Citation Nr: 1326109 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-25 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for residuals of a right foot injury, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1966 to September 1969, including service in the Republic of Vietnam for which he was awarded the Combat Action Ribbon and the Purple Heart medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which continued the 20 percent disability rating assigned for residuals of a right foot injury. The Veteran had requested the opportunity to appear before a Veterans Law Judge at a Travel Board hearing and a hearing was duly scheduled for November 2012. In a statement submitted in October 2012, the Veteran withdrew his request for a hearing. The Board will adjudicate the claim based on the evidence of record. The Veteran raised the issues of entitlement to service connection for right knee and left foot disabilities, which have not been addressed by the RO. The Board therefore does not have jurisdiction over them and they are referred to the RO for appropriate action. As discussed below, the Veteran's wife has expressed a belief that the right foot disability aggravates his hypertension. The Veteran has not submitted a claim for service connection for hypertension, but is advised that he may do so. FINDING OF FACT The residuals of the Veteran's right foot injury include pain, numbness, and inability to wear regular footwear, but do not result in any limitation of motion, X-ray evidence of arthritis, or hammertoes, hallux valgus or rigidus, vascular foot abnormalities, pes cavus, flatfoot, malunion or nonunion of the bones or muscle atrophy or more than a moderately severe foot injury. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for residuals of a right foot injury are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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). Here, the Veteran was sent a letter in February 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date and explained that evidence, that evidence of worsening was needed and that evidence of the disabilities impact on employment would be considered. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Veteran has not reported any treatment for his right foot disability, and VA treatment records show no findings referable to the right foot. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran was provided with VA examinations in February and November 2011 in relation to his increased disability claim. The VA examination reports contain sufficient specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has reported that his foot disability is worse in winter. VA has a duty to provide examinations when the disability is exacerbated. Ardison v. Brown, 6 Vet. App. 405 (1994). The February 2011 examination took place during the winter, while the November 2011 examination did not; however, both examinations yielded similar findings. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Foot Disabilities The Veteran's right foot disability has been rated under Diagnostic Code 5284, which provides criteria for rating "foot injuries, other." Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Other rating criteria are listed under Diagnostic Code 5276 (acquired flatfoot or pes planus); Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (acquired claw foot or pes cavus); Diagnostic Code 5279 (anterior metatarsalgia or Morton's disease); Diagnostic Code 5280 (unilateral hallux valgus); Diagnostic Code 5281 (unilateral severe hallux rigidus); Diagnostic Code 5282 (hammer toes); and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). In this instance, none of these disabilities are shown on examination with the exception of slight hallux valgus, for which the maximum disability rating is 10 percent if severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). Limitation of motion of the ankle is addressed under Diagnostic Code 5271, which assigns a 10 percent rating for moderate limitation and a 20 percent rating for marked limitation. A review of the record, however, demonstrates that the Veteran's ankle is not a component of his disability picture. Facts The Veteran filed a claim for an increased disability rating for his right foot disability in January 2011. A February 2011 VA examination he reported symptoms which included pain, swelling, heat, stiffness, redness, fatigability, weakness, and lack of endurance affecting the entire foot. He had weekly flare-ups which lasted a few days, with additional pain and resulting limitations of his left foot. He was able to stand for up to 30 minutes and walk up to one quarter mile. He reported falling recently because of problems with his right foot, although he did not seek medical attention. On physical examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. He did exhibit diminished sensation for both sharp and dull touch across the entire foot. There was no evidence of hammertoes, hallux valgus or rigidus, vascular foot abnormalities, pes cavus, flatfoot, malunion or nonunion of the bones or muscle atrophy. His reflexes were normal as was range of motion, with dorsiflexion to 15 degrees and plantar flexion to 40 degrees. He walked with a normal gait. X-rays showed no evidence of arthritis or soft tissue damage. The examiner noted that the disability resulted in significant effects on the Veteran's occupational activities due to decreased mobility, lack of stamina, and decreased strength in the leg and foot. The Veteran reported moderate effects on his activities of daily living and said he needed to wear sneakers as other shoes aggravated his disability. In a statement submitted in February 2011, the Veteran reported that his right foot had serious nerve damage and felt dead most of the time. He had throbbing pain most of the time which made it difficult to sleep and had fallen getting into his car because his foot was unsteady as a support. He stated that he could not wear "hard shell shoes" and instead wore only sneakers or slippers. He had difficulty going up and down stairs. He felt that his worsened condition merited an increase in the amount of disability assigned. In another statement submitted in February 2011, the Veteran's wife wrote that the Veteran's foot problems had become intolerable over the course of the years. She said he complained to her of numbness and a lack of coordination and had fallen. In addition, the pain in his foot often kept him awake, making him tired and irritable and aggravated his high blood pressure. He could no longer wear normal shoes and could only tolerate sneakers. In his Substantive Appeal (VA Form 9) received in September 2011, the Veteran stated that his right foot was getting substantially less flexible. He said he was in constant pain and had a noticeable limp, and could not wear regular shoes. His problems were worse in the winter and his foot was numb all winter. At the November 2011 VA examination, the examiner noted that the Veteran experienced diminished sensation of sharp and dull touch across his entire foot. The Veteran reported that as he had gotten older, the pain affected a wider area of his foot and now covered his toes to his mid foot and just distal to his right ankle. He also had numbness that made it difficult to perform activities involving walking for any distance. The examiner indicated the Veteran did not have hammer toes, Morton's neuroma, hallux rigidus, pes cavus, bilateral weak foot, or malunion of the bones. The examiner indicated that the Veteran did not have metatarsalgia, but that the side affected was the right. The examiner noted that the Veteran's residual disability included pain and stiffness. The foot disability was moderately severe. He did not require any assistive devices and walked with a normal gait. The examiner noted a diagnosis of slight hallux valgus, which was not related to the injury in service. The examiner offered the opinion that the Veteran's right foot disability did not prevent him from working, but did make it harder for him to participate in winter sports such as ice-fishing, in that the Veteran reported his feet were extremely cold and numb most of the winter; he had to wear hunting socks and keep the heat up. The numbness was at the top of the foot and mildly in the ball of the foot. Analysis Examinations have shown that the Veteran has full range of motion in his foot, is able to walk up to a quarter mile and does not have any evidence of arthritis in the foot on X-ray, despite what he describes as constant pain keeping him awake at night and preventing him from wearing shoes other than sneakers. The Veteran has described numbness in his right foot and uncertain support which makes navigating stairs difficult and has caused him to fall on occasion; and he and his wife have reported that he has a limp. However, the examinations have shown that there is normal strength in the foot and that the Veteran has a normal gait. While the lay reports are competent, the reports of a limp and weakness are not consistent with the examination findings and are not deemed credible. VA examiners have described the right foot disability as no more than moderately severe, and consistent with the examination findings, the Veteran has reported an ability to ambulate up to a quarter of a mile or for 30 minutes. By the Veteran's accounts, his flare-ups result in increased pain and some limitations of the left foot, but no additional impairment of function in the right foot. In sum, the VA examiners have described the Veteran's right foot disability as moderately severe, which is supported by the evidence of normal gait, normal range of motion, and normal X-rays of the right foot. A severe disability of the right foot is not shown nor is it approximated. As such, the currently assigned 20 percent disability rating under Diagnostic Code 5284 is appropriate. Without evidence of impairment of range of motion or the need for an assistive device, the disability picture does not reach the level of severe disability under this Diagnostic Code. The Board has considered the application of DeLuca with respect to increased functional limitations during flare-ups, but notes that the Veteran has described his flare-ups as result in increased pain in the right foot and limitations in the left foot. In Mitchell v. Shinseki, 25 Vet App 32 (2011), the Court held that pain alone would not justify an increased rating unless it caused actual functional impairment. The Veteran's right foot disability is not manifest symptomatology pertinent to any other Diagnostic Code which would afford him a higher disability rating. While the November 2011 VA examination described slight hallux valgus, this would not suffice to afford him a disability rating higher than the currently assigned 20 percent for other foot disability. There is no evidence that the Veteran has hammertoes, hallux rigidus, vascular foot abnormalities, pes cavus, flatfoot, malunion or nonunion of the bones or muscle atrophy. In the future, if there were an increased severity of disability, to include arthritis in the right foot, an increased rating would be warranted. In addition, a separate rating for neurologic manifestations would not be warranted, because the Veteran's neurologic complaints (numbness and associated pain) have been considered in providing the 20 percent rating for moderately severe residuals of a foot injury under Diagnostic Code 5284. See 38 C.F.R. § 4.14 (2012). The weight of the evidence is thus against a finding that the Veteran's disability approximates the criteria for an increased rating on a scheduler basis. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The rating criteria reasonably describe the Veteran's disability. The foot disability is evaluated under criteria that contemplate any residuals of a foot injury. The Veteran's foot disability is not manifested by symptoms that are outside the rating criteria. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Rating The Court has held that the question of entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). TDIU is raised in an increased rating claim only if there is evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The February 2011 examination report shows that the Veteran retired due to age or length of employment. There has been no allegation or other evidence of unemployability; hence the question of entitlement to TDIU has not been raised. ORDER Entitlement to an increased rating for residuals of a right foot injury is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs