Citation Nr: 1326505 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 07-01 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for residuals of a tibial sesamoid fracture and bunionectomy of the left foot. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M.R. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to November 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the case was subsequently transferred to the RO in St. Petersburg, Florida. In December 2007, the Veteran and M.R. testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. When this case was most recently before the Board in December 2012, it was decided in part and remanded in part. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of entitlement to an evaluation in excess of 30 percent for major depression and posttraumatic stress disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Since the initial grant of service connection, the Veteran's residuals of a tibial sesamoid fracture and bunionectomy of the left foot have been manifested by no more than a moderately severe foot disorder. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for residuals of a tibial sesamoid fracture and bunionectomy of the left foot have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in March and April 2006. While complete notice was not provided until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist the Veteran has also been satisfied. The originating agency has obtained all of the Veteran's available service treatment records, and obtained, or made all reasonable attempts to obtain, the Veteran's identified VA and private medical treatment records. Most recently, the Veteran was provided with a Disability Benefits Questionnaire (DBQ) examination in January 2013. The DBQ examiner reviewed the Veteran's pertinent medical history, examined the Veteran, and included rationales for the conclusions reached. The Board finds the report of the January 2013 DBQ examination to be adequate for adjudication purposes. The Veteran has not contended otherwise. Board remands in May 2008, January 2010, and December 2012 instructed the originating agency to obtain the Veteran's updated treatment records; and to arrange for the Veteran to be scheduled for an examination to ascertain the severity of her left foot disability. The Appeals Management Center (AMC) requested additional evidence and information from the Veteran in a December 2012 letter. It also obtained the Veteran's updated treatment records from the VA medical center in Tampa, Florida, and the VA outpatient treatment center in Ft. Myers, Florida. Finally, the AMC afforded the Veteran the January 2013 DBQ examination discussed above. Accordingly, the originating agency has complied with the directives in the Board's prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative has identified any additional evidence that could be obtained to substantiate the claim on appeal. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Factual Background The Veteran served on active duty in the Navy from November 2001 to November 2005. Her service treatment records reveal that she underwent a left bunionectomy in February 2004. She was later treated for sesamoiditis and a tibial sesamoid fracture, which resulted in her undergoing a left tibial sesamoidectomy in August 2005. In October 2005, a VA general physical examination was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. The Veteran reported having pain when walking, which she rated as an 8 out of 10 in severity. She indicated that she uses a cane to walk at times, and denied having any swelling or pain when at rest. Physical examination of the lower extremities revealed 5/5 muscle strength against resistance, except with dorsiflexion and plantar flexion of the left foot. Deep tendon reflexes were 2+ and brisk throughout. Range of motion testing of the left great toe revealed plantar flexion to 30 degrees and dorsiflexion to 25 degrees, with discomfort. Pain and decreased strength against resistance with dorsiflexion and plantar flexion, and pain with eversion were noted. The Veteran indicated that she could not stand on her toes. The examiner concluded with an impression of left bunion deformity, status post bunionectomy, with subsequent sesamoiditis and fracture of the tibial sesamoid of the left foot. The examiner noted that the Veteran continued to have chronic pain for which she takes Amitriptyline, which had not appreciably helped her discomfort. The examiner also noted that walking remained very painful for her to the point where she sometimes uses a short cane. Finally, the examiner noted that the Veteran would not be limited in her ability to do a sedentary job, but that employment in a standing position would be problematic. A March 2006 VA treatment report notes the Veteran's complaints of left foot pain. Physical examination revealed pain on full dorsiflexion of the first metatarsophalangeal joint. Direct palpation of the plantar metatarsophalangeal joint and sesamoid apparatus did not produce pain per se, but pressure applied just proximally to this area produced significant pain. The VA physician felt that a surgical screw in the Veteran's left foot could be the main cause of her pain, and recommended its removal. On March 7, 2006, the Veteran underwent the surgical removal of the screw in her left foot. A March 2006 post operative report notes that the Veteran's left foot pain had diminished since her surgery, but that she continued to have sharp pain when walking. The report notes that the Veteran's orthotics needed revision. An October 2006 VA podiatry consultation report notes the Veteran's complaints of left foot pain. The VA physician noted that the Veteran was working as a nurse's aide and on her feet all night, and that this was not good for her left foot condition. Physical examination of the left foot revealed pain and a limited range of motion in the left great toe. The report also notes that the Veteran walked with a limp. The podiatrist diagnosed posttraumatic surgical arthritis and recommended that the Veteran be casted for orthotics to cushion the painful area. In March 2007, the RO issued a rating decision which granted a temporary total disability rating, effective from March 7, 2006, through April 30, 2006, for post surgical convalescence. A treatment summary letter from a VA physician, received in August 2007, notes that the Veteran had been seen in podiatry with sharp shooting pain in her left foot. The letter notes that there had some success in treatment for this condition, but that the Veteran continued to have a left foot disability. A November 2007 VA treatment report notes that the Veteran was employed full time. In December 2007, the Veteran testified at a hearing before the Board. She reported that she was working as a housekeeping aide at a VA medical clinic. She reported having to stand for eight hours a day and that her feet would swell by the end of the day. She also reported having left foot pain while standing or weight bearing, and that the pain was a 7 out of 10 in severity. She also reported weakness in the left foot, walking with a slight limp at all times, and having to use a cane to ambulate. She indicated that she had been given orthotics to treat this condition. She also testified that she could not perform her chosen profession as a certified nurse's assistant as it required that she be on her feet constantly. An October 2009 VA treatment report notes that the Veteran was working full time, and was volunteering on Saturdays working at a hospital. A December 2010 VA treatment report notes that the Veteran was taking one tab of Hydrocodone/apap per day for foot pain. An August 2012 VA treatment report notes that she was seen for complaints of left chest wall pain. A review of her musculoskeletal system revealed no joint pains or abnormalities. In January 2013, a DBQ examination was conducted. The DBQ examiner noted that the Veteran's claims file had been reviewed, and the examination report includes a historical summary of her left foot disability. The Veteran reported having pain and swelling in the left foot with mowing the lawn, excessive standing, pressure on the foot (such as moving furniture and heavy lifting), and cold weather. She also reported that the left foot pain sometimes radiates up to her ankle and lower leg, and that she had been taking hydrocodone three times per day to treat these symptoms. The report notes that the Veteran did not use any assistive devices for locomotion. Physical examination revealed her left foot to be nontender to palpation or manipulation, and without any edema. The report notes that her gait, ambulation and weight bearing were normal; that there was no apparent incoordination, weakened movement, excess fatigability or any increase in functional impairment on repeated use; and that the Veteran did not report having any flare-ups. The impression following an X-ray examination of the left foot was apparent remote bunionectomy and no acute bony pathology. The DBQ examiner described the severity of this disability as moderate. The DBQ examiner opined that the Veteran has no functional impairment resulting from her service-connected residuals of a tibial sesamoid fracture and bunionectomy of the left foot. In support of this opinion, the examiner noted that there was no current objective evidence that the Veteran was having functional impairment. The examiner noted that the Veteran was currently employed as a security assistant for VA police, and that her job mostly entailed making and answering phone calls, watching monitors, and working on a computer. The DBQ examiner opined that the Veteran's condition has no impact on the Veteran's ability to perform sedentary work, and a mild impact on her ability to perform physical work. In support of this opinion, the DBQ examiner noted that the Veteran report having no left foot symptoms while sitting at work, and that standing and walking (which ranges from 10 to 50 percent of her time at work) causes irritation of her left foot. The report concludes with diagnoses of hallux valgus and foot injuries, tibial sesamoid fracture. III. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The Veteran's residuals of a tibial sesamoid fracture and bunionectomy of the left foot have been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). Pursuant to Diagnostic Code 5284, a 10 percent evaluation is warranted for moderate foot injuries, a 20 percent evaluation is warranted for moderately severe foot injuries, a 30 percent evaluation is warranted for severe foot injuries, and a 40 percent evaluation is warranted for actual loss of use of the foot. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. IV. Analysis Since the initial grant of service connection, the Veteran's residuals of a tibial sesamoid fracture and bunionectomy of the left foot have been manifested by no more than a moderately severe foot disability. The Veteran is shown to have pain with weight bearing, some weakness, and a limited range of motion in her left great toe. Although significant, this symptomatology is not severe in nature. The January 2013 DBQ examination noted that that she did not use any assistive devices for locomotion. Moreover, physical examination revealed her left foot to be nontender to palpation or manipulation, and without any edema. The report also shows that her gait, ambulation and weight bearing were normal; that there was no apparent incoordination, weakened movement, excess fatigability or any increase in functional impairment on repeated use; and that the Veteran did not report having any flare ups. Based upon all of these findings the DBQ examiner opined that the severity of the Veteran's left foot disability was moderate. Earlier treatment and examination reports note the Veteran's complaints of pain in the left foot that was an 8 out of 10 in severity. She is also shown to have reported using a cane to ambulate at times. The report of the October 2005 VA general physical examination and subsequent treatment reports note tenderness to palpation of the left great toe, reduced muscle strength on dorsiflexion and plantar flexion of the left foot, and reduced range of motion of the left great toe. Although significant, the severity of this disability is no more than moderately severe. At her December 2007 hearing before the Board, the Veteran testified that she was employed as a housekeeping aide, and that this position required her to stand on her feet for eight hours. See Board Hearing Transcript, p. 3. Prior to that, an October 2006 VA treatment report notes that the Veteran was working as a nurse's assistant which required her to be on her feet all night. Thus, for at least a significant portion of this appeal, the record reflects that the Veteran has been able to maintain employment in positions requiring her to stand a majority of the time. During the course of this appeal, the Veteran was granted a temporary total disability rating, effective from March 7, 2006, through April 30, 2006, relating to her post surgical convalescence. Accordingly, the issue of a higher evaluation during this period has become moot. The Board also notes that its December 2012 decision separately addressed the evaluation assigned for the scar on the Veteran's left foot. The Board has considered whether there is any other schedular basis for granting this claim but has found none. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). When comparing the disability picture of the Veteran's residuals of a tibial sesamoid fracture and bunionectomy of the left foot with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 20 percent disability rating. Ratings in excess of the 20 percent currently assigned are provided for certain manifestations of the service-connected residuals of a tibial sesamoid fracture and bunionectomy of the left foot, but the evidence of record does not demonstrate that such manifestations have been present in this case. The criteria for the assigned 20 percent rating reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. The Board has also considered the benefit of the doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER An initial evaluation in excess of 20 percent for residuals of a tibial sesamoid fracture and bunionectomy of the left foot is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs