Citation Nr: 1316762 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 08-00 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a schedular rating higher than 10 percent for residuals of a stress fracture of the right fifth metatarsal. 2. Entitlement to a schedular rating higher than 10 percent for residuals of a stress fracture of the left fifth metatarsal. 3. Entitlement to an extra-schedular rating for residuals of a stress fracture of the right fifth metatarsal. 4. Entitlement to an extra-schedular rating for residuals of a stress fracture of the left fifth metatarsal. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1999 to September 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011 the Board remanded the claims for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims for extra-schedular ratings for residuals of stress fractures of the right and left fifth metatarsals are REMANDED to the RO via the Appeals Management Center. FINDINGS OF FACT 1. The stress fracture residuals of the right fifth metatarsal equate to moderately severe malunion or nonunion of the metatarsal bones, but do not more nearly approximate or equate to severe malunion or nonunion of the metatarsal bones. 2. The stress fracture residuals of the left t fifth metatarsal equate to moderately severe malunion or nonunion of the metatarsal bones, but do not more nearly approximate or equate to severe malunion or nonunion of the metatarsal bones. CONCLUSIONS OF LAW 1. The criteria for a schedular rating of 20 percent for stress fracture residuals of the right fifth metatarsal have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5283 (2012). 2. The criteria for a schedular rating of 20 percent for stress fracture residuals of the left fifth metatarsal have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5283 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- adjudication VCAA notice by letter dated in October 2006. The Veteran was notified of the evidence needed to substantiate a claim for increase, namely, a worsening in severity and the effect on employment. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and private medical records. The Veteran was afforded VA examinations. As the reports of the VA examinations are based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Policy Disability evaluations are 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for a Disability of the Feet Rating factors for a disability of the musculoskeletal system include functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria The Veteran filed his current claims for increase in August 2006. The disabilities are each rated 10 percent under Diagnostic Code 5283. Under Diagnostic Code 5283, the criterion for a 10 percent rating is moderate malunion or nonunion of the metatarsal bones. The criterion for a 20 percent rating is moderately severe malunion or nonunion of the metatarsal bones. The criterion for a 30 percent rating is severe malunion or nonunion of the metatarsal bones. Another potentially applicable Diagnostic Code is Diagnostic Code 5284. Under Diagnostic Code 5284, the criterion for a 20 percent rating is a moderately severe foot injury. The criterion for a 30 percent rating is a severe foot injury. The words "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to decide the rating. 38 C.F.R. § 4.6. Evidence Private medical records show that in August 2006 the Veteran complained of bilateral foot pain that limited his activities. Examination showed tenderness over the base of both fifth metatarsals. There were 20 degrees of dorsiflexion and 50 degrees of plantar flexion in each ankle. X-rays showed bilateral fifth metatarsal fractures. On VA examination in October 2006, the Veteran complained of constant localized pain in areas of the fifth metatarsals. The pain could be elicited by physical activities and was relieved by medication. The Veteran described difficulty standing, walking, and running for long periods. On examination, gait and posture were within normal limits. There were 20 degrees of dorsiflexion and 45 degrees of plantar flexion in each ankle. The VA examiner noted that pain would additionally limit the function of the right and left feet after repetitive use, however the additional limitation was described as zero degrees. There was tenderness of each foot. The VA examiner noted that the Veteran had no limitation with standing and walking and did not require any support in his shoes. X-rays of each foot showed incomplete fusion of growth centers at the base of the fifth metatarsal, but no fractures. The diagnosis was subjective history of fracture of each fifth metatarsal joint with objectively painful range of motion and tenderness. In August 2007, the Veteran stated that his bilateral foot pain was so severe that he limped. On VA examination in January 2008, the Veteran complained of pain in each foot. He stated that the pain was aggravated by standing for 10 minutes, walking two blocks, or going up and down stairs. On examination, there was palpable deformity of the lateral aspect of the right fifth metatarsal with moderate tenderness to compression. There was only minimal lateral deformity to palpation of the left fifth metatarsal. The ranges of motion of both ankles were normal. There was no edema, painful motion, redness, or heat. The assessment was painful, ununited secondary epiphysis of the fifth metatarsal bases, a developmental variation, with symptoms of local pain and difficulty with weight bearing and no evidence of a fracture or dislocation. On VA examination in September 2011, the Veteran complained of chronic bilateral foot pain and that his feet hurt with walking and running, but he did bicycling. The Veteran was working and his feet increased with pain with work. The VA examiner stated that the Veteran did not have malunion or nonunion of the metatarsal bones. The Veteran walk with supinated feet and a slight amount of hindfoot varus. The arches were not significantly high. The Veteran did not use any assistive devices for locomotion. There was no evidence of weak foot. The VA examiner stated that the bilateral fifth metatarsal stress fractures appeared healed. The diagnosis was chronic bilateral fifth metatarsal stress fractures with residual pain and unlikely chronic nonunion based on X-rays. The VA examiner stated that bilateral pes cavus was the likely cause of the bilateral stress fractures. The Veteran is service-connected for bilateral pes cavus, rated 10 percent, and rating is not on appeal. In a statement in June 2012, the Veteran, a physician, stated that his feet are painful daily, especially with weight bearing, and affected every aspect of his life, including his choice of activities. The Veteran stated that when working consecutive days he needs to rest before returning to work. Also, the Veteran disagrees with the characterization by VA of the X-rays, namely, that the stress fractures are healed. Analysis Over the five year period of the appeal, the private medical records and the findings of VA examinations have consistently shown constant localized pain and tenderness in areas of the fifth metatarsals, affecting most activities of daily living, such as standing and walking and additional functional loss after repetitive use. There is also evidence of palpable deformity of each metatarsal. And X-rays have been interpreted differently, such as showing metatarsal fractures; incomplete fusion of the growth centers at the base of the fifth metatarsal, but no fractures; ununited secondary epiphysis of the fifth metatarsal bases, a developmental variation, with no evidence of a fracture or dislocation; and healed stress fractures without nonunion. The Veteran, a physician, stated that X-rays by VA in September 2011 showed old bilateral fifth metatarsal based avulsions versus an unfused metatarsal bone. While the X-rays findings are evidence, the disabilities ratings are based on the average impairment in a civil occupation. One VA examiner reported that the disabilities did impact on the Veteran's ability to work. The Veteran has stated that when working consecutive days he needs to rest before returning to work. Considering all the evidence of record, the Board finds that the functional loss of each foot due to the residuals of a stress fracture equate to moderately severe malunion or nonunion of a metatarsal bone under Diagnostic Code 5283 or a moderately severe foot injury under Diagnostic Code 5284, considering functional loss under 38 C.F.R. §§ 4.40 and 4.45, and a rating of 20 percent under Diagnostic Code 5283is warranted throughout the period of the appeal. In the absence of severe symptomatology, such as gait disturbance, weakness, or instability of the feet, the evidence does not more nearly approximate or equate to severe malunion or nonunion of a metatarsal bone under Diagnostic Code 5283 or a severe foot injury under Diagnostic Code 5284, considering functional loss under 38 C.F.R. §§ 4.40 and 4.45, and a rating higher than 20 percent under Diagnostic Code 5283 or Diagnostic Code 5284 is not warranted at any time during the appeal period. A Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised a claim for a total disability rating for compensation based on individual unemployability and the record does not reasonably raise the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability, the claim is not a separate claim, but a part of a claim for increase). ORDER A 20 percent rating for residuals of a stress fracture of the right fifth metatarsal is granted. A 20 percent for residuals of a stress fracture of the left fifth metatarsal is granted. REMAND In the remand in June 2011, the Board directed the Agency of Original Jurisdiction to consider the disabilities on an extra-schedular basis. In April 2012 in the supplemental statement of the case, while the regulation governing an extra-schedular rating was cited, there was finding or explanation of whether or not an extra-schedular rating was warranted. Accordingly, the case is REMANDED for the following action: Adjudicate the claims for increase on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs