Citation Nr: 1327958 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-41 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hallux rigidus. 2. Entitlement to a higher rating in excess of 20 percent for low back strain with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from July 1993 to July 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, granted service connection for bilateral hallux valgus, with an initial rating of 10 percent assigned, effective September 28, 2007, and denied entitlement to an increased rating in excess of 20 percent for low back strain with degenerative changes. FINDINGS OF FACT 1. The hallux rigidus of the right foot is severe, without pes cavus, weak foot, another foot injury or malunion of the bones in the foot. 2. The hallux rigidus of the left foot is severe, without pes cavus, weak foot, another foot injury or malunion of the bones in the foot. 3. The lumbar spine disability is manifested by forward flexion to 40 degrees, with pain beginning at 0 degrees, without ankylosis of the spine or doctor prescribed bedrest for incapacitating episodes having a total duration of at least four weeks during the past twelve months. CONCLUSIONS OF LAW 1. The criteria for disability rating of 10 percent, but no more, for hallux rigidus of the right foot are met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5280-5281 (2012). 2. The criteria for disability rating in excess of 10 percent for hallux rigidus of the left foot have not been met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5280-5281. 3. The criteria for a 40 percent rating, but no more, for lumbar strain and degenerative changes are met. 38 U.S.C.A. § 1155; 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the bilateral foot issue, this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the lumbar spine issue, the RO notified the Veteran in a November 2007 letter, prior to the initial adjudication of the claim, of the evidence needed to substantiate his claim for an increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He received Dingess notice in the November 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant evidence has been reviewed and incorporated herein. Additionally, the Veteran was provided a proper VA examination in June 2012 to assess the severity of his bilateral foot and lumbar spine disabilities. The reports detailed the full physical examination, provided all necessary information regarding the severity of the Veteran's disability, and adequately explained the reason for finding no additional residuals of either disability. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the 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." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). 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. See 38 C.F.R. § 4.7 (2012). 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). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hallux Rigidus The Veteran's service-connected hallux valgus/hallux rigidus of the right and left feet have been rated as 10 percent disabling under Diagnostic Code 5280. The Board notes at the outset that a single 10 percent disability rating has been awarded for the bilateral foot disability. However, the Diagnostic Codes provide for a disability rating for a unilateral disability and, therefore, a disability rating under Diagnostic Codes 5280 and 5281 should be assigned for each foot, if warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5281. The Veteran seeks an increased rating in excess of the 10 percent currently assigned. As explained below, the Board has found that a 10 percent disability rating, and no more, is warranted for each foot. The Rating Schedule provides a disability rating in excess of 10 percent for the feet for the following disabilities: severe flat feet or pes planus; claw foot or pes cavus; malunion or nonunion of the tarsal or metatarsal bones; at least a moderately-severe foot injury, if the diagnosed disability is other than those listed in the Rating Schedule; or actual loss of the use of the foot. VA and private treatment records from this period demonstrate continued treatment for hallux valgus, hallux limitus, and hallux rigidus, including with steroid injections into the big toes. Upon VA examination in February 2008, the Veteran reported pain, tenderness upon manipulation or palpation, and lack of endurance bilaterally while standing and walking. There was no evidence of bunions, no shift in weight-bearing, and there were no reported flare-ups. He was able to walk half a block without pain for about five minutes before he had to stop. The examiner diagnosed hallucis valgus arthritis and stated that the disability was secondary to the Veteran's service-connected compartment syndrome. In May 2009, an X-ray revealed bilateral severe hallux rigidus. Upon VA examination in June 2012, the Veteran complained of pain in his great toes bilaterally. The examiner stated that he did not have Morton neuroma, hammertoes, pes cavus, malunion of tarsal or metatarsal bones, or hallux valgus and that the Veteran had never had surgery for hallux valgus. The Veteran also did not have a history of foot injuries or weak foot, did not have scars, and did not use assistive devices. The examiner stated that amputation was not indicated. The examiner noted the May 2009 X-ray which revealed bilateral severe hallux rigidus and stated that there were no other significant diagnostic findings. The examiner diagnosed bilateral hallux rigidus and stated that it was mild to moderate in severity. While the VA examiner termed the hallux rigidus mild to moderate, x-ray findings note severe disability and the Veteran complains of resulting limitation of function. The medical evidence is at least in equipoise. As such, the evidence supports a finding of severe bilateral hallux rigidus. Diagnostic Code 5281 provides that if severe hallux rigidus is present unilaterally, the disability should be rated as hallux valgus, severe. Diagnostic Code 5280 provides that hallux valgus, severe, is rated as 10 percent disabling, unilaterally or per foot. Therefore, the Board finds that a 10 percent disability rating is warranted for hallux valgus/hallux rigidus for each foot. The Board has considered whether a greater disability rating would be appropriate under alternative diagnostic code provisions. However, the Veteran has not been found to have severe flat feet or pes planus, claw foot or pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. In fact, the June 2012 VA examiner specifically found the absence of those disabilities. Moreover, since the Veteran's disability, hallux valgus/hallux rigidus, is specifically addressed in the Rating Schedule and the Veteran is currently compensated for the disability under Diagnostic Codes 5280 and 5281, Diagnostic Code 5284 for foot injuries, other, is not for application. The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5167, for loss of use of the foot. In this regard, the Board notes that the Veteran has not reported and the evidence does not show that he has completely lost all functional use of his feet, with no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. He is able to ambulate without assistive devices and, he specifically reported the ability to walk and work in his job in home improvement sales at the June 2012 VA examination. See 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Code 5167 (2012). The Board notes that, because Diagnostic Code 5280 is not based on limitation of motion and the Veteran is now in receipt of the maximum schedular rating available to each foot under Diagnostic Code 5280, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston v. Brown, 10 Vet. App. 80, 84-85 (citing 38 C.F.R. § 4.40). The Veteran has reported bilateral foot weakness and lack of endurance bilaterally while standing and walking. Although he is competent to report such symptoms, these were not demonstrated in the clinical record, and his reports must be weighed against the objective evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007.); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The June 2012 VA examiner specifically noted that there was no history of foot weakness bilaterally. Accordingly, the Board finds that a schedular rating in excess of 10 percent for right or left foot hallux valgus/hallux rigidus is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2012), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The bilateral hallux valgus/hallux rigidus disability has manifested primarily by pain in his great toes bilaterally. These manifestations are contemplated in the relevant rating criteria. The rating criteria are, therefore, adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Lumbar Spine The Veteran submitted a claim for an increased rating in September 2007. Generally, the relevant focus for adjudicating the Veteran's claim is the period beginning one year prior to the claim for increase. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2012). However, the claim was last adjudicated in a March 2007 rating decision. Therefore, the relevant focus for this appeal is the period beginning in March 2007. In this case, the Veteran's lumbar spine disability has been evaluated as 20 percent disabling under Diagnostic Codes 5237 and 5242 for lumbosacral strain and degenerative arthritis of the lumbar spine. Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), a 40 percent evaluation is provided where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5) (2012). Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. These criteria are an alternative to rating on the basis of orthopedic and neurologic manifestations under the General Formula for Diseases and Injuries of the Spine, and a rating is assigned on the basis of which method results in the higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2) (2012). In other words, under these criteria, the Veteran is potentially entitled to an increased evaluation on three bases: forward flexion of the thoracolumbar spine limited to 30 degrees or less (bearing in mind the applicability of DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995) and 38 C.F.R. §§ 4.40 and 4.45); ankylosis, either favorable or unfavorable, of the entire thoracolumbar spine; or doctor prescribed bedrest for incapacitating episodes having a total duration of at least four weeks during the past twelve months. Other symptoms, such as limitation of motions other than flexion, muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 20 percent evaluation and do not warrant further discussion with regard to the question of whether an increased evaluation is warranted. In making these determinations, the Board has considered the findings from the November 2007 and June 2012 VA spine examinations, as well VA treatment records and the Veteran's statements. As to forward flexion, the most severe limitation of was found at the June 2012 VA examination, where the Veteran was found to have forward flexion to 40 degrees with pain throughout the motion. While the motion was greater than 30 degrees, the Veteran did not have painless flexion to any degree. Resolving all doubt in the Veteran's favor, a 40 percent rating is warranted as the limitation of function is equivalent to limitation of flexion to 30 degrees or less. A review of the cited evidence shows no indication whatsoever that the spine has been fixed in extension or flexion at any time during the appeal period. On examination in 2007 and 2012 and during outpatient treatment, the Veteran has demonstrated an ability to move the spine in all directions. The Board notes that neither VA examiner specifically stated that there was no ankylosis in the examination report. However, the examiners did find that the Veteran was able to flex and laterally bend his lumbar spine, thus demonstrating the absence of ankylosis. Therefore, an increased rating under Diagnostic Code 5242 is not warranted. The Veteran specifically denied any incapacitating episodes during a 12-month period during the 2007 VA examination. There is no indication in the claims file, nor has the Veteran reported, any periods of doctor-prescribed bedrest (e.g., incapacitating episodes) having a total duration of at least four weeks during the past twelve months resulting from the service-connected spine disability. Therefore, the Veteran is not entitlement to an increased rating under Diagnostic Code 5243. Regarding neurologic symptoms, the Board notes that during the current appeal, a January 2013 rating decision granted service connection for radiculopathy of the left lower extremity, with a 20 percent rating assigned, effective June 14, 2012. The Veteran has not yet appealed this rating. Nevertheless, the June 2007 VA examination revealed that both sensory and motor functions were normal as they related to the lumbar spine and the Veteran denied any pain radiation to his lower extremities. The June 2012 VA examiner found moderate radiculopathy of the left lower extremity originating from the sciatic nerve and no other neurologic abnormalities. This finding is consistent with the 20 percent disability rating assigned and there is no indication that an increased rating is warranted on the basis of neurologic impairment. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8720 (2012). Given the absence of such findings during the entire pendency of this appeal, there is no basis for a "staged" rating in this case because the severity has been essentially consistent in terms of the applicable diagnostic criteria. Overall, there exists no basis under the schedular criteria for an increased rating in excess of 40 percent for the service-connected degenerative disc disease and degenerative joint disease of the lumbar spine. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). Under the Court's three part test, there must initially 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. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability. The Veteran's lumbar spine disability is manifested by loss of range of motion, pain, and muscle spasms. The rating criteria are based on a loss of range of motion and take into account the impact of pain and muscle spasms on functioning. 38 C.F.R. § 4.85. The Veteran must limit his activity due to his service-connected back disability, but remains employed and the evaluations for physical disability contemplate a significant degree of industrial impairment. The rating criteria are, therefore, adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is, therefore, not warranted. TDIU If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not stated that he is unemployable as a result of his service-connected disabilities. Rather, he has stated that he is often limited in or unable to perform certain functions at his job, such as climbing up a ladder or standing for prolonged periods of time. However, he has remained employed throughout the claims file and there is no evidence of, nor has the Veteran reported, that his employment has not been gainful. Moreover, as explained above, the lumbar spine disability has not resulted in doctor-prescribed bed rest. Though limitation of function is exhibited, it is not shown that the lumbar spine disability, by itself or in combination with other service-connected disabilities, precludes employment. Thus, entitlement to a TDIU due to his service-connected bilateral foot and lumbar spine disabilities is not warranted. ORDER An initial rating of 10 percent for hallux rigidus of the right foot is allowed, subject to the regulations governing the award of monetary benefits. An initial rating in excess of 10 percent for hallux rigidus of the left foot is denied. An increased rating for lumbar strain with degenerative changes to 40 percent is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs