Citation Nr: 1332607 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-02 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable rating for status post right calcaneal fracture (foot disability). 2. Entitlement to total disability rating based on individual unemployability due to the service-connected disability (TDIU). ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1993 to March 1996 and from August 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a rating increase. The claim was then transferred to the RO in Jackson, Mississippi, which issued Statements of the Case and certified the case on appeal to the Board. The Veteran's claim for an increased rating includes an inferred claim for TDIU, which is also under the Board's jurisdiction. A claim for TDIU may be raised directly by the claimant or inferred from the record and is not considered separate from the underlying claim but, instead, is an attempt to obtain an appropriate rating for the disability. See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Consideration of TDIU is warranted when the claimant submits evidence of a medical disability, makes a claim for the highest rating possible, and there is evidence of unemployability. See Jackson, 587 F.3d at 1109-10. In the current case, the Veteran is seeking the highest rating possible for her right foot disability. Additionally, she has asserted that she is unable to work in her current occupation of retail due to this disability. Therefore, the Veteran's claim for an increased rating for right foot disability is deemed to include consideration of whether TDIU is warranted. The issue of service connection for a left foot condition as secondary to service-connected right foot disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See July 2010 Statement of Veteran (in Notice of Disagreement). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran has pain from use even with an orthotic, slight decreased range of motion, and mild pronation equivalent to a moderate disability of the right foot. CONCLUSION OF LAW The Veteran meets the criteria for a 10 percent disability rating, but not higher, for her foot condition. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran sought an increased rating in April 2010 asserting that her right foot disability had worsened and merits a compensable disability rating. I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In May 2010, the RO sent a letter to the Veteran giving her notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of her claim for increased rating. The Veteran was informed of what evidence and information she needed to substantiate her claim, which VA would seek to obtain, which she could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded two VA examinations in May 2010 and July 2013 to evaluate the current condition of her right foot disability. There is no argument or indication that the examinations or opinions are inadequate. The Veteran had an opportunity to submit additional evidence and provided statements in support of her claim. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's right foot disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 as a foot injury. Under DC 5284, a 10 percent disability rating is warranted for a moderate foot injury, a 20 percent disability rating is warranted for a moderately severe foot injury, and a 30 percent disability rating is warranted for a severe foot injury. A note to DC 5284 provides that a 40 percent disability rating will be assigned for actual loss of use of the foot. The Board finds that the Veteran's right foot disability includes symptoms, which merit a rating of 10 percent for a moderate foot injury. The claims file contains pertinent VA treatment records from September 2009 to January 2012 in which the Veteran consistently reports pain in her right foot and is fitted for an orthotic in her shoes. She reported having pain after standing for 30 minutes or walking half a mile; she rated her pain a six out of 10, but noted that it could elevate to eight during flare-ups. In April 2010, a VA provider found decreased range of motion at the right subtalar joint with accompanying pain. During a VA orthopedic consultation in June 2011, the provider noted mild pronation, valgus (deformity) of the heel, and probable plantar fasciitis where her calcaneus leads to the arch of her foot. Radiological studies in June 2011 ruled out arthritis as a possible diagnosis. Although the diagnostic code for the Veteran's condition is 5284, the Board will look to other diagnostic codes for foot conditions for guidance because the applicable code does not provide detailed criteria. The criteria under DC 5276 provides for a 10 percent rating for moderate disability when pain from use of the feet is not alleviated with shoe build-up or arch support. Further, marked pronation can merit a 30 percent rating under that code. The Veteran has consistent pain from the use of her feet and the pain is not fully alleviated with orthotics. See VA treatment record 1/10/12. Pain along with mild pronation parallel the criteria in diagnostic code 5276 for 10 percent and indicate moderate foot injury, warranting a 10 percent rating under DC 5284. See 38 C.F.R. § 4.71a, DC 5276 and 5284. However, the Veteran's foot disability does not merit a rating higher than 10 percent. In order to award a rating of 20 percent disability under DC 5284, the evidence would need to show moderately severe foot injury. Here, the Veteran does not meet those criteria. Her foot disability is generally reduced with orthotics, although she still has some pain with use. She does not have malformation, stiffness, swelling, or marked pronation, which would indicate a more severe condition under DC 5276. She generally has normal range of motion noted by the VA examination in May 2010 and orthopedic consultation in June 2011, although slight loss of range of motion was observed in April 2010. Taken overall, symptoms of the Veteran's foot disability do not rise to the level of a moderately severe injury, meriting a 20 percent disability rating or higher. Consideration under other diagnostic codes would not allow for a higher rating. There was no evidence of a foot disability analogous to pes cavus or malunion or nonunion of the tarsal or metatarsal merit consideration under additional foot diagnostic codes. See 38 C.F.R. § 4.71a, DC 5278 and 5283. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. VA should obtain examinations in which the examiner determined if the disability was manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups and whether these symptoms affected range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. VA's General Counsel stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated, and therefore, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98. In the present case, consideration of functional loss and DeLuca is warranted since the Veteran's right foot disability involves painful motion, or pain while standing and walking. Symptoms that could lead to functional loss, such as slight loss of range of motion, flare-ups, and pain, were considered when awarding a 10 percent rating. Further, the VA examinations conducted in May 2010 and July 2013 were negative for excess fatigability, weakness, or incoordination. Therefore, the Veteran's foot disability does not merit a 20 percent disability rating or higher even when applying the above sections and DeLuca. The Veteran's overall disability picture most closely approximates a 10 percent rating for her right foot disability. See 38 C.F.R. § 4.71a, DC 5284. In addition, the Board finds that the Veteran has had similar symptoms associated with her right foot throughout the appeal and since the time of her claim for an increased rating, and staged ratings are not necessary. See Hart, 21 Vet. App. at 509-10. All potentially applicable diagnostic codes have been considered, and there is no basis upon which to assign an evaluation in excess of the rating assigned herein. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's right foot disability are fully contemplated by the schedular rating criteria. Specifically, the rating criteria and case law take into account range of motion, functional loss, and most pertinent here, pain. Therefore, the rating schedule is adequate to evaluate her disability picture. Moreover, there are no related factors such as frequent periods of hospitalization or marked interference with employment. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. Additionally, an inferred claim for TDIU is discussed in the remand section. The benefit of the doubt has been applied and the Veteran has been granted a 10 percent rating; however, the preponderance of the evidence is against any rating in excess of 10 percent and the claim is denied. See 38 C.F.R. § 4.3. ORDER A rating of 10 percent for status post right calcaneal fracture is granted. REMAND As discussed above, the Veteran's claim for an increased rating for right foot disability includes an inferred claim for TDIU. See Jackson, 587 F.3d at 1109-10. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). Although there is evidence the Veteran is not working because of her right foot disability, it is unclear whether she is unemployable due to her service-connected disabilities for VA purposes. Therefore, all appropriate notice and assistance as to the TDIU claim should be provided, and this issue should be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Send a notice letter to the Veteran laying out the specific requirements for proving a claim for TDIU and allow the Veteran a reasonable amount of time to respond. Obtain and associate with the claims file any evidence pertaining to the Veteran's claim for TDIU that is known or reasonably ascertainable. 2. After completing the above tasks, schedule the Veteran for a VA examination and forward the claims file to the VA medical examiner. All necessary tests and procedures should be conducted. The examiner should provide an opinion answering the question: Is the Veteran unable to secure and maintain a substantially gainful occupation by reason of her service-connected right foot disabilities? The examiner should provide detailed rationale for his/her opinion, including how the disabilities limit the Veteran's ability to work. Consideration should be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs