Citation Nr: 1333015 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-15 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a compensable rating for a left foot disability (great toe osteoarthritis). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1956 to October 1958 and from October 1963 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision that granted service connection for a left foot disability, rated 0 percent, effective August 11, 2003. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is reasonably shown that throughout the appeal period, the Veteran's left foot disability has been manifested by the symptoms and impairment consistent with severe hallux rigidus; moderately severe foot injury is not shown. CONCLUSION OF LAW A 10 percent rating is warranted for the Veteran's left foot disability throughout. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes (Codes) 5280, 5281 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection for a left foot disability and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing prejudicial error). The Veteran's service treatment records (STRs) and postservice treatment records have been secured. The RO arranged for multiple VA examinations of the Veteran's left foot, including most recently in March 2011 and April 2013. A review of the examination reports found that they contain sufficient findings and discussion of the features of the left foot disability to provide probative medical evidence that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all available evidence pertinent to the matter at hand has been secured, and that no further development of the evidentiary record is necessary. See 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in 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 one 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 Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran asserts that the pain associated with his left foot disability is so severe that he requires a cane to ambulate. See July 2013 representative's statement. A January 2003 VA treatment record noted pain on palpation of the left first metatarsal phalangeal joint; the assessment was osteoarthritis. Follow-up treatment records dated January 2004, January 2005, and January 2006 noted osteoarthritis. A January 2006 X-ray of the left foot revealed narrowing of the joint space in the first metatarsal phalangeal joint with sclerosis of the subchondral bone and osteophytic proliferation at the joint margins. In July 2006, pain on palpation of the let first metatarsal phalangeal joint was again noted, in addition to pain on passive and active range of motion; the assessment was also osteoarthritis. In March 2007, the Veteran complained of worsened pain in the left foot. X-rays revealed narrowing of the joint space of the first metatarsal phalangeal joint. An October 2007 treatment record noted an active problem of arthritis in the foot. In October and December 2008, the assessment was osteoarthritis of the first metatarsophalangeal joint of the left foot. In February and December 2009, the Veteran reported pain, numbness, and tingling across the left dorsal aspect of the foot going into the big toe. On March 2011 VA feet examination, left foot symptoms included pain, swelling, and stiffness. On examination, there was no evidence of instability or abnormal weight bearing, but there was evidence of painful motion, swelling, tenderness, and weakness. The examiner noted that this examination was not for hammertoes, hallux valgus or rigidus, flatfoot, muscle atrophy of the foot, or other foot deformity. The examiner indicated there was no evidence of malunion or nonunion of the tarsal or metatarsal bones. X-rays revealed degenerative change in the first metatarsal-phalangeal joint. A November 2011 X-ray of the left foot showed a hallux valgus deformity, advanced degenerative arthrosis of the first metatarsal phalangeal joint, and minimal degenerative arthrosis in the remainder of the left foot. A December 2011 record notes the Veteran complained of pain across his midfoot. He reported that the pain in his foot has gotten worse "over the last few years." On April 2013 VA foot examination, the examiner noted that the Veteran did not have Morton's neuroma or metatarsalgia, hammer toes, hallux valgus, or hallux rigidus. It was further noted that he did not have pes cavus or malunion or nonunion of the tarsal or metatarsal bones. The examiner noted no other foot injuries and no evidence of weak foot. On physical examination, the Veteran was tender to palpation over the "MTP joint" of the left great toe and tender to palpation with extension and flexion of the left great toe. Extension was to 20 degrees with pain at 5 degrees and flexion was to 20 degrees with pain at 10 degrees. The examiner noted that the veteran wears supportive shoes. Imaging studies revealed traumatic arthritis in the left foot. A May 2013 VA podiatry record notes the Veteran's complaint of pain across his midfoot. He reported that he has had pain and discomfort in his left big toe since an accident in service and stated that the pain has gotten progressively worse. He stated that the pain extends across his entire foot and is not just at the great toe joint. The assessment was left foot hallux rigidus. The examiner, a Chief of Podiatry, opined that "it is at least as likely as not that the 1st MPJ pain (hallux rigidus) and metatarsalgia are caused by this Veteran's foot injury suffered during his military service." The Veteran's service-connected left foot disability is rated 0 percent pursuant to 38 C.F.R. § 4.71a, Code 5284 (for other foot injury). Under Code 5284, a 10 percent rating is warranted for a "moderate" foot injury. A 20 percent rating is warranted for a "moderately severe" foot injury. A 30 percent rating is warranted for a "severe" foot injury. The Note to Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "moderate," "moderately severe," and "severe" are not defined in Code 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. A review of the evidence found that the Veteran's service-connected foot disability has been assigned the diagnosis of hallux rigidus and, as there is a diagnostic code that for that diagnosis, the Board finds that the disability is more appropriately rated under that Code (5281), as opposed to Code 5284, for the nonspecific entity of other foot disability, particularly as the criteria under Code 5284 allow a determination favorable to the Veteran. Under the Code 5281 criteria for rating hallux rigidus, that disability is to be rated as severe hallux valgus. Under Code 5280 severe hallux valgus warrants a [maximum under that code] 10 percent rating. Therefore, a schedular 10 percent rating is warranted. The Board notes that symptoms and impairment associated with the Veteran's service connected left foot disability (as reflected by the record) have been similar throughout since the award of service connection in August 2003. Thus, although hallux rigidus was not diagnosed until May 2013, the disability picture of the left foot disability shown warrants the assignment of a 10 percent rating throughout. The analysis proceeds to whether during any period of time under consideration the Veteran's service connected foot disability has warranted a rating in excess of 10 percent (rating by analogy to other diagnostic codes because 10 percent is the maximum schedular rating for hallux rigidus). Diagnostic codes that provide for ratings in excess of 10 percent for foot (great toe) disabilities include Code 5171 (for amputation of the great toe, which provides for the next higher rating of 30 percent for removal of the metatarsal head). Since the Veteran does not have such pathology, a rating under that code would not be appropriate. The disability may also be rated under Code 5284 (for other foot injuries). Under Code 5284, the next higher 20 percent rating is warranted for "moderately severe" other foot injuries. In that regard, the Board notes the Veteran's assertions that osteoarthritis has spread to his other toes; however, the RO has specifically limited the grant of service connection for foot arthritis to arthritis of the great toe. Therefore, the arthritis in the other toes may not be considered in rating the disability at issue. Inasmuch as Code 5284 contemplates foot disability beyond the great toe, rating under that code would not be appropriate. In summary, the Board finds that there are no schedular criteria which provide for a rating in excess of 10 percent for the disability for which service connection has been established. Therefore, a schedular rating in excess of 10 percent is not warranted at any period of time under consideration. The Board has also considered whether this matter should be referred to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran has consistently complained of foot pain, which is contemplated by the schedular rating criteria set forth above. The pathology and associated functional limitations noted, including great toe arthritis, are all encompassed by the criteria for the schedular rating assigned. Therefore, those criteria are not inadequate. Accordingly, referral of this matter for consideration of an extraschedular rating is not in order. Finally, the record shows that a March 2010 rating decision granted the Veteran a total disability rating based on individual unemployability (TDIU). The Board finds that the matter of a TDIU rating has not been separately raised under the circumstances of this claim. See Shinseki v. Rice, 22 Vet. App. 447 (2009). ORDER A 10 percent rating is granted for the Veteran's service connected left foot disability, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs