Citation Nr: 1315076 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-34 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased evaluation for residuals of an injury to the right first, second, and third toes, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from December 1955 to December 1958 and, subsequently, in the Army Reserves. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2011, the Veteran testified at a Travel Board at the RO before a Veterans Law Judge who is no longer employed by VA. The Veteran was afforded the opportunity for another hearing regarding his claim, but to date there has been no response from the Veteran, so the Board must conclude that he is not desirous of another hearing on his claim. In April 2011 and November 2012, the Board remanded this claim to the RO for additional action. According to the Veteran's electronic file (Virtual VA), there is additional medical evidence of record, which the RO considered, for consideration in support of this claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In a written statement submitted in September 2007 and during his February 2011 hearing, the Veteran raised claims for service connection for leg, hip, ankle and back disorders secondary to his service-connected right foot disability. The Board refers these matters to the RO for appropriate action. FINDING OF FACT Residuals of injury to the Veteran's right first, second, and third toes cause moderate loss of right foot function. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation for injury to the right toes, currently rated 10 percent disabling, are not 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, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. During the course of this appeal, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. Subsequently, however, the United States Court for the Federal Circuit (Federal Circuit) reviewed Vazquez-Flores on appeal and held that the statutory scheme did not require the notification noted above. The Federal Circuit explained that the notice described in 38 U.S.C.A. § 5103(a) need not be veteran specific and that daily life evidence was not statutorily mandated. The Federal Circuit thus vacated the Court's decision to the extent it required notification of alternative DCs and the need to submit potential daily life information on the basis that such evidence was not needed for proper claims adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO in this case provided the Veteran VCAA notice by way of letters dated in January 2007, March 2009, June 2011, July 2011 and December 2012. The RO failed to send most of the letters in the preferred sequence, after, rather than before, initially adjudicating the claim. The RO cured this timing defect later, however, by readjudicating the claim in a February 2013 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law. Therein the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate it, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claim pursuant to this duty. The RO also provided him all necessary information on effective dates in the event an increased evaluation is granted. As well, the RO identified the evidence it had received in support of the Veteran's claim, the evidence it had requested, but not yet received (records from Dr. Bealeo) and the evidence it was responsible for obtaining. The RO indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the sources of it. The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. When a veteran testifies at a hearing before the Board, as did the Veteran in this case, he is entitled to additional notification. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the Veterans Law Judge (VLJ) who chairs a hearing must satisfy two notification duties, including: (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. During the Veteran's February 2011 hearing, another VLJ explained the issue on appeal and elicited testimony from the Veteran focusing on the severity of his foot disability, questioned him regarding the name of the private physician who reportedly treated his foot disability, and also questioned whether that physician shared with the Veteran his opinion regarding the nature of his foot disability. She did not specifically suggest the submission of any other evidence as required by Bryant. That notwithstanding, the Board does not believe a remand for further notification is necessary. Rather, given the representative's discussion during the hearing and action the Board took subsequent to the hearing, any notification error is harmless and non-prejudicial to the Veteran and does not affect the essential fairness of this adjudication. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). During the hearing, the representative discussed in detail the nature of the Veteran's right foot symptoms and noted that these symptoms are moderately severe, satisfying the criteria for an increased evaluation. By the representative so testifying on the Veteran's behalf and in his presence, it is reasonable to assume that the Veteran had knowledge of the nature of this claim and what was needed to substantiate it. In addition, following the hearing, in Remands dated April 2011 and November 2012, the Board acknowledged the private physician to whom the Veteran referred during his hearing and noted that that physician's records needed to be secured in support of this claim. By so doing, the VLJ not only advised the Veteran regarding overlooked evidence, but offered assistance in helping him to obtain it. Similarly, the Board noted outstanding VA treatment records that needed to be secured in support of this claim and directed the RO to associate such records with the claims file. As well, the Board directed the RO to afford the Veteran a VA examination, during which the examiner was to offer an opinion as to whether the Veteran's right foot disability caused moderate, moderately severe or severe loss of right foot function. The VLJ's directions in this regard constitute an explanation of the nature of this claim and further notice of the evidence needed to substantiate it. The Veteran has had a meaningful opportunity to participate in the development of this claim by receiving all essential notice. Neither the Veteran nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements set forth in Bryant. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In this case, the RO attempted to obtain all evidence the Veteran identified as being potentially pertinent to his claims, including service and private and VA post-service treatment records. With regard to Dr. Bealeo's records, however, the RO's attempts were unsuccessful. After requesting the Veteran to authorize their release in writing, the Veteran did not respond, thereby hindering the RO's ability to assist further. The Veteran does not allege there are outstanding records still needing to be obtained in support of this claim. The RO further assisted the Veteran by affording him a hearing, during which he testified in detail regarding his right foot symptoms, and multiple VA examinations, during which examiners discussed the severity of his right foot disability. The Veteran is not challenging the adequacy of the VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and Virtual VA files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran submitted or which VA associated with the claims file on the Veteran's behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, below, the Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). A. Schedular Evaluation The Veteran seeks an evaluation in excess of 10 percent for his right foot disability (residuals of an injury to the first, second and third right toes). He claims that the 10 percent evaluation assigned this disability does not accurately reflect the severity of his right foot symptoms and that the evidence is at least in equipoise regarding the assignment of a 20 percent evaluation based on moderately severe impairment. According to written statements he and his representative submitted during the course of this appeal and his February 2011 hearing testimony, VA never helped him after he broke three of his toes and now, because he has developed arthritis in the right foot, there is no cure. Since then, he has experienced daily right foot pain that comes and goes, stiffness and swelling, symptoms that necessitate chiropractic care and the use of an analgesic balm and a walking aid (cane or crutch). Allegedly, following service, the Veteran pursued self employment (refrigeration and air conditioning ) so that he would have flexibility to take time off given his right foot problems. He asserts that these problems flare up three or four times weekly, during which time he has to sit down and take pressure off his foot, and hinder his ability to stand for a prolonged period of time and walk up and down stairs. Disability evaluations are determined by evaluating the extent to which a claimant's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The RO has evaluated the Veteran's right foot disability as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5284 (2012). DC 5284 provides that a 10 percent evaluation is assignable for moderate disability due to foot injury. A 20 percent evaluation is assignable for moderately severe disability and a 30 percent evaluation is assignable for severe disability. Based on these criteria, the preponderance of the evidence is against the assignment of an increased evaluation in this case. The Veteran's right foot disability picture does not more nearly approximate the schedular criteria for an increased evaluation under DC 5284. The Veteran filed his claim for an increased evaluation for a right foot disability in January 2007. He underwent a VA examination in association with that claim in May 2007 and, on that date, he reported constant pain, elicited by physical activity, relieved by rest, medication and analgesic balm and, temporarily, by a TENS unit. He also reported that, when standing and walking, he has pain and fatigue. The examiner noted an abnormal gait and posture affected by pain, normal range of motion, but with pain, and additional limitation on repetitive use but not with regard to motion. X-rays revealed a right small posterior plantar calcaneal spur, but no other abnormalities, including arthritis. In October 2007, the Veteran presented to his chiropractor complaining primarily of back pain, but also mentioned pain in his right 1st, 2nd and 3rd toes. He described the pain as moderate, diffuse, worse (slightly increased) with movement, and more noticeable in the morning. The chiropractor noted no right foot abnormalities. The next day, the Veteran returned for treatment, characterized his right foot symptoms as mild to moderate and noted that his pain had remained the same. During follow-up visits through November 2007, he described his foot pain as slightly improved or decreased. At the end of November 2007, he reported that his foot pain was gone. According to a May 2011 written statement from that chiropractor, from October to December 2007, he treated the Veteran for low back and foot pain and the Veteran did well as a result of such care. Allegedly, the chiropractor has not seen the Veteran since, but noted that his condition is chronic, resulting in periodic exacerbations due to its "degenerative nature/condition of the spine." There are VA outpatient treatment records on Virtual VA, but none indicate that the Veteran sought right foot treatment at any time between November 2007 and December 2010. In December 2010, he underwent x-rays of his right foot, which showed the same spur, a deformity of the big toe, likely from prior trauma, and partial ankylosis of the pinky toe, a normal variant. In January 2013, during a VA outpatient treatment visit, the Veteran reported pain in his right pinky toe and hallux and left hip. A podiatrist noted that the Veteran's in-service fracture had healed very well with no displacement or long-term effects and that the Veteran had very good range of motion of the right foot digits and no edema, erythema or tenderness. He also noted that the Veteran had a fused distal and middle phalanx on the right fifth toe, which was hereditary. During a VA examination conducted in January 2013, an examiner cited the findings recorded during the previous outpatient visit and noted 0 degrees of dorsal extension in the right second toe secondary to adaptive bone changes and an accessory bone ossicle in the area of the 2nd and 3rd toes, present at birth. He indicated that the bone changes could be from prior trauma, but that it was not likely per x-rays, and that he believed that they had developed slowly and progressively from every day wear and tear. He noted no pain on motion of the 2nd and 3rd toes. He objectively confirmed pain in the 5th toe, but noted that the 5th toe condition is hereditary and that the Veteran had no additional motion loss in his 1st, 2nd or 3rd toes or increased weakness or fatigability secondary to the hereditary condition. The examiner also noted that the daily pain in the Veteran's right hallux and nonservice-connected 5th toe during questionable flare-ups or on repeated use would not limit his functional ability. He concluded that the Veteran's service-connected right foot/toe disability results in moderate loss of function with no signs of walking difficulties or foot pain when ambulating 120 feet from the waiting room to his office. The Veteran is service connected for his 1st, 2nd and 3rd toes only. As previously indicated, any disability due to the 5th toe is hereditary and not part of the service-connected disability. That notwithstanding, both the Veteran and the most recent VA examiner considered all right foot symptoms, including those resulting from the 5th toe abnormality, in characterizing those symptoms as mild to moderate and moderate. Neither the Veteran nor any medical professional has described the right foot disability at issue in this case as more than moderate. The Board finds that the right toe disability is no more than moderate. Specifically, during the January 2013 VA outpatient treatment visit the podiatrist noted that the Veteran's in-service fracture had healed very well with no displacement or long-term effects and that the Veteran had very good range of motion of the right foot digits and no edema, erythema or tenderness. The VA examiner in January 2013 further noted that the Veteran did not show any signs of difficulty walking or any signs of foot pain when he walked 120 feet, from the waiting room to the office. There was no pain on motion of the 2nd and 3rd toes, and the Veteran had no additional motion loss in his 1st, 2nd or 3rd toes or increased weakness, incoordination, or fatigability. The examiner acknowledged that Veteran's complaints of daily pain in the right hallux during questionable flare-ups or on repeated use, but stated that this would not limit his functional ability. Even with consideration of the Veteran's complaints of pain, the examiner concluded that the service-connected right foot/toe disability results in moderate loss of function. Although the evidence suggests that the Veteran experiences painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The Board recognizes that the rating schedule is designed to accommodate changes in condition and that the Veteran may be awarded a different evaluation in the future should his right foot disability picture change. 38 C.F.R. § 4.1. At present, however, the 10 percent evaluation is the most appropriate given the medical evidence of record. The Board thus concludes that the preponderance of the evidence is against the Veteran's claim, and the schedular criteria for entitlement to an increased evaluation for injury to the right toes are not met. B. Extraschedular Evaluation The Board has also considered whether referral for an extraschedular rating is appropriate. In this regard, the Board notes that ratings are generally based on average impairment, and that the rating schedule represents, as far as is practicable, the average impairment of earning capacity. See 38 C.F.R. § 3.321(a), (b) (2012). However, to afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b) (2012). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. at 115-16. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, and is therefore found to be inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Id. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Veteran's right toe symptoms primarily involve pain, stiffness, fatigue, swelling, and complaints of difficulty standing and walking. Such impairment is specifically contemplated by the rating criteria, i.e., moderate disability of the foot. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5284. Accordingly, the Board finds that the Veteran does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. Therefore, the Board concludes that referral for consideration of an extraschedular rating is not warranted in this case. ORDER An increased evaluation for injury to the right toes, currently rated 10 percent disabling, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs