Citation Nr: 1333821 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-04 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the reduction of the disability evaluation for residuals of a left foot fracture, from 10 percent to noncompensable, effective December 1, 2009, was proper. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 1994 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared and testified at a personal hearing in September 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. Notably, at the Board hearing, the Veteran and his attorney explained that they were seeking only restoration of the Veteran's prior evaluation for the disability on appeal. Thus, the reduction is the only issue before the Board. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). This appeal was previously before the Board in February 2012. The Board remanded the claim so that the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. The issue of entitlement to service connection for a left first metatarsal disability under 38 U.S.C.A. § 1151 due to surgery performed by VA in January 2009 has been raised by the record, but has 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. FINDINGS OF FACT 1. A June 2009 rating decision proposed a reduction of the evaluation of the Veteran's residuals of a left foot fracture from 10 percent to noncompensable based upon the findings of a March 2009 VA examination. 2. The Veteran's residuals of a fractured left foot were rated as 10 percent disabling for less than five years. 3. The Veteran's service connection for residuals of a fractured left foot was based upon an in-service fracture of the second metatarsal joint of the left foot. A 2007 VA examination indicated pain with walking associated with the first metatarsal joint. Competent medical evidence from 2009 and 2012 VA examinations reveals that left foot complaints (pain, numbness, tingling, etc.) have been associated with a left first metatarsal hallux limitus and residuals of a fixator surgery to correct the same. CONCLUSION OF LAW The reduction of the Veteran's 10 percent disability evaluation for service-connected residuals of a left foot fracture was proper. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.344 , 4.71a, Diagnostic Code 5299-5284 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Initially, the Board notes that this appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. The Board further concludes that VA has complied with the notification and due process requirements applicable to reduction of evaluations. Specifically, a June 2009 letter advised the Veteran of the proposed reduction. Following the rating decision that reduced the disability evaluation, the Veteran's claim was readjudicated in a Statement of the Case (SOC). The SOC and June 2009 reduction rating decision informed the Veteran of the relevant laws and regulations, to include the rating criteria applicable to his disability. Additionally, the Veteran testified in support of his claim at a September 2011 hearing. The Veteran has been provided every opportunity to submit evidence and argument in support of his claim, and his claim was most recently readjudicated in a November 2012 Supplemental Statement of the Case (SSOC). 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 appealed claim. Accordingly, the Board will proceed to a decision on the merits. Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran was provided VA examinations in 2009 and 2012 to determine the current severity of his residuals of a left foot fracture. The VA examination reports are thorough and supported by the other treatment records and service treatment records in the claims file. The 2009 examination report (the 2012 report was not of record at the time of the reduction) discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. As such, the Board concludes the 2009 examination report is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the July 2012 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Laws and Regulations The procedural framework set forth in 38 C.F.R. § 3.105(e) governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105(e), when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease of compensation benefits being made, a rating proposal of the reduction will be prepared setting forth all material facts and reasons, and the beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation should be kept at the current level. If additional evidence is not received within that period, a final rating action will be taken and rating will be reduced to the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344. The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown , 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. at 281-282. 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]ompensation for service-connected injury is limited to those claims which show present disability" and held: "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 importance." This holding has been modified in that separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness or pain on motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." 38 C.F.R. § 4.40. Factual Background and Analysis The Veteran contends that his 10 percent rating for residuals of a left foot fracture should be restored. He maintains that he fractured his foot during service, and that this in-service fracture resulted in first metatarsal pain which required surgery in 2009. He has had increased symptoms of pain and numbness since the 2009 surgery. As a preliminary matter, the Board determines that the RO followed the proper procedural protocol for rating reductions, as mandated by 38 C.F.R. § 3.105(e). In particular, the RO indicated in a June 2009 letter and accompanying June 2009 rating decision the proposed reduction, which set forth "all material facts and reasons," to include a discussion of current medical treatment records and the applicable rating criteria. In addition, the RO correctly informed the Veteran about the proposed rating reduction, that he could partake in a hearing, could submit evidence in support of not reducing his disability ratings, as well as the pertinent 60-day timeline for submission of such evidence. The RO effectuated its reduction decision in September 2009, and it issued a notice of this decision that same month, informing the Veteran that it made the reduction effective December 1, 2009. Thus, the notification complied with 38 C.F.R. § 3.105(e). Having determined that the RO followed the proper procedures for rating reductions as required by 38 C.F.R. § 3.105(e), the Board must now determine whether the evidence of record supports this reduction. The Board concludes that it does not. Service treatment records include a December 1993 enlistment evaluation. The Veteran denied foot trouble, and reported prior right ankle problems. The evaluation noted "abnormal" feet evaluation, but addressed the recurrent ankle pain only. In March 1995, the Veteran complained of left foot pain for the prior two weeks. He stated that it hurt to run, but there was no pain with standing and walking. The pain was pointed out as of the dorsal medial aspect of the left foot. The physician noted that the x-ray revealed a fracture of the second metatarsal of the left foot. He was placed on light duty for two weeks. The x-ray from March 1995 noted "views of the left foot demonstrate focal periosteal reaction consistent with an early stress fracture of the base of the third metatarsal." Four days later, the Veteran reported for a follow-up and reported only mild pain. He had tenderness and swelling of the left second metatarsal area. A note indicates that an x-ray revealed an early stress fracture of the 2nd metatarsal medial aspect near the base. He was given a "post-op shoe" for ambulating and placed on light duty. In early April 1995, the Veteran again complained of left foot pain after running. He had a full range of motion. The x-ray was noted to show a boney callus at the base of the second metatarsal. He was again placed on light duty. Nine days later, the Veteran stated his "feet feel good," and that he was ready to go to training. There was no pain to palpation of the foot, and he had a full range of motion. He was assessed with a left second metatarsal fracture and possible first metatarsal stress fracture. Five days later, on April 18, 1995, the Veteran reported he did not have foot pain. He had a full range of motion of his left foot and no pain with palpation. He was assessed with a healing second metatarsal stress fracture. On May 3, 1995, the Veteran complained of left foot pain for the prior two months and reported his prior diagnosis of a second metatarsal fracture. X-rays showed a stress fracture of the second metatarsal. He had a full range of motion of his feet. By May 19, 1995, the Veteran reported he was able to run and walk without pain. X-rays taken on May 3, 1995 were noted to be "questionable as to stress fracture v. stress reaction on the second metatarsal of the left foot. He was diagnosed with a stress fracture of the second metatarsal. A concurrent x-ray was noted to show a questionable lesion, which appeared to be a small and smooth and consistent with a healed stress fracture of the second metatarsal. During a July 1995 evaluation, the Veteran reported a history of foot trouble with recurrent foot pain in March and April 1995 due to a stress fracture. In November 1995, the Veteran reported right foot pain after trauma when breaking up a fight. An x-ray revealed a rounded area of sclerosis, most likely representing a bone island of the middle phalanx of the fifth toe. In January 1996, a medical board found the Veteran was not physically qualified for full duty due to idiopathic anaphylaxis/anaphylacoid reaction and chronic low back pain. In September 1996, the RO denied entitlement to service connection for a stress fracture of the left foot because there was no evidence of a chronic disability. VA treatment records from 2005 and 2006 do not include any complaints of left foot pain, although there are pain clinic treatment records for complaints regarding his lumbar spine and headaches. In July 2006, the Veteran was afforded a VA feet examination. He reported intermittent, sharp left foot pain with standing and walking. He reported that the pain affected his work. On physical examination he had a normal gait, and normal posture with standing. He did not have hallux rigidous. His physical examination was normal except that he had pain at the second metatarsal shaft and joint. He was diagnosed with a history of a stress fracture of the left foot with chronic pain in the left foot. He denied any current treatment. X-rays taken in conjunction with the examination revealed that the osseous and articular structures of the left foot were normal. In a November 2006 rating decision, the Veteran was granted service connection for residuals of a stress fracture of the left foot. He was granted service connection and assigned a noncompensable evaluation based on the results of the July 2006 examination. The noncompensable evaluation was assigned based on the evidence revealing less than moderate symptoms. In September 2007, the Veteran was afforded another VA feet examination. The examiner did not have the claims file available for review. The Veteran complained of left foot pain with walking and he reported a stress fracture to his foot in service. The examiner noted the Veteran's foot problem did not affect their daily activities. He had a normal gait and normal posture with standing. He had pain with palpation on and around the first metatarsal head. X-rays of the left foot were normal, with no evidence of a previous fracture. The range of motion of the left foot was normal. He was diagnosed with left foot pain at the first metatarsal head due to previous stress fracture. He was not receiving treatment for his left foot at that time. X-rays taken in conjunction with the examination revealed no acute fracture or dislocation, no focal bony destructive process or foreign body. In a September 2007 rating decision, the RO provided a 10 percent evaluation for residuals of a left foot fracture due to the 2007 examination report revealing "complaints of daily pain...a normal gait with no functional limitations," and that the pain was associated with the previous stress fracture. The RO found that these complaints of pain warranted a 10 percent rating for moderate symptoms. In September 2008, the Veteran complained of pain to the lateral aspect of his left heel due to compensating his gait to avoid putting pressure on his left first metatarsal phalangeal joint. He reported he injured his foot in 1995 and that he believed he fractured his left great toe at that time. He denied other trauma to his left foot. On examination, he had a bony prominence on the dorsum of the left first metatarsal phalangeal joint. An October 2008 treatment record included x-rays which revealed a plantar "catch" at the plantar first metatarsal phalangeal joint, with elevates of first ray, small chieloma noted dorsal to the first metatarsal head. He was assessed with hallux elevatus. In March 2009, the Veteran had an updated VA feet examination. He underwent surgery in January 2009 for hallux limitus of the left foot. He complained of pain focused on the left great toe. He also reported swelling and lack of endurance, fatigability, weakness, and stiffness. Range of motion testing could not be completed due to swelling from his surgery. February 2009 x-rays noted external fixation of the first metatarsal phalangeal joint, with no other acute findings. The examiner found that the Veteran's current left foot disability and recent surgery were less likely than not related to his in-service stress fracture. The examiner noted that the Veteran's in-service stress fracture was of the second metatarsal joint, and that the 1995 x-ray of record revealed an early stress fracture of the base of the third metatarsal. The examiner noted that the Veteran's recent diagnosis of hallux limitus of the left first metaphalneal joint with corrective surgery was unrelated to his in-service stress fracture. In June 2009, the RO noted that the September 2007 rating decision provided an increased 10 percent rating due to evidence of pain around the first metatarsal digit. The RO noted that the first metatarsal digit was not injured in service, and that the Veteran was service-connected for residuals of a second metatarsal fracture. The RO noted that current medical evidence did not show residuals for his service-connected residuals of his second metatarsal joint fracture. In September 2011, the Veteran testified that in 2007 he was able to walk and "move around a lot more." He stated that his left foot condition was not the same as it was in 2007 due to his surgery producing increased symptoms. He stated his ability to complete daily activities has "declined by a lot" since 2007. He stated that "from [his] understanding" he fractured his big toe in service. He argued that his fracture in service had to be to his big toe because he has not fractured it post-service. He stated he was diagnosed with hallux rigidus of his left big toe, and underwent surgery which required a fixator on the side of the big toe. After the surgery he was "in more pain," "having tingling and numbness," and its affecting other parts of his body. He reported that in 2007 he could walk his daughter to school, which was roughly two blocks away, but that he is no longer able to do this. He was able to go grocery shopping in 2007. When asked when his big toe became more of a focus of his pain or if his big toe became part of a pain throughout his foot, the Veteran reported that "it became part of a pain and that was the main place they focused on." The Veteran reported that in 2009, he did not have as thorough of an examination as he had in 2007 because his foot was swollen and he could not complete range of motion testing. Based in part upon the Veteran's testimony that his 2009 examination was not as thorough as his 2007 examination because his foot was still recovering from surgery, the Board remanded the claim for an additional examination. In July 2012, the Veteran was afforded a VA feet examination. He was assessed with residuals of a stress fracture to the 2nd metatarsal bone and metatarsalgia of the left great toe, with hallux limitus. On physical examination, he had tenderness to palpation over the general forefoot, not specifically in one location, but dorsally over the metatarsal heads. His range of motion was limited due to his pain. X-rays revealed traumatic arthritis in the metatarsophalangeal join with postsurgical changes and a posterior calcaneal enthesophyte. The examiner noted there was a 12-year gap in foot treatment, which "does not allow us to directly connect the stress fracture of the second metatarsal of the left foot directly to the foot condition which was diagnosed" as hallux limitus in 2007. The examiner noted the Veteran's in-service fracture was to the second metatarsal, and that a relationship between his fracture and his hallux limitus "is problematic, due to lack of continuity of documented care and chronicity of a left foot condition from the military. X-rays of the left foot near the time of surgery in January 2009 were all read as 'normal.'" The examiner noted that the Veteran's severe impairment in gait, with chronic pain and impairment of motion of the joints of the left foot are related to his January 2009 surgery. The examiner did not indicate that the Veteran had any symptoms associated with the residuals of his second metatarsal fracture. The Board notes that a gap in treatment does not exclude the possibility of continued symptoms. Indeed, the Veteran filed a claim for service connection for his left foot in 1996 and 2006. And during his 2006 VA examination he complained of left second metatarsal pain. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Veteran is competent to report left foot pain, and the Board finds his complaints credible. The Board also notes that VA treatment records reveal an increase in his symptoms in 2007/8 when he was diagnosed with hallux limitus. The Veteran testified in 2011 that his symptoms became debilitating after his 2009 surgery, and that he was able to grocery shop and walk his daughter to school prior to his surgery. Thus, the Veteran is credible in reporting left foot pain prior to 2007, and is credible in reporting that his symptoms increased around the time he was diagnosed with hallux limitus and particularly after surgery in 2009 are credible. The Board finds that the Veteran is not competent to associate his hallux limitus to his in-service second metatarsal fracture. Notably, the Veteran was incorrect during his hearing testimony, and he did not fracture his first metatarsal in service. X-rays from service indicated second and third metatarsal fractures. The 2009 and 2012 VA examiners have found that it is less likely than not that his current hallux limitus is related to his second metatarsal fracture because his x-rays prior to his hallux limitus diagnosis did not include evidence of a fracture, and the assessment of a "catch" in his great toe was not noted until 2008. As the Veteran's 10 percent rating was in effect for less than five years, the Board does not have a heightened duty to show sustained material improvement as contemplated by 38 C.F.R. § 3.344(a) and (b). As alluded to in the analysis, Diagnostic Code 5384 provides a 10 percent rating for moderate foot injures, a 20 percent rating for moderately severe foot injuries, and a 30 percent rating for severe foot injuries. The Board notes that words such as "severe," "moderate," and "moderately severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Board finds that the March 2009 examination report, upon which the RO reduced the Veteran's residuals of a fractured left foot, revealed improvement in the Veteran's residuals of a fractured second metatarsal from a 10 percent rating under Diagnostic Code 5284. Here, the Board has some concerns regarding the assignment of a ten percent rating in 2007. The Veteran underwent a VA examination in 2006, where his only complaint was of intermittent pain in his second metatarsal joint with walking and standing. The RO found in a November 2006 rating decision that the pain reported by the Veteran was not sufficient for a 10 percent rating. However, after a 2007 VA examination report noted that the Veteran's only residual for his in-service fracture was pain to the first metatarsal, the RO granted a 10 percent rating, and found that the pain was sufficient to warrant a finding of moderate disability. Notably, the Veteran did not report pain to the second metatarsal during the 2007 examination. While the RO's choice to provide a 10 percent rating in 2007 for a complaint of pain when they did not in 2006 cannot be explained by the Board, the second metatarsal pain reported in 2006 was not reported in 2007 or 2009, and thus an improvement in symptoms of the second metatarsal is demonstrated in the record between 2006 and 2009. As noted by the Veteran, the 2009 examination was not as thorough as the 2007 examination because it did not involve range of motion testing because of the Veteran's recent surgery. The recent 2012 VA examination has found that the Veteran suffers from tenderness to palpation over the general forefoot, dorsally over the metatarsal heads. The information provided in the 2009 examination and opinion indicated that the Veteran's first metatarsal pain was not due to his in-service second metatarsal fracture and so the 2007 increase was provided erroneously, likely due to the 2007 VA examiner not having access to the claims file and the service records which diagnosed a second metatarsal fracture. The 2012 VA examiner additionally found that the Veteran's hallux limitus and residuals of his fixator surgery to his left great toe were not related to his in-service second metatarsal fracture. The 2012 examiner found that the Veteran's "severe impairment in gait, chronic pain, and [loss of] motion of the joints" was due to his January 2009 surgery. Unfortunately, this claim is confused by the grant of a 10 percent rating in 2007 for findings related to the first metatarsal when the Veteran was service-connected for residuals of a fracture to the second metatarsal phalangeal joint of the left foot. The Board understands the Veteran's confusion and argument that his foot has not improved since 2007, and has in fact, worsened considerably. Here, his left great toe is not service-connected, and any residuals of his left great toe hallux limitus and the fixator surgery in 2009 may not be used to provide an increased rating for his service-connected residuals of a fractured left second metatarsal because the competent medical evidence has determined that his in-service fracture did not cause his hallux limitus of a different toe. As noted by the Veteran's attorney, the VA is now attempting to correct the assignment of a 10 percent rating for the first metatarsal which was assigned to a service-connected second metatarsal through a reduction of the rating as opposed to treating the "increased" 10 percent as a grant of service connection for the first metatarsal with an initial 10 percent assignment, which would need to be treated as a severance. The reason the claim is addressed as a reduction instead of a severance is because of the analysis used by the RO in granting the 10 percent evaluation. The RO addressed the claim as an increased rating claim, and thus there was no consideration given to the service connection regulations when the 10 percent evaluation was provided. The Board agrees that, although imperfect, addressing the claim as a reduction is more appropriate. In essence, the Veteran received 10 percent for roughly 2 1/2 years based on the wrong toe. The 2009 and 2012 VA examinations have found that the symptoms associated with the 2007 increased rating (left great toe symptoms) are not due to his fractured second left toe. Therefore the 2009 and 2012 examinations have shown that there is an improvement in the symptoms associated with the Veteran's service-connected residuals of a fracture of the left foot over the 2007 examination. The Board is sympathetic to the Veteran's situation, and to his significant symptoms and functional loss associated with his hallux limitus and the residuals of the fixator surgery, but the evidence of record simply does not support a compensable rating for residuals of a left foot fracture (second metatarsal). For the foregoing reasons, then, the reduction of the 10 percent rating under Diagnostic Code 5284 is found to have been proper. ORDER The 10 percent schedular rating for residuals of a fractured left foot (second metatarsal) was properly reduced, effective December 1, 2009, and the claim for restoration is therefore denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs