Citation Nr: 1323589 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-39 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating higher than 50 percent for bilateral pes planus with hammertoe of the 2nd and 4th toes of each foot, on an extraschedular basis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Michael R. Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from March 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran now resides in Tennessee, so the matter is now handled by the RO in Nashville, Tennessee. The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2009 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2009 hearing, the undersigned Veterans Law Judge fully explained the issue involved. See May 2009 Board transcript, page 2. The Veteran was represented at the hearing by a representative of the American Red Cross. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice, as the Veteran has shown actual knowledge of the evidence that is lacking in his claim. He has provided testimony and statements asserting why he believes an increased rating is warranted. The RO has provided the Veteran with the criteria used to evaluate his disability, which has put him on notice of the evidence necessary to substantiate a higher rating. Therefore, to the extent that the undersigned did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. As a preliminary matter, the Board notes that in July 2010, the Board adjudicated the Veteran's claim of entitlement to an increased rating for bilateral pes planus, on a schedular basis, and remanded this case for consideration of an increased rating on an extraschedular basis only. As such, the issue of entitlement to an increased schedular rating is no longer before the Board. In July 2010, the Board remanded these claims for additional development. That development having been completed, the claims are now ready for appellate review. FINDINGS OF FACT 1. The evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's bilateral pes planus with hammertoe of the 2nd and 4th toes of each foot is inadequate. 2. The Veteran has not required frequent hospitalizations for his bilateral pes planus, and his foot disability has not caused marked interference with his employment. 3. The Veteran meets the requisite schedular percentages for TDIU; and the evidence shows that his service-connected disabilities, when evaluated in association with the Veteran's educational attainment and occupational experience, preclude all forms of substantially gainful employment. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for a rating higher than 50 percent for bilateral pes planus with hammertoe of the 2nd and 4th toes of each foot, on an extraschedular basis, are not met. 38 C.F.R. § 3.321(b)(1) (2012). 2. The criteria for TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it 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; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2007 for his increased rating claim and July 2010, for his TDIU claim, that fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. An additional letter was sent in May 2008. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The Veteran's claims were adjudicated subsequently in an April 2012 Supplemental Statement of the Case. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are post-service VA examination and treatment records. Social Security has indicated that they have no records for the Veteran. Virtual VA records were also reviewed. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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). II. Entitlement to a Rating Higher Than 50 Percent for Bilateral Pes Planus With Hammertoe of the 2nd and 4th Toes of Each Foot, On an Extraschedular Basis The Veteran seeks entitlement to a rating higher than 50 percent for his bilateral pes planus with hammertoe of the 2nd and 4th toes of each foot, on an extraschedular basis. The Veteran asserts that his foot disability is very painful and interferes with his ability to be employed. The Veteran's claim was submitted to the Director of the Compensation and Pension in November 2011, but it was determined the Veteran was not entitled to extraschedular consideration as there was no exceptional or unusual disability picture. See November 2011 Administrative Review decision. The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's foot disability are inadequate. A comparison of the level of severity and symptomatology of the Veteran's disabilities with the established criteria found in the rating schedules show that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Veteran is currently receiving the maximum rating for bilateral pes planus, 50 percent, which is awarded when there is pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). This criterion accounts for the Veteran's pain, tenderness, and discomfort, which are the main symptoms he has asserted he experiences. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The Board notes evidence does not indicate the Veteran has required frequent hospitalizations for his foot disability. Additionally, there is no evidence of marked interference with employment due to the disability. The Board notes that the Veteran has not worked during the pendency of this appeal. As such, there has been no interference with employment. The Board notes that the Veteran claims that his disability prevents him engaging in a substantially gainful occupation and this will be discussed in relation to his claim for a TDIU rating. In short, there is nothing in the record to indicate that the disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that entitlement to an increased rating on an extraschedular basis is denied. III. Entitlement to TDIU The Veteran seeks entitlement to TDIU. Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disability affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prison of war. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). The Veteran is service connected for bilateral pes planus with hammertoe of the 2nd 4th toes of each foot, currently rated as 50 percent disabling, and residuals of a stress fracture of the right fibula, currently rated as 10 percent disabling. The Veteran has a combined rating of 60 percent. The Board finds that the Veteran's disabilities affect a single body system, orthopedic, and also are disabilities of the lower extremities; therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability. As such, it now must be determined whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his disabilities. The Board notes that the Veteran was provided a VA examination in April 2007; however, no medical opinion regarding the Veteran's employability was offered during this VA examination. Additionally, the Veteran's niece submitted statements in May 2007, May 2008, and August 2010, stating that the Veteran is unable to perform work and does not have an income sufficient to meet his monthly needs. The Board notes that the Veteran's niece is competent to report the Veteran's observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, as a minister without medical training, she is unable to provide a probative opinion on whether the Veteran's unemployment is due to his service-connected disabilities. The Veteran also submitted a statement from his treating physician in November 2007 reporting that the Veteran was unable to work until further notice. There was no explanation provided regarding the reason and/or specific disorder causing the Veteran's inability to work. A letter from the Office of Personnel Management in May 2008 stated that the Veteran was considered by the Civil Service Retirement System to be totally disabled for the job position he held with the Federal government due to his degenerative joint disease, arthritis, and hepatitis C. Importantly, the Board notes that the Veteran is not service connected for any of these disorders. The Social Security Administration indicated that they had no records pertaining to the Veteran. The Veteran stated in August 2010 that he had other disorders along with his service-connected disabilities that affected his ability to work, including hepatitis C, stiff joints, high cholesterol, a prostate problem, breathing problems, and high blood pressure. The Veteran is not service connected for any of the disorders he reported. Individual unemployability must be determined without regard to any nonservice-connected disabilities. 38 C.F.R. § 3.341(a). Significantly, the Veteran was afforded a VA examination in January 2012, for the purpose of determining the severity of his service-connected disabilities and to determine employment eligibility. The examiner offered an opinion that weighs against the claim. The examiner noted that the Veteran's service-connected disabilities affect his ability to work in that they cause difficulty with prolonged standing or ambulating. The examiner opined that given the Veteran's bilateral foot pain, it would be difficult for him to perform any standing work; however, he could perform sedentary work with minimal difficulty. The examiner explained that the Veteran has pain with prolonged standing and walking, and therefore, any job requiring this would be difficult; however, he should be able to perform seated work. The Board finds that the evidence supports the claim for a TDIU rating. In August 2010, the Veteran reported past work as a housekeeper, a food service worker, warehouse work, construction work, and landscaping. All of these positions can be considered manual and required prolonged standing and walking. The 2012 examiner stated that the Veteran would have difficulty with jobs requiring prolonged standing and walking. The Veteran's educational background shows that he completed 4 years of high school and one year of technology school. There is nothing in the record showing that the Veteran has the skills necessary to work a sedentary position. Given the limitations caused by his service-connected disabilities, the Board finds that it is clear that he is prevented from doing manual positions and given his educational and occupational background, he has not demonstrated an ability to obtain a sedentary position. As such, the Board finds that the evidence supports the award of a TDIU rating. ORDER Entitlement to a rating higher than 50 percent for bilateral pes planus with hammertoe of the 2nd and 4th toes of each foot, on an extraschedular basis, is denied. Entitlement to TDIU is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs