Citation Nr: 1324086 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-10 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to increases in the staged (0 percent prior to March 23, 2007 and 10 percent from that date) ratings assigned for left hallux valgus. 2. Entitlement to increases in the staged (0 percent prior to February 15, 2012, and 10 percent from that date) ratings assigned for postoperative right knee Osgood Schlatter's disease. 3. Entitlement to a rating in excess of 10 percent for right ankle strain. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who retired from active duty in November 1986 after 20 years of service beginning in February 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO). In February 2011, a Travel Board hearing was held before the undersigned; a transcript is associated with the claims file. In January 2012 the Board remanded these matters for further development. Regarding the rating for left foot hallux valgus, the September 2006 rating decision denied a compensable rating for such disability. An interim (September 2008) rating decision increased the rating to 10 percent effective March 23, 2007. The issue is characterized to reflect that staged ratings have been assigned, and that both stages remain on appeal. [From March 27, 2007 until July 1, 2007 and from May 8, 2008 until July 1, 2008 the disability was assigned a 100 percent convalescence rating under 38 C.F.R. § 4.30. Consequently these periods of time are not for consideration.] Regarding the rating for the right knee disability, the September 2006 rating decision continued a 0 percent rating for such disability. An interim (November 2012) rating decision increased the rating to 10 percent effective February 15, 2012 (resulting in staged ratings). The issue is characterized to reflect that staged ratings have been assigned, and that both stages remain on appeal. The matter of the ratings for right knee Osgood Schlatter's disease is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. Prior to May 23, 2007 the Veteran's left hallux valgus was not shown to have been operated, with resection of the metatarsal head or to be severe and equivalent to amputation of the great toe. 2. The 10 percent rating assigned for left hallux valgus from May 23, 2007 is the maximum schedular rating provided for hallux valgus, of itself; factors warranting extraschdular consideration are not shown (or alleged). 3. At no time during the appeal period is the Veteran's right ankle disability shown to have been manifested by more than moderate limitation of ankle motion. CONCLUSIONS OF LAW 1. A compensable rating for left hallux valgus prior to March 23, 2007 and a rating in excess of 10 percent for such disability from that date are not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (Code) 5280 (2012). 2. A rating in excess of 10 percent is not warranted for the Veteran's right ankle disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A July 2006 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in May 2006, May 2008, and February 2012, and (regarding the left hallux valgus disability) in March 2013 secured an advisory medical opinion based on a review of the record. The Board finds that the examination report and opinion cumulatively provide sufficient information and reflection of the disability picture presented by the disabilities to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity resulting from the disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings may be assigned for distinct periods where the severity of the disability varied, if warranted by factual data. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.40 provides that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Left Hallux Valgus Hallux valgus is rated under Code 5280 , which provides for a (maximum) 10 percent rating for unilateral hallux valgus if operated with resection of metatarsal head or if severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Where the rating schedule does not provide for a 0 percent rating, and the criteria for a compensable rating are not met, a 0 percent rating is to be assigned. 38 C.F.R. § 4.31. A June 1987 rating decision granted the Veteran service connection for left hallux valgus, rated 0 percent, effective December 1, 1986. The September 2006 rating decision on appeal continued the 0 percent rating; a 2008 rating decision increased the rating for left hallux valgus to 10 percent effective March 23, 2007. On May 2006 VA examination, the Veteran reported a history of bilateral halluces valgus deformity. He was not taking prescription medications; had not had surgery, and was not under the care of a physician or podiatrist. On physical examination he had a moderate degree of halluces valgus deformity of both feet, no shift in weight bearing, no metatarsal tenderness, no pronation deformity, no malalignment of the Achilles tendon, and no callosities. The diagnosis was halluces valgus deformity. On October 2007 VA podiatry clinic follow-up visit, the Veteran was post left bunionectomy and second toe arthrodesis (March 23, 2007). He denied pain, but admitted continued concern with his ability to extend the great toe. He presented at the clinic fully ambulatory in sneakers. Examination of the left foot revealed the incision sites were well healed. There was mild forefoot edema; sensation was intact, hallux was in slightly plantar flexed position, there was increased hallux range of motion, and he was able to flex and slightly extend the hallux. The assessments were post left bunionectomy and second toe arthrodesis, weakened extensor hallucis longus (he could continue normal activity), and discontinue use of Dynasplint. April 2008 x-rays of the left foot showed slightly more deformity of the first metatarsal bone than on prior examination of July 2007. In May 2008 the Veteran underwent a procedure to remove painful hardware from the left foot. May 2008 X-rays showed two staples at the first metatarsal proximally had been removed. The osteotomy and posttraumatic changes at the second toe were noted. On May 2008 VA examination, the Veteran reported that in 2007 he had a bunionectomy for a left hallux valgus disability, which he stated was not helpful as to left foot pain relief. He complained of moderate intermittent left foot pain which occurred two to three times a week with standing and walking, with 10-minute duration and accompanied with weakness and fatigue of the left foot. He had a mild antalgic gait. He did not take medication for left foot pain. He denied use of ambulatory aids or orthotics for his left foot disability. Regarding impact of the disability on his occupation in real estate, and on activities of daily living, he had difficulty with prolonged standing and walking for more than 15 minutes due to left foot pain. Range of motion of his toes (both feet) was normal. With repetitive use times three, the range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance as to the toes bilaterally. There was no evidence of foot pain with ranges of motion; there was no edema, weakness, or instability of the feet bilaterally. There was mild tenderness along the first metatarsal area of the left foot. There was no evidence of callus formation or unusual shoe pattern wear to suggest abnormal weight bearing. He did not have flat feet. The diagnosis was status post right bunionectomy for hallux valgus condition of the left foot with left foot strain, mildly active at the time of the examination. A July 2008 outpatient treatment report, notes the Veteran was 69 days post removal of painful internal fixation in the left foot; and was ambulating with full weight bearing in "new balance" shoes. He reported sensation along the scar and numbness in the left second digit. He also stated he had pain in the metatarsophalangeal joint and "partial sensation loss" along the left hallux. His main complaint was pain and difficulty walking. He stated that he can "only push off of his three lesser digits by rolling his foot to the outside." The assessment was status post removal of internal fixation of the left foot (May 2008), questionable extensor hallucis longus rupture, first metatarsal elevatus. MRI [magnetic resonance imaging] showed ruptured extensor hallucis longus tendon to the left hallux. At the February 2011 Travel Board hearing the Veteran's testimony regarding the left hallux valgus was primarily to the effect that as a result of surgery for that disability he had developed additional foot disabilities. [The undersigned notes that because the Veteran and his representative appeared to be aware -by virtue of the testimony regarding additionally acquired pathology-that 10 percent is the maximum schedular rating, for hallux valgus, of itself, the undersigned did not provide that information and that any increase above 10 percent would have to be on an extraschedular basis. It is further noteworthy that the Veteran received such information via the statement of the case (SOC) and supplemental statements of the case (SSOCs) and is not prejudiced by the deficiency. It is also noteworthy that the Board's January 2012 decision granted service connection for left extensor hallucis longus tendon disability (and that such disability is separately rated, which rating is not at issue herein).] In March 2013 a VA podiatrist offered opinions with respect to the questions raised by the adjudication of the convalescence ratings.. Regarding the period prior to March 23, 2007 at no time during such period was the hallux valgus shown to have been operated with resection of metatarsal head or severe and equivalent to amputation of great toe. The May 2006 VA examiner noted only a moderate degree of hallux valgus deformity. Therefore, prior to March 23, 2007 the Veteran's left hallux valgus did not meet the criteria for a compensable rating under Code 5280. Consequently, a 0 percent rating is the rating warranted for the period. See 38 C.F.R. § 4.31. Regarding the rating from March 23, 2007, the 10 percent rating assigned is the maximum schedular rating provided under Code 5280, a rating in excess of 10 percent under that code is not warranted. Diagnostic codes that provide for ratings in excess for foot disability require pathology beyond hallux valgus (Notably here, the Veteran has such pathology service-connected and separately rated-which rating is not before the Board.). Right Ankle The Board notes that the RO adjudicated the Veteran's April 2006 claim for an increased rating for a right ankle disability as a claim for a compensable rating for a right ankle disability. At the time of his 2006 claim for increase, the Veteran was already receiving 10 percent for a right ankle disability, which was effective from August 23, 1991. The issue of entitlement to a rating in excess of 10 percent for a right ankle disability was thereafter readjudicated ( by an April 2013 SSOC), curing the deficiency. The Veteran's right ankle disability is rated under Code 5271, which provides for a 10 percent rating for limitation of ankle motion, when moderate, and for a 20 percent rating when marked. 38 C.F.R. § 4.71a. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. On May 2006 VA examination, the Veteran reported a history of right ankle strain. At the time of the examination, he had not had right ankle surgery, was not taking prescribed medication, and was not under the care of a physician or podiatrist for the ankle. He reported he intermittently wore a brace on the right ankle. His activities of daily living were independent. His symptoms were achiness and stiffness in his right ankle joint. On physical examination of the right ankle there was no swelling. Plantar flexion was to 45 degrees and dorsiflexion was to 35 degrees. There was no shift in weight bearing and no malalignment of the Achilles tendon. The diagnostic impression was right ankle sprain. There was no significant history of flares. Activities of daily living were independent and he worked as a bartender and a commercial driver without significant loss of work time. There was no additional loss of range of motion due to pain, fatigue, weakness or incoordination. Range of motion was limited by pain At the February 2011 hearing, the Veteran's representative stated that the Veteran advised him that he now suffers from degenerative joint disease of the right ankle. He stated that range of motion was not the problem with his right ankle, but argued that a separate rating was warranted for instability. At the hearing the undersigned advised the Veteran of the criteria for rating ankle disability (noting that a 20 percent rating required marked limitation of motion). He was further advised that the rating schedule does not provide for a separate rating for instability. On February 2012 VA examination, the Veteran reported that his right ankle had worsened since military discharge in 1986. He denied having flare-ups of right ankle disability. He denied having right ankle surgery. He presented with a moderate antalgic gait. He did not use ambulatory aids or a brace. On range of motion testing, dorsiflexion was to 20 degrees, plantar flexion was to 45 degrees, inversion was to 30 degrees, and eversion was to 40 degrees. There was evidence of mild pain of the right ankle with wincing of facial expression of the right ankle with dorsiflexion 10 to 40 degrees, plantar flexion 35 to 45 degrees, inversion 20 to 30 degrees, and eversion 30 to 40 degrees with mild or minimal pain. Repetetive studies did not elicit additional pain, fatigue, weakness, or lack of endurance. Post-test range of motion of the right ankle remained unchanged. Regarding functional loss and additional limitation of range of motion, the Veteran's excursion, strength, speed, coordination, and endurance were all normal for the right ankle. The examiner noted the Veteran's activity was limited. His occupation was realtor. He had difficulty standing or walking for more than 20 minutes, walking up and down steps, and climbing due to right ankle pain as it related to activities of daily living and his occupation as a realtor. There was no other functional loss of the lower extremities as it related to his right ankle disability. There was normal range of motion of the right ankle. There was no evidence of more movement than normal. There was no evidence of less movement than normal as there was no weakened movement, no excess fatigability, and no incoordination. There was evidence of mild pain with range of motion of the right ankle, but no swelling, no deformity. There was no atrophy or disuse. There was no instability of station. He presented with a moderate antalgic gait. There was evidence of mild pain on palpation, and mild tenderness on palpation along the medial aspect of the right ankle. Muscle strength was 5/5. Joint stability tests were all negative. Anterior drawer test and talar tilt test were negative. There was no evidence of ankylosis. There were no additional conditions noted, no shin splints, no stress fractures, no Achilles tendinitis, no Achilles tendon rupture, no malunion or nonunion of the calcaneus or talus, and no history of talectomy. The diagnosis was right ankle sprain. As is noted above, ankle disability is rated based on limitation of motion, and a rating in excess of 10 percent requires marked limitation of motion. The Veteran has indicated he has not received care from a physician or podiatrist for his ankle. Consequently what is left to consider in rating the disability are the two reports of VA examinations during the evaluation period. Neither showed limitation remotely approximating marked limitation of motion, even with factors such as pain and use considered (the 2012 examiner found no instability, weakened movement, excess fatigability or incoordination). Consequently, a 20 percent schedular rating under Code 5271 is not warranted. While the Veteran's representative argued for a separate rating for instability of the ankle (and the Veteran testified regarding instability), the rating schedule does not provide for separate ratings based on instability of the ankle. More significantly on examination after that hearing instability was not found. Tests for instability were normal. The Board notes that the Veteran claims that he has degenerative joint disease of the right ankle, there are no recent diagnostic studies of record that support that allegation. Regardless, DJD is rated under the same criteria as his disability has been rated all along, and such finding would not (of itself) warrant any change in the rating).. The Board has also considered other codes pertaining to the ankle. The 2012 VA examiner noted that the Veteran did not have ankylosis of the ankle. Thus, a rating under Code 5270 is not warranted. There is also no evidence of ankylosis of subastragalar or tarsal joint, malunion of os calcis, or astragalus, or astragalectomy so as to warrant higher ratings under Codes 5272, 5273, and 5274, respectively. See 38 C.F.R. § 4.71a. In summary, a rating in excess of 10 percent is not warranted for the Veteran's service-connected right ankle disability under any applicable schedular criteria. The Board has also considered whether referral for extraschedular consideration is indicated for the Veteran's left hallux valgus (of itself) and right ankle disabilities. There is no objective evidence, or even allegation, suggesting that the schedular criteria are inadequate to rate these disabilities or that the disability pictures presented are exceptional. The symptoms and associated restrictions of function shown are fully encompassed by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the record shows the Veteran is employed as a realtor, the matter of a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to increases in the "staged" ratings (of 10 percent from July 1, 2007 to May 7, 2008, and from July 1, 2008) for the Veteran's left hallux valgus is denied. Entitlement to a rating in excess of 10 percent for right ankle strain is denied. REMAND On review of the record, the Board finds that the matter of entitlement to increases in the staged ratings assigned for the Veteran's right knee Osgood Schlatter's disease, must once again be remanded for evidentiary development. See Stegall v. West, 11 Vet. App. 268 (1998). The Board's January 2012 remand ordered an orthopedic examination of the Veteran to determine the current severity of his service-connected right knee disability. It was further ordered that x-rays be conducted to ascertain whether there is associated arthritis of the right knee. The Board has reviewed the claims file and the Veteran's electronic file (Virtual VA) and it appears that x-rays of the right knee have not been taken. The February 2012 VA examiner noted that there were no recent diagnostic studies for review. He recommended x-rays of the right knee to evaluate for arthritis. He speculated that if the x-rays of the right knee show arthritis, it would be his medical opinion that the arthritis is at least a likely, but not traumatic in nature. The Veteran's service-connected right knee is rated under Code 5257 (for instability). VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257,. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Consequently, the action previously sought by the Board is necessary for a proper adjudication of the Veteran's appeal with regard to the rating for his service-connected right knee disability. Accordingly, this matter is remanded for the following: 1. The RO should arrange for the an orthopedic examination of the Veteran (to include X-rays of the right knee to determine whether there is arthritis of the right knee). The record must be reviewed by the examiner in conjunction with the examination. If arthritis of the right knee is found, the examiner must address a) when arthritis of the knee was first manifested; b) is the arthritis part of (a maturation) the service connected Osgood-Schlatter's disease; if not was it caused or aggravated by the Osgood Schlatter's. The examiner must explain the rationale for all opinions (and if the examination findings conflict with findings already of record, reconcile any discrepancy). 2. The RO should then review the record, readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, only if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs