Citation Nr: 1320018 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-15 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for a right shoulder disability (claimed as right shoulder strain, status post anterior reconstruction with scar). 2. Entitlement to an initial compensable disability evaluation for hammertoe of the left fifth toe. 3. Entitlement to an initial compensable disability evaluation for hammertoe of the right fifth toe. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1998 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2008 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his April 2009 substantive appeal, the Veteran requested a hearing before a member of the Board. Such a hearing was scheduled for January 2012; however, the record indicates that the Veteran failed to appear for the scheduled hearing without providing good cause, and has not requested that the hearing be rescheduled. The Board, therefore, considers the request for a hearing to be withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's service-connected right shoulder disability has more closely approximated painful motion equating to limitation of motion at shoulder level. 2. The Veteran has hammertoe affecting digits five (5) of the left and right foot; his first, second, third, and fourth toes of both feet have been found to have no deformity. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 20 percent, but no higher, for a right shoulder disability have been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7. 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). 2. The criteria for an initial compensable disability evaluation for hammertoe of the left fifth toe, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5282 (2012). 3. The criteria for an initial compensable disability evaluation for hammertoe of the right fifth toe, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5282 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Additionally, the Board notes that the Veteran was scheduled for VA examinations for the disabilities on appeal in Mach 2010 and failed to report and has provided no reason for his failure to report. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). As such, the appeal will be considered based upon the evidence of record. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (201) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Right Shoulder Disability The Veteran claims that his right shoulder disability warrants an evaluation higher than the 10 percent evaluation currently assigned for this disability. His right shoulder disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201 Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, which pertains to limitation of motion of the arm, a 20 percent disability evaluation is warranted when range of motion of the major upper extremity is limited to the shoulder level. A 30 percent disability evaluation is warranted when range of motion of the major upper extremity is limited to midway between the side and shoulder levels. A 40 percent disability evaluation is warranted when range of motion of the major upper extremity is limited to 25 degrees from the side. The Veteran was afforded a VA examination in April 2008. At that time, he reported that in August 1999, while playing soccer, he dislocated his right shoulder. The Veteran reported that he sought treatment at the emergency room and was placed on light duty for one week. He reported that he continued to have spontaneous recurrent dislocations of his right shoulder for several months following the injury and as a result, he had surgery in June 2003. He reported that since his right shoulder surgery, he had no recurrence of the dislocations of the shoulder joint, but that he continued to have persistent pain. He reported that he had no further injury to his right shoulder joint since his March 2004 separation from active service. He reported that he had pain in his right shoulder at rest and that the pain was 4 out of 10 in severity. He denied any weakness, stiffness, or fatigability at rest. He reported the pain was constant and dull in nature. He reported flare-ups of his right shoulder pain due to changes in weather temperature, lifting objects over 25 pounds, lying on his right side, raising his right arm above his head, and reaching for things above eye level. He reported he experiences flare-ups four to five times a week, which lasted 20 to 30 minutes and were relieved by resting, Tylenol, and applying icy hot. On examination, the Veteran was noted to be right handed. Right shoulder passive range of motion measurements were as follows: forward elevation from 0 to 140 degrees, with pain beginning at 130 degrees; abduction from 0 to 120 degrees, with pain beginning at 110 degrees; adduction 0 to 30 degrees, with pain beginning at 20 degrees; internal rotation from 0 to 40 degrees, with pain beginning at 30 degrees; and external rotation from 0 to 90 degrees, with pain beginning at 80 degrees. On repetitive testing, the range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no crepitation on active or passive range of motion and no swelling in the right shoulder joint. The examiner diagnosed right shoulder strain, status post June 2003 surgery. The examiner noted that the Veteran was employed as a computed tomography (CT) scan technician and that his right shoulder disability impacted his employment in that transferring patients from the stretcher to the X-ray table caused flare-ups and he could not lift more than 25 pounds. The Board finds that the Veteran is entitled to a disability evaluation of 20 percent for his right shoulder disability for the entire period on appeal. In this regard, the Board notes that the Veteran's abduction of the right shoulder is, at worst, limited to 110 degrees. While shoulder level abduction is approximately 90 degrees, the Board finds that the Veteran's limitation of abduction of 110 degrees more nearly approximates shoulder level than full range of abduction. The Board notes that the Veteran has been found to have more range of motion than 110 degrees of abduction in the April 2008 VA examination report. However, as noted above, the Veteran has reported that continuing to move his shoulder past 110 degrees caused pain. As the Veteran's April 2008 VA examination report indicates he has pain at 110 degrees of abduction, the Board finds that this accurately reflects his functional range of motion. Therefore, a 20 percent disability evaluation is warranted for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Consideration has been given to assigning a higher disability evaluation for this period. However, there is no evidence indicating that he Veteran has limitation of arm motion that more nearly approximates limitation to 25 degrees from the side. Therefore, a higher disability evaluation is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Without giving the Veteran every consideration, the 20 percent evaluation could not be justified. The Board notes that on repetitive testing, the Veteran had no further limitation due to pain, weakness, fatigue, or lack of endurance. There is no other evidence showing that the Veteran has more limitation of motion than that found at his April 2008 VA examination. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular evaluation in excess of 20 percent for the functional impairment of the Veteran's right shoulder disability. The Board has also considered assigning the Veteran a separate disability evaluation under other Diagnostic codes applicable to the shoulder. However, there is no evidence the Veteran has ankylosis of the right shoulder (Diagnostic Code 5200), that he has malunion of the humerus or recurrent dislocations of the scapulohumeral joint (Diagnostic Code 5202), or that he has impairment of the clavicle or the scapula (Diagnostic Code 5203). Therefore, a separate evaluation under another diagnostic code is not warranted. 38 C.F.R. § 4.71a Consideration has also been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left and Right Fifth Toe Hammertoe The Veteran's hammertoe of the left and right fifth toes is rated noncompensable under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5282. Under this Code, a noncompensable disability evaluation is assigned for a hammertoe of a single toe. A 10 percent disability evaluation is assigned for hammertoe of all toes, unilateral, but without claw foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5282. No disability evaluations in excess of 10 percent are available under Diagnostic Code 5282. However, under Diagnostic Code 5283, a 10 percent disability evaluation is warranted where there is moderate malunion or nonunion of the tarsal or metatarsal bones, a 20 percent disability evaluation is warranted where there is moderately severe malunion or nonunion of the tarsal or metatarsal bones. A 30 percent disability evaluation is available under this Code for severe malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. Likewise, under Diagnostic Code 5284, a 10 percent disability evaluation is available for a moderate foot injury, a 20 percent disability evaluation is available for moderately severe foot injuries; a 30 percent evaluation is available for severe foot injuries. In April 2008, the Veteran was afforded a VA examination. At that time, he reported onset of bilateral foot pain in 1999. He reported that he was seen by a physician in late 1999 and his feet were X-rayed, at which time he was recommended for surgery on his left foot toe. He was placed on restrictive duty and instructed to wear tennis shoes for three months, after which he began wearing boots again which caused flare ups of his pain in the fifth toes of both feet. He reported that he underwent surgery on his left fifth toe in the spring of 2000, which helped for a short time, but that the pain recurred so he had a second surgery sometime in the end of 2003. He reported that despite the second surgery to his left fifth toe, he continued to have persistent pain. He was also recommended for surgery on his right fifth toe, but declined. He reported he continued to have pain in the right fifth toe. The Veteran described the pain in the left and right fifth toes as constant and dull in nature and he rated it as a 2 out of 10 in severity. He reported flare-ups of his bilateral foot condition caused by standing for more than 30 to 45 minutes, walking for more than 30 to 45 minutes, climbing more than one flight of stairs, weight bearing on his toes for less than one minute, and running for any length of time. He reported that flare-ups occurred four to five times a week, lasted approximately 30 minutes, and caused pain in his left foot that was an 8/9 out of 10 in severity and pain in his right foot that was a 6 out of 10 in severity. His flare-ups were alleviated by rest, Tylenol, and soaking his feet in warm water. On examination, the Veteran was ambulatory and noted to have a normal gait. There was no evidence of abnormal weight bearing in either foot. There was no callous, skin breakdown, or unusual shoe wear present. The weight bearing and non-weight bearing alignment of his Achilles tendon was normal. He denied any weakness, stiffness, or fatigability in all his toes at rest. On the base of the Veteran's left fifth toe an inverted V shaped scar was found. The Veteran had mild pes planus in both feet. There was hammertoe noted in the fifth toes of both feet. There was no hallux valgus deformity present in either foot and no skin or vascular changes in either foot. There was no pain on motion, edema, tenderness, weakness, or instability in either foot. There was no deformity in the first, second, third, or fourth toes of either foot. The range of motion measurements for both feet were as follows: inversion of the right and left foot from 0 to 30 degrees; eversion of the right and left foot from 0 to 20 degrees, with no pain on motion in the right foot, but pain at 10 degrees in the left foot. On repetitive use, there was no additional limitation of motion caused by pain, fatigue, weakness, or lack of endurance. The examiner diagnosed bilateral hammertoe of the fifth phalanges, mildly symptomatic at the time of the examination. The examiner noted that the Veteran was unable to stand for more than 30 to 45 minutes and unable to walk for more than 30 to 45 minutes due to his bilateral foot disability. Also of record are private treatment records from August 2003 to March 2004, that document the Veteran's left foot surgeries that were performed during his active service. The Board finds that the Veteran is not entitled to a compensable disability evaluation for his hammertoe of the left and right fifth toes. In this regard, the Board notes that the Veteran does not meet the criteria associated with a 10 percent evaluation, because there is no evidence or suggestion that all or even most of the Veteran's toes are affected by hammertoe. At his April 2008 VA examination, the Veteran was diagnosed with hammertoe of the left and right fifth toes. The examiner specifically noted that there was no deformity in the first, second, third, or fourth toes on either foot. Therefore, the Board finds that a compensable disability evaluation for the Veteran's hammertoe of the left and right fifth toes is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5282. The Board notes that on repetitive testing, the Veteran had no further limitation due to pain, weakness, fatigue, or lack of endurance. There is no other evidence showing that the Veteran has more limitation of motion than that found at his April 2008 VA examination. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a compensable disability evaluation for the functional impairment of the Veteran's hammertoe of the left and right fifth toes. Additionally, the Board has considered whether a compensable disability evaluation is warranted under Diagnostic Codes 5283 and/or 5284. However, the only objective clinical evidence of record, the April 2008 VA examination, does not show that the Veteran has moderate malunion or nonunion of the tarsal or metatarsal bones or that the symptoms of his diagnosed hammertoe of the left and right fifth toes manifest in a moderate foot injury. Therefore, a compensable disability evaluation under Diagnostic Code 5283 or 5284 is not warranted at this time. 38 C.F.R. § 4.71a. Consideration has also been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record reflects that the manifestations of the Veteran's right shoulder disability and hammertoe of the left and right fifth toes are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for either of these disabilities. In sum, there is no indication that the average industrial impairment caused by the Veteran's right shoulder disability and hammertoe of the left and right fifth toes, would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Additionally, there is no evidence (or allegation) that the Veteran's right shoulder disability and hammertoe of the left and right fifth toes has rendered him unemployable, in fact, the evidence shows that the Veteran is currently employed as a CT scan technician. Hence, the matter of entitlement to a total disability evaluation based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22Vet. App. 447 (2009). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in April 2008, January 2010, and September 2011 that fully addressed all notice elements. The April 2008 letter was sent prior to the initial RO decision in these matters. Furthermore, the April 2008, January 2010, and September 2011 letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. He was afforded a VA medical examinations in April 2008. The Board notes that the Veteran was scheduled for an additional VA examination in March 2010 and failed to appear for the examination. He has not provided good cause as to why he failed to appear. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's lack of sufficient cooperation is a factor in VA's decision to adjudicate the current issues without further development of the claims. In this regard, the Board has considered his claim that some records may be missing prior to 2002 regarding the right shoulder. However, it is important for the Veteran to understand that it is the current problem that is of primary concern. In any event, the finding of 20 percent should taken into consideration the Veteran's concerns. The Board has accepted the Veteran's statements regarding the treatment of his shoulder prior to 2002 as true, which is in part the basis for the 20 percent finding. Regarding the toe issue, it is important to note that the Veteran is service connected for the toes, not the Achilles tear. He can only be compensated for the hammertoe problem. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through testimony at a hearing if he so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER A disability evaluation of 20 percent, but no higher, for a right shoulder disability (claimed as right shoulder strain, status post anterior reconstruction with scar) is granted. An initial compensable disability evaluation for hammertoe of the left fifth toe is denied. An initial compensable disability evaluation for hammertoe of the right fifth toe is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs