Citation Nr: 1336348	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  13-05 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an initial compensable rating for a fracture of the left fifth metatarsal.

2.  Entitlement to service connection for a dental disability, including a broken tooth.


ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel










INTRODUCTION

The Veteran, who is the Appellant, served on active duty from July 1997 to July 2001.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2011, the Veteran did not appear at a hearing before the Board, which was scheduled at his request.  As there is no record of a timely request for postponement, the request for hearing is deemed withdrawn.

In the statement of the case in December 2012, the Veteran was notified that he could apply for VA outpatient dental treatment at the nearest VA medical facility, where the determination of eligibility would be determined. 


FINDINGS OF FACT

1.  There is no evidence of nonunion or malunion of the left fifth metatarsal or evidence of a moderate foot injury or evidence of actual painful motion. 

2.  The Veteran does not have loss of substance of the body of the maxilla or the mandible due to trauma, resulting in the loss of teeth.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for a fracture of the left fifth metatarsal have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002) 38 C.F.R. § 4.71a, Diagnostic Codes 5253, 5284 (2013).


2. The criteria for service connection for a dental disability, including a broken tooth, have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 4.150 (2013).  

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). 

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).


The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre-adjudication VCAA notice by letter dated in February 2011.  Where, as here, service connection has been granted for residuals of left fifth metatarsal fracture and an initial disability rating has been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.

Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating, following the initial grant of service connection.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and service treatment records. 

The Veteran was afforded a VA examination in May 2011. As the report of the VA examination is based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

There is no evidence in the record since the last VA examination that shows a material change in the condition to warrant a reexamination.  38 C.F.R. § 3.327(a).



With regards to the dental claim, absent evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible, a VA dental examination is not warranted. 38 C.F.R. § 3.159(c)(4).

As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Increased Rating Principles

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The  percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. 





The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

Rating Factors for a Disability of the Foot

Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes.  Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. 

Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The fracture of the left fifth metatarsal is currently rated under Diagnostic Code 5283.  Under Diagnostic Code 5283, the criterion for a 10 percent rating is moderate malunion or nonunion of the metatarsal bones.  



Another potentially applicable Diagnostic Code is Diagnostic Code 5284.  Under Diagnostic Code 5284, the criterion for a 10 percent rating is a moderate foot injury.  

Evidence and Analysis

In a statement March 2011, the Veteran stated that he experiences daily pain and discomfort that limits his effectiveness and consistency at work.  The Veteran stated that his foot injury makes it more difficult for him to get through the day without pain on his job in construction. 

On VA examination in May 2011, the Veteran stated that he experienced pain after standing for a long period of time.  The Veteran denied further restrictions on his activities.  On physical examination, the VA examiner noted that there was no evidence of painful motion, swelling, tenderness, instability, or weakness.  X-rays showed a deformity of the proximal fifth metatarsal related to the healed fracture was noted.  There was no evidence of significant degenerative changes.  The VA examiner concluded that the left foot appeared fully healed without residuals.  The VA examiner concluded that the left foot disability had no apparent effect on the Veteran's ability to secure or maintain gainful employment and the Veteran did not experience gait disturbance or ankle involvement.

Under Diagnostic Code 5283, there is no evidence by X-ray of malunion or nonunion of the metatarsal bone.   

As for a rating under Diagnostic Code 5284, in the absence of evidence of gait disturbance, weakness, or instability of the foot or painful motion, the disability picture does not more nearly approximate or equate to a moderate foot injury, considering functional loss under 38 C.F.R. §§ 4.40 and 4.45. 






As for periarticular pathology, painful motion is factor to be considered, but painful motion was not actually shown on VA examination.  In the absence of actual painful motion, a minimum compensable rating under 38 C.F.R. § 4.59 is not warranted. 

The preponderance of the evidence is against a compensable rating at any time during the appeal period and there is no doubt to be resolved. 

Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As the Veteran does not experience any left foot symptomatology not already encompassed in the rating criteria, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).




Total Disability Rating for Compensation based on Individual Unemployability

The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).

General Principles of Service Connection for Dental Claims

Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

VA compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150.  For service-connected dental conditions for which disability compensation may be provided, the types of dental conditions covered are loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913.

Evidence and Analysis

The Veteran asserts that he broke his tooth while eating at a dining facility in Ft. Lewis, Washington, for which he received dental treatment.  The Veteran states that he experiences constant jaw line clicking, pain, and misalignment as a result of an incomplete dental procedure in service.

The Veterans service treatment records show that in June 2000 the Veteran complained of a chipped tooth.  As a result, tooth number 30 was extracted.  In October 2000, the Veteran was evaluated for a bridge for teeth numbers 29 and 31.  



Tooth number 32 was extracted in December 2000 without complications.  In March 2001, a bridge for teeth numbers 29 and 31 was being prepared.

After service, VA records show that the Veteran received periodontal treatment in January 2002 and a root canal for tooth number 25 in February 2002.  A bridge for teeth 29 and 31 was considered, but apparently not done.

The record does not show that the loss of teeth during service was due to bone loss of the body of the maxilla or mandible from trauma or disease, which is required for disability compensation.  

As the preponderance of the evidence is against the claim of service connection for a dental disability, loss of teeth, for purpose of VA disability compensation, there is no doubt to be resolved and service connection is not warranted.


ORDER

An initial compensable rating for a fracture of the left fifth metatarsal is denied.

Service connection for a dental disability, including a broken tooth, is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs