Citation Nr: 1329592 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-27 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating higher than 10 percent for residuals of a right foot fracture to the third metatarsal. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from January 1992 to July 1992. This matter comes to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted an increased rating of 10 percent for the residuals of fracture to the third metatarsal of the right foot. Although the RO originally assigned an effective date of January 1, 2005, in a later January 2006 rating decision the RO found clear and unmistakable error in the effective date assigned, and assigned an effective date of October 8, 2004, the date of the Veteran's original increased rating claim. In April 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing at the RO. In November 2010 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. Additional VA treatment records were scanned into the Veteran's Virtual VA claims file that are dated after the last February 28, 2011 record that was reviewed by the RO in conjunction with the present claim. The records, however, are not relevant to the Veteran's right foot disability. Therefore, a remand, pursuant to 38 C.F.R. § 20.1304 is not necessary. The Board previously referred the issue of service connection for a right knee disability, as secondary to the service-connected right foot disability. Virtual VA records appear to show that this matter was adjudicated in 2012, but only the first page of rating decisions dated in May 2012 and October 2012 have been scanned into Virtual VA. Thus, it is not clear if the issue of service connection for a right knee disability has been in fact adjudicated. If this matter has been adjudicated then the entire rating decision should be added to the Veteran's file. If it has not been adjudicated then the matter is referred again to the RO for adjudication. The issue of entitlement to service connection for reflex sympathetic dystrophy of the right lower extremity, secondary to the service-connected right foot disability has been raised by the record via VA examinations in June 2005 and October 2008, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The medical evidence demonstrates that the Veteran has had impairment akin to a severe foot injury for the entire appeals period. CONCLUSION OF LAW The criteria for an evaluation of 30 percent, but not higher, for residuals of fracture to the third metatarsal on the right foot are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated in October 2004 and October 2008, as well as an undated letter added to the file in 2006 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his right foot disability had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his conditions affect his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The 2006 and October 2008 letters also provided the Veteran with information on how VA determines and assigns effective dates. The claim was subsequently readjudicated in supplemental statements of the case dated in September 2009 and November 2011, thereby curing any timing defect in the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As such, the 2006 and October 2008 letters satisfied VA's duty to notify. Regarding the duty to assist, the RO has obtained the Veteran's service records, VA treatment records, and copies of the Veteran's Social Security Administration (SSA) records. The RO also has provided him with VA examinations in June 2005, October 2008, and November 2011. The examination reports adequately address all the necessary criteria for rating the claims. The Veteran was afforded a hearing before an Acting Veterans Law Judge (AVLJ) in April 2010, in which he presented oral argument. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran, who was represented by a Veterans Service Organization, acknowledged that the increased rating claims were on appeal and provided testimony regarding the present severity of his disabilities. The AVLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The AVLJ asked specific questions, however, directed at identifying the criteria for an increased rating. The AVLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and present symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Also, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The Board previously remanded this case in November 2010 for a VA examination to determine the present severity of the Veteran's right foot disability and to obtain more recent VA treatment records. The directives of the Board's remand have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating The RO originally granted service connection for residuals of fracture of the third metatarsal of the right foot in June 1994 assigning a noncompensable rating. The Veteran filed an increased rating claim for his right foot disability in October 2004. The RO subsequently granted an increased rating of 10 percent for the right foot disability in a December 2005 rating decision; and in a November 2006 rating decision, assigned an effective date of October 8, 2004. The Veteran seeks a higher rating for his service-connected right foot disability. On his VA Form 9 he indicated that while his right foot fracture had resolved he still experienced significant pain, which prevented him from interacting with his stepchildren or drive for long distances. He mentioned that VA had prescribed him with an ankle brace, medical shoes, and a walking cane. He felt that his service-connected injury had resulted in loss of use of his foot and that while his SSA disability records noted benefits were for an unrelated disability, medical evidence still showed that he was prevented from working due to his right foot. The Veteran testified at the April 2010 Board hearing reiterating many of the same complaints regarding the right foot disability. He also indicated that his right foot had turned out and that his wife did most of the driving, running errands, and work around the house. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, such as for the increased rating claims for sinusitis, right ankle disability, and allergic rhinitis, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994) 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). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's right foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5283 for malunion or nonunion of the tarsal or metatarsal bones. A 10 percent rating is assigned for moderate malunion or nonunion; a 20 percent rating is assigned for moderately severe malunion or nonunion; and a 30 percent rating is assigned for severe malunion or nonunion. The Board notes that the record shows that the Veterans residuals of fracture to the third metatarsal of the right foot have healed. Therefore a higher rating for moderately severe or severe malunion or nonunion of the metatarsal bones is not appropriate. However, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5284, other foot injuries, the Veteran's right foot impairment does meet the criteria for a severe foot injury, which warrants a 30 percent rating. A 40 percent rating is only warranted if there is "actual loss of use of the foot." Id. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of 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 The VA examination reports and treatment records note complaints of constant pain in the right foot that would flare up to a 10 out of 10 with any minimal activity, and limited ability to walk any prolonged distance, or stand for any prolonged period of time. He wore special shoes for his foot and also used a cane. He had weakness in the right foot and lack of endurance, as well as fatigability, and stiffness. He also had limited motion of the ankle. While the June 2005 VA examination report noted that there was no evidence of abnormal weight-bearing, the October 2008 VA examination report noted that he had progressive outturning of the right foot with some inversion such that his weightbearing occurred on the lateral aspect of the right foot. The November 2010 VA examination report also noted that the Veteran walked on his right heel and did not put his right foot flat while walking. The Board finds that these symptoms in the right foot more closely approximate the criteria for a severe foot injury under Diagnostic Code 5284, thus warranting a higher 30 percent rating for the right foot. Particularly significant is that the Veteran's foot has turned out so that he does not put his foot flat while walking, which demonstrates severe impairment in the right foot. The record shows that the Veteran also has been diagnosed with reflex sympathetic dystrophy and the October 2008 VA examiner indicated that this caused moderate functional loss in the right foot and also resulted in the antalgic gait. While the Veteran testified that VA clinicians had told him that the reflex sympathetic dystrophy was secondary to his service-connected right foot disability, the record is not actually clear that the two are related. Nonetheless, given that it is not clear, the Board will presume that all impairment in the right foot is attributable to his service-connected residuals of fracture to the third right metatarsal. The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The evidence does not demonstrate that the Veteran has loss of use of his right foot, as he contends. While the Veteran has significant limitations, he is still able to walk, stand, and drive even with the impairment associated with his right foot, albeit for short periods of time. The Board does not find that this demonstrates impairment that can be considered loss of use of the right foot. Therefore, a 40 percent evaluation under Diagnostic Code 5284 is not warranted. 38 C.F.R. § 4.71a. The Board also has considered the ratings for neurological impairment of the lower extremity under 38 C.F.R. § 4.124a, but a rating higher than 30 percent is generally not warranted unless there is paralysis of the lower extremity nerves; and this has not been shown by the evidence of record. At most the Veteran had some decreased sensation in his right ankle and mild decrease in hair growth on the right foot, as noted in the October 2008 VA examination report. He also complained of a tingling sensation and coldness in the feet. None of these findings, however, would warrant a rating higher than 30 percent under the neurological rating criteria for lower extremity disabilities. It was noted that the Veteran had a small metallic density on the fourth metatarsal on x-ray examination in November 2010. A higher rating for a muscle injury is not warranted under 38 C.F.R. §§ 4.55, 4.56, however, as the highest rating for a severe muscle injury for muscles involving the foot is 30 percent. The Veteran is competent to report symptoms associated with his right foot disability, and there is no reason shown to doubt his credibility in this regard. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the severity of the clinical manifestations of his right foot disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). And, even if his opinion were entitled to be accorded greater probative value, it is far outweighed by the medical evidence of record demonstrating clinical analysis of the right foot. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In view of the foregoing, the evidence demonstrates entitlement to a rating of 30 percent, but not higher, for the right foot disability for the entire appeals period. The level of impairment in the right foot has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for a 30 percent rating. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). To the extent that any further increase is denied, there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57- 58. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The Veteran is presently not working. SSA records note that the Veteran was granted disability benefits because of an organic brain syndrome due to a traumatic brain injury that occurred in 1995. The June 2005 VA examiner noted that the Veteran's reflux sympathetic dystrophy affected his ability to obtain and maintain employment. Even assuming that the reflux sympathetic dystrophy is related to the right foot disability, the examiner did not state that the Veteran's service-connected right foot disability prevented gainful employment. The November 2010 VA examiner noted that while the Veteran would be unable to perform physical labor, he would be capable of doing sedentary work. Thus, the record does not show that the Veteran has been rendered unemployable as a result of his right foot disability. Therefore, any inferred TDIU claim is inapplicable in this case. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's right foot disability (i.e., pain, weakness, fatigability, and decreased sensation into the right lower extremity) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 30 percent rating under Diagnostic Code 5284 contemplates symptoms attributed to a severe foot injury. Thus, the Board finds that this rating reasonably describes the Veteran's disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to a 30 percent rating, but not higher, for residuals of a right foot fracture to the third metatarsal is granted, subject to the rules governing the payment of monetary benefits. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs