Citation Nr: 1322120 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-01 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial increased rating for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion, evaluated as noncompensably disabling from February 21, 2007 to June 18, 2008 and as 30 percent disabling from September 1, 2008. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty in the Navy from October 1997 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia denied service connection for hypertension and granted service connection for posttraumatic degenerative joint disease of the right great toe at the interphalangeal joint with thickening and discoloration of the right great toenail (0 percent from February 21, 2007). In July 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. Although the Veteran's then-attorney was not present at the hearing, the Veteran elected to proceed with the hearing without his attorney being present. A copy of the transcript of this hearing has been associated with the Veteran's physical claims folder and has been reviewed. In October 2009, the Board remanded the appeal for additional development. On June 19, 2008, the Veteran underwent right great toe surgery. In a December 2010 decision, he was granted a temporary total rating (100 percent) from June 19, 2008 to August 31, 2008 for postoperative convalescence following the surgery 38 C.F.R. § 4.30. A 30 percent rating for the right great toe disability was assigned thereafter. As this award does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn this issue, the increased rating claim remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). [The Board has characterized this issue as it appears on the title page of this decision to reflect the temporary total rating and higher schedular rating that have been assigned.] In March 2012, the Board, among other actions, remanded the claims for service connection for hypertension and for a higher initial rating for the right great toe disability. In a November 2012 rating action, the Appeals Management Center (AMC) in Washington, D.C. granted service connection for hypertension. As the Veteran has not initiated an appeal of any aspect of that grant (to include the noncompensable rating, or effective date, assigned to that disorder), no issue pertaining to his hypertension remains in appellate status before the Board. In March 2013, the Board remanded the appeal to the AMC to address a procedural deficiency. After completing the actions requested, the AMC continued to deny the claim (as reflected in an April 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. Such development having been completed, the Veteran's appeal has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for pes planus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, clinical findings for the period from February 21, 2007 to June 18, 2008, reasonably establish evidence of subjective complaints of right great toe pain with walking, limitation of motion of the interphalangeal joint, radiographic evidence of deformity, and arthritic changes that more nearly equivalent to a moderate disability. 2. Since September 1, 2008, the Veteran's right great toe injury residuals are primarily manifested by pain but by no more than moderately severe functional impairment, and are not otherwise manifested by functional loss of use of the foot equivalent to an amputation stump with use of a suitable prosthesis. CONCLUSIONS OF LAW 1. For the period from February 21, 2007 to June 18, 2008, the criteria for a 10 percent disability rating, but no higher, for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5010 (2012). 2. Since September 1, 2008, the criteria for a disability rating in excess of 30 percent for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a. DCs 5010-5283 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Board notes that, where, as here, service connection has been granted and the initial ratings have been assigned, the claim of entitlement to service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). [In any event, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board.] The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. The Veteran submitted personal statements, provided hearing testimony, and representative argument. His Virtual VA electronic file has been reviewed. The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. Review of the record also reveals the Veteran is in receipt of Social Security Administration (SSA) benefits. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument in Golz that SSA records are always relevant and VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In the Veteran's case, there is no indication in the record that the SSA records are relevant or would aid in substantiating his increased rating claim. The record contains an undated SSA Disability Determination and Transmittal Form which indicates that the Veteran was disabled due to affective/mood and anxiety-related disorders. As these records would not be relevant to the issue of an increased rating for the service-connected right great toe disability, the Board concludes that no useful purpose would be gained in further delaying a decision in this case by requesting SSA records in this instance. The Board is also satisfied that the AMC has substantially complied with its October 2009, March 2012, and March 2013 remand directives as they pertain to the increased rating matter decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Records identified by the Veteran have been associated with the claims file. Further, as directed by the Board, VA medical opinions were obtained in May 2010 and April 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examinations are more than adequate. The examiners elicited from the Veteran his history of complaints and symptoms and provided pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's service-connected right great toe disability, including a thorough discussion of the effect of his symptoms on his functioning. There is no basis to conclude that the VA medical opinions are inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially increased in severity since his April 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claims under the Veterans Claims Assistance Act of 2000. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran contends that his service-connected right great toe disorder is more disabling than is reflected in the current 0 percent and 30 percent disability ratings. He has reported that his right great toe disability disturbs his activities of daily living, including his ability to ambulate. [The Board notes that the Veteran is also service-connected for surgical scar of the right toe interphalangeal joint region. This disability is not on appeal and will thus not be addressed in this decision.] Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, service connection for the degenerative joint disease of the Veteran's right great toe was established by an August 2007 rating decision, which assigned a noncompensable disability rating under DC 5010, effective February 21, 1007. The Veteran appealed the initial evaluation assigned. In a December 2010 rating decision, the RO granted a temporary 100 percent evaluation effective June 19, 2008 for the Veteran's service-connected right great toe disability for postoperative convalescence following surgery. A 30 percent evaluation was assigned under DCs 5010-5283 effective September 1, 2008. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DCs 5003 and 5010. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Id. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints and two or more minor joint groups and there is occasional incapacitating exacerbation. Id. For the purposes of rating disability from arthritis, multiple involvement of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). Under DC 5283, malunion or nonunion of the tarsal or metatarsal bones is assigned a 10 percent evaluation where it is moderate, a 20 percent evaluation where it is moderately severe, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a. A 40 percent evaluation is assignable with actual loss of use of the foot. Id., Note. Similarly, under DC 5284, other foot injuries are assigned a 10 percent evaluation if the disability is moderate, a 20 percent evaluation if the disability is moderately severe, or a 30 percent evaluation if the disability is severe. Id. Much of this distinction here is inconsequential because the rating criteria under both diagnostic codes are essentially identical in using the terms "moderate, moderately severe, and severe" to describe the extent of resulting functional impairment. Thus, the same schedular rating will follow regardless of which of these diagnostic codes are used. The Board observes that 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 the end that its decisions are equitable and just. 38 C.F.R. § 4.6. To establish the loss of use of a foot, the evidence must show that no effective function remains other than that which would be equally well served by an amputation stump with use of a suitable prosthesis. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc. could be accomplished equally well with an amputation stump and prosthesis. 38 C.F.R. § 4.63. Under the provisions of 38 C.F.R. § 4.31, in every instance where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. Evidence relevant to the severity of the Veteran's service-connected right great toe includes, in addition to his assertions of increased right great toe symptomatology, VA clinical records, and VA examination reports. A. In excess of 0 percent from February 21, 2007 to June 18, 2008 The record during this timeframe includes VA outpatient treatment records dated in February 2007, which show the Veteran was evaluated for complaints of right great toe pain particularly with ambulating and pressure. At the June 2007 VA examination, the examiner noted the Veteran's history of in-service injury to the right great toe and summarized his current medical problems. The Veteran's primary complaint was of weekly flare-ups of pain. He rated the intensity of the pain as 10 on a scale of 0 to 10 and reported that the flare-ups cause him difficulty with his balance and problems with prolonged standing and walking. Examination of the right foot revealed thickening and discoloration of the right great toenail, but the toe was otherwise normal. There was full range of motion of the toes with 30 degrees of dorsiflexion and 45 degrees of plantar flexion bilaterally; ankle dorsiflexion to 10 degrees and plantar flexion to 45 degrees bilaterally; and no evidence of pain or edema on gait examination. Heel contact was supinated and mid-stance and push off phase of gait was neutral. There were no calluses or unusual shoe wear. The skin was normal, with mild thickening of the right great toenail and discoloration. There was no evidence of flat feet and no evidence of hallux valgus. X-rays of the right foot reveal mild degenerative changes of the interphalangeal joint of the right great toe. The clinical impression was degenerative joint disease of the right great toe at the interphalangeal joint with thickening and dislocation of the right great toenail post traumatic. Other evidence of record includes VA outpatient which show the Veteran was under continued follow-up for chronic right great toe pain that occasionally extended into the forefoot area. He was noted to have a significant flat foot deformity with hallux abductus interphalangeus to the right great toe. There was pain on palpation to that joint as well as the first metatarsophalangeal joint. There was also definite pain on range of motion of both the interphalangeal and the metatarsophalangeal joints. X-rays showed the interphalangeal joint was abducted, and there were fairly significant osteoarthritic changes in terms of a very narrowed joint space and angulation of the joint itself. Not only was there pain of range of motion of the joint, the Veteran could not get to a rectus sagittal plane position of the toe. However there was no significant pathology of the right first metatarsophalangeal joint which appeared to be in very good alignment with a nice clear joint space. The Veteran's neurovascular status was grossly unchanged and there was some improvement in the localized swelling of the interphalangeal joint. The clinical impression was post traumatic arthropathy of the right great toe joint with hallux hammertoe and interphalangeal joint arthralgia. See VA podiatry outpatient notes dated September 28, 2007 and April 30, 2008. The more recent records show that by late May 2008 the Veteran reported that it was difficult for him to walk and that he was currently using a cane. The clinical and radiological findings were unchanged. The examiner referred to the previous X-rays noting that the first metatarsophalangeal joint, even on weight bearing, appeared to be very healthy with no significant signs of any derangement. The clinical impression was posttraumatic arthropathy of the right great toe interphalangeal joint with severe arthralgia. An interphalangeal joint fusion was performed the following month. VA outpatient treatment records dated May 30, 2008 and June 19, 2008. Based upon the preceding evidence, the Board finds that a rating for arthritis based on limitation of motion under the appropriate diagnostic code is not in order, as the rating schedule does not provide ratings for limitation of metatarsal motion. Under the criteria set forth under DC 5003, a 10 percent rating is warranted when, in the absence of limitation of motion, there is x-ray evidence of the involvement of two or more major joints or two or more minor joint groups. However, the Board finds that a compensable rating is not warranted under this provision as the documented medical evidence of record (June 2007 X-rays) shows that only one minor joint (the interphalangeal) has been diagnosed with arthritis. There is no involvement of a group of minor joints, but only one minor joint. 38 C.F.R. § 4.45(f). The Board also finds that the record is absent for any medical evidence of malunion or nonunion of the tarsal or metatarsal bones of the right great toe pursuant to DC 5283. Both the medical evidence and the Veteran's subjective statements reflect that the predominant symptom appears to be chronic pain, which purportedly causes difficulty walking. However, the objective clinical findings document that in addition to degenerative joint disease of the interphalangeal joint, the Veteran also had painful range of motion and radiographic evidence of deformities, including hallux abductus interphalangeus to the right great toe and angulation of the interphalangeal joint. Although the radiographic evidence of interphalangeal joint deformity, irregularity, and arthritic changes do not actually constitute malunion/nonunion of a metatarsal bone, with resolution of all reasonable doubt in the Veteran's favor, the Board's finds that such deformity/arthritic changes, along with painful restricted motion of the right great toe, can reasonably be characterized as equivalent to a moderate disability under either DC 5283 or 5284. Therefore, a 10 percent initial disability rating, but no more, for the service-connected disability of the right great toe is warranted for the period from February 21, 2007 to June 18, 2008. The clinical data is absent of any medical findings showing functional impairment attributable to the right great toe disability that would equate to moderately severe or severe injury to warrant an even higher rating of 20 or 30 percent. There is also no credible evidence of pain on use or flare-ups that result in additional functional limitation to the extent that the right great toe would be more than 10 percent disabling. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's functional loss due to pain is adequately covered by the newly-assigned 10 percent rating. In fact, despite the Veteran's complaints of chronic pain, the clinical record reflects that he has remained fully ambulatory and functional. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Indeed, the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, a higher rating based on pain without any quantifiable loss due to actual pain does not serve as basis for an increased rating. Neither the Veteran nor any examiner has established that pain or flare-ups result in functional loss that would equate to a moderately severe level of disability. The Veteran is already being adequately compensated for pain. Higher ratings may also be assigned to several other foot disabilities, if shown. These are flatfoot (DC 5276), weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280), and hammertoe (DC 5282). 38 C.F.R. § 4.71a. However, the medical evidence shows that these conditions have either not been demonstrated or shown to be a manifestation of the service-connected right great toe disability. The evidence of record reflects that from February 21, 2007 to June 18, 2008, the Veteran's service-connected right great toe disability had symptomatology commensurate with a moderate foot injury, but not a moderately severe foot injury. B. In excess of 30 percent since September 1, 2008 As discussed previously, the Veteran was awarded a temporary total disability evaluation for surgical convalescence from June 19, 2008, to August 31, 2008. A 30 percent evaluation was assigned effective September 1, 2008. Although the evidence of record since the end of the temporary total rating shows continued treatment of the Veteran for right great toe symptoms, it does not indicate that the disability meets the criteria for a rating in excess of 30 percent. Post operative follow-up reports dated in September 2008 show that the Veteran was doing fairly well following the interphalangeal joint fusion of the right great toe. There was no significant swelling and the toe was in excellent straight position with no clinical motion, no real pain, and no real clinical signs of any other irregularity. The Veteran was noted as having a good postoperative course. The Veteran was provided with another VA examination in May 2010, to determine the current severity of his service connected right great toe. He continued to complain of pain and tenderness, but denied flare-ups since the surgery. The pain was located at the very distal aspect of the toe along the medial and lateral nail borders distally. He also noted a problem with ingrown toenails. On examination, the right great toe metatarsophalangeal joint was normal with plantar flexion greater than 60 degrees and dorsiflexion over 30 degrees even on repetitive testing. There was no hallux valgus. The medial and lateral margins of the discolored right great toe nail were curved under (ingrown) and sensitive to palpation. The Veteran had minimal pain on tapping the tip end of the right great toe. The entire foot was warm and dry with no vascular problems present. Pulses were normal. There was mild hammertoe deformity of toes 2-5 on the right foot. X-rays showed a fused interphalangeal joint of the right great toe with no significant change compared to the previous examination. The diagnosis was right great toe interphalangeal severe degenerative joint disease status post interphalangeal severe degenerative joint disease, status post joint fusion with good results. It was noted that prior to the surgery the Veteran had problems with prolonged standing and walking. However he reported being able to stand 3-8 hours with only short rest periods and to walk 1-3 miles without an assistive device. His gait was normal. The surgery was considered successful in that the Veteran did not have problems with weakened movement, excess fatigability or incoordination. There was no motion in the interphalangeal joint and range of motion for the metatarsophalangeal was normal even after repetitive testing. The rest of the foot was unaffected by the right toe injury. There were no arthritic flare-ups and the right great to disability did not have an impact on the Veteran's ability to work. The Veteran was provided with another VA examination in April 2012. His primary complaints of right great toe tenderness and pain were essentially unchanged. There was a mild plantar medial interphalangeal joint callus to the great toe, no clinical motion to the interphalangeal joint; but pain on palpation of the dorsal plantar interphalangeal joint region about the periphery of the joint; a dystrophic right great toenail; and mild degenerative joint arthritic changes to the tarsal and intertarsal joints. There was also clinical fusion of the interphalangeal join of the right foot with some bony hypertrophy noted throughout the peri-interphalangeal joint region. Otherwise, clinically and radiographically, there was rock-solid fusion with the great toe in excellent rectus position. The examiner noted that radiographic reports showed excellent results from the joint fusion of the interphalangeal joint, but the Veteran persisted to have clinical symptoms. He described the severity of the service-connected degenerative joint disease of the right great toe as moderately severe based on the Veteran's current symptoms of aching, periodic throbbing, sharp pains, difficult ambulation, adjustment in gait, tenderness to the interphalangeal region. The great toe was in good rectus position. The Veteran occasionally uses a cane and has custom-made soles and orthopedic shoes. The remaining right great toe function was not so diminished that amputation with prosthesis would equally serve the Veteran. The right great toe impacts the Veteran's ability to work in that he cannot lift/carry weight greater than 10 pounds. It was also difficult for him to do any stooping or prolonged standing and walking. In an addendum to that opinion, the examiner described the symptoms associated with the Veteran's service-connected right great toe disability as moderately severe. He noted that unfortunately associated with the interphalangeal joint fusion is the fact that sometimes there is persistent pain and/or swelling associated with the fusion area. There is also some increased resultant stress on the surrounding joints after a fusion. Because there was fusion of the great toe joint, which is the end result of gait cycle (or the end of the gait cycle), this involves propulsion where a person pivots and pushes off the great toe is certainly limited. This would in turn limit his ability to do a job that requires majority weight bearing, standing, or walking, as there would be tremendous alteration in his gait. According to the remaining evidence of record, no treatment records pertaining to the Veteran's right great toe disability have been associated with his claims folder and electronic Virtual VA folder since the April 2012 VA examination. As a result, there are no records that indicate a significant worsening or additional symptoms to warrant a higher evaluation. Rather, if anything, this supports the conclusion that the Veteran's right great toe condition has remained stable. Applying the regulations to the facts during the time period in question, the Board finds that the evidence is against the assignment of a disability rating in excess of 30 percent. The Veteran is in receipt of the maximum allowable rating for a severe foot injury unless he can establish that he experiences actual loss of use of the foot. Such is not shown. The evidence does not show that he has no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. To the contrary, throughout the course of the appeal, the Veteran has maintained a significant degree of motion, use and sensation in his right foot and toes. Moreover, and of significant import, the April 2012 examiner specifically found that this level of functional impairment was not present. The Veteran clearly suffers from severe impairment of the right foot, having to use a cane for ambulation and restrict his standing to short periods of time. However, a 30 percent disability rating is meant to fully compensate a Veteran who suffers from a serious injury to the foot. For all of these reasons, neither DC 5284 nor DC 5283 can provide the basis for a higher rating. The Board has also considered the impact of pain on the Veteran's overall functionality. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. However, the record does not include evidence that is both credible and persuasive documenting any additional functional limitation which would warrant a higher rating under the applicable rating criteria. The Veteran's disability causes pain with walking or prolonged standing. There is no dispute on this point. The record also clearly establishes that the Veteran is capable of movement, ambulation, and standing, albeit to a limited extent, despite his pain. Moreover, neither the Veteran nor any examiner has established that pain or flare-ups result in functional loss that would equate to loss of use of the right foot. Therefore, even when considering the Veteran's pain, it would appear that his current right foot is more useful than a prosthetic device. As such, the provisions of 38 C.F.R. §§ 4.40, 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not require a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon supra. In this case, the 30 percent disability rating adequately compensates the Veteran for any painful motion and functional loss. Mitchell supra. As noted previously, higher ratings may also be assigned to several other foot disabilities, if shown. These are flatfoot (DC 5276), weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280), and hammertoe (DC 5282). 38 C.F.R. § 4.71a. However, these diagnostic codes are simply not applicable to the Veteran's service-connected right great toe disability because, the current 30 percent rating equals or exceeds the maximum rating allowed under a particular rating code, or because particular symptoms of his right great toe disability are not shown by the medical evidence to meet the criteria for a higher rating. In this regard, the Board notes that the only rating criteria for the foot that even offers a rating in excess of 30 percent are 38 C.F.R. § 4.71a, DC 5276 and DC 5278 and the criteria to be granted these higher ratings, unlike in the current appeal, require involvement of both feet. Thus, the Board concludes that, since September 1, 2008, the overall level of disability does not approximate loss of use of the right foot and is best represented by the 30 percent rating. The criteria for the assignment of a disability rating in excess of 30 percent for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion, since September 1, 2008, are not met. C. Additional (Including Extraschedular) Considerations and Conclusion The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, 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 v. Peake, 22 Vet. App. 111 (2008). The schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. After comparing the manifestations and reported impairment of function of the Veteran's right great toe disability to the rating and schedular criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned schedular ratings. There are higher ratings available for the Veteran's service-connected right great toe disability, but the required manifestations have not been shown in this case. Moreover, the evidence does not establish that the disability necessitates frequent periods of hospitalization, and the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Insofar as the Veteran did undergo surgery in June 2008 and experienced a period of incapacitation, such additional functional loss was compensated for in the award of the temporary total rating. The Veteran's complaints and demonstrated impairment attributable to his right great toe are adequately contemplated by the 10 and 30 percent ratings currently assigned during the appeal period. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board recognizes that the Court has held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, as a TDIU was granted by a December 2010 rating decision, the Board need not address this subject further. Therefore, bearing in mind the benefit of the doubt doctrine, an increased evaluation, to 10 percent, is granted for the degenerative joint disease of the Veteran's right great toe at the interphalangeal joint, status post joint fusion, from February 21, 2007 to June 18, 2008. However since September 1, 2008, this disability more nearly approximates a 30 percent evaluation. Fenderson, supra. (CONTINUED ON NEXT PAGE) ORDER From February 21, 2007 to June 18, 2008 entitlement to a rating of 10 percent (but no higher) for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion is granted, subject to the laws and regulations governing payment of monetary benefits. From September 1, 2008 a disability rating in excess of 30 percent for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs