Citation Nr: 1329308 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 03-35 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent from September 1, 2000, to November 10, 2000, from June 1, 2001, to March 8, 2006, from June 1, 2006, to November 18, 2008, on December 1, 2009, and from July 1, 2010, to the present for residuals of fractures of the left tibia and fibula with hammertoe deformities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the residuals of fractures of the left tibia and fibula with hammertoe deformities. ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from February 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decisions by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. Jurisdiction over the case was subsequently transferred to the RO in New York, New York. The Board notes that the record before the Board consists of rebuilt paper claims files and an electronic file known as Virtual VA. The issues of entitlement to service connection for a right foot disorder, a cardiac disorder, hepatitis C, peripheral neuropathy of both lower extremities, a second scar on the left thigh and a left knee disability, as well as a claim of entitlement to an automobile allowance have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The TDIU issue is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The residuals of fractures of the left tibia and fibula are manifested by marked ankle disability. 2. The left foot impairment associated with the residuals of the fractures of tibia and fibula more nearly approximates moderately severe impairment than severe impairment. CONCLUSION OF LAW The residuals of fractures of the tibia and fibula with hammer toe deformities warrant a rating of 30 percent, but not higher, for impairment of the ankle, and a separate rating of 20 percent, but not higher, for impairment of the foot. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.71a, Diagnostic Codes 5262, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 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 (the Court) has held that the plain language of 38 U.S.C.A. § 5103(a), 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). As noted above, the Veteran's paper claims files have been rebuilt. The rebuilt files show that he was provided all required notice in a letter sent in April 2008. While this letter was sent 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 has also been met in this case. The Veteran's post-service treatment records have been obtained from those VA and non-VA providers identified by the Veteran as having relevant records. Records from Social Security Administration have been obtained. Neither the Veteran nor his representative has identified any other existing evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. The Veteran also has been afforded appropriate VA examinations. The reports of VA examinations conducted in May and July of 2012 provide all information required for rating purposes. The Veteran's pertinent history was reviewed and his complaints were noted. Accordingly, the Board will address the merits of the claim. Factual background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In November 2000, the Veteran submitted a claim of entitlement to an increased rating for residuals of the fractures of his left tibia and fibula with hammertoe deformities. On VA examination in July 2001, the Veteran reported pain in toes 1, 4, and 5 as well as stiffness in toes 1, 2 and 3. At rest, there was no pain but standing and walking reportedly caused extreme pain. Surgery had been performed including arthrodesis of the left 1, 2, and 3 interphalangeal joints resulting in fusion of the joints. Arthroplasty of toes 4, and 5 for the proximal interphalangeal joints was performed. A fusion was unsuccessful followed by arthroplasty of the fourth toe. The Veteran reported that the foot problem had reduced his occupational ability due to pain and the reduced function of all five toes. Physical examination revealed that the range of motion of the toes was 0 at the interphalangeal joints and therefore weakness or instability of the joints cannot be shown. There was motion of the metacarpophalangeal joints. The Veteran was unable to rise on his toes. There were no hammertoes of the left foot as all the toes were fused straightened. The diagnoses were fusion of the interphalangeal joints of the left foot for toes 1, 2, and 3; post-operative lack of mobility of toes 4 and 5 on the left; and metatarsalgia. A VA examination of the Veteran's bones was conducted in August 2001. It was written that the Veteran had a fracture of the left tibia which was treated with plates and screws. The Veteran did fairly well until 1993 when he developed leg pain. Multiple procedures were performed for non-union and for osteomyelitis which developed. He had vascular muscle pedicle grafting and bony procedures. His main complaint was pain at the fracture site. There had been no drainage in the past year. Physical examination revealed multiple scarring of the left lower extremity which was deforming in nature. There was decreased range of motion in the ankle with only 20 degrees of plantar flexion, 20 degrees of dorsiflexion, and no heel and toe raising on the left. It was written that the Veteran still had to use a single crutch for walking when he had episodes of pain which occurred almost constantly. The examiner opined the Veteran was having a moderate amount of problems with residuals of the fracture and surgery. The Veteran underwent a medical examination in connection with his Social Security claim in September 2002. The Veteran reported difficulty with standing and walking due to the shortness of his left leg. Due to pain in the left leg and shortness of the left leg, he had difficulty walking and standing, being unable to walk more than three blocks. Activities of daily living were somewhat limited as the Veteran stayed home. Physical examination revealed the Veteran had a mild limp and was using a cane on the right side. Muscle atrophy was present in the left thigh. The left leg was approximately two inches shorter than the right leg. There was atrophy of the muscles in the left foot. The left foot was approximately one inch shorter than the right foot due to surgery. The examiner determined that the Veteran had weakness in the left leg with paravascular insufficiency. The examiner opined that the Veteran's ability to stand would be moderately limited and walking was severely limited. Bending, lifting and carrying heavy objects were severely limited. The examiner opined that the shortness of the left leg was one of the main factors for the muscle atrophy and paravascular insufficiency. A July 2003 X-ray examination of the left foot was interpreted as revealing deformity of the fibula secondary to a segmental fracture with partial resection and nonunion proximally and partial union distally. There was also deformity of the mid shaft of the tibia secondary to a mid shaft fracture. In September 2003, the Veteran reported numbness in his left leg as well as weakness. He reported difficulty walking. Physical examination revealed scars and atrophy of the left lower leg without swelling or redness. Tenderness was present on the left leg and at the dorsal aspect of the left foot. Sensation was decreased at the medial aspect of the lower leg. Range of motion of the left ankle and foot was decreased. In March 2004, the Veteran's gait was described as strong and steady without assistive devices. A May 2004 X-ray examination of the left leg was interpreted as revealing old healed surgical deformities of the distal tibia and fibula with antibiotic beads in the marrow cavity of the distal tibia and pes planus. In July 2004, the Veteran complained of painful calluses which were bilateral. The Veteran reported he had custom molded shoes but he did not wear them. Other than calluses, he had no pedal complaints. The pertinent diagnoses were bilateral foot pain, pes planus, and leg length discrepancy with the left side less than right. In October 2005, the Veteran complained of pain in the left forefoot. Physical examination revealed a limb length discrepancy of the left leg. The range of motion of the left ankle was decreased. The assessments were limb length discrepancy, bilateral foot pain, hallux rigidus and pes planus. A VA bones examination was conducted in December 2005. The Veteran reported his pain was 9 out of 10 which increased to 10 out of 10 with weakness. He felt unstable and could fall on account of the weakness and shortening of the leg. He had flares of the condition three to four times per week of an unknown cause. During flares, he had more pain as well as stiffness of the ankle joint. According to the Veteran, during flares, he was unable to move. He reported he used a cane to walk but he did not bring it to the examination. At the time of the examination, the Veteran was walking with full weight bearing on the legs without any support of a cane. The Veteran denied having an occupation. The Veteran reported he could walk for half a block with pain. He reported he was unable to defend himself and could not run away from a bad situation. He felt periodically totally incapacitated due to pain in the leg and weakness. Physical examination revealed deformity at the mid tibia due to malunion of the fibula and tibia. The left leg was 2 centimeters shorter than the right leg. There were scars from multiple skin graft operations with color change and atrophy of the musculature of the left lower extremity. The leg was painful to touch in the area of the compound fractures. There was no movement at the area of the fracture indicating union being complete for the fracture site. Muscle atrophy of the left leg was present when compared to the right leg. The Veteran walked with a minor limp. He was wearing special orthotics with 2 centimeters of foot rise. X-rays were referenced as showing a fully healed and united fracture. The diagnosis was malunion of the compound fracture of the left tibia-fibula with osteomyelitis of a chronic nature with permanent shortening of the left leg by 2 centimeters as compared with the right. A VA foot examination was conducted in December 2005. The Veteran reported his left leg was almost always painful. Standing and walking were quite painful for him. He had stiffness and weakness in the left lower extremity when walking, he had a lack of endurance and was easily fatigued due to pain in the leg and the effort it took to ambulate. He developed significant callosities in the plantar aspect of the left foot and used custom molded orthotics. The Veteran reported constant severe pain without flares. Being on his feet, walking and standing were painful. The Veteran walked with a very significant limp even with his orthotics. Motion of the toes was very limited and there was limited motion of the mid tarsal joint and subtalar joint. The examiner opined that, due to pain, there would be zero range of motion of the joints of the Veteran's foot. There was objective pain on movement. The gait was quit antalgic. The Veteran had calluses which were indicative of abnormal weight bearing. The Veteran was unable to rise on his heels and toes. He had hallux limitus and hallux valgus. The examiner opined that the Veteran had severe degenerative joint disease present throughout his entire left foot with previous surgeries to try and correct his deformities. The deformities the Veteran had in his left foot were secondary to limb length discrepancy that was a result of a motor vehicle accident during active duty. In February 2006, the Veteran reported that he had received his orthotics and was able to walk pain free as long as his calluses had been trimmed. In May 2006, the Veteran sought treatment for right elbow pain which had been present for three days after trauma sustained playing basketball. In October 2006, the Veteran complained of painful calluses. He reported his previous orthotics helped with pain and he needed new ones. Physical examination was conducted. The assessment was limb length discrepancy right greater than left, adducto varus 5th left digit and hallus limitus/rigidus left hallux. In July 2007, the Veteran informed a clinician that he had increased shortness of breath doing basketball. A VA examination was conducted in April 2009. The Veteran reported that, ever since his last foot surgery in November 2008, he has had problems with his feet and weight bearing. The pain was a constant 10 out of 10 and he could not weight bear on the left. He had used crutches for the past four months. He used to work for Long Island Cemetery cleaning headstones but he has been unable to perform that job because he cannot stand on his left foot and was in constant pain. The Veteran reported that his medical problems did not affect his activities of daily living other than needing someone to drive him to doctor's appointments because he cannot move his left foot at all. Physical examination revealed the Veteran walked with an antalgic gait using crutches because he could not bear weight on the left foot. The Veteran was unable to flex or extend his foot at the time of the examination. The areas around his toes were numb and there was a throbbing pain there all the time. The pertinent diagnoses were post-operative pain syndrome of the left foot and healed left tibial fracture. A December 2009 VA clinical record includes the annotation that the Veteran was asking for instructions on how to use crutches. The physical therapist contacted a physician who reviewed the Veteran's chart and found that he could be weight bearing as tolerated and he did not need crutches to walk. A December 2009 VA clinical record reveals the Veteran was post-operative for foot surgery the same month. The Veteran was happy with the outcome at the time of the note. He was off crutches and pain was well controlled. The pain level was zero. It was noted the Veteran had a history of extensive injury to the lower leg which developed osteomyelitis and soft tissue injury all of which healed without sequelae but he had some limitation in ankle dorsiflexion as a residual. In April 2010, the Veteran sought treatment for painful calluses on his feet. He had no other complaints. The assessments were metatarsalgia secondary to fat pad atrophy and foot pain. Another record dated the same month reveals the Veteran reported minimal foot pain along with some weakness and decreased sensation in the left foot. In May 2010, the Veteran reported left foot pain and weakness. He complained of foot and ankle weakness and stiffness during the visit but the examiner noted there were no complaints of pain. The examiner found the Veteran had limited range of motion of the left ankle and some strength deficits but was not grossly weak. In July 2010, the Veteran reported to a clinic for cane training due to difficulty walking due to knee pain. A different record dated the same month reveals the Veteran reported that he had left forefoot pain he rated as a seven out of ten. In September 2010, the Veteran sought treatment for painful calluses of both feet. He had no other complaints. The Veteran was wearing a pair of worn sneakers. The assessments were metatarsalgia secondary to fat pad atrophy and corns and calluses causing foot pain. On a VA bones examination in October 2010, the Veteran reported he had worked multiple jobs since discharge. He worked three or four years unloading trucks and his last employment was that of a cemetery caretaker. He informed the clinician that he last worked in March 2008. With regard to his left tibia and fibula, the Veteran reported he experienced pain, weakness, stiffness, swelling, heat, redness, instability, and giving way of the left tibia and fibula. He also reported locking and abnormal motion of the tibia and fibula. Pain in his left lower extremity was 10 out of 10 and constant. He denied any periods of flares of pain. He used a walker and crutches to ambulate. The Veteran used a special shoe which he was wearing at the time of the examination. There were no constitutional symptoms of bone disease. The Veteran reported that his left lower extremity affected his usual occupation and activities in that he was unable to do anything. Physical examination revealed the Veteran walked with crutches with a gait which was appropriate for crutches. Extensive scars on the left lower extremity and edema were present. There was no angulation, false motion, intra- articular movement, malunion, non-union, false joint, loose motion, tenderness, drainage, painful motion, weakness, redness, or increased heat noted in the left lower extremity. There was leg length discrepancy showing a 4 centimeter difference in length. The diagnosis was pain syndrome due to an old left tibia and fibula fracture. It was the examiner's opinion that the Veteran's left foot remained useful to the Veteran and that the Veteran is better served with the left lower extremity in the current condition (with the use of proper orthotics) than he would be served having a below knee amputation with the use of a suitable prosthetic appliance. In February 2011, the Veteran presented with complaints of painful corns and calluses on both feet. He was also going to be fitted with an orthotic to stabilize his feet. Physical examination revealed bilateral calluses, atrophic plantar fat pads, semi rigid hammertoes bilaterally and hallus vargus grade 2 with hallux limitus bilaterally. The pertinent assessment was metatarsalgia and painful corns and calluses. In February 2011 a sonogram examination of the left lower extremity revealed that there was a 2.9 centimeter limb difference with the left being shorter than the right. Atrophic plantar fat pads were present, especially at the metatarsal heads bilaterally. A March 2011 CT examination of the lower extremities revealed a leg length discrepancy of 2.4 centimeters. In June 2011, the Veteran informed a VA clinician that he had recently joined a gym and uses the treadmill for 45 minutes and also trains with weights. In October 2011,the Veteran was able to perform a cardiac stress test which included walking for seven minutes at 4 miles per hour. The testing was terminated due to fatigue. In October 2011, the Veteran complained of sciatic nerve pain which was a 10 out of 10. He denied leg weakness and also denied tingling and numbness of the lower extremities. Physical examination revealed a normal gait. The Veteran was able to walk on his tip toes and heels. The assessment was sciatica. Another record dated the same month reveals the Veteran reported he had sciatic pain in the left buttocks which radiated down to the left knee for one month. A VA osteomyelitis examination was conducted in November 2011. The examiner diagnosed osteomyelitis of the left tibia/fibula. The Veteran reported pain between 8 and 10 out of 10. The Veteran had two surgeries for the disease, once in 1993 and once in 1995. The osteomyelitis was inactive at the time of the examination. He had no signs or findings of the disorder at the time of the examination. The Veteran described an intermittent shooting pain in the left lower extremity as a result of the osteomyelitis. The pain increased with walking. The Veteran occasionally used a wheelchair and a walker and constantly used a cane. The examiner opined that the disease did not affect the Veteran's ability to work. The pertinent findings were history of osteomyelitis of the left lower extremity and history of left tibia and fibula fracture. A VA foot examination was conducted in November 2011. The examiner determined that the Veteran had metatarsalgia, hammer toes, hallux valgus as well as a left leg fracture and short left extremity. It was written that the Veteran sustained a left leg fracture that required surgery. The left leg was deformed resulting in a short left extremity and because of the deformity, an altered gait which resulted in right and left foot biomechanical compensation and excessive wear and tear on the foot bones and joints that led to arthritic and musculoskeletal pain. The Veteran had Morton's neuroma but the side was not reported and he also had metatarsalgia bilaterally. Hammer toe deformities of the second, third, fourth and little toes were present bilaterally. The Veteran had hallux valgus which was productive of mild to moderate symptoms on both sides. Surgery had been performed for the hallux valgus with resection of the metatarsal head on the left side. The Veteran also had hallux rigidus but the side was not reported. The Veteran did not have malunion or nonunion of the tarsal or metatarsal bones. There was evidence of bilateral weak foot due to the left leg. The Veteran used a cane and also had orthotics which accommodated for leg length discrepancy. The examiner opined that the Veteran would not be equally well served with his left lower extremity if he had an amputation with prosthesis. The examiner opined that the foot condition did not impact his ability to work. The examiner found that the Veteran was employable as far as the Veteran's feet were concerned provided that his job did not require standing or walking for long periods of time. A sitting job would be appropriate as the Veteran did not have any difficulties with communications or thought processes. In March 2012, the Veteran informed a nutritionist that he walks everywhere for exercise. The Veteran reported his activity level as active. Another record dated the same month reveals the Veteran was found to have a steady gait and he reported he planned to take the bus to the train station to get home. He left the unit by foot. Another record from the same month includes the annotation that the Veteran frequently walks to the store or the library as the family had one car and the wife worked a lot. A VA peripheral nerves examination was conducted in May 2012. The Veteran reported a lack of feeling with uncomfortable sensation in both feet since 1997. The Veteran had a wide-based, antalgic gait due to recent left foot surgery and known limb length discrepancy. Gait was likely widened due to diabetic neuropathy. The examiner diagnosed diabetic peripheral neuropathy. The increased numbness present in the left calf was likely related to his multiple surgeries and extensive scarring. By anatomical location, a small fiber disease process present in both limbs cannot be secondary to a focal (leg fracture) injury. This can only be secondary to a systemic problem that will affect both limbs equally. A VA miscellaneous foot examination was conducted in May 2012. This was an addendum to the prior examination report. The examiner found that the limb length deficiency noted on examination was related to the service-connected left tibia fracture with hammertoe deformity surgeries. Literature supports a known fact that any breaking of bone results in bone loss. The left leg is 2.4 centimeters shorter than the right as demonstrated by sonogram. The examiner found that the right foot condition is related to the service-connected left tibia fracture. The leg fracture resulted in a 2.4 centimeter shorter left leg. As a result the longer right extremity must then biomechanically compensate to equalize the gait that leads to overuse syndrome of tendon and bone causing pain. The examiner opined that the peripheral neuropathy of the lower extremities is not etiologically linked to the service-connected left tibia fracture. The disorder is metabolically related to the Veteran's hepatitis C and his diabetes. One would expect the Veteran's neuropathy would be only unilateral, on the left extremity from the leg trauma, but it is not. At the time of a VA spine examination which was conducted in July 2012, degenerative disc disease of L5-S1 was diagnosed. The Veteran reported that he had had chronic back pain which began in 2000/2001 which had been recently worsening. The Veteran linked the back pain to his left leg disorder. The Veteran admitted to working approximately six months with the post office and other reports indicate he worked as a cemetery caretaker and loading/unloading trucks. The examiner observed that, during the examination the Veteran alleged that he was unable to bend or laterally flex his back; however, he was thereafter observed by the examiner sitting comfortably at greater than 100 degrees of flexion and was able to put his shoes on with flexion and some lateral bending without apparent difficulty. The examiner opined that the back condition was less likely than not proximately due to or the result of the service-connected left lower extremity disability. The Veteran was examined and revealed minimal motion of the back but he was seen with what appeared to be full range of motion when putting on his shoes. Also radiographic studies 30 years after the injury revealed only degeneration at L5-S1 without evidence of other disc, vertebral or alignment issues despite the Veteran's work history. The back complaints were more likely related to age. The examiner opined that the back disorder was not aggravated by the other service-connected disabilities given the preserved function of the other joints. The examiner also opined that the back and knee complaints were not linked to the leg shortening as the leg was otherwise well aligned and the shortening was minimal and correctable. The Veteran had good knee and hip function and there were only minimal radiographic changes 30 years after the incident. The back and knee complaints were more likely due to age. A VA knee and lower leg examination was conducted in July 2012. The diagnoses were open tibia fracture which was healed and osteomyelitis of the tibia which had resolved. The examiner observed that the Veteran had limited range of motion of the left ankle and atrophy of the leg muscles which would make working on uneven surfaces difficult. The examiner stated that, although the Veteran had many operations, the final results of the leg fracture showed excellent alignment without evidence of arthritic changes of the knee or ankle. The examiner opined that the left knee complaints were less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale was that physical examination revealed functional motion of the knee without evidence of previous surgery, swelling or instability. X-rays revealed no arthritic changes or deformities of the knee despite a work history after service which included loading trucks and being a cemetery caretaker. The knee condition was more likely age related. The knee condition was not aggravated by the service-connected left lower extremity disability based on the fact that the overall alignment of the leg was good and the function of the other joints was good. Numerous clinical records dated during the pendency of the claim document complaints of painful calluses and treatment for the same on the left foot. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic Code 5262 provides that nonunion of the tibia and fibula with loss motion requirement a brace warrants a 40 percent evaluation. Malunion with marked knee or ankle disability warrants a 30 percent evaluation. Malunion with moderate knee or ankle disability warrants a 20 percent evaluation. Malunion with slight knee or ankle disability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Moderate limitation of motion of an ankle warrants a 10 percent evaluation; while marked limitation of motion of an ankle warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a Diagnostic Code 5278. A 10 percent rating is warranted for unilateral or bilateral anterior metatarsalgia (Morton's disease). 38 C.F.R. § 4.71a Diagnostic Code 5279. A 10 percent rating is authorized for severe hallux valgus, if equivalent to amputation of great toe, or if operated with resection of metatarsal head. 38 C.F.R. § 4.71a Diagnostic Code 5280. A noncompensable rating is warranted for hammertoe of single toes. A 10 percent rating is assigned when there is hammertoe of all toes of the foot without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Foot injuries may be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which provides that a 10 percent evaluation is warranted if the disability is moderate, a 20 percent evaluation is warranted if the disability is moderately severe and a 30 percent evaluation is warranted if the disability is severe. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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. Analysis The Board finds that an increased rating is not warranted under Diagnostic Code 5262 based on impairment of the tibia and fibula. In order to warrant a 40 percent rating which is the maximum rating possible under this Diagnostic Code, there must be evidence of nonunion of the tibia and fibula with loose motion and the requirement that a brace be utilized. The medical evidence of record is divided as to whether the Veteran has nonunion of the left tibia and fibula. At the time of the August 2001 VA bones examination, the examiner referenced a history of multiple surgical procedures being performed to treat a nonunion. A July 2003 X-ray of the left lower extremity was interpreted as revealing a nonunion proximally and a partial union distally. The report of the December 2005 bones examination notes both that there was deformity of the midtibia due to malunion of the fibula and tibia but it was also observed that there was no movement in the area of the fracture indicating a complete union. X-rays were also referenced in the December 2005 VA examination report as showing a fully healed and united fracture. A December 2009 VA clinical record includes the annotation that the left lower extremity disability healed without sequelae other than some limitation of motion of the ankle. The examiner who conducted the October 2010 bones examination opined that there was no malunion or nonunion present. The examiner who conducted the July 2012 knee and lower leg examination found that the final result of the leg fracture was excellent alignment. He did not report any problems with malunion or nonunion. Based on the above, the Board finds that the preponderance of the evidence demonstrates that nonunion of the tibia or fibula has not been present during the period of the claim. Even if the medical evidence supported a finding that the Veteran has nonunion of the tibia and fibula, there is no competent evidence demonstrating that the Veteran experiences any loose motion of the leg due to the nonunion. None of the reports of the numerous physical examinations of the left lower extremity conducted during the pendency of the claim references, in any way, that the Veteran experiences loose motion of the left lower extremity due to nonunion. The examiner who conducted the December 2005 VA bones examination specifically noted that there was no movement in the area of the fracture. At the time of the October 2010 VA bones examination, the Veteran alleged that he experienced, in pertinent part, instability and giving way of the left tibia and fibula. However, the examiner who conducted the October 2010 VA examination specifically determined that the Veteran did not experience any loose motion of the left lower extremity. The Board finds the medical evidence of record is more probative of whether the Veteran experiences loose motion in the left lower extremity over the Veteran's allegations. While the Veteran may report on symptomatology he experiences through his senses, a medical professional's knowledge is required to determine the etiology of the claimed loose. As there is no competent evidence demonstrating that the service-connected left lower extremity disability is productive of nonunion of the tibia and fibula with loose motion, the criteria for assignment of a 40 percent evaluation under Diagnostic Code 5262 have not been met. The Board finds that it would not be to the Veteran's advantage to rate the disability on the basis of limitation of motion of the ankle since the maximum rating for limitation of motion of the ankle is 20 percent. While a higher rating could be assigned based on ankylosis of the ankle in certain positions, the medical evidence clearly shows that the ankle is not ankylosed. The Board finds that a separate rating is not warranted under Diagnostic Code 5278 based on the presence of acquired claw foot (pes cavus). The competent medical evidence of record is devoid of any finding that the service-connected residuals of the left lower extremity disability are productive of claw foot or pes cavus. No health care professional has diagnosed the presence of the pathology in the Veteran. The Board finds that a separate rating of 10 percent could be assigned for the service-connected left lower extremity disability under Diagnostic Code 5279 based on the presence of unilateral metatarsalgia. The VA examinations conducted in July 2001 and November 2011 diagnosed the presence of the disability along with numerous VA clinical records which reference its presence. Furthermore, the examiner who conducted the November 2011 VA examination also diagnosed the presence of Morton's neuroma but did not indicate what foot was affected. As the evidence is evenly divided, the Board will assume that the diagnosis of Morton's neuroma was for the left foot. Assignment of a compensable evaluation under this Diagnostic Code will not result in pyramiding. The only requirement for a 10 percent evaluation under Diagnostic Code 5279 is the presence of metatarsalgia. The Board also finds that a separate 10 percent rating could be assigned for the left lower extremity disability under Diagnostic Code 5280 based on the presence of unilateral hallux valgus. The examiner who conducted the November 2011 VA foot examination determined that the Veteran had hallux valgus as a result of the left lower extremity disability and also wrote that surgery had been performed for the hallux valgus with resection of the metatarsal head on the left side. The medical findings from the November 2011 VA examination document that the criteria for assignment of the 10 percent rating under Diagnostic Code 5280 based on hallux valgus with resection of the metatarsal head have been met. Assignment of this separate rating does not constitute impermissible pyramiding. The only requirement for the 10 percent disability rating is the presence of hallux valgus pathology with subsequent resection of the metatarsal head. No other rating assigned for the Veteran contemplates this symptomatology/pathology. The Board finds that, rather than granting separate ratings for the foot pathology under Diagnostic Codes 5279 and 5281, an increased rating of 20 percent based on the presence of a moderately severe foot injury under Diagnostic Code 5284 would be a greater benefit to the Veteran as well a more fully encompassing the symptomatology associated with the service-connected disability. The competent probative medical evidence documents that the service-connected disability is manifested by the following foot pathology: metatarsalgia, unilateral hallux valgus with resulting resection of the metatarsal head and also hammer toes as well as painful calluses. The Board finds the combined effect of this symptomatology is productive of foot impairment that more nearly approximates moderately severe than severe. While the Veteran experiences pain and limitation of motion in his toes, he has consistently been able to walk. Furthermore, it appears that the Veteran has much more use of the foot than he reports at times. There are two references in the medical evidence to the fact that the Veteran was playing basketball. Clinical records dated in May 2006 and in July 2007 include pertinent references. The Board further observes that, in June 2011, the Veteran informed a clinician that he had recently joined a gym and used the treadmill for 45 minutes at a time. In October 2011, the Veteran underwent a cardiac stress test wherein he was able to walk for seven minutes at four miles per hour. Testing was eventually terminated due to fatigue without mention of problems with foot pain causing disability. In March 2012, the Veteran informed a clinician that he walked everywhere for exercise. He repeated this a second time in March 2012. The Board finds that, while the Veteran has consistently complained of foot pain, the extent of disability associated with the pain is not so bad that he is unable to play sports or exercise using his feet. He has consistently been able to walk. Additionally, the Board notes that, on at least one occasion, the Veteran has affirmatively exaggerated his symptomatology in pursuit of economic gain. The examiner who conducted the July 2012 VA spine examination, which was performed in connection with the Veteran's claim for compensation for a back injury, noted that the Veteran alleged during physical examination that he was unable to bend or laterally flex his back at all. However, at the end of the examination, the examiner observed that the Veteran was able to sit comfortably at more than 100 degrees of flexion and was able to put on his shoes with flexion and some lateral bending without apparent difficulty. While the Veteran is competent to report on symptomatology he experiences with his senses, his credibility in reporting what he actually senses is a separate determination for the Board to make. In the current case, based on the discrepancies noted above, the Board places reduced probative value on the Veteran's self- reported symptomatology. Based on the above, the Board finds that the impairment from the service-connected left foot disability more nearly approximates moderately severe injury than severe injury. A rating of 20 percent, but no more, is warranted. This assignment of the 20 percent evaluation under Diagnostic Code 5284 is of greater benefit to the Veteran than the assignment of two separate 10 percent evaluations under Diagnostic Codes 5279 and 5280. See Combined Ratings Table, 38 C.F.R. § 4.25. The Board finds that a separate 10 percent evaluation is not warranted for the left lower extremity disability under Diagnostic Code 5281. In order to warrant a separate evaluation, there must be severe unilateral hallux rigidus. While the medical evidence of record documents the presence of hallux rigidus on the left, the evidence does not support a finding that the disorder is severe. There are very infrequent references to the presence of this pathology. None of the medical evidence which notes its presences indicates that the pathology is severe. The infrequent references to the presence of hallux rigidus and the lack of any annotations indicating that the disability is severe leads the Board to find that the hallux rigidus symptomatology does not warrant a compensable evaluation. Furthermore, the note to Diagnostic Code 5281 directs that this pathology is to be rated as severe hallux valgus (Diagnostic Code 5280). As set out above, the Board has found that the symptomatology associated with the hallux valgus is more appropriately rated under Diagnostic Code 5284 which was done. Assignment of a separate compensable evaluation for the hallux rigidus under Diagnostic Code 5280 would constitute impermissible pyramiding. The Board finds that a separate compensable rating under Diagnostic Code 5275 based on shortening of the left lower extremity is not warranted. The medical evidence documents left leg shortening as a result of the service-connected disability. At the time of the December 2005 VA bone examination, it was determined that there was a leg length difference of 2 centimeters and on VA examination in December 2010, a difference of 4 centimeters was reported. In February 2011, a sonogram examination resulted in a finding that there was a 2.9 centimeter difference. A CT examination from March 2011 included the finding that there was a leg length discrepancy of 2.4 centimeters. At the time of the May 2012 VA examination, a difference of 2.4 centimeters was reported. The report of the December 2010 VA examination is the only medical evidence of record which documents a compensable level of shortening of the left lower extremity. The shortening of 4 centimeters would warrant a 10 percent evaluation. The Board finds, however, that the preponderance of the competent medical evidence demonstrates that the shortening of the left lower extremity is less than that required for the compensable evaluation. Out of five measurements taken of the left lower extremity, only one equates to the compensable evaluation. The Board finds that an increased rating is not warranted under Diagnostic Code 5277 based on the presence of bilateral weakfoot. There was only a single finding of the presence of weakfoot which was noted at the time of the November 2011 VA examination. None of the other examinations of the Veteran's left foot resulted in a pertinent diagnosis. The Board finds the preponderance of the competent medical evidence shows that the Veteran does not weak foot as a result of his service-connected left lower extremity disability. Even if bilateral weak foot were documented in the medical records, service connection is only in effect for a disability of the left lower extremity. Therefore, an increased rating could not be granted because a compensable evaluation requires bilateral weakfoot. 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 more than the ratings discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). In this case, the Board finds that schedular criteria are adequate to rate the left lower extremity disability under consideration. The rating schedule fully contemplates the described symptomatology including foot and leg pain, limitation of motion of the ankle, shortening of the left lower extremity, hammertoes, hallux valgus, hallux rigidus and impairment of the tibia and fibula, and provides for ratings higher than those assigned based on more significant functional impairment. Accordingly, referral of the claim for extra-schedular consideration is not in order. ORDER The Board having determined that the residuals of fractures of the left tibia and fibula with hammer toe deformities warrants a 30 percent rating, but not higher for ankle impairment, and a separate rating of 20 percent, but not higher, for foot impairment, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. REMAND The Veteran has claimed entitlement to TDIU based on the residuals of fractures of the left tibia and fibula with hammer toe deformities. There are several medical opinions which address the question of whether the Veteran is unemployable as a result of these service-connected disabilities. A VA foot examination was conducted in November 2011. The examiner determined that the Veteran had metatarsalgia, hammer toes, hallux valgus as well as a left leg fracture and shortening of the left lower extremity. The examiner opined that the foot condition did not impact his ability to work. The examiner found that the Veteran was employable as far as the Veteran's feet were concerned provided that his job does not require standing or walking for long periods of time. A sitting job would be appropriate as the Veteran did not have any difficulties with communications or thought processes. A VA scars examination was conducted in May 2012. The examiner determined that the Veteran had two painful scars. It was noted that the Veteran reported pain from the left lower extremity scars. The examiner opined this would impact both the Veteran's physical and sedentary employment. The report of a May 2012 general medical examination includes a finding of residual scars from a skin graft on the left thigh. The examiner wrote that the functional impairments from this disability includes pain on the left lower leg from the skin graft. The examiner opined that this would impact both physical and sedentary employment. The examiner found that the residuals of the surgical scars on the left lower leg from the skin grafts on the left thigh render the Veteran unable to secure or maintain substantially gainful employment. In the Board's opinion, none of the medical opinions of record adequately address whether the Veteran is unemployable due to the disabilities currently at issue in this appeal. Therefore, further development is in order. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim for a TDIU based on the service-connected residuals of fractures of the left tibia and fibula with hammer toe deformities of the left foot.. 2. Then, the Veteran should be provided a VA examination to determine the impact of the residuals of fractures of the left tibia and fibula with hammer toe deformities of the left foot on his employability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the Veteran's pertinent history and the examination of the Veteran, the examiner should state an opinion as to whether the service- connected disabilities of the left leg and foot are sufficient by themselves to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. The examiner must provide the rationale for his or her opinion. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim for a TDIU based on the service-connected residuals of fractures of the left tibia and fibula with hammer toe deformities of the left foot in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs