Citation Nr: 1320620 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-00 351A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable disability rating for residuals of a right foot fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran had active duty service in the Army from October 1980 to October 1983 and from January 2003 to November 2004. He also had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) while serving in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision by the Columbia, South Carolina VA Regional Office (RO). This rating decision granted the Veteran's service connection claim for residuals of a right foot fracture and assigned an initial noncompensable disability rating for that condition. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether he is entitled to a "staged" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). The Board remanded the claim in January 2010 and again in February 2012 for additional development. It now returns for further review. FINDINGS OF FACT For the entire initial rating period, the Veteran's right foot fracture residuals have been manifested by severe injury to that foot. CONCLUSION OF LAW The criteria for an initial evaluation of 30 percent, but no more, for residuals of right foot fracture have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating claims 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, 3.326(a) (2012). Proper notice from VA must inform the veteran 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The Veteran's claim of entitlement to an initial compensable evaluation for residuals of a right foot fracture arises from his disagreement with the initial evaluation assigned to this disability following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified post service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, appropriate efforts were undertaken to afford the Veteran a contemporaneous VA examination adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the RO substantially complied with all development required by the Board's January 2010 and February 2012 remands with respect to the appealed claim. This included obtaining Social Security Administration records, affording the Veteran a development letter in March 2012, and providing the opportunity of an additional examination to ascertain the nature and severity of his right foot fracture residuals. This examination was appropriately scheduled, but he failed to appear for the examination without good cause shown. The doctrine of administrative regularity dictates that the Veteran be presumed to have been appropriately notified of the examination, by administrative scheduling processes via the Veterans Health Administration. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004) ("The presumption of [administrative[ regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) ("The [presumption of administrative regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary."). The Board notes that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, she cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). VA's duty to assist the Veteran by providing examinations when necessary was thus also adequately fulfilled. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Following the attempt to afford the Veteran a VA examination in furtherance of his claim, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) addressing his claim. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). As already stated, the Board is satisfied that development requested in the January 2010 and February 2012 remands has been satisfactorily completed. Stegall. There is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claim on appeal herein adjudicated have been accomplished. II. Claim for Higher Initial Rating for Right Foot Fracture Residuals Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The Board herein addresses the appropriate initial rating or ratings to be assigned for the residuals of a right foot fracture. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2012). Therefore, with respect to each of the claims herein, the Board considers the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). For the sake of brevity and judicial efficiency, all potentially applicable rating provisions, while considered, are not explicitly discussed herein, but rather the appropriate rating criteria are discussed, based on the elements of disability present, biological system(s) affected, anatomical localization, and symptomatology. See 38 C.F.R. § 4.1 (purpose of the rating schedule as guide to evaluating all types of disability resulting from service), 38 C.F.R. § 4.2 (disability rating to accurately reflect elements of disability present), and 38 C.F.R. § 4.20 (where a condition is not listed in the rating schedule, an analogous rating is to be based on closest equivalence in terms of functions affected, anatomical localization, and symptomatology). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of a Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the evidence indicates that the degree of disability increased or decreased following the appeal period, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim to disability benefits. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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. It is essential that the examinations on which ratings are based adequately portray the anatomical damage and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). The Veteran's right foot disability has been initially rated at 0 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284. Moderate foot injuries warrant a 10 percent rating; a 20 percent rating requires a moderately-severe foot injury; and a 30 percent rating requires a severe foot injury. 38 C.F.R. § 4.71a, DC 5284. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (2012). Words such as "moderate," "moderately severe" and "severe" are not defined in the VA Schedule for Rating Disabilities (Rating Schedule). Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. See 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination in March 2008 addressing his right foot fracture residuals. The Veteran asserted that he was experiencing increased right foot pain due to both his service-connected fracture residuals as well as comorbid conditions. He complained of a constant, moderate 6 out of 10 severity pain in the foot. He also complained of daily flare-up pain of 8 out of 10 severity, and reported that he was limited to standing 30 minutes or walking less than an eighth of a mile before precipitating a flare-up. The Veteran had no history of surgery on the foot, but he did use custom shoes, a brace, and a cane, and took Tramadol, gabapentin, and, as needed, Motrin. The Veteran reported that he was unable to perform his former work duties at a tire manufacturer including due to inability to stand and lift as required. Activities of daily living affected included sleeping, driving, dressing, bathing, and toileting. That said, the record reflects that the Veteran has significant other disabilities, including a left foot drop and low back disability with right lower extremity radiculopathy, each of which also significantly impair his capacity to perform work involving standing and lifting, and may impair activities of daily living. Upon the March 2008 physical examination of the right foot, there was flatfoot deformity with valgus deflection of the Achilles and tenderness on plantar palpation and with manipulation. Flexion of the foot was limited to zero to 30 degrees and accompanied by pain. Pain was also present in the distal interphalangeal joints. Repetitive use did not produce further reduction in range of motion, but tenderness was present throughout the foot. The examiner diagnosed osteoporosis of the right foot, degenerative joint disease of the right foot, plantar fasciitis of the right foot, and pes planus of the right foot. The examiner further noted that the Veteran suffered from spinal radiculopathy into the foot. Reviewed x-rays from January 2006 were revealing of degenerative joint disease throughout the foot as well as loss of plantar arch. Because the Veteran did not appear for a more recent examination, scheduled in March 2012, to address the severity of his foot in furtherance of an initial rating claim, the claim is to be decided based on the evidence of record. 38 C.F.R. § 3.655 (a), (b) (2012). The Board finds the Veteran's assertions of debilitating pain in the foot on a chronic basis with exacerbations on use, including flares with prolonged standing and walking, to be entirely consistent with x-ray and examination findings. Additionally, treatment records and other statements of the Veteran do not appear to contradict these findings, but rather are generally consistent. Because the debilitation in the right foot does not appear differentiable between that attributable to his foot fracture residuals and that attributable to other localized causes, the foot disability as a whole is to be considered in rating the foot fracture residuals. The Veteran is not otherwise compensated specifically for his right foot disability, and hence this does not violate the rule against pyramiding, or assigning multiple ratings for the same disability, notwithstanding the 20 percent assigned for right lower extremity radiculopathy. 38 C.F.R. § 4.14 (2012). The Board finds that the Veteran's right foot disability as a residual of fracture, due to impairment of station, with impaired walking and standing, and significant reduction in overall functioning as a result, as well as significant debilitating pain both on an ongoing basis and with use, combine to result in a severe level of disability. The weight of the evidence also reflects that this level of disability has been present for the right foot for the entire rating period, beginning from the date of service connection. Accordingly, the Board finds that the weight of the evidence favors a 30 percent evaluation for the Veteran's service-connected residuals of right foot fracture, for the entire rating period in question, based on severe disability, with staged ratings thus not implicated. 38 U.S.C.A. § 5017; 38 C.F.R. § 4.71a, DC 5284; Fenderson. This is the maximum schedular rating to be assigned under DC 5284, and the Board finds that a higher rating under a different rating code would not be appropriate, as the code and rating assigned best approximates the disability as presented in this case. 38 C.F.R. § 4.21; Schafrath. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria under the Rating Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. In this case, the Board finds that the ratings assigned based on the rating criteria here address and as encompassed within the applicable section of 38 C.F.R. § 4.71a, DC 5284, for foot injuries. Hence, the Board finds that extraschedular consideration is not warranted for the adjudicated rating of these residuals. Disability as may be found to result such as marked interference with employment or prolonged periods of hospitalization are not implicated in this case for the Veteran's right foot fracture residuals, in part because the Veteran is already compensated on such a basis of marked interference with employment with the 100 percent assigned for his disabilities on a combined basis, and in part because such marked interference with work functioning as may have been encompassed by the right foot disability is substantially eclipsed by the Veteran's left foot disability, which comprises foot drop, with an 80 percent disability evaluation assigned. The Board finds that the Veteran is already adequately compensated for a marked impairment of work functioning due to impairment of station - in standing and walking - through the rating assigned for the left foot drop. Thus, to assign an extraschedular rating for the right foot disability on the basis of marked interference with employment would be in the nature of pyramiding. The Board finds that referral for consideration of an extraschedular rating on the basis of the Veteran's right foot fracture residuals is not warranted. Thun. ORDER A 30 percent initial disability rating, but no more, is granted for residuals of right foot fracture, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs