Citation Nr: 1336237 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-12 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial compensable rating for lumbar strain. 2. Entitlement to a compensable rating for hammertoes of the left foot. 3. Entitlement to a compensable rating for hammertoes of the right foot. 4. Entitlement to service connection for a left elbow disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from July 2004 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and November 2009 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in January 2011. A transcript of the hearing is of record. Following the hearing, the Veteran submitted additional evidence directly to the Board along with the appropriate waiver of initial RO review. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran indicated his wish to withdraw his appeal for a compensable rating for lumbar strain and for a left elbow disorder. 2. Hammertoes of the left foot involve all toes. 3. Hammertoes of the right foot involve all toes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran of the issue of an initial compensable evaluation for lumbar strain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2013). 2. The criteria for a 10 percent rating, but no more, for hammertoes of the left foot have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1-4.7, 4.21, 4.71a, Diagnostic Code (DC) 5282 (2013). 3. The criteria for a 10 percent rating, but no more, for hammertoes of the right foot have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1-4.7, 4.21, 4.71a, DC 5282 (2013). 4. The criteria for withdrawal of an appeal by the Veteran of the issue of service connection for a left elbow disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. In this case, at the time of his January 2011 Travel Board hearing, the Veteran withdrew the issues of service connection for a left elbow disorder and entitlement to an initial compensable disability evaluation for lumbar strain. Hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed without prejudice as it relates to these issues. Increased Ratings for Left and Right Hammertoes Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular 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. The Veteran's hammertoes of the right and left feet are rated under DC 5282, which provides a noncompensable rating for single toes and a 10 percent rating for involvement of all toes, unilateral without claw foot. In an October 2009 VA examination, the reported that he had pain, swelling, stiffness, and redness on the top of all his toes. Physical examination of the left foot revealed hammertoes on the first, second and third toes, and claw toes on the fourth and fifth toes. Right foot examination revealed hammertoes on the first through fifth toe. X-rays of the feet revealed hammertoes on the left and right for digits one through four. The diagnosis was flexible hammertoes deformity of the left and right foot. At his January 2011 hearing, the Veteran reported numbness in his toes when exerting himself physically. He stated that his toes rubbed up against the tops of his shoes when wearing certain types of shoes. He testified that he was not receiving any type of treatment for his hammertoes. He noted putting Neosporin on them when they became tender. He stated that his toes were becoming worse and curling up more. An April 2013 clinical record revealed tenderness to palpation of the hammertoes of the lesser toes. X-rays revealed bilateral hammertoes at the PIP joints and DIP joints. The assessment was moderate to severe hammertoe deformity of the bilateral lesser toes. While there is apparent conflicting medical evidence of record regarding which toes of the left and right feet are affected by hammer toe and the number of toes affected by hammer toe, the record has described hammer toes in both feet in all five digits without consistent evidence of claw foot. Therefore, the Board resolves reasonable doubt in the Veteran's favor in finding that an initial rating of 10 percent is warranted for hammer toe of the right and left feet throughout the rating period. This is the maximum rating available under DC 5282. Although the Board has considered whether the Veteran is entitled to a higher schedular rating under any other diagnostic code pertaining to the foot, the Board finds that the hammertoe disability and the manifestations related thereto are most appropriately rated under DC 5282 for hammer toe. There is no diagnostic code under which it would be more appropriate to evaluate the disability, to include DC 5284 regarding other foot injuries. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, an increased evaluation for the Veteran's hammertoes of the left and right feet is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the newly-assigned 10 percent rating but no higher. The Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's relevant symptoms to his service-connected feet disabilities. With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. The record does not establish that the rating criteria are inadequate. To the contrary, the Veteran has complained of hammer toe deformity, foot pain, numbness, increased foot pain with prolonged walking or standing, and the use of orthotics with minimal benefit as a result of the hammer toe disability. The relevant diagnostic code does not delineate the symptomatology or functional impairment in the criteria but, instead, more generally considers the overall disability picture as it relates to the number of toes affected. Given the involvement of all toes on both feet, the Board finds that the schedular criteria are adequate to rate the Veteran's hammertoe disability, and referral for consideration of extraschedular rating is not necessary. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2009, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in October 2009. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA and private clinical records. Next, a specific VA medical opinion pertinent to the issues on appeal was obtained in October 2009. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The examiner has the requisite medical expertise to render a medical opinion regarding the disabilities and had sufficient facts and data on which to base the conclusion. Moreover, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in January 2011 that was held consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal as to an initial compensable rating for lumbar strain is dismissed. A 10 percent rating, but no more, for hammertoes of the left foot is granted, subject to the law and regulations governing the payment of monetary benefits. A 10 percent disability evaluation for hammertoes of the right foot is granted, subject to the law and regulations governing the payment of monetary benefits. The appeal as to service connection for a left elbow disorder is dismissed. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs