Citation Nr: 1323251 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-00 371A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served for more than twenty years on active duty from July 1981 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the RO that, in pertinent part, denied a disability rating in excess of 20 percent for service-connected residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot. The Veteran timely appealed. The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work full-time. While the Veteran has indicated that he is limited in the distance that he can walk, especially when weight-bearing, he has not alleged that his service-connected disability prevents him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT Throughout the rating period, the Veteran's residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot have been manifested, primarily, by complaints of pain, swelling, fatigability, a lack of endurance, arthritis, and marked deformity; together, these symptoms produce functional impairment comparable to no more than moderately severe residuals of a foot injury. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.44, 4.45, 4.57, 4.59, 4.71, Table II, 4.71a, Diagnostic Codes 5283, 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim 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). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through a December 2008 letter, the RO notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. In the December 2008 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran submitted no additional evidence following issuance of a December 2012 letter that requested him to obtain, or authorize VA to obtain, recent surgical records pertaining to the removal of hardware from his right foot; hence, no re-adjudication followed and no further supplemental statement of the case (SSOC) was issued. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records; and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and are adequate for rating purposes. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection has been established for residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot. The Veteran's right foot disability is rated as 20 percent disabling under Diagnostic Code 5284-5283. While a hyphenated diagnostic code generally reflects rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27), here, the RO has considered both diagnostic codes, alternatively. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Pursuant to Diagnostic Code 5283, a 10 percent rating is warranted for moderate impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A 20 percent rating is warranted for moderately severe impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A 30 percent rating is warranted for severe impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A Note following Diagnostic Code 5283 provides that a 40 percent rating will be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Pursuant to Diagnostic Code 5280, severe unilateral hallux valgus warrants a 10 percent evaluation if the extent of disability is equivalent to amputation of the great toe. A 10 percent evaluation is also warranted for postoperative unilateral hallux valgus with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Pursuant to Diagnostic Code 5281, severe unilateral hallux rigidus is to be rated as severe hallux valgus. 38 C.F.R. § 4.71a, Diagnostic Code 5281. Alternatively, pursuant to Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The terms "moderate" and "severe" are not defined by regulation; however, the overall regulatory scheme contemplates a 10 percent rating in cases of ankylosis of the ankle in good weight bearing position; or problems so disabling that there is atrophy, disturbed circulation and weakness of the foot; or where there is inward bowing of the tendo achillis with pain on manipulation and use of the foot; or definite tenderness with dorsiflexion of the great toe and limitation of dorsiflexion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5276, 5277, 5278. A 20 percent rating is contemplated by the overall regulatory scheme in cases of ankylosis of the ankle in poor weight bearing position; or where there is unilateral marked deformity of the foot with pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; or where there is unilateral marked tenderness with dorsiflexion of the great toe and limitation of dorsiflexion of the ankle to right angle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5276, 5277, 5278. A 30 percent rating or more is contemplated by the overall regulatory scheme in cases of ankylosis of the ankle in plantar flexion or in dorsiflexion; or where there is unilateral marked pronation or extreme tenderness of plantar surfaces of the foot with marked inward displacement and severe spasm of the tendo achillis on manipulation; or where there is unilateral marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5276, 5277, 5278. Historically, the Veteran had three surgeries on his right great toe during active service as a result of fragmentation and development of arthritis after he kicked a curb while running and doing physical training. Records indicate that, initially, the Veteran underwent debridement with holes drilled to encourage growth twice; and finally, the last surgery in November 2001 was amputation of the joint, itself, with an implant placed. Since then, the Veteran's pain increased, and each step hurts on walking. Post-service records show that the Veteran sustained a twisting injury to his right foot in September 2004. At that time he reportedly was moving a large rock with several other people; he pushed very hard and accidentally stepped out of his shoe and twisted his foot while forcibly dorsiflexing his toes. The Veteran felt a pop in his great toe, and he had a little swelling. He continued to have pain regardless of activity. Records show that the Veteran then underwent surgery in December 2004 for removal of the implant from the right great toe, followed by bone grafting and arthrodesis. A plate and screws were implanted at the time for positioning of the bones in joint fusion. Effective December 17, 2004, the RO increased the evaluation to 100 percent, under the provisions of 38 C.F.R. § 4.30 based on surgery and convalescence for this condition, and then assigned an evaluation of 20 percent, effective February 1, 2005. During an April 2005 VA examination, the Veteran reported that his pain had decreased in his right great toe; and that it now was a constant 3 on a scale of 10. He still had swelling, heat, and redness from the surgery; and complained of stiffness at night due to swelling. He denied any instability or locking, and elevated his foot at night and took anti-inflammatory medication. The examiner noted that range of motion of the right great toe was limited due to fusion of bone. The Veteran underwent physical therapy for an abnormal gait in November and December 2006, with minimal improvement. He initiated a claim for an increased rating in November 2008. During a January 2009 VA examination, the Veteran reported the injuries to his right great toe and the subsequent surgeries in active service. He reported that a steel plate was later inserted in 2004. The Veteran reported that pain currently radiated from the right big toe along the inside of his foot, to his right knee with certain movements while walking; and that this occurred approximately 40 to 50 times daily. He reported that his symptoms progressively worsened, and that he occasionally walked with a cane. The Veteran reported pain, stiffness, fatigability, lack of endurance, and numbness of the second and third digits on the right foot. Objective examination of the right foot in January 2009 revealed tenderness and abnormal weight-bearing. There was no evidence of painful motion, swelling, instability, or weakness. A surgical scar measuring 7 centimeters by 1 centimeter on the dorsum of hallux was noted. Mild hallux valgus also was noted. The examiner found no evidence of malunion or nonunion of the tarsal or metatarsal bones. Nor was there evidence of flatfoot, muscle atrophy, or deformity. The examiner found that the Veteran limped, favoring his right leg because of his right foot symptoms when weight-bearing. X-rays revealed that osseous fusion of the first metatarsophalangeal joint appeared complete. The diagnosis in January 2009 was right foot condition with multiple surgeries, with hardware and chronic pain. The examiner noted significant effects on the Veteran's occupation, including decreased concentration; poor social interactions; decreased mobility; problems with lifting and carrying; lack of stamina, weakness, or fatigue; decreased strength; right lower extremity pain; and increased tardiness. Severe effects were noted with certain daily activities, including exercise, sports, recreation, traveling, and driving; moderate effects were noted for chores and shopping. The examiner added that the Veteran worked full-time as a precision measurement electronics lab technician, and that he lost 3 weeks of time from work in the last year. The report of an October 2011 VA examination includes diagnoses of hallux valgus and hallux rigidus involving the Veteran's right great toe. The Veteran reported treatment in the past month by a local podiatrist because his pain had worsened. X-rays then revealed total fusion of the metatarsal joint of the right great toe, and that the screws were loose. The Veteran was told that he needed to have the hardware removed from his right foot. Current symptoms included consistent pain in the right great toe and on the bottom of his foot. The Veteran walked on the outside of his right foot because he could not bear weight on the ball of his foot due to pain. He had swelling and deformity of the first metatarsal joint. Objective examination in October 2011 revealed mild or moderate symptoms of hallux valgus on the right side; and severe symptoms of hallux rigidus, with function equivalent to amputation of great toe. There was no evidence of malunion or nonunion of tarsal or metatarsal bones, and no evidence of bilateral weak foot. The examiner described the Veteran's increasing pain in his right foot, and indicated that his gait had been altered due to the pain. The Veteran walked on the outside of his right foot, with an out-turned foot; and there was evidence of uneven wear on his right boot, and increased stress on his right ankle. The Veteran occasionally used a cane for partial non-weight bearing, when he had flares of pain in his right foot. Imaging studies revealed degenerative arthritis in multiple joints of the right foot. There was no evidence of hardware fracture or definite orthopedic screw loosening. Mild residual hallux valgus deformity also was noted. Regarding the Veteran's ability to work, the examiner indicated that the Veteran continued to work full-time and was limited in the distance he walked, especially when weight-bearing. The examiner reported that the Veteran was scheduled for surgery within the next month due to increased pain in his right foot; and that he will miss one week of work; he then will wear a walking cast or boot for at least three weeks. As to the notation regarding "severe symptoms equivalent to amputation of great toe," the examiner explained that the pain the Veteran currently was experiencing was so great, and removing the toe would likely make him more functional. However, the hope was that removing the hardware only would accomplish this goal. Here, throughout the rating period, the Veteran has consistently reported pain in his right foot, swelling, fatigability, and a lack of endurance. Examiners have noted abnormal weight-bearing and an abnormal gait. There also is evidence of joint fusion, and arthritis involving groups of minor joints of the right foot. Taking into account his lay assertions, particularly with respect to functional loss resulting from pain and other symptoms as contemplated by Deluca, the Board concludes that these symptoms meet the criteria for the currently assigned 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284. The overall evidence has not shown that the Veteran's residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot result in unilateral marked pronation. X-rays confirm only mild deformity. Though the Veteran has occasionally expressed extreme tenderness of the plantar surfaces of his foot, at no point has there been shown marked inward displacement, or severe spasm of the tendo achillis on manipulation. There is no showing of marked contraction of plantar fascia with dropped forefoot. Nor was there evidence that all of the Veteran's toes were hammer toes or that there are very painful callosities during any examination. While the Veteran's gait has been altered, severe impairment associated with the malunion or nonunion of the tarsal or metatarsal bones of the foot is not demonstrated. As such, the Board ultimately places more weight on the results of objective clinical examination than the Veteran's lay reports as to the severity of his symptoms. Even with consideration of functional factors, the Board finds that the Veteran's residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot do not meet or approximate the criteria for a disability evaluation in excess of 20 percent under any applicable diagnostic code during the rating period. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The interphalangeal, metatarsal, and tarsal joints of the foot are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45. While the October 2011 VA examiner noted severe symptoms of hallux rigidus just prior to an upcoming surgery for removal of loose hardware from the Veteran's right foot, such exacerbations do not justify a higher rating. "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. The months preceding that upcoming surgery noted by the October 2011 examiner were just such a time period, but the Veteran's general level of disability due solely to his residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot are less severe. The overall evidence reflects no more than a moderately severe injury throughout the rating period. Hence, staged ratings are not applicable. Hart, 21 et. App. at 509-510. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot is adequate in this case. While examiners have noted some occupational impairment with the distance that the Veteran can walk when weight-bearing, his functional impairment due to moderately severe residuals is specifically contemplated by the schedular criteria for foot injuries. The Board finds that the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. Therefore, the Board finds that 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, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, an increased disability evaluation for the Veteran's residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot is not warranted. ORDER A disability evaluation in excess of 20 percent for residuals of status-post arthroplasty of the first metatarsophalangeal joint of the right foot is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs