Citation Nr: 1331276 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 03-06 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for post-operative residuals of crush injury, left foot, with osteoarthritis, pes cavus, and hallux rigidus, in effect prior to May 24, 2011. 2. Entitlement to an evaluation in excess of 40 percent for loss of use of left foot, effective May 24, 2011. The issues of entitlement to service connection for a bilateral hip disability, entitlement to an evaluation in excess of 20 percent for herniated nucleus pulposus L4-5, and entitlement to an evaluation in excess of 10 percent for post operative scar on the lumbar spine will be addressed by way of a single Veterans Law Judge decision, docket number 12-03 029. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in November 2006. This matter was originally on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In November 2003, the Veteran testified at a Travel Board hearing. In November 2012, the Veteran testified at a videoconference hearing. Transcripts of those hearings are of record. As the videoconference hearing was not held by the same individual who held the Travel Board hearing, this appeal must now be addressed by a panel. See 38 C.F.R. § 20.707 (2012). In that regard, the Board acknowledges that the Court has held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, the Veteran has explicitly waived his right to have a hearing before the third member of the panel adjudicating the appeal. The Veteran's claims were previously before the Board and remanded in September 2004, October 2007, March 2010, and July 2011. As will be explained in greater detail below, the remand directives have been complied with, and the Board may issue a decision in this matter at this time. A review of the Veteran's virtual VA claims file reveals that it contains only evidence that is duplicative of that already associated with the paper claims file or irrelevant to the issues decided herein. FINDINGS OF FACT 1. The Veteran in this case served on active duty from November 1981 to April 1985. 2. The evidence of record establishes that, throughout the appeal period, the Veteran has a disability analogous to loss of the use of his left foot, with no effective function other than that which would be equally served by an amputation stump, due to postoperative residuals of a crush injury of the left foot to include osteoarthritis, pes cavus, and hallux rigidus. 3. Any increased ratings for postoperative residuals of a crush injury of the left foot to include osteoarthritis, pes cavus, and hallux rigidus from October 16, 2004, are subject to the "Amputation Rule." CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating for the service-connected postoperative residuals of a crush injury of the left foot to include osteoarthritis, pes cavus, and hallux rigidus, prior to May 24, 2011, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.25, 4.71a, Diagnostic Code 5284 (2012). 2. The criteria for a disability rating in excess of 40 percent for the service-connected loss of use of the left foot, from May 24, 2011, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5284-5167 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided required VCAA notice in a letter dated in January 2002. The claim was thereafter initially adjudicated March 2002. While the Veteran was not provided with the applicable rating criteria in a notice letter, they were provided in a February 2003 statement of the case. Therefore, the Veteran had actual knowledge of the criteria used to evaluate his disability. His claim was thereafter readjudicated on a number of occasions, most recently in September 2012. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available post-service medical evidence identified by the Veteran relative to the claim decided herein have been obtained. The Veteran's written and oral statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations evaluating the severity of his disability. The Board finds that the examinations, when taken together, were adequate, in that they were conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also finds that the RO has complied with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, letters dated in October 2004 and October 2008 requested that the Veteran inform VA of any outstanding medical evidence that may be relevant. In January 2012, the RO associated all outstanding VA treatment records with the Veteran's claims file. Finally, the Veteran was provided with VA examinations and opinions in July 2006, January 2010, April 2010, November 2010, and September 2011. These reports, when taken together, satisfy the directives contained in the Board's various remands, to include consideration of whether the Veteran had loss of use of his foot throughout the appeal period. As such, the Board concludes that we may proceed with this claim. Moreover, as previously noted, the Veteran was also afforded an opportunity to present testimony at hearings before the Board during the course of this appeal. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). In this case, the undersigned Veterans Law Judge and Acting Veterans Law Judge set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) The Veteran seeks an increased rating for the service-connected left foot disability. From July 1, 1993 to May 24, 2011, the Veteran's postoperative residuals of crush injury to the left foot with osteoarthritis, pes cavus, and hallux rigidus was rated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnosed Code 5284 for severe foot injury. From May 24, 2011, the Veteran's service-connected left foot disability has been rated 40 percent disabling pursuant to Diagnostic Codes 5284-5167 for severe foot injury and loss of use of foot. The Board notes that the 40 percent disability rating was essentially based on the VA examination in September 2011 which showed a loss of use of the left foot. In the September 2012 Decision Review Officer decision, it was noted that the September 2011 VA examiner commented that it would be feasible to state that were the Veteran able to have had an injury that resulted in a foot injury with prosthesis, the left lower extremity function would have the ability to ambulate for longer distances without the pain and fatigability and lack of endurance that he had due to his current foot condition. Loss of use of a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis for example, (a) extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches or more, will constitute loss of use of the foot involved; (b) complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. Complete paralysis of the external popliteal nerve and consequent foot drop accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of the nerve will be taken as loss of use of the foot. 38 U.S.C.A. §§ 1114, 1134 (West 2002); 38 C.F.R. §§ 3.350, 4.63 (2012). On VA examination in March 2002, the Veteran reported experiencing worsening symptoms in his left foot and left knee and that as a result, he felt that he had been walking awkwardly on the outer aspect of his foot causing right knee pain. The Veteran reported experiencing pain, weakness, stiffness, and occasional swelling in the left foot which worsened with prolonged standing. On physical examination, the Veteran had normal reflexes and dullness to sensation in the anterior and lateral aspects of his left foot. Dorsiflexion was from zero to 20 degrees, and plantar flexion was from zero to 35 degrees. The Veteran was able to heel walk bilaterally without difficulty but was unable to tiptoe walk. The Veteran's gait was somewhat antalgic, with the Veteran favoring his right leg. The examiner noted that the picture was unchanged from previous examination. At the July 2006 VA examination, the Veteran reported constant pain, worse in the winter, as well as tenderness, occasional swelling, heat at the bottom of the foot, redness, stiffness of his toes, fatigability, weakness, spasms, lack of endurance, incoordination, and toe contractures. Physical examination demonstrated that his left metatarsophalangeal (MTP) joint had no motion as it was clinically fused. There was no crepitus, edema, effusion, instability, mass, muscle atrophy, painful motion, spasm, tender, or heat. There was reduction in muscle strength and tone when compared to the right side and callus formation at the medial first MTP joint. The left foot demonstrated left and right foot pes cavus. The examiner noted that the fusions of the midtarsal joint and first MTP joint would cause him to walk with an abnormal gait and eventually lead to arthritic changes and make it very difficult for the Veteran to be on his feet for extended periods of time and lead to fatigability and loss of endurance even if symptoms were not present in the foot. On VA examination in August 2006, the Veteran's stance and gait appeared normal although it was noted that he maintained his left foot in a slightly externally rotated position compared to the right. At the May 2007 VA examination, the Veteran reported increasing sharp pain from the first MTP joint are to the medial malleolar area as well as in his left big toe. The Veteran reported difficulty standing for prolonged periods of time. Physical examination of the left foot revealed tenderness along the medial portion of the first from the first MTP joint area to the medial malleolar area. There was no palpable plantar fascial tenderness. His gait was antalgic, he favored the left lower extremity, and he used a cane. On VA examination in October 2007, the Veteran reported that he could walk 100 meters and then experienced weakness in his foot, leg, and back which necessitated sitting down for about 10 to 12 minutes before being able to get up and walk another 100 meters. On VA examination in January 2010, the Veteran reported that he was able to walk more than 1/4 mile but less than 1 mile and was unable to stand for more than a few minutes. The examiner noted that the crushing injury resulted in surgeries that had caused apparent fusion at the first MTP joint and midtarsal joints. The examiner noted that there was no motion available in these areas when range of motion was attempted and that the subtalar joint had limited motion, only 5 to 10 degrees of motion when compared to the right foot. At the April 2010 VA examination, the Veteran reported pain on top and bottom of foot while standing, walking, and at rest as well as swelling, stiffness, weakness and lack of endurance. The examiner noted that on examination, there was no motion at the midfoot and that the midfoot was locked in a slightly varus attitude which would make walking or standing difficulty for anything other than short periods of time. On VA examination in November 2010, the Veteran reported increased left foot pain while standing, walking, and at rest in addition to swelling, stiffness, weakness, and lack of endurance. The Veteran reported that he was able to stand for 15 to 30 minutes and unable to walk more than a few yards. The examiner noted that due to surgical repair, the Veteran had an exaggerated cavus foot type on the left and had a more significantly plantar flexed first metatarsal head. The examiner also noted that the Veteran had no range of motion of the first MTP joint of the left foot due to fusion, limited motion at hallux IP joint, and no effective motion at midtarsal joint. The subtalar joint motion appeared normal. The examiner noted that the Veteran did not have loss of use of the left leg but that it was painful to use it to its full capacity and drastically limited the time he could be on his foot. The examiner noted that the Veteran would not do better with an amputation/prosthetic. The examiner noted that he had significant limitation of motion due to fusion at first MTP joint and midtarsal joint on the left but that he did not have complete loss of use of his left foot and that he had diminished ability to use his left foot for extended periods of time. The examiner noted that the Veteran had to limit the time he was on his foot, that the condition would progress over time but that at that time, he was able to function reasonably well but with pain/discomfort. On VA examination in May 2011, the Veteran reported being able to stand for 10 minutes or less and unable to walk for more than a few yards. Dorsiflexion of the left ankle was from zero to 20 degrees and plantar flexion was from zero to 40 degrees. The Board notes that at the September 2011 VA examination, the Veteran reported daily pain present at rest but increased with weight bearing and walking. The Veteran described weakness in the sense that he felt like he had trouble supporting his weight on the foot but had no turns or sprains. The Veteran noted stiffness, especially in the proximal foot near the ankle. The Veteran reported that due to his symptoms, he was limited to standing for about three minutes and walking of 10-20 yards. He reported that during flare-ups, occurring every 2-3 days, he experienced symptoms of pain, swelling, and tenderness involving the whole foot often associated with erythema and that during these flare-ups, he found walking and standing to be very difficult and often had to stay off his feet for more prolonged periods. The Veteran reported that he tried to alleviate flare-ups with rest, elevation, and ice. Physical examination demonstrated no edema, soft tissue swelling, effusion, or other signs of inflammation of any of the foot joints. The Veteran's gait was antalgic with a cane although he was not noted to have any other difficulty walking from the waiting room to the examination room, a distance of about 40 to 50 feet. It appears that the September 2011 VA examiner's opinion that the Veteran experienced loss of use of his left foot was due in no small part to the lack of motion at the midtarsal joint and first MTP joint. In addition, the July 2006 VA examiner indicated that the fusions of the midtarsal joint and first MTP joint would cause him to walk with an abnormal gait, lead to arthritic changes, make it very difficult for the Veteran to be on his feet for extended periods of time, and lead to fatigability and loss of endurance even if symptoms were not present in the foot. Based on the totality of the competent evidence of record as discussed above, and after affording the Veteran's case the benefit of the doubt in his favor, the Board finds that the Veteran's service-connected left foot disability is productive of disability analogous to actual loss of use of the foot. 38 C.F.R. § 4.71, Diagnostic Code 5167; and, see Note, following 38 C.F.R. § 4.71a, Diagnostic Code 5284. This is a unique case in that the Veteran has not actually lost the use of his left foot. He can still stand and walk. The September 2011 VA examiner noted that the Veteran would be better serviced by amputation and prosthesis. Thus, the Board must find that the inability to move at the midtarsal joint and first MTP joint, which has existed since he filed his claim, has limited the function of the left foot such that its function would be better served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. As such, the Board finds that the Veteran met the criteria for a 40 percent evaluation during the entire appeal period. This is the highest schedular evaluation for disabilities below the knee. 38 C.F.R. § 4.68. VA regulations provide that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed (known as the "Amputation Rule"). 38 C.F.R. § 4.68 (2012). Pursuant to this rule, amputation of the leg at a lower level, permitting prosthesis, is entitled to no more than a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2012). Service connection for neurological manifestations of the left foot was established from October 16, 2004 with a 10 percent disability rating. To the extent the combined rating for the lower extremity will exceed 40 percent following the implementation of the grant herein, the amputation rule is for consideration. 38 C.F.R. § 4.68. The principal avenue for an evaluation in excess of a schedular maximum is an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Id. If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Id., citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected left foot disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to the Veteran's left foot disability in the Rating Schedule focus on impairment of the use of the foot. The Veteran complains of pain, swelling, fatigability, and lack of mobility as a result of his left foot disability. These are the complaints anticipated by the rating schedule. The Veteran does not have any symptoms from his service-connected left foot disorder that are unusual or are different from those contemplated by the schedular criteria. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. ORDER An evaluation of 40 percent prior to May 24, 2011, for postoperative residuals of a crush injury of the left foot to include osteoarthritis, pes cavus, and hallux rigidus, is granted, subject to the law and regulations governing the payment of monetary benefits. An evaluation in excess of 40 percent for loss of use of the left foot, from May 24, 2011, is denied. _________________________ REBECCA FEINBERG Acting Veterans Law Judge Board of Veterans' Appeals ________________________ __________________________ STEPHEN L. WILKINS CHERYL L. MASON Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals Department of Veterans Affairs