Citation Nr: 1314786	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  08-04 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for post-operative residuals of left foot fracture (left foot disability) prior to March 25, 2009, and higher than 40 percent therefrom.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and His Spouse


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1978 to October 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

This case came before the Board in September 2010, when it was remanded for additional development.

In May 2010 and May 2011, the Veteran appeared at Travel Board hearings before two of the undersigned Veterans Law Judges.  A transcript of each of these hearings is in the claims file.  Inasmuch as the Veteran has presented testimony on the current issue before two separate Veterans Law Judges, the law requires that a panel decision signed by not less than three members of the Board be issued.  38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3.  In accordance with the Court's ruling in Arneson v. Shinseki, 24 Vet. App 379 (2011), the Veteran was offered the option of an additional hearing held before the third Veterans Law Judge whose signature appears on this decision.  When no response was received to the November 2011 letter, the Board found that the Veteran had waived his right to a third hearing.
 
This case was most recently before the Board in April 2012, when it was remanded for further development, to include obtaining outstanding medical records and providing the Veteran a current VA examination.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998). 




FINDING OF FACT

From June 1, 2008, the Veteran's left foot disability has been characterized by functional use of his left foot equivalent to that of an amputation stump with a suitable prosthetic appliance; it is at the maximum extent of disability.


CONCLUSION OF LAW

The criteria for a 40 percent disability rating, and no higher, have been met since June 1, 2008.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.68, 4.71a, 4.73 Diagnostic Codes 5165-5167, 5173 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the 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).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
Therefore, no further notice is needed under VCAA.

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the Veteran was sent a letter in March 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, after the March 2008 communication, the claim was readjudicated in February 2013.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him 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 therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at May 2010 and May 2011 hearings before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's April 2012 remand, the RO obtained relevant outstanding VA treatment records for the specified time periods.  In addition, VA provided the Veteran with a medical examination in May 2012.  This examination contained all information needed to rate the disability, especially when considered in conjunction with earlier VA examinations in January 2005 and March 2009.  Indeed, the examiners reviewed the objective evidence of record and documented the Veteran's current complaints.  Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus, VA has complied with the April 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At both hearings the undersigned Judges identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  Ultimately the claim was remanded for a new examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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).

Assigning Disability Ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  Here, the RO originally assigned staged ratings for the Veteran's left foot disability.  After a review of the record, the Board agrees that staged ratings are appropriate, but disagrees as to the date of the assigned higher rating.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Musculoskeletal disabilities are primarily rated on degree of function, which in itself depends largely on the range of motion in a specific joint or body part.  In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 must be considered.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

When a specific medical condiiton is not listed in the regulations, it is customary to rate that disability by analogy under the criteria for a closely realted disease or injury which is similar in terms of the functions affected, the anatomical location of the injury or disability, and the symptomaology.  See 38 C.F.R. § 4.20.

In this instance, the Veteran's left foot disability has been rated as analogous to amputation or loss of use of the foot of lower leg.  Under the applicable Diagnostic Codes, 5165-5173, varying degrees of loss of the toes or foot are rated between 10 and 40 percent.  A disability rating of 40 percent is assigned for both loss of use of a foot and amputation of the forefoot proximal to the metatarsal bones, or an even amputation of the leg below the knee which permits the use of a prosthesis.  38 C.F.R. § 4.71a.  Also, under Diagnostic Code 5284, foot injuries are rated as moderate, moderately severe, or severe, with a severe injury assigned a 30 percent disability rating.  Where there is acutal loss of use of the foot, a 40 percent rating should be assigned.  38 C.F.R. § 4.73.

The Board notes that consideration of entitlement to a higher rating is subject to 38 C.F.R. § 4.68 (i.e., the amputation rule) which provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed).  Under Codes 5165, 5166, and 5167 (for the lower extremity), amputation below the knee permitting a prosthesis, amputation of the forefoot proximal to the metatarsal bones, or amputation of the foot with loss of use warrants a 40 percent rating.  38 C.F.R. § 4.71a.  Therefore, the amputation rule holds that the combined evaluation for disabilities of a lower extremity below that knee shall not exceed 40 percent.  38 C.F.R. § 4.68.

Facts 

On VA examination in January 2005, the Veteran reported that he had undergone surgery in 2004 to replace the screws used in the fusion of his left foot.  He currently wore custom orthotics and supportive shoes.  He reported pain and weakness in the left foot, with increased pain after walking more than one block or standing more than 15 minutes.  On physical examination there was overlying edema and tenderness of the left foot.  He had very limited range of motion in the left ankle and subtalar joint, but still had normal muscle strength.  He was able to stand on his toes.  X-rays showed significant arthritis with spurring.  The examiner noted that the Veteran had a rigid foot which would continue to require custom orthotics and supportive shoe wear.  Neurologically, there was hypersensitivity around the lateral calcaneus of the left foot.  

On October 2006 VA examination, the Veteran reported wearing custom orthotics and supportive shoes, but noted he was experiencing increased discomfort and swelling in his left foot and ankle.  He described weakness and fatigability at times, as well as painful motion, swelling, and tenderness, and he was only able to walk half a block.  He had a normal alignment of the Achilles tendon.  There was hypersensitivity in the area of his scars and edema of the foot and ankle, with normal muscle strength.  His range of motion was significantly limited, with only about 2 degrees of ankle dorsiflexion and 0 degrees of inversion and eversion of the subtalar joint, which was completely fused and rigid.  He was able to stand on his toes.  X-rays showed a fusion at the subtalar joint level and significant midfoot degenerative changes.  He required custom orthotics and supportive shoe gear, which would significantly inhibit his ability to work.  

In April 2008 the Veteran underwent additional surgery on his left foot to remove hardware implanted during the 1990s.  Removal of the final screws in the site of the subtalar fusion was accomplished.  At that time he was issued a pair of Canadian crutches due to his abnormal gait.  During his convalescence from surgery, he received temporary total disability benefits under 38 C.F.R. § 4.30 from April 2, 2008 through June 1, 2008.

On March 2009 VA examination, the Veteran complained of pain, weakness, and fatigability in the left foot.  Range of motion testing caused pain in the left subtalar joint and he had pain along the dorsal aspect of his foot.  He had undergone multiple surgeries, most recently in April 2008, to remove hardware implanted in the 1990s.  He reported that he was not able to walk eight steps without having pain and that the pain continued even when he was not walking.  He used Canadian crutches to walk and had an ataxic gait.  He was unable to work due to his difficulty in walking or bearing weight without pain.  The orthopedic examination showed pain on palpation and with range of motion, including inversion and eversion.  He was unable to do toe raises when weight-bearing.  He had good sensation in his left foot, but X-rays showed extensive dorsal spurring.  He had tenderness along the dorsal and lateral aspects of the left foot and atrophy of the plantar fat pad with prominent metatarsal heads.  The examiner believed that an increased disability rating was warranted in light of the residual effects from the many surgeries performed since the last examination.

On November 2010 VA examination, the Veteran reported subjective constant pain and weakness in his left foot; he used Canadian crutches for ambulation and a supportive shoe as well.  He was only able to walk about 50 feet before the pain became unbearable and he was unable to stand for any length of time.  There was evidence of abnormal weight-bearing and an abnormal alignment of the Achilles tendon.  On physical examination, his sensation was intact, but muscle strength was decreased.  Left ankle range of motion was 8 degrees dorsiflexion with crepitus, and 0 degrees of eversion and inversion.  There were degenerative changes in the left ankle and mid foot on X-rays.  The examiner noted that the Veteran had minimal function in his left foot; it was basically serving only as a scaffold to support his weight.  From a functional standpoint, there was no subtalar joint movement and ankle movement was reduced and painful.  The examiner opined that the Veteran's left foot condition would preclude him from any gainful employment requiring standing or ambulation, and that his daily life was limited with respect to exercise and walking, especially due to pain.  The examiner further expressed that the Veteran's functional use of his left foot was the equivalent of what it would be if amputated and replaced by a suitable prosthetic appliance.

A March 2012 VA clinical record contained in Virtual VA reflects complaints of constant throbbing pain in the left foot.  He had been issued a brace but it was uncomfortable to wear.  Earlier outpatient records further indicate the use of orthotics and reflect complaints of left foot pain, exacerbated by weight bearing.

On May 2012 VA examination, the examiner noted a diagnosis of metatarsalgia in 1985.  There had been multiple surgeries for the left foot disability.  The Veteran used a brace constantly to support his foot and a cane for support when walking.  X-rays showed degenerative or traumatic arthritis in multiple joints of the left foot and a mid-foot fusion.  The examiner described the Veteran's left foot disability as moderately severe, and stated that it rendered him unemployable, but did not feel that his condition was so severe that an amputation with prosthesis would serve the Veteran equally well.  

Analysis

Based on the evidence set forth above, the Board finds that a disability rating in excess of 30 percent for left foot disability is not warranted prior to the date of the Veteran's surgery to remove hardware from his left foot.  Prior to that surgery, the Veteran still retained normal muscle strength in his left foot, as shown on VA examination in 2005 and 2006, and was able to stand on his toes.  Also, before the surgery, the Veteran used an orthotic and a supportive shoe, but did not require any additional assistive devices.  His walking and standing were limited by pain, which resulted in limitation of functioning at work as well as in daily life.  As such, the appropriate rating prior to the surgery is one of 30 percent for a severe left foot disability in accordance with Diagnostic Code 5284.

Since the surgery, the Veteran has been obliged to sue either Canadian crutches or a cane in order to support his left leg when he walks.  The VA examiner in 2009 offered the opinion that the Veteran's disability had worsened and he should be afforded a higher disability rating, in large part because of the additional surgery required on the Veteran's left foot.  The Board finds that the rationale of this opinion makes clear that the change in the Veteran's level of functioning was the result of the surgery provided him.  As such, it is logical and proper to use the date following the end of convalescent benefits from that surgery as the date of the change or worsening justifying an increased disability rating for the Veteran's left foot.  Inasmuch as the Veteran received temporary total disability compensation during his surgical convalescence, the effective date of any increase would be the date that the 30 percent disability rating was reinstated, or June 1, 2008.

The Board notes the opinion of the VA examiner in May 2012 that the Veteran's left foot disability did not more nearly approximate the level of disability of an amputation with prosthesis.  However, the Veteran's disability picture at the time of that examination was virtually unchanged from that at the November 2010 examination.  The examiner in November 2010 noted that the Veteran's left foot at present served the function of a scaffolding to support his weight only, which is the same as that afforded by a prosthetic.  The Veteran's gait is ataxic and he requires both a foot brace and an assistive device to walk the short distances he is capable of travelling.  Therefore, the Board finds that the Veteran's left foot disability since the most recent surgery most closely approximates the maximum level of disability, as of June 1, 2008.

Where the Veteran in this case has been assigned a disability rating of 40 percent for his left foot disability, effective in June 2008, a higher disability rating cannot be assigned pursuant to 38 C.F.R. § 4.68.  In order to assign a higher disability rating, under § 4.68 (and Code 5166), the symptoms would have to be equivalent to those wherein the elective site of amputation was the middle or lower thirds of the thigh, or leg amputation with a defective stump and a recommendation for a thigh amputation.  As the evidence does not show any pathology above the Veteran's lower leg, 38 C.F.R. § 4.68 precludes the assignment of a rating in excess of 40 percent.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

Extraschedular Rating

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this instance, the claim with respect to the left foot disability was previously considered and referred for extraschedular consideration by the Director of VA's Compensation and Pension Service.  In January 2011 the Director found that extraschedular consideration was not warranted.  While there have been several changes in circumstance since that determination, the Board notes that none of them indicate the need for further review in terms of extraschedular consideration for this disability.  Specifically, the left foot disability has been determined herein to have reached the maximum allowable disability rating as of June 1, 2008, which also triggers the award of special monthly compensation for loss of use of the left foot as of that date.  In addition, separate disability ratings have been afforded for the Veteran's left foot surgical scars, as well as his low back and right hip disabilities caused by his left foot disability.  Also, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been awarded, taking into account the specific additional functional limitations imposed by the Veteran's left foot disability and its associated conditions.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to a disability rating higher than 30 percent for a left foot disability prior to June 1, 2008 is denied.

Entitlement to a disability rating of 40 percent, and no higher, for a left foot disability is granted as of June 1, 2008, subject to the laws and provisions governing the award of monetary benefits.


__________________________                                _______________________
        Jonathan B. Kramer			        Cheryl L. Mason
       Veterans Law Judge, 			      Veterans Law Judge,
  Board of Veterans' Appeals			Board of Veterans' Appeals


______________________________
Eric S. Leboff
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs