Citation Nr: 1333703 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-26 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to service-connected HIV infection. 2. Entitlement to an increased rating for residuals of a left bunionectomy, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from July 1981 to September 1985. This matter came before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The March 2004 rating decision granted an increased rating for the Veteran's left foot disability and denied service connection for sinusitis with allergic rhinitis, HIV infection, and depression. The appeal has been remanded on two occasions, in August 2010 and April 2011. Following the most recent remand, the agency of original jurisdiction (AOJ) issued a rating decision in which it granted service connection for sinusitis and HIV infection. The Veteran has testified before the Board on two occasions. He appeared at a hearing before a Veterans Law Judge (VLJ) in October 2010; that VLJ is no longer employed by the Board. The Veteran subsequently accepted the opportunity to appear before another VLJ, and a second hearing before the undersigned VLJ took place in June 2013. Transcripts of both hearings are associated with the Veteran's claims file. The issue of entitlement to service connection for an acquired psychiatric disorder 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. FINDING OF FACT Residuals of left bunionectomy are manifested by pain and limitation of physical activity that are severe. CONCLUSION OF LAW The criteria for an evaluation of 30 percent for residuals of left bunionectomy have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5280, 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In November 2008, the Veteran was advised of the manner in which VA determines disability ratings and effective dates. He was also advised of the specific criteria under which his left foot disability is evaluated. In January 2009, the claim was readjudicated by the agency of original jurisdiction. In May 2011 and September 2012, the Veteran was advised of the status of his claim. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice timing error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, VA treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examination reports are adequate, in that the examinations were conducted by clinicians who reviewed the record, interviewed the Veteran, and performed appropriate examinations. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Veteran seeks a higher evaluation for his left foot disability, characterized as residuals of left bunionectomy. An August 2002 VA podiatry clinic note includes a review of the Veteran's history. He noted that he had undergone surgery during service and had been scheduled for another surgery the previous year but had canceled due to an inability to take time off from work. On physical examination, a prominent medial eminence was noted on the left first metatarsophalangeal joint. There was pain at the subtibial sesamoid. The Veteran was scheduled for surgery. That surgery was carried out in October 2002. On follow-up in April 2003, the Veteran stated that he was unable to drive trucks because clutching caused pain around the affected joint. He reported that when he had pain, it was no different than before his surgery. In a June 2003 statement, the Veteran indicated that he was no longer able to drive tractor trailers, which he had done for the previous 15 years. He attributed this to his service-connected left foot disability. On VA examination in July 2003, the Veteran's history was reviewed. He endorsed flare-ups after prolonged standing and walking, lasting for a few hours. He noted that rest helped alleviate his pain. Physical examination revealed hallux valgus and a mildly tender surgical scar. There was no objective evidence of painful motion, edema, or instability. The Veteran walked independently with a normal gait. There were no callosities or breakdown of the skin. The Veteran was unable to walk on his left tiptoes. There was no evidence of hammertoes, high arch, or claw foot. The diagnosis was status post surgery for left bunion times two with internal fixation with two screws causing fusion of the left first tarsometatarsal joint and moderate functional loss. During his October 2010 hearing, the Veteran testified that he had pain in his foot. He noted that after the second surgery, he had pins and screws and that he could feel the screws. He stated that the surgery did not solve the problems with his foot. An additional VA examination was conducted in May 2011. The Veteran's history was reviewed. He indicated that he did not currently see a podiatrist. He reported chronic, intermittent pain of 10/10 severity on a daily basis. He endorsed stiffness of the first metatarsophalangeal joint and medial forefoot. He also endorsed swelling, redness, fatigue, and lack of endurance. He stated that even at rest, he had at least mild pain with tingling. He noted that he had severe pain on standing and walking. The examiner noted that there was abnormal shoe wear on the left, with wearing down of the outside of the heel. On physical examination, there was normal Achilles tendon alignment. There was a vaguely palpable screw on the dorsum of the foot. It was mildly tender. There was tenderness to palpation of the left first metatarsophalangeal joint, particularly the dorsum. There was hallux ridigus. The arch was intact. With weight bearing, there was hallux valgus deformity and mild tender non-correctable forefoot malalignment with mild pronation. The diagnosis was status post bunionectomy times two with osteotomy/fixation, with residuals of mild pes planus, hallux valgus, and hallux rigidus. At his June 2013 hearing, the Veteran testified that he had pain with pressure to his left big toe, so he avoided pain by walking on his heel. He stated that he could feel the screws in his foot. He noted that he walked on his heel to avoid putting pressure on the front of his foot. Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. §1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2013). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. §4.2 (2013). An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §4.10 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "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. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10 , 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two evaluations shall be applied, 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. As a preliminary matter, the Veteran presents with complaints of pain in both feet; however, service connection is only in effect for the left foot. Service connection for the right foot was specifically denied in March 2004. Therefore, disability associated with the left foot only is considered in this evaluation. The Veteran's left foot disability is evaluated as 20 percent disabling under diagnostic code 5280. Under this criteria, severe unilateral hallux valgus warrants a 10 percent evaluation where it is equivalent to amputation of the great toe. A 10 percent evaluation is also available for hallux valgus when operated with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under Diagnostic Code 5284, other foot injuries warrant a 20 percent evaluation if moderately severe, and a 30 percent evaluation if severe. With actual loss of use of the foot, a 40 percent evaluation is warranted. 38 C.F.R. § 4.71a , Diagnostic Code 5283. Loss of use of a foot 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. 38 C.F.R. § 4.63. In this case, the Board has reviewed the record and concludes that a 30 percent evaluation is warranted for the Veteran's foot disability under the criteria for other foot injuries. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. In this regard, the Veteran has consistently reported that his symptoms were not alleviated by his October 2002 surgery. He has testified that the surgery did not solve the problems he had with his left foot, and that he walks in a manner that avoids putting pressure on the front of his foot. On examination in 2011, abnormal shoe wear was noted, which supported the Veteran's statement that he walked on his heel. In sum, the Board finds that the record supports a finding that the Veteran's left foot disability is more accurately described as severe. Thus, a 30 percent evaluation is appropriate. The Board observes that the 30 percent evaluation assigned herein is the maximum rating for any unilateral foot disability under the various diagnostic codes for the feet. Thus, further discussion of functional impairment caused by the Veteran's foot disability would serve no purpose as he is in receipt of the maximum evaluation available. Johnston v. Brown, 10 Vet.App. 80 (1997). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's 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, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected left foot disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria. In particular, the Veteran experiences severe pain upon walking. This is specifically contemplated by DC 5284, under which his disability is rated. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. ORDER Entitlement to a 30 percent evaluation for residuals of left bunionectomy is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND The Veteran seeks service connection for depression. At his October 2010 hearing, he stated his belief that his diagnosed depression is due to his HIV infection. The Board notes that the AOJ initially denied this claim in March 2004. At that time, the AOJ noted that the Veteran had reported depressive symptoms since his diagnosis with HIV. However, service connection had not yet been established for HIV; service connection for that disability was not established until a rating decision dated in August 2012, during the pendency of this appeal. In its April 2011 remand, the Board directed that if service connection was granted for HIV infection, a VA examination should be conducted to determine whether the claimed psychiatric disorder was related to the HIV infection. An examination was carried out in September 2012. However, rather than addressing the potential relationship of the diagnosed major depressive disorder to the HIV infection, the examiner instead opined that the diagnosed disorder preexisted service and was not aggravated thereby. This opinion is not responsive to the question posed by the Board, and the examination report is thus inadequate for the purpose of deciding the Veteran's claim. The Board observes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examination report does not address the questions posed by the Board and thus an additional examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of the currently diagnosed acquired psychiatric disorder. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed, and their results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: a. whether it is at least as likely as not (i.e., probability of 50 percent) that any currently present acquired psychiatric disorder is caused by the Veteran's service-connected HIV infection. b. whether it is at least as likely as not (i.e., probability of 50 percent) that any currently present acquired psychiatric disorder is aggravated by the Veteran's service-connected HIV infection. Aggravation is when there is permanent worsening beyond the natural progression of the disability. The complete rationale for all opinions expressed should be set forth in the examination report. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the action above, review the examination and opinion reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs