Citation Nr: 1324078 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-46 915 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for claimed left knee disability, to include as secondary to service-connected disability. 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for left hip disorder, to include as secondary to service-connected disability. 3. Entitlement to a rating greater than 10 percent for the service-connected status post left foot exostosis excision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1947 to June 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and April 2011 rating decisions by the RO. In February 2013, the Board remanded the appeal so that the requested hearing could be rescheduled. In May 2013, a videoconference hearing was held with the undersigned Veterans Law Judge (VLJ). At that time, the record was held open for 30 days for the submission of evidence. Additional evidence was subsequently received with a waiver of RO jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Virtual VA eFolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In May 2009, the RO denied the claim of service connection for hip pain; the Veteran did not appeal the decision. 2. The evidence associated with the record since the May 2009 rating decision relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. 3. The service-connected left foot disability is shown as likely as not to have caused the left knee and left hip disabilities. 4. The service-connected left foot disability picture is shown to more nearly approximate that of a severe foot injury. CONCLUSIONS OF LAW 1. The evidence received subsequent to the May 2009 rating decision is new and material for the purpose of reopening the claim of service connection for a left hip disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. By extending the benefit of the doubt to the Veteran, his left hip disability, manifested by osteoarthritic changes, is proximately due to or the result of the service-connected left foot disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 4. By extending the benefit of the doubt to the Veteran, his left knee disability, manifested by osteoarthritic changes, is proximately due to or the result of the service-connected left foot disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 5. The criteria for the assignment of a 30 percent evaluation, but no more for the service-connected status post left foot exostosis excision are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.68, 4.71a including Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision to reopen the claim of service connection for claimed left hip disorder and to grant service connection for left knee and left hip disabilities, a detailed discussion regarding VA's duties pursuant to VCAA as regards these issues is not necessary. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Regarding the claim for increase, in June 2008, VA sent the Veteran a letter notifying him of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter also provided notice of how VA assigns disability ratings and effective dates. The Board acknowledges that this letter did not specifically notify the Veteran of the information and evidence needed to substantiate a claim for increase. Throughout the appeal, however, the Veteran has been provided the applicable laws and regulations pertaining to increased ratings claims and has been advised of the specific rating criteria. The claim was most recently readjudicated in the August 2012 Supplemental Statement of the Case. Accordingly, the Board finds that VA's duty to notify has been satisfied. VA has also satisfied its duty to assist. The claims folder contains extensive medical evidence, both VA and private. A Formal Finding of Unavailability was completed regarding VA records dated in 1953. The Board observes, however, that the narrative summary of the December 1953 treatment is already of record and regardless, records from 1953 are not relevant to the current claim for increase. The Veteran was afforded VA examinations to determine the severity of the service-connected left foot disability in October 2008 and, most recently, in March 2012. The overall evidence, to include private medical records, is considered adequate for rating purposes. The Veteran was provided the opportunity to submit evidence and argument and further provided testimony at a videoconference hearing. The VLJ's actions supplement VCAA and comply with any related duties owed during a hearing. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis New and material evidence In May 2009, the RO denied service connection for hip pain, essentially based on findings that evidence of record did not show a diagnosed condition or that such was related to service or service-connected disability. The Veteran was notified of this decision by letter dated May 21, 2009. On May 14, 2010, the RO received a Notice of Disagreement regarding the left foot evaluation, which was addressed in the May 2009 rating. The RO also received a VA Form 21-526, which was apparently construed as a claim to reopen the hip. The Board acknowledges that this was received within the one-year appeal period, but it does not appear to have been accompanied by new and material evidence. 38 C.F.R. § 3.156(b). Thus, the Veteran did not enter a timely appeal. The May 2009 rating decision did not specifically identify the hip condition as right, left, or bilateral. Subsequent statements by the RO, to include the December 2011 Informal Conference Report, suggest the issue is for a bilateral hip condition. The August 2012 Supplemental Statement of the Case, however, indicated that service connection for left hip condition remained denied. A review of the Veteran's claims shows that he requested service connection for "left foot and hip" and the overall arguments and evidence suggest he is claiming the left hip. For example, in his November 2010 VA Form 9, the Veteran stated that he was claiming his left ankle, knee, and hip, basically his whole left leg as secondary problems caused by his left foot. Thus, the Board will consider the issue as such. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). At the time of the May 2009 rating decision, the pertinent evidence of record included service treatment records, the VA medical records, and various statements from the Veteran. The service treatment records did not show any complaints or treatment related to the hip. VA medical records did not document a current diagnosis. The Veteran reported that his left foot continued to get worse and that the pain transferred into his hip. Additional evidence has been added to the record since the May 2009 rating decision. This includes private medical records. An October 2012 statement from Dr. M.A.C. states that the Veteran's foot condition affects his gait and his use of an ankle foot orthosis (AFO) and a limp because of the left foot osteoarthritis affects his left knee and his left hip, each of which has osteoarthritic changes. The referenced records are new. Additionally, they relate to an unestablished fact and raise a reasonable possibility of substantiating the claim. Therefore, the claim is reopened. Having reopened the claim, the Board will consider it on its merits. The Veteran is not prejudiced by this consideration as the claim is being granted herein. Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection In general, service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for certain chronic diseases, including arthritis, if manifested to a compensable degree within one year following discharge from active service. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no findings or complaints related to the left knee or hip during service or for many years thereafter, and the Veteran does not appear to argue direct or presumptive service connection. Rather, he argues that his current left knee and left hip problems are causally related to service-connected disability. In his July 2012 VA Form 9, the Veteran reported that he had left foot surgery in January 2006, that his foot never healed properly and that, because he walked differently, he developed problems with his knee and hip. Before the operation, he did not have these problems. He specifically argued that his hip and knee were both related to the January 2006 left foot operation. At the May 2013 videoconference hearing, the Veteran provided similar testimony. The Veteran is currently service-connected for status post left foot exostosis excision (10 percent); residual surgical scar, left foot (10 percent); and residual loss of left ankle motion (20 percent). The private medical records dated in March 2011 include diagnoses of mild osteoarthritic changes to the left knee and osteoarthritic changes of the left hip. The Veteran underwent a VA examination in March 2012 to determine the nature and etiology of claimed hip and knee disabilities. The X-ray studies were reported as showing normal and symmetric appearance of the hips and an unremarkable left knee. Regarding whether the Veteran had a knee condition, diagnosis was reported as patellofemoral syndrome of the left knee. As to the hip, the examiner indicated that the Veteran did not have a hip condition. Following examination, the examiner stated that it was less likely than not that the left knee condition is proximately due to or the result of the service-connected residuals of status post left exostosis excision. In support of this opinion, he provided the following rationale: The claimant x-ray taken on 3/27/2012 revealed unremarkable left knee series however on my examination the claimant appeared to have Patellofemoral Syndrome due to pain illicited (sic) on the posterior surface of the patella and crepirus (sic) noted. However either the right knee or the left knee no relationship with the left foot because on Patellofemoral Syndrome the cause of pain and dysfunction often results from either abnormal forces or prolonged repetitive compressive or shearing forces on the Patellofemoral joint. Claimant was seen by Dr. [A.C.] on March 24, 2011 and 4/21/2011 and his examination revealed that there [was] chondromalacia patella of the left knee as there is some crepitus, but the medial and lateral joint lines are non tender, and there is no joint effusion to the left knee. There were no other visits regarding his left or right knee. Although the VA examiner stated that there was no hip condition, he went on to provide a negative opinion regarding secondary service connection. In support of this opinion, he stated as follows: There is no relationship between the left foot and the left hip of the claimant. His gait [was] normal, no signs of abnormal weight bearing despite the leg discrepancy of right leg measuring 99 cm and the left leg 97 cm. He was seen by Dr. [A.C.] on 3/24/2011 and 4/21/2011 with diagnosis of mild osteoarthritis changes to the left knee, osteoarthritic changes of each hip right and left but on physical examination he stated that the claimant has functional range of motion of the left hip and the right hip with no reproducible pain or discomfort to the left and right hip. His bilateral hips x-ray done and read by Dr. [J.L.] on 3/27/2012 were read as "normal and asymmetric appearance of the hips." An October 2012 statement from Dr. M.A.C. indicated that he had seen the Veteran in the past for followup care for his left foot. Orthopedic diagnoses included osteoarthritis of the left knee and arthritis of the left hip. The physician stated the following: Certainly, his foot condition [did] affect his gait and his use of AFO and a limp because of his osteoarthritis of his left foot [did] affect his left knee and his left hip, each of which he ha[d] osteoarthritic changes to his hip and both knees. As such, this letter is to state that he is not an ideal candidate for surgery and due to his osteoarthritis of his foot, it does affect his hip and his knees. The Board acknowledges that there is conflicting evidence as to the nature of the claimed disabilities. The March 2012 examiner essentially indicated that there was no radiographic evidence of arthritis in the left knee or hip and limited the diagnosis to patellofemoral syndrome of the left knee. The private medical records, on the other hand, include diagnoses of left knee and hip arthritis and these appear to be supported by radiographic findings. Accordingly, on this record, the Board finds evidence to be in relative equipoise in showing that the Veteran has current left knee and left hip disability manifested by osteoarthritic changes. Regarding whether this pathology is secondary to the service-connected disability, the record again contains competing opinions. As discussed, the March 2012 VA examiner indicated that it was less likely that the claimed conditions were proximately due to or the result of service-connected disability. The Veteran's private physician, however, stated that the Veteran's service-connected foot disability altered his gait and affected his left knee and left hip. . The Veteran has consistently reported that, following his January 2006 left foot surgery, he had problems walking correctly and that he began to experience pain in his left knee and hip. The Veteran is competent to report an altered gait and corresponding left knee and hip pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A Veteran is competent to report on that of which he or she has personal knowledge). The Board acknowledges the March 2012 VA examination which stated that gait was normal. The claims folder, however, is replete with records supporting the Veteran's statements and the Board accepts them as credible. For example, in January 2009, a VA neurologist noted marked alteration of gait due to a painful left foot with en bloc turning. He noted the Veteran's complaints of worsening left foot to knee pain following surgery. The neurologist stated that this was an orthopedic/podiatry problem and informed the Veteran that foot pain caused uneven ambulation to avoid the pain which caused radiating pain proximally from the foot. The VA podiatry records dated in 2010 showed complaints of continued pain and discomfort upon ambulation. The Veteran was noted to have a compensatory gait due to left foot pain. An October 2010 VA ankle examination noted that the Veteran walked with an ataxic gait that was due to the brace, special shoes and foot surgery. The private records also documented that the Veteran walked with a limp. In determining the probative value to be assigned to each opinion, the Board observes that the opinions were provided by physicians and supported by rationale. Thus, on review, the evidence is again found to be in relative equipoise in showing that the service-connected left foot disability caused the demonstrated left knee and hip disabilities. In resolving all reasonable doubt in the Veteran's favor, secondary service connection for the left knee and left hip disability manifested by degenerative changes is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310. Increased evaluation A review of the record shows that there has been some confusion over how the Veteran's left foot disability is rated. Throughout the appeal period, which appears to begin in May 2008, the Veteran has asserted that he was originally service-connected for a left foot injury and was seeking an increase in the evaluation for the underlying left foot disability, as opposed to the residual surgical scar. In a December 2011 Informal Conference Report, the Decision Review Officer (DRO) clarified that the issue of an increased rating in excess of 10 percent for status post left foot exostosis excision was currently on appeal and that a separate 10 percent rating had been granted for the residual surgical scar of the left foot. A review of the claims folder shows that, in October 1951, the RO granted service connection for "scar, dorsum, left foot." A 10 percent evaluation was assigned from August 15, 1951. The Board acknowledges that the notice letter indicated that service connection had been established for a left foot injury. It is clear that the 10 percent rating was assigned under Diagnostic Code 7804, which addressed scarring. In May 2008, the Veteran submitted a claim for increase. In May 2009, the RO continued the 10 percent evaluation assigned for status post left foot exostosis excision with scar, superficial, tender. The code sheet shows that this was assigned under Diagnostic Codes 7804-5284 beginning on December 1, 1999. Diagnostic Code 7804 pertains to tender and painful scars, whereas Diagnostic Code 5284 addresses foot injuries. It was noted, however, that this was a rebuilt claims file and that the dates of original grants for service connection were not available. A review of the reasons and bases in this decision shows that the evaluation was continued based on moderate foot symptoms (Diagnostic Code 5284). The Veteran disagreed with the decision, arguing that his gait was not normal and that he could no longer move and manipulate both feet with equal mobility. In October 2010, the RO granted service connection for a residual surgical scar of the left foot at 10 percent beginning on May 20, 2008. A Statement of the Case was issued on the evaluation assigned under Diagnostic Code 5284 and the Veteran subsequently perfected this appeal. Documentation in the claims file shows that what appears to be the original claims folder was located and received at the RO in December 2010. This was supposed to be consolidated with the rebuilt file. There is no indication, however, that the code sheet was corrected. In this regard, the Board observes that the 10 percent evaluation under Diagnostic Code 7804 had been in effect since August 1951 and was protected. See 38 C.F.R. § 3.951 (2012). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's left foot disability, other than the residual scar, is currently evaluated under Diagnostic Code 5284 and this appears appropriate. Under this diagnostic code, a 10 percent evaluation is provided for a moderate foot injury. A 20 percent evaluation is provided for a moderately severe foot injury. A 30 percent evaluation is provided for a severe foot injury. The Note to Diagnostic Code 5284 indicates that a 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Examples under 38 C.F.R. 4.63 which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 31/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop. VA's Office of General Counsel has stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, VA's General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98 (Aug. 14, 1998). In January 2006, the Veteran underwent lapidus fusion of the 1st metatarsocuneiform joint of the left foot. The post-operative diagnosis was that of painful hypermobility of the left 1st ray with dorsal exostosis at the 1st metatarsal medial cuneiform joint left foot. The Veteran underwent a VA examination in October 2008. He reported having constant pain in the left foot. He had having pain and stiffness at rest and having pain, weakness, stiffness and fatigue while standing or walking. He reported pain with all ambulation. His gait was noted to be antalgic with a short-based gait. Because of the left foot pain, he required a cane. An examination of the left foot did not reveal painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness or instability. Palpation of the plantar surface of the left foot revealed moderate tenderness. Alignment of the Achilles tendon was normal on weight bearing and non-weight bearing. There was no pes cavus, pes planus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus. The X-ray studies were taken of the left foot with weight bearing and non-weight bearing views. The impression was (1) status post surgical ankylosis of the first tarsometatarsal joint; (2) prominent plantar calcaneal spur; and (3) otherwise negative left foot. The diagnosis was that of status post left foot exostosis excision complicated with infection and 3 subsequent surgeries and residual pain and scar. The examiner noted marked tenderness requiring use of a cane and pain with all ambulatory activities. The Veteran was seen in the VA podiatry clinic in March 2010. It was noted that he had had left foot surgery in 2006 with continued pain and discomfort upon ambulation. He reported having difficulty walking up and down stairs and difficulty with squatting doing yard work. Objectively, there was pain along the medial arch and the dorsal and plantar aspect of the left foot with decreased motion along the 1st ray secondary to fusion, and digital contractures 2-5, bilaterally. The assessment included that of pain along the medial arch and the dorsal and plantar aspect of the left foot which had remained chronic, and hammer toes 2-5, bilaterally. A July 2010 statement from the VA Chief of Podiatry discussed the history of the Veteran's service-connected left foot disability. The podiatrist stated that the Veteran should be reconsidered for a higher service-connected disability rating based on the referenced chronological events. In his November 2010 VA Form 9, the Veteran reported that he used a cane, orthotic shoes with a roller bottom, a build up for the left heel, an ankle brace, and a form-molded shoe with arch support insert. He walked primarily on his heel and the left side of his foot. A May 2011 statement from Dr. M.A.C. indicated that the Veteran was under his care for left midfoot osteoarthritis, adjacent joint stress osteoarthritis; and forefoot metatarsalgia, clawing and hyperextension of the toes with associated forefoot fat pad atrophy. The physician further stated that these conditions were service-related and affected the way he ambulated. Another May 2011 statement from Dr. M.A.C. discussed the Veteran's complaints and treatment and stated that "overall it [was] still [his] impression that his forefoot troubles, clawing of his toes, hyperextension of his toes, and degenerative changes of his feet [were] armed service-related conditions." A December 2011 record from Dr. M.A.C. indicated that the Veteran walked with a limp and had weakness to dorsiflexion. There was a slight Achilles tendon contracture on the left and rigid claw toes one through five. The physician stated that he had had physical therapy and that there was nothing more to offer him. The Veteran underwent a VA examination in March 2012. Diagnoses were reported as being those of status post left foot exostosis excision, left foot calcification, and left heel spur. The examiner indicated that there was no Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of tarsal or metatarsal bones, or bilateral weak foot. The examiner also indicated that the Veteran did not have any other foot injuries and, thus, did not indicate the associated severity. The X-ray studies showed a first tarsal-metatarsal fusion in the left foot, with plantar tissue calcification and possible small heel spur. The Veteran was noted to use a cane for stability. The examiner further stated that the Veteran did not have functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis, and that the foot condition did not impact the Veteran's ability to work. A physical therapy record dated in April 2012 showed that the Veteran had attended 9 visits and had shown slow functional gains. He reported having pain at 3-4, on a scale of 1 to 10. He was ambulating with a slight antalgic gait. In considering the merits of the claim, the Board notes that the VA examination appears to be somewhat limited in scope when compared to the private medical evidence. That is, it did not note disabilities, such as hammer toes, which have been previously documented. Nonetheless, the Board finds the overall record sufficient to make a decision. The private medical records document midfoot arthritis, forefoot metatarsalgia, and clawing and hyperextension of the digits, which have been related to service-connected disability. The Veteran uses an AFO and a cane. The VA outpatient records note complaints of chronic left foot pain and objectively document the presence of hammer toes and the Veteran's need to wear orthotics and use a cane. The Veteran has consistently reported having left foot pain and difficulties related to ambulation. At the hearing, the Veteran and his son testified that his left foot pain was markedly increased since the last operation. The medical evidence in this regard does tend to show that he is not a candidate for additional surgical intervention. The Veteran's lay assertions reveal subjective, yet credible complaints of pain and functional limitations related to service-connected disability. In increased rating claims, an appellant's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that 'as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability'). The Board has considered the objective evidence of record, as well as the Veteran's subjective complaints of pain and functional impairment. The Board has no reason to doubt the Veteran's credibility in this regard and resolving reasonable doubt in his favor, finds that the disability picture more closely resembles that of a severe foot injury. Thus, on this record, a 30 percent evaluation is warranted under Diagnostic Code 5284. This is the maximum schedular evaluation under these criteria, absent loss of use of the foot, which is not demonstrated. The Board acknowledges that there are additional diagnostic codes pertaining to the feet and toes. The findings of hammer toes, arthritis, etc., have been considered in the assigned rating, and separate evaluations are not warranted. See 38 C.F.R. § 4.14 (2012). A 30 percent evaluation under Diagnostic Code 5284 and the separate 10 percent evaluation for the left foot scar combine to a 40 percent evaluation. See 38 C.F.R. § 4.25. This is the highest schedular evaluation for disabilities below the knee. 38 C.F.R. § 4.68 (The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, Diagnostic Code 5165.) The Board acknowledges that a 20 percent evaluation was assigned for residual loss of left ankle motion, claimed as ankle pain and arthritis, from May 14, 2010. To the extent the combined rating for the lower extremity will exceed 40 percent following the implementation of the grant herein, the amputation rule is for consideration. 38 C.F.R. § 4.68. As discussed, this decision also grants service connection for a left knee disability. Under the amputation rule, the 40 percent rating for the lower extremity may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level. 38 C.F.R. § 4.68. At no time during the appeal period has the service-connected status post left foot exostosis excision warranted more than a 30 percent rating under Diagnostic Code 5284 and staged ratings are not warranted. See Hart. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As discussed, the symptoms associated with the Veteran's left foot disability are reasonably contemplated by the established schedular criteria. The assigned diagnostic code contemplates the objective findings related to the foot as well as the Veteran's complaints of functional impairment. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is required. Id. The evidence of record does not indicate that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. Thus, on this record, the Board declines to infer a claim for a total compensation rating based on individual unemployability at this time. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER As new and material evidence has received to reopen the claim of service connection for left hip disorder, the appeal to this extent is allowed. Service connection for left hip disability manifested by ostoearthritic changes is granted. Service connection for left knee disability manifested by osteoarthritic changes is granted. A 30 percent evaluation for the service-connected status post left foot exostosis excision is granted, subject to the regulations governing the award of monetary benefits. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs