Citation Nr: 1325835 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-21 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a compensable disability rating for post-operative residuals of hallux valgus of the left foot. 2. Entitlement to a compensable disability rating for post-operative residuals of hallux valgus of the right foot. REPRESENTATION Appellant represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1982 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that the Veteran is now represented by the above-named accredited representative. A properly completed VA Form 21-22a is of record. The Board has reviewed both the paper and electronic (Virtual VA and VBMS) claims files in relation to this appeal. The Virtual VA electronic claims file contains VA podiatry treatment records which are duplicative of those contained in the paper claims file. The RO reviewed these records in the June 2013 supplemental statement of the case (SSOC). Therefore, a remand for RO review of this evidence is unnecessary, and there is no prejudice in the Board proceeding with consideration of this evidence. The record has raised the issue of service connection for a foot disorder other than left and right foot post-operative residuals of hallux valgus, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See, e.g., May and June 2010 former representative written statements. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's post-operative residuals of hallux valgus, left foot are equivalent to operation with resection of metatarsal head. 2. Throughout the appeal period, the Veteran's post-operative residuals of hallux valgus, right foot are equivalent to operation with resection of metatarsal head. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, but no higher, for post-operative residuals of hallux valgus, left foot have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5280 (2012). 2. The criteria for a 10 percent disability rating, but no higher, for post-operative residuals of hallux valgus, right foot have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with notification letters in September 2009 and October 2009, prior to the initial decision on the claim in November 2009, as well as in March 2013. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The September 2009 and March 2013 letters notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). These letters provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, he was informed of types of evidence that might show such a worsening, including information about ongoing treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. The September 2009, October 2009, and March 2013 letters also informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim and also explained how disability ratings and effective dates are determined. Thus, the duty to notify has been satisfied. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any available, outstanding records that are relevant to the claims being decided herein. Parenthetically, the Board notes that the Veteran reported receipt of worker's compensation benefits in 2002; however, this award was for back pain which resolved, and he is currently employed. See, e.g., September 2009 VA treatment record; April 2013 VA examination report. Moreover, the record does not show that the Veteran requested that VA attempt to obtain any records related to this award in relation to the claims decided herein or that such records are pertinent to ascertaining the present level of severity of the Veteran's service-connected foot disabilities. Indeed, there is no indication that they pertain in any way to the Veteran's feet. The Veteran was also afforded VA examinations in September 2009 and April 2013 in connection with his current claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination, and fully address the rating criteria that are relevant to rating the disabilities in this case. The Board does observe that the examiner did not review the claims file during the September 2009 VA examination; however, the examiner did review the Veteran's own medical history and complaints and performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the same VA examiner performed both examinations, and he did review the file during the April 2013 VA examination. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with an SOC and SSOC, which informed them of the laws and regulations relevant to the Veteran's claims. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected left and right hallux valgus disabilities are currently assigned noncompenseable ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under Diagnostic Code 5280, a 10 percent rating is warranted for unilateral hallux valgus operated with resection of the metatarsal head or for severe unilateral hallux valgus if equivalent to amputation of the great toe. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As an initial matter, the Board notes that the record reflects diagnoses of a number of foot disorders in addition to the service-connected residuals of the hallux valgus surgeries on each foot, to include pes planus (flatfoot), plantar fasciitis, hammer toes, and right Achilles tendon injury. The objective evidence, to include the VA examination reports and private medical records discussed in greater detail below, does not suggest that any such disorders are related to the hallux valgus disabilities as residuals not adequately contemplated or addressed in the current ratings assigned. To the extent the Veteran makes such an assertion, such a general allegation is unsupported by the remainder of the record and findings on examination. To the extent the Veteran or his representative's written statements of record raise a claim for secondary service connection for these additional disorders, the matter has been referred to the AOJ for appropriate action, as noted above. Historically, the Veteran was diagnosed during service with hallux valgus secondary to a bunion of each foot in 1985. In March 1985, he underwent an Austin osteotomy with McBride bunionectomy on the right foot. In July 1985, he underwent a bunionectomy, modified McBride on the left foot. During the February 1986 separation examination, the Veteran reported occasional pain in both feet due to the surgeries. An August 2009 report of contact memorandum was accepted as the claim for increase; the Veteran reported at that time that his service-connected disabilities had increased in severity. The Veteran was afforded a VA examination in September 2009 during which he complained of a progressive increase in pain at both bunion areas following the in-service surgeries, which was aching in nature and averaged 7/10 on a pain scale. He reported experiencing flare-ups at the great toe joint after prolonged standing or walking, reaching a level of 8/10 and continuing on weight-bearing. On physical examination, there was no pain on palpation of the great toe joint (first metatarsophalangeal joint (MPJ)), but there was mild pain with range of motion. Strength testing (gravity and resistance) was 4/5 bilaterally. There was no joint laxity in either great toe, hypertrophy, or evidence of neurological dysfunction. The Veteran was unable to complete the gait testing; it was noted that he had a collapsing flat foot and severe pronation on both feet and complained of pain in his right arch, foot, and ankle. There were no calluses or unusual shoe wear pattern. There was no hallux valgus on the right, and he was able to passively dorsiflex the right great toe. On the left, there was very minimal hallux valgus, and he was able to passively dorsiflex the left great toe. An x-ray report taken several days prior revealed, in pertinent part, changes related to the prior bunionectomy on the left and no visible acute abnormality. The assessment in relevant part was post-operative hallux valgus surgery bilaterally; adequate pain-free range of motion with subjective complaints that do not correlate to examination findings on either foot. The Veteran established care with VA in September 2009, to include podiatry services. A review of the VA treatment records beginning at that time shows the Veteran's ongoing complaints of great toe joint pain as related to the in-service surgeries. However, the treating VA podiatrist attributed the pain to nonservice-connected flatfoot complications. See, e.g., December 2009, January and March 2010 VA treatment records. The Veteran established care with a private podiatrist, Dr. K.D. (initials used to protect privacy) in December 2009 for ongoing complaints, including great toe pain and stiffness. During a January 2010 examination, the Veteran had mild crepitus with range of motion, which was limited in the first MPJ with some pain at end-range dorsiflexion. In a June 2010 written statement, Dr. K.D. indicated that the Veteran had a longstanding history of pes planus deformity and a lack of appropriate support, which caused him to develop osteoarthritis in the feet, including of the first MPJ. The Veteran was afforded a VA examination in April 2013 with the same examiner from the April 2009 VA examination during which he complained of aching pain (average 8-9/10) that increased in severity over time and was precipitated by prolonged standing and walking. There was no history of hospitalization aside from the in-service surgeries. It was noted that his work as a respiratory therapist for VA was difficult due to significant walking and resulting foot pain. On physical examination, symptoms due to hallux valgus were considered mild or moderate on both sides. The examiner described the in-service hallux valgus surgeries of both feet and determined that the procedures were equivalent to metatarsal head resection. There was mild to moderate pain with dorsiflexion of both great toes, but there was no edema or inflammation of either foot. Strength testing was 5/5 (against gravity) and 4/5 (against resistance) bilaterally. The examiner noted the Veteran's regular use of an articulated Arizona brace and custom orthotics for arch support of both feet, as well as consideration of the private treatment records. The examiner indicated that there was no significant change since the last VA examination. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to separate 10 percent disability ratings throughout the appeal period for post-operative residuals of hallux valgus of the left and right feet. In this regard, the April 2013 VA examiner reviewed the history of the Veteran's in-service foot surgeries and indicated that these surgeries were equivalent to metatarsal head resection, which is one criteria for a compensable rating under Diagnostic Code 5280. As such, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the compensable rating. See 38 C.F.R. § 4.7. While this is the maximum schedular rating under this diagnostic code, the Board must also consider all other potentially applicable diagnostic codes. Schafrath, 1 Vet. App. at 593. The record does not reflect that the Veteran's hallux valgus was caused by trauma. Nonetheless, the Board notes that a 10 percent rating is consistent with a moderate foot injury under Diagnostic Code 5284, to the extent consideration of this criteria is appropriate. Higher ratings are available under Diagnostic Code 5284; however, the evidence does not reflect that the Veteran's overall left or right foot disabilities are moderately severe or severe in nature. In fact, the April 2013 VA examiner characterized the hallux valgus symptoms as mild or moderate in nature. In addition, although the Veteran reported pain with prolonged walking or standing, use of Arizona braces and orthotics was noted to be for assistance with nonservice-connected disorders. The Board accordingly finds that the Veteran's foot disabilities are best characterized, at most, as "moderate" in nature. See 38 C.F.R. § 4.6 ("Mild," "moderate," "moderately severe," and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, as the clinical findings clearly demonstrate that the Veteran has periarticular pathology associated with his left and right big toes, including painful motion. However, it is unclear if this pathology is related to the post-operative hallux valgus residuals. For example, Dr. K.D. indicated that the Veteran's longstanding history of pes planus and lack of foot support caused the development of osteoarthritis in the foot in recent years. See January 2010 treatment record; June 2010 written submission. In any event, to the extent that the provisions of 38 C.F.R. § 4.59 are applicable in this case, the Board notes that the 10 percent ratings now assigned for each foot are consistent with the considerations of this regulation in regard to entitlement to a minimum compensable rating for painful motion of the joint or periarticular pathology, and his symptoms are supported by pathology consistent with such ratings. In regard to the remaining diagnostic codes pertaining to the feet, the Board again notes that the record reflects diagnoses of a number of additional nonservice-connected foot disorders. However, at this point, the examination findings do not reflect that the Veteran's service-connected hallux valgus post-operative residuals include any related components, such as flatfoot, weak foot, claw foot, anterior metatarsalgia, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, there is no basis on which to rate the foot disabilities by analogy, even assuming that this symptomatology would warrant higher ratings under any of these diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283, excluding 5280. In addition, the Board notes that it considered whether the Veteran is entitled to separate ratings for the residual surgical scars noted on the VA examination reports, currently evaluated as noncompensable residuals of the foot disabilities. However, as the evidence of record reflects that the scars are linear, under a certain size, stable, not painful, and not productive of other disabling effects, the Board finds that separate ratings in this regard are not warranted. See Schafrath, 1 Vet. App. at 593; 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. The Board has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his written submissions, in deciding this case. The Veteran is competent to report as to the symptoms he experiences, such as pain, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even affording this lay evidence full competence and credibility, such evidence does not support ratings higher than those currently assigned. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left and right foot disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of post-surgical residual pain are fully considered in the assignment of the 10 percent disability ratings. As discussed above, there are potentially higher ratings available through rating by analogy, but the Veteran's disabilities are not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left and right foot disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008) ORDER Subject to the provisions governing the award of monetary benefits, a 10 percent disability rating for post-operative residuals of hallux valgus of the left foot is granted. Subject to the provisions governing the award of monetary benefits, a 10 percent disability rating for post-operative residuals of hallux valgus of the right foot is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs