes.  An April 2006 emergency department note reveals that the Veteran's left 3rd toe was curling up underneath, which was a new symptom.  An August 2004 orthopedic consultation confirms that the Veteran's left foot pain was not as bad as his right foot.  

Regarding the criterion of very painful callosities, the report of VA examination in December 2006, which is not long after the period under consideration here, notes the presence of calluses on the lower end of each 5th metatarsal, which were not severe.  

In sum, based on the absence of pertinent symptomatology of marked contraction of the plantar fascia, dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity, the criteria for a 30 percent rating under Diagnostic Code 5278 were not more nearly approximated than those for the 20 percent rating.

As the Veteran's rating was eventually changed to Diagnostic Code 5284, the Board has also considered those criteria for the period prior to August 16, 2006, but finds that the criteria for a rating higher than 20 percent are also not met.  Under Diagnostic Code 5284 (foot injuries, other), a 30 percent rating requires severe foot impairment.  A 20 percent rating is assigned for moderately severe foot impairment.  A 10 percent rating contemplates moderate foot impairment.  As discussed above, with actual loss of use of the foot, the disability is to be rated at 40 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5284.

While the Board acknowledges that the Veteran's left foot was painful during this period, and that such pain impaired his use of the left foot, based on evidence indicating that only some of the toes were impaired by hammer toes, that the Veteran's pain, although at a high level in the morning would moderate after initial movement, that range of motion of the toes was full, and that, calluses, to the extent that they were present, were not severe, the Board finds that a severe foot injury was not present during this period.  In addition, while the Board acknowledges that the Veteran's right foot impairment was severe, the evidence shows that the Veteran's left foot was not as bad as his right foot.  As noted above, the August 2004 orthopedic consultation confirms that the Veteran's left foot pain was not as bad as his right foot.  In sum, and for the reasons stated, the Board finds that the criteria for a 30 percent rating under Diagnostic Code 5284 are not more nearly approximated than those for the 20 percent rating.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.   


Analysis of Ratings for Peripheral Neuropathy

In an October 2007 rating decision, the RO granted service connection for peripheral neuropathy of the lower extremities, and assigned separate 10 percent ratings for each lower extremity, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective November 6, 2006.  

Under Diagnostic Code 8520, an 80 percent rating is available for complete paralysis of the sciatic nerve such that the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost; a 60 percent rating is available for incomplete paralysis of the sciatic nerve that is severe, with marked muscular atrophy; a 40 percent rating is available for incomplete paralysis of the sciatic nerve that is moderately severe; a 20 percent rating is available for incomplete paralysis of the sciatic nerve that is moderate; a 10 percent rating is available for incomplete paralysis of the sciatic nerve that is mild.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that there is not moderate incomplete paralysis of the sciatic nerve, and that a rating in excess of 10 percent is not warranted for either lower extremity.  

In its December 2010 decision, the Board denied a higher rating for peripheral neuropathy of the lower extremities on the basis that, in light of its assignment of higher ratings for the feet, any higher rating for peripheral neuropathy, which the Veteran reports is experienced below the knee, would violate the amputation rule of 38 C.F.R. § 4.68.  The parties to the Joint Motion stipulated that the Board did not provide adequate reasons or bases in support of its reliance on the amputation rule to deny a higher rating.  The Joint Motion stipulates that the Board found a higher left leg rating legally impermissible under Section 4.68 because "[p]er the Amputation Rule, disabilities which approximate a below-the-knee amputation are entitled to no more than a 40[%] combined rating. 38 C.F.R. § 4.71a, [Diagnostic Code] 5165[.]"  As the Board recognized, however, the Veteran's left leg disabilities include a left knee disability.  Diagnostic Code 5165 contemplates a below-the-knee amputation, but the "elective level" referenced by section 4.68 would be above the knee if Appellant's left knee disability were properly considered.  As such, Diagnostic Code 5164 would be potentially applicable, because it permits a 60 percent- rating for an "[a]mputation not improvable by prosthesis controlled by natural knee action[.]"  38 C.F.R. § 4.71a, Diagnostic Code 5164.  According to the stipulation of the parties, "[i]f Diagnostic Code 5164 applies, then the Amputation Rule would not foreclose a higher left leg peripheral neuropathy rating."  The Board was, therefore, required to consider the applicability of Diagnostic Code 5164 and, if it found it inapplicable, provide adequate reasons or bases in support of that finding.  See Vogan v. Shinseki, 24 Vet, App. 159, 161 (2010) (holding that the Board erred by not considering a potentially applicable diagnostic code).

The Board has reviewed the provisions of Diagnostic Code 5164 and 38 C.F.R. § 4.68 and finds, as it did previously, that these provisions do not allow for a higher rating.  The fact that a 60 percent rating would be allowable for all disabilities from the knee down (the knee inclusive) still does not permit a rating higher than 40 percent for all disabilities below the knee.  In essence, consideration of Diagnostic Code 5164 would permit assigning a higher rating for the knee, such that the combined rating for all disabilities from the knee down (the knee inclusive) does not exceed 60 percent.  However, it does not permit violation of the amputation rule at any lower level.  

To put it another way, it is permissible for the combined ratings for all disabilities from the knee down (the knee inclusive) to exceed 40 percent, as long as that combination does not involve any group of disabilities below the knee that combine to form a rating above 40 percent.  In this case, the reference to the knee in the Joint Motion is something of a red herring.  Consideration of the Veteran's left knee disability does not permit the Board to assign a combined rating in excess of 40 percent below the knee, which is the issue in this appeal.  With the current 30 percent rating assigned for the Veteran's foot disability, and the current 10 percent rating assigned for peripheral neuropathy, the combined rating is 37 percent.  See 38 C.F.R. § 4.25.  This is permissible as it does not exceed the value established in Diagnostic Code 5165.  In the event that the Veteran's rating for peripheral neuropathy for either lower extremity were raised to 20 percent, the resulting combined rating would be 44 percent.  This violates the amputation rule at the below-the-knee level regardless of the assigned rating or the permissible rating from the knee down (the knee inclusive).  As noted above, Diagnostic Code 5164 would theoretically permit the assignment of a higher knee rating, if that issue were on appeal, but it does not permit the assignment of a higher below-the-knee rating.  

The Board acknowledges that, in a scenario where only the 30 percent rating for a single foot disability and a hypothetically increased 20 percent rating for peripheral neuropathy of a single lower extremity were considered, the combined 44 percent rating would ultimately be rounded down to 40 percent.  However, rounding down or up is only performed when all service-connected ratings have been combined, and is only necessary so that a final number divisible by 10 is achieved.  Under 38 C.F.R. § 4.25, rounding is not performed after each extremity is combined, or at any other time prior to the inclusion of all service-connected disabilities.  In this case, rounding does not provide a basis to circumvent the amputation rule.  As discussed above, the combined rating for the hypothetical scenario set out above would be 44 percent.  

In the alternative, the Board has considered the Veteran's peripheral neuropathy symptomatology against the rating criteria and finds that it is no more than mild in degree.  Therefore, a 20 percent rating is not warranted for either lower extremity.  In so finding, the Board notes that the Veteran's symptoms of peripheral neuropathy are primarily sensory in nature and result in no more than mild functional impairment.  A March 2012 wound care note reveals touch and vibratory sense diminished in the toes and distal feet.  Pulses were palpable, capillary filling time was normal.  Neurological evaluation in February 2012 revealed pedal sensation was present to light touch and monofilament test to distal digits.  A January 2012 orthopedic note reveals diminished pedal pulses bilaterally.  Positive capillary refill.  Pedal sensation was present to light touch.  In July 2011, monofilament testing showed 6 out of 10 in the right leg, 7 out of 10 in the left.  

The Veteran was afforded a VA examination in January 2009.  The Veteran described the symptoms of his peripheral neuropathy as loss of sensation and pain in the feet.  On examination of the lower extremities, temperature and color were normal.  Pulses were normal, and there were no ulcers.  Deep tendon reflexes were 2+ in the Achilles and patellae.  Babinski signs were normal.  The examiner found no vascular or skin abnormalities.  There was no muscle atrophy of either lower extremity.  There was no abnormal muscle tone.  There were no tremors, tics, or other abnormal movements.  No joint functions were affected.  Muscle strength was rated at 5 out of 5.  There was no weakness or decreased range of motion.  Sensation to pain and position were normal.  Sensation to light touch was decreased.  Knee and ankle reflexes were 2+.  Plantar (Babinski) reflexes were normal.  The examiner described a present neuralgia, but found that there was no paralysis or neuritis.  

A November 2008 orthopedic neurological assessment shows 2+ pedal pulses bilaterally, and capillary refill in 3 seconds bilaterally.  

A VA examination in August 2007 reveals decreased strength in the left lower extremity; strength was 4 out of 5.  There was no motor loss on the right; strength was 5 out of 5.  There was no muscle atrophy and no abnormal muscle tone.  There were no tremors, tics, or other abnormal movements.  Plantar reflexes were normal.  Patellar and ankle reflexes were 1+ on the left and 2+ on the right.  Symptoms attributed to peripheral neuropathy were weakness, stiffness, numbness, paresthesias, impaired coordination, and pain.

A private EMG report of August 2007 reveals no abnormalities of the tibialis anterior, gastrocnemius, vastus lateralis, extensor digitorum brevis, or gluteus medius.  There were also no abnormalities of insertional activity, spontaneous activity, motor unit potentials, or recruitment pattern.  The only abnormalities were in the left extensor digitorum brevis and adductor hallucis and the right extensor digitorum brevis.  

The report of VA examination in December 2006 reveals that pulses in the lower extremities were present and adequate; there was no skin breakdown.  Regarding muscle strength, the Veteran could rise on his toes and heels with some difficulty.  

An October 2004 orthopedic consultation revealed some decrease in sensation in both feet.  On the right, the Veteran felt approximately 20 percent of the points touched with a monofilament; on the left, he felt approximately 75 percent.  

An August 2004 orthopedic surgery consultation reveals that the Veteran had sensation throughout both feet.  Strength was 5 out of 5 in the lower extremity muscles; knee and ankle reflexes were 2+.  In testing of plantar reflexes, the toes were downgoing.  The Veteran had bounding pulses in both feet, which were very warm and had brisk capillary refill.  

In sum, the evidence pertinent to the Veteran's peripheral neuropathy demonstrates symptoms that are primarily sensory in nature, with mixed findings regarding strength, but which at worst show only mild decrease in strength.  In essence, the evidence demonstrates no more than mild functional impairment due to peripheral neuropathy.  The criteria for a 20 percent rating are not more nearly approximated than those for a 10 percent rating. 

As discussed above, the amputation rule limits the ratings allowed for lower extremity peripheral neuropathy to the current 10 percent level.  Alternatively, the Board has found that the schedular criteria for a rating in excess of 10 percent are not met.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against these claims, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Extraschedular Consideration

Finally, the parties to the Joint Motion stipulated that the Board failed to provide adequate reasons or bases in support of its finding that referral for extraschedular consideration was not warranted because it did not correctly apply the analysis required by Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Board's reliance on the symptoms of the service-connected foot disabilities is misplaced because it does not adequately explain how it determined which foot symptoms are attributable to which disability and, if no such distinction could be made, whether the entirety of the foot symptoms should be considered in determining the disability picture for purposes of the extraschedular analysis.  

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation.  Schafrath, 1 Vet. App. at 593.  The question of an extraschedular rating 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 an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if 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).  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  

Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun, 22 Vet. App. at 115, aff'd 572 F.3d 1366 (Fed. Cir. 2009).

In this case, the Veteran's foot symptoms include impairment of ambulation, weakness, fatigue, instability of the feet, and primarily pain that is associated with walking, standing, and is constant to some degree.  The January 2009 VA examiner noted that the problems associated with the foot disabilities were foot pain.  The significant occupational effects were weakness, fatigue, decreased strength, and pain.  These effects were expected to result in increased absenteeism.  The Veteran reported 3 weeks lost during the prior 12 month period.  Further, the foot disabilities resulted in mild effect on chores and traveling, moderate effect on shopping, sports, and recreation, and severe effects on exercise.  There were no effects on feeding, bathing, dressing, toileting, grooming, or driving.  

The Board finds that the schedular rating criteria contemplate all of the Veteran's service-connected foot disabilities.  The rating criteria for foot injuries and pes cavus specifically provide for ratings based on the presence of limitation of function of the feet, including due to pain, weakness, fatigue, and incoordination.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca.  Such factors are explicitly part of the schedular rating criteria.  The fact that there is an impact on employment is also contemplated by the rating schedule.  Van Hoose v. Brown, 4 Vet. App. 361, at 363 (1993) (the disability ratings assigned are recognition that industrial capabilities are impaired).  Consideration of whether there is marked interference with employment is not reached unless it is first determined that the rating criteria do not contemplate a veteran's disability symptomatology.  Thun, supra.  Here, the Board has found that they do.  Moreover, because the rating schedule provides a rating for complete loss of use of the feet where such symptomatology is shown, the Board finds that the rating schedule for the feet is adequate to rate the Veteran's foot disabilities.  

Regarding peripheral neuropathy, the January 2009 VA examiner described the primary symptom associated with the disability as foot pain.  This caused mild impairment of shopping, sports, and recreation, and moderate impairment of chores and exercise.  There was no impairment regarding traveling, feeding, bathing, dressing, toileting, or grooming.  

The report of VA examination in August 2007 reveals impacts of decreased stamina and concentration, weakness, fatigue, and decreased strength.  The Veteran would be unable to climb a ladder.  Chores, shopping, exercise, sports, and recreation would be prevented.  There was severe impact on traveling, bathing, and dressing; there was no impact on feeding, toileting, or grooming.  

The Board finds that the rating criteria specifically contemplate neurological impairment of the lower extremities and its associated effects, such as diminished sensation, reflexes, and strength.  The rating schedule also allows for higher ratings than are currently assigned where the symptomatology of the appropriate level is shown.  Accordingly, the Board finds that the rating schedule for neurological disorders is adequate to rate the Veteran's peripheral neuropathy of the lower extremities.  

Because the schedular rating criteria are adequate to rate the disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1). 

Remand Compliance

As noted above, this appeal involves a remand by the Board for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

In this case, the RO substantially complied with the Board's July 2012 remand instructions.  The Board instructed the RO to obtain the names and addresses of all medical care providers who treated the Veteran for his bilateral foot disorder since August 2006.  Specifically, the Veteran should be asked the exact dates for treatment at the Kansas University Physicians and must provide a release to obtain complete medical records from this facility.  It was noted that VA will assume that the record is complete if the Veteran fails to reply.  The RO sent the Veteran a letter in July 2012 to his address of record.  The letter was not returned as undeliverable, and to date, the Veteran has not replied.  The Veteran's representative submitted a letter in January 2013 that it had no additional argument and that adjudication of the claims should proceed.  

VA's duty to assist in developing the facts and evidence pertinent to a veteran's claim is not a one-way street, nor is it a blind alley.  It is the responsibility of veterans to cooperate with VA.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In light of the Veteran's failure to provide necessary cooperation in obtaining the requested records, and the instruction of his representative to continue with adjudication of the claims, the Board finds that no additional effort to obtain the records is necessary.  

As the Board's instruction that the RO should obtain the requested records, this was contingent on securing the necessary release from the Veteran.  The Board's instruction to obtain current VA records was completed, as noted in the December 2012 Supplemental Statement of the Case.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The CAVC issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

Because each issue arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); 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).

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions.

The parties to the Joint Motion stipulated that, in its decision, the Board bifurcated the left foot claim into the issues of the appropriate ratings pre-and post-August 16, 2006.  In remanding the pre-August 16, 2006, issue, the Board found that treatment records from Kansas University Physicians (KUP) pertaining to the Veteran's left foot surgery were relevant and necessary for adjudication.  The Veteran, however, continued to receive treatment from those physicians after August 2006 for both feet and the entirety of the records of that treatment are not of record.  Thus, the issue of a left foot rating higher than 30-percent for the period beginning August 16, 2006, should also have been remanded so that all KUP records may be obtained and considered.  As was discussed above, the Board's remand in July 2012 requested that the Veteran cooperate in providing releases to obtain these records, and he did not respond.  Accordingly, the Board has complied to the extent possible with this stipulation of the parties to the Joint Motion.  

In addition, the Veteran was afforded appropriate and adequate VA examinations to address the manifestations and severity of his service-connected disabilities.  Indeed, the service-connected disabilities were evaluated multiple times throughout this appeal, including the most recent examination of his service-connected disabilities in January 2009.  

Review of the examination reports reveals information relevant to the diagnostic criteria used to evaluate his disabilities.  There is also sufficient discussion as to the functional impact of each disability and its related symptoms on the Veteran's daily life and employment.  

The examinations were adequate because each was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).


ORDER

A disability rating in excess of 20 percent for left foot disability from May 25, 2005 through August 15, 2006 is denied.  

A disability rating in excess of 30 percent for left foot disability since August 16, 2006 is denied.  

A disability rating in excess of 30 percent for right foot disability is denied.  


A disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied.

A disability rating in excess of 10 percent peripheral neuropathy of the right lower extremity is denied. 



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs