Citation Nr: 1325593 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 04-24 878 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the left great toe. 2. Entitlement to a disability rating in excess of 10 percent for musculoskeletal residuals of a fracture of the right anterior-tibial tuberosity. 3. Entitlement to a disability rating in excess of 10 percent for scar residuals of a fracture of the right anterior-tibial tuberosity. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from December 1972 to June 1981. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision. The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in June 2009, delaying his appeal. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear for the hearing, and he has since made no request for another Board hearing. Accordingly, the Board will proceed on this appeal as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012) (failure to appear for a scheduled hearing treated as withdrawal of request). In July 2009 and again in May 2010, the Board remanded this appeal to accomplish additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board acknowledges that the Veteran requested a hearing at the RO, to be conducted by RO personnel (see correspondence received in April 2013). The RO scheduled a hearing, and the Veteran reported at the designated time; however, he chose not to testify because his representative was not present. The RO informed the Veteran that he could reschedule the hearing after contacting his representative or appointing a new representative. The Veteran did not thereafter request a new hearing. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The Board notes that on a VA Form 21-4138, received in June 2013, it was reported that the Veteran has 2 issues on appeal: diabetes and PTSD. This does not appear to be correct: There is no indication from a review of the 18 volumes in the claims file, or from the Virtual VA system, or the VA Control and Locator System (VACOLS) that there is an active appeal regarding either diabetes or PTSD. In any event, such an appeal has not been certified to the Board. If the Veteran believes that he has perfected an appeal regarding either matter, or if he wishes to file a claim, he should contact the RO. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. For the entire period of this appeal, the Veteran's service-connected musculoskeletal residuals of an injury to the right anterior-tibial tuberosity have been manifested by degenerative joint disease with painful and weakened motion; knee flexion is limited to no more than 106 degrees and there is normal extension; there is no lateral instability or recurrent subluxation; there is no ankylosis; there is no malunion or nonunion of the tibia and fibula; and there is no genu recurvatum. 3. For the entire period of this appeal, the Veteran's scar residuals of an injury to the right anterior-tibial tuberosity have been manifested by a single asymptomatic surgical scar. 4. For the entire period of this appeal, the Veteran's residuals of a left great toe fracture have been manifested by hallux rigidus and arthritis with associated limitation of motion of the toe, impaired propulsion, pain, swelling, and instability with standing and walking, and an asymptomatic surgical scar. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for musculoskeletal residuals of an injury to the right anterior-tibial tuberosity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012). 2. The criteria for a disability rating higher than 10 percent for surgical scar residuals of an injury to the right anterior-tibial tuberosity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2012). 3. The criteria for a rating higher than 10 percent for residuals of a left great toe fracture have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5281 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the VETERANS COURT extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. Right Knee Musculoskeletal Residuals The Veteran is seeking an increased disability rating for his musculoskeletal residuals of an injury to the right anterior-tibial tuberosity. Service connection was initially granted exclusively for surgical scar residuals of an injury to the right anterior tuberosity in a March 1982 rating decision. In a July 2002 rating decision, service connection was also granted for musculoskeletal residuals of the injury to the right anterior-tibial tuberosity. A 10 percent rating was assigned under Diagnostic Code 5299-5260, effective October 22, 2001. The current appeal arises from a claim for increase received in November 2002. In a June 2004 rating decision, the RO granted a temporary 100 percent rating for post-surgical convalescence regarding the left great toe fracture residuals. Although in that rating decision, the RO did not specifically adjudicate the issue of entitlement to a temporary 100 percent rating for musculoskeletal residuals of an injury to the anterior-tibial tuberosity, the June 2004 rating guide sheet indicates that, in addition to the 100 percent rating assigned for the left great toe, a 100 percent rating was also assigned under Diagnostic Code 5260, effective March 21, 2002 to July 1, 2002. This corresponds to evidence of right knee arthroscopy and partial medial meniscectomy performed on March 21, 2002. In a February 2007 rating decision, the RO assigned a temporary 100 percent rating under Diagnostic Code 5260 for surgical convalescence following right bunionectomy surgery, effective April 1, 2006 to July 1, 2006. It is unclear if or how the bunionectomy surgery affected the Veteran's knee flexion. The RO noted that, effective July 1, 2006, a 10 percent rating would be assigned based on flexion which is limited to 45 degrees. The Board presumes that the choice of diagnostic codes in this instance was administrative error. Nevertheless, there is no prejudice to the Veteran resulting from such error, as he received a 100 percent rating during the post-surgical period. The Veteran's right knee disability is currently assigned a 10 percent rating on the basis of X-ray evidence of arthritis with noncompensable limitation of motion. To warrant a higher rating, the evidence must demonstrate limitation of flexion or extension of the knee that meets the requirements for a higher rating. Diagnostic Code 5260 governs limitation of flexion of the knee. Under that code, a 30 percent rating is for application were flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 governs limitation of extension of the knee. Under that code, a 50 percent rating is for application where extension is limited to 45 degrees; a 40 percent rating is for application where extension is limited to 30 degrees; a 30 percent rating is for application where extension is limited to 20 degrees; a 20 percent rating is for application where extension is limited to 15 degrees; a 10 percent rating is for application where extension is limited to 10 degrees; a 0 percent rating is for application where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The current 10 percent rating would appear to have been assigned on the basis of painful motion that is not compensable under the applicable diagnostic codes. In the April 2012 supplemental statement of the case, the RO cited the basis for the assignment of a 10 percent rating as flexion that is limited to 45 degrees. However, as will be discussed in detail below, during the period on appeal, the measured range of flexion has never been less than 106 degrees. As noted above, the current appeal arises from a claim received in November 2002. A 100 percent rating was in effect from March 21, 2002 to July 1, 2002 and from April 1, 2006 to July 1, 2006. A September 2002 outpatient note reveals a recent right meniscectomy (March 2002), with buckling and weakness in the quadriceps. Examination indicated deconditioning of the quadriceps and rectus medialis, which was "much weaker" as compared to the left side. The Veteran was able to walk and was independent in all basic self-care and mobility. The report of VA examination in March 2003 reveals flexion of the right knee to 106 degrees with pain. There was a .75-inch atrophy of the quadriceps on the right, as well as tenderness and pain with movement. The report of VA examination in August 2008 reveals that the Veteran was able to extend the knee to 0 degrees, and flex to 130 degrees. He complained of some pain at end range of flexion. No atrophy was noted and motor strength was 5 out of 5 with knee flexion and extension. After repetitive motion of the right knee, there was no additional loss of joint function due to pain, fatigue or lack of coordination. The report of VA examination in October 2009 reveals virtually identical findings to those reported in August 2008. The Veteran was able to extend to 0 degrees and flex to 130 degrees. He complained of pain throughout. Motor strength was 5 out of 5 with knee flexion and extension. After repetitive motion of the right knee, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. The report of VA examination in December 2009 also revealed that the Veteran was able to extend to 0 degrees and flex to 130 degrees. He complained of pain throughout. Motor strength was 5 out of 5 with knee flexion and extension. After repetitive motion, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. The same examiner who performed the August 2008, October 2009 and December 2009 examinations performed another examination in April 2011. The results were also virtually identical to the previous examinations. The Veteran was able to extend to 0 degrees and flex to 130 degrees with complaints of pain throughout. There was no guarding of motion, and no atrophy. After repetitive range of motion, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance, providing highly probative evidence against this claim. Thus, during the entire period under consideration here, right knee flexion has always exceeded even the 45 degrees necessary for the current 10 percent rating. Right knee extension has always been 0 degrees and thus noncompensable. In addition to the measured ranges of motion, the Board has also considered other functional impairment resulting from the left knee disability. The report of VA examination in August 2008 reveals complaints of right knee pain, stiffness, positive buckling, and no flare-ups. The Veteran reported that the right knee disability did not interfere with his job, although it did interfere with daily activity, in that it limited how far he could walk and stand. The report of VA examination in October 2009 reveals positive buckling, but no flare-ups. As with the prior examination, the Veteran reported that the right knee disability did not interfere with his job, but interfered with daily activities, in that it limited standing and walking. The report of VA examination in December 2009 reveals that the Veteran complained of pain and discomfort daily. He stated that his knee pain interfered with walking, standing, running. It interfered with daily activities. Once again, it limited how far he could walk and how long he could stand. The report of VA examination in April 2011 reveals that the Veteran complained of right knee pain daily, as well as buckling. There were no incapacitating episodes or flare-ups. The disability interfered with all activities which require standing, walking, and going up or down stairs. Slight arthritic changes on the right knee were noted. Thus the functional impairment resulting from the disability consists primarily of pain and occasional weakness (buckling) associated with limitation of flexion. The Veteran is competent to report his experience of such symptoms, and his descriptions are credible. While the Board accepts the Veteran's report of occasional decreased strength and buckling as functional impairment (which would be, in many ways, the basis for a compensable evaluation, because if the Veteran had no problem with this disability there would be no basis to award the Veteran any compensation), the Board must balance this evidence against the measured range of motion and the clinical findings of normal strength. With the exception of the period following the 2002 knee surgery, strength has always been normal; and while some atrophy was present early on, in later examinations, such as April 2011, it was specifically found to be absent. Thus, to the extent there is weakness resulting from the disability, it has been occasional and intermittent. Also supportive of a finding that any decrease in strength has been occasional, a June 2012 neurology attending note indicates normal strength, normal bulk, and normal tone. Moreover, even the September 2002 examination, which noted deconditioning of the quadriceps and rectus medialis, found to be "much weaker" than the left side, also found that the Veteran was able to walk and was independent in all basic self-care and mobility, providing more evidence against this claim. Regarding pain, the provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation based on limited and painful motion. See also Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. The Board acknowledges the Veteran's central concern that he has a painful right knee disability which limits his ability to stand, walk, and engage in many activities of daily life; however, it is important for the Veteran to understand that without some impairment associated with the right knee there would be no basis for the current 10 percent rating. It is also important to note that the range of motion testing conducted in this case does not actually meet the requirements of a 10 percent evaluation, let alone any higher evaluation. The current 10 percent rating is assigned on the presence of arthritis, which is acknowledged to be a painful condition. Without consideration of the problems pain and weakness the Veteran has described, the current evaluation could not be justified. As the functional impairment due to pain and weakness are considered in the current 10 percent rating, and as additional functional impairment is not shown to the level that would warrant a higher rating based on limitation of motion, the Board finds that a higher rating for musculoskeletal disability is not warranted. The Board has considered other potential diagnostic codes. There is no ankylosis; therefore Diagnostic Code 5256 is not appropriate. The Veteran's representative asserted in written argument that the Veteran is entitled to separate ratings under diagnostic codes 5003 and 5257 respectively. The Board has given this argument particularly close attention. The Board finds that, while separate ratings under these codes are not precluded, such separate ratings require that the requisite symptomatology be demonstrated. Diagnostic Code 5003 (degenerative arthritis) instructs the rater to evaluate the affected joint under the criteria for limitation of motion. Only when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes is a rating of 10 percent for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Here, the currently assigned 10 percent rating is based on limitation of motion that is noncompensable. A noncompensable disability under diagnostic codes such as 5260 and 5261 is a prerequisite for compensation for X-ray evidence of arthritis under the above cited provision of Diagnostic Code 5003. Thus, no separate rating for arthritis-apart from the rating under Diagnostic Code 5260-is warranted. Regarding Diagnostic Code 5257, a compensable rating requires evidence of lateral instability and recurrent subluxation. A September 2002 outpatient note reveals stability was fine. The report of VA examination in March 2003 reveals no laxity or swelling, negative Lachman's, negative McMurray's, and negative anterior drawer signs. The reports of VA examinations in August 2008, October 2009, December 2009, and April 2011 each reveal no instability of varus, valgus, anterior, or posterior stressing, and a negative McMurray's sign, providing more evidence against this claim. While the evidence includes the Veteran's description that the knee seems to buckle, and while the Board acknowledges that there could be multiple interpretations of this term, the Veteran has never described symptoms of buckling in the lateral plane of motion, as specified under this code. The Board has interpreted, and considered above, his description of buckling as indicating the normal plane of motion. This interpretation is consistent with his other report, that he experiences weakness, and with early findings of muscle atrophy, and is also consistent with the normal clinical testing for lateral instability. Accordingly, as there is no lateral instability or recurrent subluxation, a separate rating under Diagnostic Code 5257 is not appropriate. Diagnostic Code 5258 rates on the basis of dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. While the Veteran had a partial meniscectomy in 2002, during the period on appeal, there has no indication of subsequent dislocation of the semilunar cartilage. Notably, the August 2008, October 2009, and December 2009 examinations each showed no locking, providing more evidence against this claim that would outweigh any evidence in support of this claim. Diagnostic Code 5259 provides a maximum 10 percent rating for symptomatic removal of the semilunar cartilage. The Veteran is already in receipt of a 10 percent rating. A separate rating under Diagnostic Code 5259 would have to be based on separate symptomatology. In this case, the symptoms associated with the right knee are pain and weakness with motion. These symptoms are the basis of the current rating under Diagnostic Code 5260. In the absence of distinct symptomatology, such as locking, a separate rating under Diagnostic Code 5259 would constitute pyramiding, which is prohibited under VA law. 38 C.F.R. § 4.14 (2012). Diagnostic Code 5262 rates on the basis of malunion or nonunion of the fibula and tibia, conditions which are neither shown nor alleged in this case. Diagnostic Code 5263 rates on the basis of genu recurvatum, a condition which is neither shown nor alleged. Accordingly, these codes are not appropriate. As a higher rating for musculoskeletal residuals of an injury to the right anterior-tibial tuberosity is not warranted and as no other diagnostic code is appropriate, the Board finds that the weight of the evidence is against a rating in excess of 10 percent, and is against any separate compensable rating for the right knee disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Right Knee Scar Residuals Service connection was granted for surgical scar residuals of an injury to the right anterior tuberosity in a March 1982 rating decision. A rating of 0 percent was assigned, effective June 27, 1981. In a June 2000 rating decision, which implemented a May 2000 Board decision, the disability rating for the scar residuals was increased to 10 percent under Diagnostic Code 7804, effective November 15, 1999. The current appeal arises from a claim for increase received in November 2002. The Board notes that the criteria used to evaluate disabilities of the skin were revised during this appeal, in 2008. In VAOPGCPREC 3-2000 (April 2003), VA's General Counsel held that when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, a determination as to whether the intervening change is more favorable to the Veteran should be made. If the amendment is more favorable, that provision should be applied to rate the disability for periods from and after the effective date of the regulatory change; and the prior regulation should be applied to rate the Veteran's disability for periods preceding the effective date of the regulatory change. The effective date of a liberalizing law or VA issue is no earlier than the effective date of the change. 38 U.S.C.A. § 5110. The Board notes that the applicability of the 2008 amendment is specified as follows: "[t]his amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review." See 73 Fed. Reg. 54708-01. As the Veteran's claim was received prior to October 23, 2008, and he has not requested that his disabilities be evaluated under the new criteria, the Board will consider only the criteria in effect from August 30, 2002 to October 23, 2008. Diagnostic Code 7800 requires involvement of the head, face, or neck, which is not at issue here. The version of Diagnostic Code 7801 in effect from August 30, 2002 to October 23, 2008 applies to scars, other than head, face, or neck, that are deep or that cause limited motion. In this case, the Veteran's surgical scar is not deep and does not cause limited motion. The report of VA examination in March 2003 reveals that the scar is linear and is very hard to see. There is no keloid formation. The skin was otherwise unremarkable for lesions or deformities. The report of VA examination in August 2008 reveals that the scar is superficial and healed with no discoloration. The reports of VA examinations in October 2009, December 2009, and April 2011 each reveal a surgical scar which is horizontal and healed well. Diagnostic Code 7802 provides for no more than a 10 percent rating and requires involvement of an area or areas of 144 square inches (1 sq ft.) (929 sq. cm.), which is clearly not the case with respect to the surgical scar. The report of VA examination in March 2003 reveals a 3-inch scar on the right tibial tuberosity. The report of VA examination in August 2008, October 2009, December 2009, and April 2011, each reveal a surgical scar which is 7 centimeters by 0.50 centimeters. The version of Diagnostic Code 7803 in effect from August 30, 2002 to October 23, 2008 applies to scars that are unstable. The August 2008, October 2009, December 2009, and April 2011 VA examination reports each note that the scar was stable. Pertinent to the period when the Veteran filed his claim, Diagnostic Code 7804 applied to scars that are superficial and painful on examination. A single 10 percent rating was available. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. Here, although the August 2008, October 2009, and December 2009 examination reports each note that the Veteran did not complain of pain related to the scar, a 10 percent rating is in effect for the scar under Diagnostic Code 7804. There is no higher rating available under the applicable version of the rating schedule. It is also important for the Veteran to understand that the clinical findings for the surgical scar do not meet the requirements of even the current 10 percent evaluation, let alone higher evaluation. Diagnostic Code 7805 applies to limitation of function of the affected part. In written argument, the Veteran's representative has asserted that an increased rating is warranted based on limitation of function of the Veteran's patella. In this case, a separate rating is already assigned on the basis of limitation of motion of the right knee. The representative has identified no other limitation of function of the right knee than that which is already compensated. In summary of the Board's findings, a rating higher than 10 percent is not warranted for the surgical scar residuals of an injury to the anterior-tibial tuberosity for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Left Great Toe Residuals Service connection was granted for residuals of a fracture of the left great toe in a March 1982 rating decision. The RO assigned an initial rating of 0 percent, effective June 27, 1981. In a July 2002 rating decision, the RO assigned a 10 percent rating for residuals of a fracture of the left great toe under Diagnostic Code 5299-5284, effective April 19, 1999. The current appeal arises from a claim for increase received on November 8, 2002. In a June 2004 rating decision, the RO assigned two temporary 100 percent ratings due to post-surgical convalescence for the left great toe fracture residuals, effective from August 10, 1998 to October 1, 1998, and from September 22, 2003 to February 1, 2004. A 10 percent rating was assigned in the intervening and subsequent periods. The earlier period was for the implantation of a prosthetic metacarpophalangeal joint; and the later period was for a replacement of the prosthetic joint. In an October 2009 rating decision, the RO assigned a third temporary 100 percent rating due to surgical convalescence regarding the left great toe, effective May 8, 2009 to July 1, 2009, and with a 10 percent rating assigned thereafter. The Veteran's residuals of a left great toe fracture were evaluated by the RO under Diagnostic Code 5284 (foot injuries, other), which is a general code that rates on the basis of overall impairment of the foot. The Board finds that, in this case, the RO's choice was inappropriate. The question of which diagnostic code to apply in a particular claim is a question of fact, and that the Board must explain its reasons for changing any diagnostic code assigned by the agency of original jurisdiction. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (holding that the Board must provide an explanation for selecting a different diagnostic code and explain any inconsistencies). Here, there are separately service-connected foot disabilities. In addition to the rating for residuals of a left great toe fracture, service connection is also in effect under Diagnostic Code 5276 for bilateral pes planus, including second-degree pronation and multiple callosities. Each of these codes establishes a rating based to a large extent on functional impairment of the entire foot. Each employs general descriptive terms, such as moderate, and severe, and each allows for consideration of general symptoms such as foot pain, swelling, weakness, callus formation, and gait impairment. The Board finds that, on the facts in this case, application of Diagnostic Code 5284 in combination with 5276 would inevitably result in pyramiding. The evaluation of the same symptomatology under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012). Also significant, the diagnosed disability of the left great toe in this instance, alternatively diagnosed as hallux limitus and hallux rigidus) is directly addressed by Diagnostic Code 5281 (hallux rigidus). The word hallux refers to the great toe. See Dorland's Illustrated Medical Dictionary 829 (31st ed. 2007). Hallux rigidus is defined as a painful flexion deformity of the great toe in which there is limitation of motion at the metatarsophalangeal joint. A March 2011 VA joints examiner described the Veteran's left great toe impairment in precisely these terms. He noted that the service-connected residuals of left toe fracture are manifested by a functional limitation of the range of motion of the great toe. The Veteran described that toe as not bending at all, which it is very painful when walking. Indeed, the Veteran has specifically been diagnosed with hallux rigidus (see May 2010 physical medicine and rehab consultation). In sum, the bases for assigning a different diagnostic code than that assigned by the RO are the appropriateness of the code to the specific disability on appeal and the avoidance of pyramiding inherent in applying ratings under separate diagnostic codes each of which rates in accordance with general impairment of the foot. In addition to the March 2011 examination report, the report of VA examination in March 2003 reveals that the great toe is fixed in position and he has very limited range of motion. The examiner described residual rigidity of the left great toe. The diagnosis was hallux limitus. Functional impairment was moderate-severe. A September 2011 podiatry note reveals decreased metatarsal range of motion both passive and active. A January 2011 treatment note describes the joint as semi-rigid. A July 2009 podiatry post-operative note reveals that, although the left great toe was painful to palpation following the replacement of the prosthetic implant, at that time, it could be dorsiflexed to 45 degrees and plantar flexed to 10 to 15 degrees. The report of VA examination in August 2008 also reveals that the joint was stiff and painful, with no demonstrated dorsiflexion or plantar flexion of the joint. Under Diagnostic Code 5281, severe hallux rigidus is to be rated as severe hallux valgus. Under Diagnostic Code 5280, hallux valgus post-operative with resection of the metatarsal head is assigned a 10 percent rating. Severe hallux valgus, if equivalent to amputation of the great toe is also assigned a 10 percent rating. In addition, Diagnostic Code 5171 (toe, great, amputation of) provides a 30 percent rating with removal of the metatarsal head, and a 10 percent rating without metatarsal involvement. Thus, the rating schedule contemplates no more than a 10 percent rating for the specific disability with which the Veteran has been diagnosed, and only contemplates assignment of a compensable rating in a severe case, equivalent to amputation of the toe, or in the case of actual amputation. In this case, there is no amputation of the great toe or the equivalent. Rather, there is an prosthetic joint implant of the metatarsophalangeal joint. The Veteran underwent a Keller arthroplasty in August 1998. A linear capsulotomy was performed over the dorsal aspect of the first metatarsal-phalangeal joint. A different procedure was performed in September 2003 for replacement of the metatarsophalangeal joint with a prosthetic joint (Swanson implant). Based on the surgical report, it is clear that the metatarsal head was not removed. The report specifically notes that the implant was affixed to the metatarsal head. In May 2009, the Veteran underwent a procedure to remove the September 2003 implant and replace it with a similar implant. While the May 2009 operative report does refer to a resection of the "distal aspect" of the first metatarsal head, the purpose of this was to allow for attachment of prosthesis. The metatarsal head was clearly not removed, which is the requirement for a 30 percent rating. There is no diagnostic code governing prosthetic implants of the great toe. Nevertheless, in light of the fact that the Veteran has a joint prosthesis, a rating on the basis of amputation is not appropriate. In sum, the Veteran is in receipt of the maximum rating contemplated by the rating schedule for the disability involved in this case. Absent an amputation of the great toe with removal of the metatarsal head, a higher rating is not warranted. The Board has also considered whether a separate compensable rating is warranted for the Veteran's surgical scar. The report of VA examination in March 2003 reveals a two-inch scar over the left great toe, which is very hard to see. An April 2009 podiatry note reveals a healed scar. The August 2008 examiner noted an incision on left great toe that is 20mm in length with no hypertrophic scar. An October 2010 dermatological note describes the surgical scar as "healed completely." The Veteran has not described symptomatology specific to the surgical scar. Accordingly, it does not appear that any separate rating is warranted. The Board acknowledges that the Veteran has bilateral calluses of the great toes and at the medial aspect of the toes (March 2003 and August 2008 examinations). The Veteran's calluses are service connected and rated in conjunction with his bilateral pes planus, which is not on appeal. Nevertheless, the August 2008 examiner found that functional impairment due to the left great toe and the calluses could not be apportioned. Accordingly, while the calluses themselves are associated with the Veteran's pes planus, and not the residuals of a left great toe fracture, any functional impairment caused by the calluses must be considered in the current rating. Here, with the exception of pain, there is no indication or report that the calluses themselves have caused functional impairment. They appear to be residuals of the Veteran's altered gait due to his combined foot disabilities. The Board has considered the pain associated with the left great toe fracture, as well as the pain associated with the Veteran's calluses in determining whether a higher rating. As discussed above, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell, 25 Vet. App. at 37. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. In this case, as discussed above, limitation of motion of the great toe is not specifically compensable. The definition of hallux rigidus differentiates the condition from mere limitation of motion by specifying the presence of pain and deformity (painful flexion deformity of the great toe in which there is limitation of motion at the metatarsophalangeal joint). Thus, a rating on the basis of hallux rigidus specifically contemplates pain and also contemplates deformity, such as a dorsal contracture, which was present in this case prior to a September 2010 procedure to lengthen the extensor hallucis longus tendon. In other words, were it not for the pain associated with the left great toe disability and calluses, as well as the contracture, the 10 percent rating currently assigned would not be warranted, as mere limitation of motion of the great toe is noncompensable. This is consistent with other parts of the rating schedule for musculoskeletal disabilities which make provision for a 10 percent rating where motion is painful yet not limited to a compensable degree. See 38 C.F.R. § 4.59 (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). Similarly, the diagnostic code for arthritis (5003), which is also present with respect to the left great toe, provides that the disability should be rated on the basis of limitation of motion; when however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The functional impairment resulting from the left great toe disability consists of restricted and painful motion of the left great toe, which is manifested in limited mobility and limited "push off" (see November 2010 physical therapy note). Such functional impairment is entirely consistent with the criteria described under Diagnostic Code 5281, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45. The 10 percent rating currently assigned fully contemplates the described symptomatology, and no higher or separate rating is warranted. For the reasons described, the Board finds that, on the facts in this case, Diagnostic Code 5284 is inappropriate to rate the residuals of a left great toe fracture, and that Diagnostic Code 5281 is the most appropriate code. The Board also finds that the weight of the evidence is against a rating in excess of 10 percent for residuals of a left great toe fracture, and is against any separate compensable rating. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, 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. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). The Board acknowledges that it is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider, 11 Vet. App. at 182. The Board has attributed all potentially service-connected symptoms to the Veteran's left knee disability in considering whether the Veteran is entitled to an extraschedular rating. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected symptomatology. Regarding the right knee, the Veteran has reported pain, limited motion, weakness, and fatigue, and the record demonstrates some early muscle atrophy, particularly following his surgery in 2002. The record also demonstrates a currently non-painful surgical scar. The rating criteria applicable to knee disabilities, and the provisions applicable to rating the joints, specifically provide for ratings based on the presence of limitation of motion, including due to pain, fatigue, weakness, and incoordination, whether on a regular basis or during flare ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. Such factors are explicitly part of the schedular rating criteria. Limitation of walking, standing, and climbing and descending stairs are consistent with the symptomatology evaluated and with the rating assigned. Moreover, the rating schedule for disorders of the skin specifically provides for a wide array of symptoms associated with scars, none of which are present in this case. Regarding the residuals of a left great toe fracture, the evidence demonstrates that the disability is manifested by hallux rigidus and arthritis with associated limitation of motion of the toe, impaired propulsion, pain, swelling, and instability with standing and walking, and an asymptomatic surgical scar. The rating criteria applicable to disabilities of the great toe (hallux limitus, hallux rigidus), and the provisions applicable to rating the joints in general, specifically provide for ratings based on the presence of arthritis and limitation of motion, including due to pain, fatigue, weakness, and incoordination, whether on a regular basis or during flare ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. Such factors are explicitly part of the schedular rating criteria. Limitation of standing, walking, and propulsion are consistent with the symptomatology evaluated and with the rating assigned. Regarding the disabilities at issue as a whole, it is important for the Veteran to understand that not all the evidence in this case supports the current evaluations, let alone higher evaluations. However, with consideration of the Veteran concerns and the benefits of the doubt the current evaluations can be justified notwithstanding the objective medical evidence. However, in light of the objective medical evidence, which provide significant evidence against the claims, the Board finds that further increases are not warranted at this time. Because in the case of each disability, the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Veterans Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his claim in November 2002. He was sent a letter in March 2003, which advised him of the information and evidence necessary to substantiate his claims. That letter did not include notice as to how disability ratings and effective dates were assigned. Subsequent notice provided this information in March 2009 and May 2010. Since the claims were readjudicated after proper notice was sent, there is not prejudice in the timing of this notice. In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, records from the Social Security Administration, and the Veteran's written assertions, and those of his family members submitted on his behalf. As noted in the Introduction, a VA Form 21-4138 was received in June 2013, on which it was noted that the Veteran currently has 2 issues on appeal: diabetes and PTSD, and that the Veteran wants to make sure that medical information from Montrose Health Care System in New York is retrieved and considered. The Board has found that claims regarding PTSD and diabetes are not currently on appeal. Nevertheless, the record does include treatment records from the VA Montrose (Hudson Valley) Health Care System. In addition, the Veteran was afforded VA examinations in March 2003, August 2008, October 2009, December 2009, and March 2011, and April 2011 to evaluate his service-connected disabilities. These examinations are adequate to rate the disabilities because each was performed by a medical professional based either on a review of claims file or solicitation of history and symptomatology from the Veteran, as well as a thorough examination of the Veteran. Together, the examinations provide findings that are pertinent to the rating criteria and those findings are otherwise consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Further delays in this case a clearly not warranted. ORDER A disability rating for musculoskeletal residuals of a fracture of right anterior tibial tuberosity fracture residuals in excess of 10 percent is denied. A disability rating for scar residuals of a fracture of the right anterior tibial tuberosity fracture residuals in excess of 10 percent is denied. A disability rating for residuals of a fracture of the left great toe in excess of 10 percent is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs