Citation Nr: 1328549 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-09 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for service- connected partial amputation of the left great toe, due to posttraumatic amputation and fracture. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to October 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDING OF FACT Since March 31, 2008, the Veteran's left great toe disability has been manifested by constant pain, fused or "frozen" joint, partial amputation without metatarsal involvement, metatarsalgia, and degenerative joint disease/arthritis of the left great toe joint. CONCLUSION OF LAW The criteria of a rating in excess of 10 percent for service-connected partial amputation of the left great toe, due to posttraumatic amputation and fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5010-5171 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's pre-adjudication letter sent to the Veteran in July 2008 advised him of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The 2008 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Thereafter, the claim was readjudicated several times, most recently in a March 2013 supplemental statement of the case. Accordingly, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Records associated with his grant of Social Security Administration disability benefits have been obtained. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The RO provided the Veteran appropriate VA examinations in 2008, 2009, 2010, 2012, and 2013. The aggregate of information amongst these examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The Veteran's left great toe is currently rated 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5171. In the selection of diagnostic code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010, is the service-connected disorder, and amputation of the great toe, under Diagnostic Code 5171, is a residual condition. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A 10 percent rating is warranted for amputation of the great toe not involving removal of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5171. A 30 percent rating, the maximum rating under this diagnostic code, is awarded when the amputation of the great toe involves removal of the metatarsal head. See 38 C.F.R. § 4.71a, Diagnostic Code 5171. The Veteran claims he is entitled to a rating in excess of 10 percent for his service-connected left great toe because the functional impairment of his entire foot is severely impacted due to his toe disability. He indicates being in constant pain, walking with a cane due to imbalance, and overall foot weakness restricting his ability to walk or stand for prolonged periods. Medical records indicate multiple surgeries of the left great toe to include partial amputation and joint fusion. Here, in addition to a 10 percent disability rating for the Veteran's left great toe disorder under Diagnostic Codes 5010-5171, additional ratings for his left lower extremity have been awarded. Effective January 13, 2010, a 10 percent rating was granted for degenerative joint disease of the left ankle, associated with the Veteran's service-connected partial amputation of the left great toe. The rating was subsequently increased to 20 percent, effective March 27, 2012. A separate 10 percent rating for a scar on the Veteran's service-connected great left toe was granted, effective March 14, 2012. Finally, regulations provides that "[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68 (2012). Thus, this regulation limits the evaluation in a particular extremity to the theoretical percent available for amputation of that extremity. Specifically, a maximum 40 percent rating is warranted for amputation of the lower leg. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2012). Prior to March 27, 2012 Prior to January 12, 2010, the Veteran's left toe was rated at 10 percent solely for residuals of his great toe amputation. From January 13, 2010 to March 13, 2012, the Veteran's combined left lower extremity rating was 20 percent, for the left toe amputation and degenerative joint disease of the left ankle. See 38 C.F.R. § 4.25 (2012). From March 14, 2012 to March 26, 2012, the Veteran's combined left lower extremity rating was 30 percent, to include the toe amputation, toe scar, and degenerative joint disease of the left ankle. 38 C.F.R. § 4.25. Prior to March 27, 2012, the medical evidence does not support an increased rating because at all times as the Veteran's left toe amputation is described as without metatarsal involvement. Thus, the increased rating criteria under Diagnostic Code 5171 are not met. Diagnostic Code 5010 does not provide for a rating greater than 10 percent for degenerative joint disease of one minor joint. Cf. 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5171. Specifically, during the appellate time frame, VA and private medical records indicate ongoing treatment. Private treatment records note chronic arthritis of the foot, constant pain, and weakness. The Veteran received ongoing private podiatry treatment, to include injections and prescribed compression stockings. VA outpatient treatment records similarly note arthritis of the great left toe and chronic pain. The Veteran was noted to ambulate with a cane at all times. In an August 2008 VA examination, the VA examiner noted the Veteran's history of a fractured big toe and subsequent fusion. At that time, the Veteran complained of pain all the time, an inability to walk more than a quarter block, wearing sandals all the time, and wearing shoes of different sizes. On examination, the examiner noted complete fusion of the left great toe, no range of motion, the toe swollen to twice the normal size, tender to touch, and "frozen" to 0 degrees. The Veteran was diagnosed with a fracture of the toe with complete fusion. In March 2009, a VA physician noted edema at the base of the Veteran's left great toe with tenderness to palpation. At that time, the Veteran exhibited full (5/5) strength of the lower extremity with normal gait and reflexes. VA examinations conducted in March 2010 and June 2010, indicated similar results. Both examiners noted fusion of the left great toe with weakness, lack of endurance, and complaints of chronic pain. The Veteran was diagnosed with traumatic arthritis with a history of two to five surgeries. The March 2010 VA examiner found no evidence of the amputation on examination, but opined the Veteran's overall left foot condition was due to his service-connected left great toe disability. The Veteran also underwent a VA examination in March 2012. The examiner noted the amputation of the fractured fragment of the left great toe without removal of metatarsal head. From the examiner's review of the records, it was noted the Veteran had ongoing complaints since 2007 of exertional pain to the entire left foot, which increased with prolonged standing. The examiner also noted the Veteran's constant use of a cane to ambulate. On x-ray, the Veteran was diagnosed with mild hallux deformity, with narrowing of the first interphalangeal joint, and other diagnoses of the other left foot toes. The examiner noted the Veteran's constant pain requiring narcotics, poor balance, and limited ability to stand due to pain. Most recently, the Veteran was afforded a VA examination in January 2013. On examination, the examiner found evidence of metatarsalgia of the left great toe as well as foot weakness, poor left foot muscle power, and arthritis. There was no evidence of hammertoes, hallux valgus, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner found the Veteran unable to walk or stand for any lengthy period of time due to imbalance, but found his left toe disability did not amount to a complete loss of foot. That is, the examiner found the Veteran's overall left foot functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. In light of the consistent findings in the medical records, the Board concludes the Veteran's left great toe amputation clearly did not involve the metatarsal head and, therefore, a greater rating under Diagnostic Code 5171 is not warranted. The Board considered the applicability of alternative diagnostic codes. Residuals of foot injuries, for example, are rated under Diagnostic Code 5284, for other foot injuries. A moderate disability is rated as 10 percent disabling whereas a moderately severe disability is rated 20 percent disabling, and a severe disability is rated 30 percent disabling. See 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). Complete loss of foot is rated 40 percent under Diagnostic Code 5167. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2012). There are also other diagnostic Codes relating to the toes/foot, such as Diagnostic Code 5276 (flatfoot), Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (metatarsalgia), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (hallux rigidus), Diagnostic Code 5282 (hammer toes), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). 38 C.F.R. § 4.71a. These Diagnostic Codes are not applicable here because the medical evidence does not support these conditions. Although there is evidence of weakness, and metatarsalgia, Diagnostic Codes 5277 and 5279 do not provide for a rating greater than 10 percent. Id. The Board considered whether the Veteran could be awarded separate ratings for the amputation, foot impairment, weakness, and metatarsalgia of the entire foot. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See 38 C.F.R. § 4.14 (2012); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, although the Veteran has manifestations affecting the overall function of his foot, the Veteran is already in receipt of other separate left lower extremity ratings, namely a rating for his left ankle disability and a rating for a left toe scar. Thus, the Board finds application of Diagnostic Code 5284 (for other foot injuries) or assignment of additional separate ratings under Diagnostic Code 5284, Diagnostic Code 5277, or Diagnostic Code 5279 for the Veteran's great toe disability would constitute impermissible pyramiding. Id. Prior to March 27, 2012, the Board finds a rating in excess of 10 percent for the Veteran's service-connected left great toe is not warranted by the evidence. The Veteran's great toe amputation does not involve the metatarsal head and, therefore, a schedular rating in excess of 10 percent under Diagnostic Code 5171 is not warranted. A separate rating in excess of 10 percent under any other arguable applicable diagnostic code is similarly not warranted because it would constitute impermissible pyramiding of disabilities already separately compensated. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. For these reasons, a rating in excess of 10 percent for the Veteran's service-connected partial amputation of the left great toe, due to posttraumatic amputation and fracture prior to March 27, 2012 is not warranted. The Board also considered whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected partial amputation of the left great toe disorder. The competent medical evidence of record shows that his left toe disability is primarily manifested by chronic pain, foot weakness, imbalance, and a fused (or "frozen") joint. The applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and overall functional impairment. See, e.g., 38 C.F.R. §4.71a, Diagnostic Codes 5010-5171. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the Rating Schedule. The effects of the Veteran's disability have been fully considered and are contemplated in the Rating Schedule; hence, referral for an extraschedular rating is not warranted prior to March 27, 2012. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 10 percent for the Veteran's service- connected partial amputation of the left great toe, due to posttraumatic amputation and fracture prior to March 27, 2012, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From March 27, 2012 Effective March 27, 2012, the Veteran's combined left lower extremity rating was 40 percent. See 38 C.F.R. § 4.25. As noted above, 38 C.F.R. § 4.68 "[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68. Thus, this regulation limits the evaluation in a particular extremity to the theoretical percent available for amputation of that extremity. Specifically, Diagnostic Code 5165 provides a maximum 40 percent combined rating for amputation of the lower leg. In this case, the currently assigned 40 percent combined disability rating is the highest available under the provisions of 38 C.F.R. § 4.68. While the Board has considered other potentially relevant diagnostic codes, separate compensable evaluation are not available since the combined rating for a disability of the lower leg shall not exceed the rating for the amputation at the elective level, were amputation to be performed - in this case 40 percent. 38 C.F.R. § 4.68. Accordingly, a rating in excess of 10 percent for the left great toe disorder, under the provisions of Diagnostic Codes 5010-5171, is barred as a matter of law. Thus, were amputation of the Veteran's left lower leg to be performed, a 40 percent rating would be assigned. As a 40 percent combined disability rating is already in effect for the left great toe, left great toe scar, and degenerative joint disease of the left ankle, a higher schedular evaluation may not be assigned for any additional disability. On that basis, the Board finds that an increased schedular evaluation is not warranted and that the 10 percent evaluation for the Veteran's left great toe is appropriate. ORDER A rating in excess of 10 percent for service-connected partial amputation of the left great toe, due to posttraumatic amputation and fracture is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs