Citation Nr: 1334425	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  06-02 702	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected traumatic pes planus, residuals of fractured right os calcis and/or service-connected residuals of fractured left os calcis. 

2.  Entitlement to a rating in excess of 30 percent for service-connected traumatic pes planus of the right foot (right foot disability). 

3.  Entitlement to a compensable rating for a service-connected left foot disability. 


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney At Law


ATTORNEY FOR THE BOARD

M. Purdum, Counsel
INTRODUCTION

The Veteran served on active duty from October 1962 to May 1963. 

This matter comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim of entitlement to an increased rating for his right foot disability.  An October 2005 rating decision, in pertinent part, continued the 30 percent rating assigned to the Veteran's right foot disability and denied a compensable rating for his left foot disability and service connection for hypertension and left hip, ankle, and knee disabilities.

The Board, in a November 2008 decision, denied the above-referenced claims.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a August 2009 Order, the Court granted a Joint Motion for Remand (JMR) and vacated the Board's November 2008 decision.  Those matters were remanded to the Board for readjudication in accordance with the JMR.  In March 2010, the Board remanded the case for additional development.  The file has now been returned to the Board for further consideration.

A March 2013 rating decision granted the Veteran's claims of entitlement to service connection for left hip, ankle, and knee disabilities.  Thus, the RO's action represents a full grant of the benefits sought as to those claims, and the Board will confine its consideration to the remaining issues set forth on the decision title page.

At the time of the January 2013 VA examination, the examiner reported that he had reported in his prior VA examination report, dated in August 2005, that the Veteran had right great toe metatarsophalangeal joint arthritis secondary to his right foot disability.  This claim, regardless of whether the Veteran is able to receive additional monetary compensation for another disability of the right lower extremity due to the "amputation rule," has been raised by the record.  Further, VA treatment records dated in July 2008 indicate that the Veteran presented with slightly restricted first toe motion.  This claim, regardless of whether the Veteran has a current diagnosed left first toe disability secondary to his service-connected left foot disability, has been raised by the record.  There is no indication that the RO as the Agency of Original Jurisdiction (AOJ) has initially adjudicated these claims.  Since the Board does not have jurisdiction over the raised claims, they are referred to the RO for appropriate development and consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

A review of the Virtual VA paperless claims processing system does not reveal additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  There is no probative evidence that hypertension was manifest to a compensable degree within one year of separation from service, or that symptoms of such were continuous from separation of service to the present; and there is  no probative evidence indicating that hypertension is proximately due to or the result of a service-connected right or left foot disability. 

2.  The Veteran is currently service-connected for two disabilities of the right lower extremity, below the knee:  (1) traumatic pes planus, residuals of fractured right os calcis, rated as 30 percent disabling; and (2) loss of motion, marked, right ankle, associated with traumatic pes planus, residuals of fractured right os calcis, rated as 20 percent disabling, with a combined rating of 40 percent.  

3.  Considering the "amputation rule" contemplated by 38 C.F.R. § 4.68, the 30 percent rating currently assigned to the Veteran's right foot disability is the highest assignable rating under the VA Schedule for Rating Disabilities. 

4.  Residuals of the Veteran's service-connected left foot disability include pain, thin fat pads, and X-ray evidence of a small insignificant calcaneal spur. 



CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by service, and may not be presumed as such; and is not proximately due to or the result of a service-connected right or left foot disability.  38 U.S.C.A. §§ 1101, 1131, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 

2.  A rating in excess of 30 percent for a service-connected right foot disability may not be assigned.  38 U.S.C.A. §§ 1155, 5107, 5110(b)(2), 7105 (West 2002); 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.7, 4.68, 4.71a, Diagnostic Code (DC) 5276, 20.1103 (2013). 

3.  The criteria for a compensable rating for a service-connected left foot disability are not met.  38 U.S.C.A. §§ 1155, 5107, 5110(b)(2), 7105 (West 2002); 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.6, 4.7, 4.27, 4.71a, DC 5284, 20.1103 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice informs the claimant, prior to the initial unfavorable decision on the claim by the Agency of Original Jurisdiction (AOJ), 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.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  The VCAA notice requirements apply to all five elements of a service connection claim, including:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim."  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service-connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155.  Accordingly, there is no requirement that VA must notify a Veteran of alternative diagnostic codes or potential "daily life" evidence.  Id.  

In this case, the Veteran was properly advised in a February 2004 letter, sent prior to the May 2004 initial adjudication of his claim for an increased rating for his right foot disability.  The Veteran was also properly advised in a June 2005 letter, sent prior to the October 2005 initial adjudication of his claims for an increased rating for his left foot disability, and his claim for service connection for hypertension.  In these letters, the Veteran was advised of the information and evidence that was necessary to substantiate the claims, and that VA would seek to provide and what the claimant was expected to provide.  

While the letters did not include notice compliant with Dingess, the Board's decision below denies service connection for hypertension, so no degree of disability or effective date will be assigned and there is thus no possibility of prejudice to the Veteran.  As to the Veteran's increased rating claims, the rating decision in October 2005 described fully the applicable criteria and how such were applied in determining an appropriate rating.  While it does not appear that the Veteran was notified as to the process by which effective dates are assigned to increased rating claims, he has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 556 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

Next, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  VA's duty to assist includes:  (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA-authorized medical records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim.  See 38 C.F.R. § 3.159(c).  

The Veteran's VA treatment records and his identified, authorized, and relevant private treatment records have been obtained and considered.  The Veteran was afforded a VA examination as to his service connection claim in July 2005.  The examiner provided an opinion addressing the salient etiological question presented by the Veteran's claim and a rationale for the opinion provided.  As such, the Board finds that the Veteran has been provided an adequate examination for the purpose of determining service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  He was afforded VA examinations as to his increased rating claims in March 2004, August 2005, and January 2013.  The resulting medical evaluations are considered adequate for rating purposes as they are based on consideration of the Veteran's pertinent medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision.  See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran in accordance with the VCAA at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by the Board proceeding to the merits of his claims.

Also, the Board finds there has been substantial compliance with its March 2010 remand directives.  The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)  Related to the claims pending before the Board, the record indicates that the RO obtained cited private and VA treatment records, provided the Veteran a sufficient VA examination, and readjudicated his increased rating claims considering the propriety of an extra-schedular evaluation.  The RO issued a Supplemental Statement of the Case (SSOC) in May 2013.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013).

Service Connection - Pertinent Legal Criteria

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. 
§ 3.303(a).  Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In order to establish service connection, the evidence must generally show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology.  The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  Hypertension is such a disability.  In addition, such may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309.  

Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show:  (1) that a current disability exists; (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if:  (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
Medical and Lay Evidence

While the Veteran's central assertion is that hypertension is etiologically related to his service-connected right or left foot disabilities, thereby warranting service connection for such on a "secondary" basis, the Board notes initially that his service treatment records, to include his April 1963 separation examination, do not reflect any evidence of hypertension.  There also is no evidence or assertion that the Veteran had hypertension to a compensable degree within one year of separation from service, or in May 1964, or that he had continuous symptoms of hypertension from separation from service to the present. 

In a June 2005 statement, in pertinent part, the Veteran asserted that he recently sought treatment from Dr. Kraujalis for continued high blood pressure and asked why he was "having all these problems."  The Veteran wrote that his problems were related to his service-connected injury.  He reported shooting pain from the right foot, and asserted that his physician doubled his prescription.  He reported that he sought VA treatment, for the first time in over 42 years, and a physician approved a 100 percent increase in high blood pressure medication and informed him that he was at a "high stage" for a severe stroke or heart attack.
 
Private treatment records Dr. Kraujalis in June 2005 indeed indicate that his blood pressure mediation was increased.  However, Dr. Kraujalis' records are silent for comment as to the etiology of the Veteran's hypertension, specifically, silent for a discussion of the relationship, if any, between the Veteran's hypertension and his service-connected right or left foot disabilities.  The Veteran's VA treament records are also silent as to such.

At a July 2005 VA examination, the Veteran stated that hypertension was diagnosed approximately one year prior to this examination.  The examiner provided recitation of the Veteran's pertinent medical history, including the recent onset of VA treatment with an increase in blood pressure and care, as well as his prior strokes.  Hypertension was diagnosed upon examination, but the examiner found it less likely than not that the Veteran's hypertension was etiologically related to his service connected foot disabilities.  In making this determination, the examiner noted that there was "no evidence in the medical literature that orthopedic problems can give rise to sustained hypertension."  

Analysis

The July 2005 VA opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination.  Absent credible evidence to the contrary, the Board is not in a position to further question the results of this examination.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  There is no other competent opinion in the record to refute these findings or to otherwise suggest that hypertension is secondary to a service-connected right or left foot disability.

The Veteran has contended that his current hypertension is related to his service-connected right or left foot disabilities.  However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 

The Board finds that the question regarding the potential relationship between hypertension and a musculoskeletal disability, here, a right or left foot disability, to be complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Therefore, the Board finds that there must be some competent and credible evidence beyond the Veteran's own statement regarding causation to establish that any current hypertension is secondary to his service-connected right or left foot disabilities.  

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to a service-connected right or left foot disability.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A.             § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 

Increased Ratings - Pertinent Legal Criteria

Disability ratings are based on the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned.  Id.  

The Veteran's entire history is reviewed when assigning a disability evaluation.  38 C.F.R. § 4.1.  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran bears the burden of presenting and supporting his claim for benefits.  38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno, 6 Vet. App. at 465, 470.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana, 24 Vet. App. 428; see also Jandreau, 492 F.3d 1372, at 1376-77. 

Service connection for a right foot disability and a left foot disability was granted by a September 1963 rating decision, and such were assigned initial 30 percent and noncompensable ratings, respectively, effective May 22, 1963.  The Veteran did not file a NOD with the September 1963 rating decision and no additional evidence pertinent to the issues was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the September 1963 rating decision became final based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 

The issue of entitlement to an increased rating for a right foot disability on appeal arises from a claim received on February 23, 2004.  Thus, the relevant temporal focus for adjudicating the level of disability of this claim is from the time period one year before the claim was filed; in this case, February 23, 2003, until VA makes a final decision on the claim.  The issue of entitlement to an increased rating for a left foot disability on appeal arises from a claim received on June 22, 2005; and the relevant temporal focus is thus from June 22, 2004, until VA makes its final decision.  See Hart, supra; 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  

By the May 2004 rating decision on appeal, as to the Veteran's right foot disability, such was rated as 30 percent disabling under DC 5276, contemplating flatfoot, acquired.  By the October 2005 rating decision on appeal, as to the Veteran's left foot disability, such was rated as noncompensably disabling under DCs 5299-5284 contemplating foot injuries, other.  38 C.F.R. § 4.71a, DCs 5276, 5284.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

Under DC 5276, a noncompensable rating is warranted by mild symptomatology, symptoms relieved by built-up shoe arch or arch support.  A 10 percent rating is warranted by moderate symptomatology, weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilateral or unilateral.  A 20 percent rating is warranted by severe symptomatology, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities, unilateral.  A 30 percent rating is warranted by the criteria warranting a 20 percent rating, but for bilateral feet.  A 30 percent rating is also warranted for pronounced symptomatology, manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances, unilateral.  A maximum 50 percent rating is warranted by the rating criteria warranting a 30 percent rating, but for bilateral feet.  38 C.F.R. § 4.71a, DC 5276. 

DC 5284, contemplating foot injuries, other, provides a 10 percent rating for symptomatology of a moderate foot injury and a 20 percent rating is warranted by symptomatology of a moderately severe foot injury.  A 30 percent rating is warranted by symptomatology of a severe foot injury and a maximum 40 percent rating is warranted by the actual loss of the foot.  38 C.F.R. § 4.71a, DC 5284.  The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.   Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.  

Potentially applicable is DC 5280, contemplating hallux valgus, unilateral.  Such provides a 10 percent rating for severe hallux valgus, unilateral, if equivalent to amputation of the great toe, and a 10 percent rating for hallux valgus, unilateral, operated with resection of the metatarsal head.  38 C.F.R. § 4.71a, DC 5280 (2013).  Also potentially applicable is DC 5281, contemplating hallux rigidus, unilateral, severe, which directs the rater to rate such as hallux valgus and not to combine such with claw foot ratings.  38 C.F.R. § 4.71a, DC 5281 (2013).

In considering other applicable diagnostic criteria, the Board finds that the Veteran has not exhibited atrophy of the musculature, disturbed circulation, and weakness, bilaterally, or weak foot, as contemplated by DC 5277.  He has not been diagnosed with claw foot (pes cavus), as contemplated by DC 5278; metatarsalgia, anterior (Morton's disease), as contemplated by DC 5279; hammer toe, as contemplated by DC 5282; or malunion or nonunion of the tarsal or metatarsal bones, as contemplated by DC 5283.  38 C.F.R. § 4.71a, DCs 5277, 5278, 5279, 5282, 5283 (2013). 

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, DCs 5003, 5010 (2013).  Also, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  As will be discussed below, however, neither of the Veteran's foot disabilities on appeal are rated on the basis of limitation of motion, and there is only X-ray evidence of arthritis in the right foot.  In fact, none of the diagnostic criteria contemplating the foot include limitation of motion criteria.  As such, consideration of 38 C.F.R. §§ 4.40 and 4.45, and the accompanying case law, as well as 38 C.F.R. § 4.71a, DCs 5003 and 5010, is not required.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

Medical and Lay Evidence

On VA examination in March 2004, the Veteran reported that his right foot was "very painful," weak, and stiff.  He also reported occasional swelling and redness, and indicated that the right foot was chronically fatigued and lacked endurance.  The Veteran said that treatment consisted of over-the-counter pain medication, soaking, and applying ice.  He reported flare-ups of pain at a level of 10 on a 10-point scale, with a 50 percent increase in limitation of motion and functional impairment occurring one and one half times a week and lasting for about a week. The Veteran reported that he had not had any surgery for his right foot but reported that he lost about 30 days of work a year because of his foot.  He also indicated that repetitive use of his foot caused pain, weakness, fatigue, and lack of endurance. 

Physical examination at that time revealed that a deformity of the right calcaneus bone was visible, and a bony tubercle was evident posteriorly which affected the alignment of the muscle tendons in this area and around the lateral malleolus.  The peroneus brevis muscle tendon was prominent, and it was reported that the Achilles tendon apparently worked at a disadvantage.  The arch of the right foot was shallow when compared to the arch of the left foot because of the anatomic problem with the calcaneus.  The foot was painful on manipulation.  The alignment of the Achilles tendon was abnormal because of the deformity of the calcaneal bone, and the examiner stated that it could not be corrected by manipulation.  There was objective weakness of painful motion, minimal swelling, and tenderness.  No instability was observed but the Veteran walked with a cane and favored the right lower extremity.  He could not squat, supinate, pronate, or walk on toes or on his heels due to pain in the right foot.  Very mild hallux valgus of no clinical significance was noted, and there was no significant hammertoes or claw foot noted.  There was also no mal-alignment of the forefoot or mid-foot.  X-rays of the right foot demonstrated a deformity of the calcaneus consistent with an old fracture with severe arthritic changes at the subtalar joint where there was sub articular sclerosis and spur formation.  

The Board notes here that there was also limitation of motion of the right ankle on dorsiflexion and plantar flexion, and as noted above, a February 2005 rating decision granted service connection for loss of motion of the right ankle as secondary to a service-connected right foot disability.  A 20 percent rating was assigned under 38 C.F.R. § 4.71a, DC 5271 (2013). 

In a June 2005 statement, the Veteran reported that he had constant right foot pain, rated as a 10 on a 10-point scale.  He asserted that he used a cane daily to "eliminate" the pain and that his condition has become "extremely worse."  In a June 2005 statement, a friend of the Veteran reported that she had known the Veteran since 1980, and that she "immediately knew that he had something wrong with his right foot."  She reported that his problem has grown "extremely worse."  She asserted that he used a cane and that he was in severe pain.  

On VA examination in August 2005, the Veteran reported that the pain in his right foot had increased to the point that it was at a level of 10 on a 10-point scale.  He reported that his pain was "100 percent worse" than it was in 2004 and that he had episodes of such severe pain that he even had difficulty walking from the bed to the bathroom.  He stated that he could walk a half of a block at maximum, and that his foot swelled on four days out of seven on average.  It was noted that the Veteran used a cane.  He also stated that he suffered from pain in his right great toe since at least 1964, with flare-ups of foot pain occurring on virtually a daily basis.  The Veteran again denied having had any surgery on his right foot.  He complained of left foot pain across the midfoot.  The Veteran reported that he was employed full-time as a broker; however, his pain interfered with his work and his ability to concentrate and he had to go home early three days a week and elevate his foot, but that he always went to work.  He asserted that he felt as if he would likely be dismissed from his job and forced to retire when he turned 65, in six months.  

Physical examination in August 2005 revealed an abnormal gait, as he was noted to have had a rather stiff-footed gait on the right. Use of a cane in the left hand did minimize his limp, but it was noted the Veteran could not stand on his right leg without support because of his right foot condition.  The examiner noted that there was pes planus of the right foot with pronation due to fixed eversion of the subtalar joint with slight valgus of the tendo Achilles that was not correctible.  There was no subtalar motion from a position of about five degrees of valgus.  There was also no rotation of the mid-foot.  Also demonstrated was soft tissue thickening at the first right metatarsophalangeal joint.  There was dorsiflexion of the right 
metatarsophalangeal joint, and attempted motion was painful.  Physical examination was silent for any left foot abnormalities.  X-ray of the left foot revealed no change from prior examination, and the examiner reported that the small calcaneal spur shown was insignificant.  X-rays of the right foot showed residuals of the fracture of the calcaneus with subtalar joint and calcaneocuboid joint post-traumatic arthritis.  The diagnoses included malunion of a right calcaneal fracture, post-traumatic arthritis of the subtalar joint and calcaneocuboid joint secondary to the right calcaneus fracture. 

Private treatment records dated in June 2006 indicate that the Veteran reported a long history of stress and anxiety in his life regarding his work, and noted a recent cerebrovascular accident with mild left hemiparesis with tremor.  He reported that otherwise, he tried to remain active and continued to work.  

In May 2008, the Veteran reported to VA physicians that he had progressively worse right foot pain, with ambulation that was more and more difficult.  He reported wearing diabetic shoes and using a cane, and reported that he had not had an orthopedic evaluation in more than 10 years.  VA treatment records dated in July 2008 indicate that the Veteran presented with a left foot in good condition, with only thin fat pads.  

VA treatment records dated in January 2009 indicate that the Veteran reported that he was employed as an independent financial analyst, and that he walked about 15 minutes per day for exercise.  In January 2009, the Veteran sought a VA-prescribed walker and four-pronged cane.  VA treatment records dated in August 2009 indicate that the Veteran was waiting for VA-prescribed shoes, and had non-weight bearing and weight bearing significant pronation, with flatfoot.  VA treatment records at that time reveal that the Veteran reported redness and edema, as well as pain.  He had an antalgic gait and tenderness to palpation.  In September 2009, he reported pain in the right foot, more pronounced with ambulation.  He reported that he was currently employed and "not on his feet."

VA treament records dated in January 2010 indicate that the Veteran complained of right foot pain and presented with hallux rigidus, very limited motion at the subtalar joint, and non-weight bearing and weight bearing significant pronation, with flatfoot, as well as extensive traumatic arthritis.  He reported that he was an investment banker.  

On VA examination in January 2013, the Veteran reported that he was retired, and denied treatment outside of VA.  He complained of constant and worsening, without flare-ups, pain in the right foot.  He asserted that he used a cane 70 percent of the time; however he reported that he walked without a cane while he was in his home.  He reported that his left foot pain, across the midfoot, was now worse than the pain he experienced on the right.  He asserted that his activities of daily living were limited and that he could only walk for five minutes and stand three or four minutes.  He complained of foot pain even while sitting.  

Physical examination in January 2013 revealed that the Veteran stood with 10 degrees valgus angulation of the tendo-Achilles aligned with the long axis of the hindfoot on the right with 10 degrees of valgus of the right os calcis.  The alignment of the left tendo-Achilles and hindfoot was in neutral position.  There was zero degrees of subtalar motion of the right foot with the right hindfoot fixed in 10 degrees of valgus.  The left measured 10 degrees of inversion and 15 degrees of eversion.  There was pain, fatigability, weakness, and lack of endurance on the right after repetitive motion; and there was pain, without evidence of weakness, fatigability, or lack of endurance on the left.  His gait was antalgic, with a limp.  The right foot showed pronation with a decreased longitudinal arch with the weightbearing line falling medial to the great toe.  The left foot showed slight limitation of motion of the hindfoot but no rigidity.  X-ray studies were negative for the left foot, except there was a small calcification at the tendo-Achilles insertion to the calcaneus, with a normal subtalar joint and arch.  X-ray studies of the right foot showed severe ostearthritis at the right great toe with marked joint space narrowing, flattening of the longitudinal arch, and osteoarthritis of the subtalar joint with flattening of the superior aspect of the calcaneus.  He was diagnosed with traumatic pes planus of the right foot secondary to calcaneus fracture and osteoarthritis of the subtalar joint, and prior nondisplaced fracture of the left os classic. 

Analysis

Applying the pertinent legal criteria to the facts set forth above, the Board finds that a rating in excess of 30 percent for the Veteran's right foot disability is not warranted.  The current 30 percent rating assigned under DC 5276 is the highest assignable rating for unilateral pes planus.  38 C.F.R. § 4.71a, DC 5276.  The Board has considered entitlement to increased compensation under any other pertinent diagnostic criteria, to include those that would pertain to the demonstrated hallux valgus, unilateral, contemplated by DC 5280, or hallux rigidus, unilateral, severe, contemplated by DC 5281.  However, as the Veteran is also receiving a 20 percent rating for loss of motion of the right ankle, and thus is assigned a 40 percent combined rating for his disabilities of the right lower extremity, below the knee, to assign additional compensation for the right foot would violate the "amputation rule".  See 38 C.F.R. § 4.68, 38 C.F.R. § 4.71a, DCs 5276, 5280, 5281.  This regulation, the "amputation rule," provides that the combined ratings for loss of the use of a foot shall not exceed the 40 percent rating provided for amputation at that level under DC 5167 (2013).  As such, while significant disability has been demonstrated in the right foot as set forth above in an exhaustive recitation of the Veteran's pertinent medical history during the appellate period, this disability is in effect contemplated by the ratings currently assigned, and increased compensation under the VA Schedule for Rating Disabilities may not be granted.

Applying the pertinent legal criteria to the facts set forth above, the Board finds that a compensable rating for the Veteran's left foot disability is not warranted.  As discussed above, the rating criteria, DC 5284, provides a 10 percent rating for a moderate foot injury, and the term "moderate" is not defined by the rating criteria.  The Board has carefully considered the Veteran's symptoms related to his left foot disability, and such only include reported pain across the midfoot and clinically demonstrated thin fat pads and a small calcaneal spur, deemed insignificant by the August 2005 VA examiner.  While the Veteran, on VA examination in January 2013, reported that his left foot pain was currently worse than his right foot pain, there is simply no clinical or lay evidence of symptoms rising to the level of a moderate left foot disability, as is required under DC 5284, contemplating other foot injuries, for a compensable, 10 percent, rating.  38 C.F.R. §§ 4.6, 4.71a, DC 5284.  

In sum, the Board has considered whether higher ratings might be warranted for the Veteran's right and left foot disabilities during any period of time during the pendency of this appeal.  Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505.  However, the Board finds that the lay and medical evidence of record demonstrates that a rating in excess of 30 percent for a right foot disability and a compensable rating for a left foot disability are not warranted.  As the preponderance of the evidence is against the Veteran's claims, the claims must be denied.  38 U.S.C.A.      § 5107(b); Gilbert, 1 Vet. App. 49 (1990).

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R.                § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating:  (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The relevant rating criteria in the present appeal contemplate pronation and abduction, tenderness, inward displacement, spasm, pain, swelling, and callosities, as to the Veteran's right foot disability.  As to the Veteran's left foot disability, the rating criteria, as discussed above, simply contemplate moderate, moderately severe, or severe symptoms of a foot injury.  The Veteran has reported, competently and credibly, and demonstrated, pain in the left foot, as well as thin fat pads and a small calcaneal spur deemed insignificant by a VA examiner; and symptoms related to his right foot, including weakness, fatigue, stiffness, redness, lack of endurance, tendon abnormalities, an abnormal gait, limitation of subtalar motion, malunion of the right calcaneal, and bone deformities.  Such symptoms are not specifically considered by the rating criteria.  Thus, the Board must conclude that the rating criteria do not adequately contemplate the Veteran's level of disability and symptomatology.  

However, there is no evidence of an exceptional or unusual disability picture, as there is no evidence of marked interference with employment or frequent periods of hospitalization.  As discussed above, he reported, on VA examination in March 2004, that he had lost about 30 days of work a year due to his foot.  At that time, only the right foot was examined, as such was the only claim before VA.  On VA examination in August 2005, the Veteran reported that he was employed full-time as a broker; however, he had to go home early three days a week and elevate his foot, but that he always went to work.  At that time, he did complain of left foot pain on examination; and he asserted that his pain interferes with his work and his ability to concentrate and that he felt as if he would likely be dismissed from his job and forced to retire when he turned 65, in six months.  It is also of record, as noted above, that in June 2006, he reported that he was status-post stroke and was trying to be active and continued to work.  While the Veteran reported on VA examination in January 2013 that he retired in 2007; in January 2009, he reported working as an independent financial analyst and in September 2009, he reported that he was currently employed and "not on his feet."  In January 2010, he reported that he was in investment banking.  Thus, the Board does not argue that the Veteran experienced bilateral foot pain, and that such, specifically attributed to his right foot, caused a certain degree of absenteeism from missing days of work and leaving early on a regular basis, as well as a loss of concentration.  However, there is no evidence that such rises to the level of marked interference with employment.  While he reported in 2005 that he feared being dismissed from his job at the age of 65, six months later, he continued to work until his retirement in 2007, and then after such date as an independent financial analyst, according to the Veteran's own statements.  There is no evidence that he was indeed dismissed from any employment, was disciplined, or lost any pay, status, or benefits due to his absenteeism or loss of concentration, or that he otherwise could not maintain his pre-retirement or post-retirement employment without marked interference.  

During the appellate period, there is no evidence of any hospitalization for a right or left foot disability, much less frequent periods of such.  As there is no indicia of an exceptional or unusual disability picture, the second prong of the Thun test is not met and the Board need not consider wither the award of an extraschedular disability rating must be in the interest of justice.  Thus, referral for consideration of an extraschedular rating, for either the Veteran's right or left foot disability, is not warranted. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the Board also finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable due to his right or left foot disabilities.  Rice, 22 Vet. App. 447.  As noted above, at the time of the January 2013 VA examination, the Veteran reported that he was retired; and prior to such, in January 2010, during VA treatment, he reported that he was an investment banker.  While the Veteran has asserted entitlement to extraschedular ratings for his right and left foot disabilities on the basis that he has experienced marked interference with employment, as discussed above; no party has claimed or submitted any evidence that his right or left foot disabilities render him unemployable.  Therefore, the Board finds that no further consideration of a TDIU is warranted. 


ORDER

Service connection for hypertension, to include as secondary to a service-connected right and/or left foot disability, is denied. 

A rating in excess of 30 percent for a service-connected right foot disability is denied. 

A compensable rating for a service-connected left foot disability is denied. 


____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs