Citation Nr: 1340667 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-32 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than 10 percent for residuals of a fracture to the second and fourth toes of the left foot (a "left foot disability"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to August 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in February 2013 and in June 2013. Additional evidence was received from the Veteran in August 2013. However, the evidence is pertinent to disorders other than the left foot. In a July 2013 informal presentation, the Veteran's representative appears to raise claims of service connection for hammer toes, hallux rigidus, and degenerative joint disease of the bilateral feet. These matters are hereby referred to the RO for clarification and any necessary action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's left foot disability does not result in impairment more nearly approximating moderately severe foot injury. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.71a, Diagnostic Codes 5279, 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). By March 2011, April 2011, and May 2011 letters, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal and was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). These letters also informed the Veteran of disability rating and effective date criteria. As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess, supra, aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A November 2011 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while a July 2013 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 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); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's pertinent treatment records are associated with the claims file and the Veteran has not identified any pertinent evidence that remains outstanding. The RO arranged for VA examinations in June 2011 and June 2013. The examinations are adequate as the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including via Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis herein is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In the July 2011 rating decision on appeal, the Veteran was awarded service connection for residuals of a fracture to the second and fourth toes of the left foot at a noncompensable rating, effective September 21, 2010. The Veteran's residuals of a fracture to the second and fourth toes of the left foot was initially rated by analogy to Diagnostic Code 5284 (for other foot injuries), which provides for a 10 percent rating for moderate foot injury, a 20 percent rating for moderately severe foot injury, and a 30 percent rating for severe foot injury. 38 C.F.R. § 4.71a. The disability was then rated by analogy to Diagnostic Code 5279 (for metatarsalgia), which provides for a 10 percent rating for unilateral or bilateral anterior metatarsalgia. The Veteran contends that he merits a higher rating for this disability. September 2010 X-rays of the left foot showed moderate degenerative changes of the metatarsophalangeal joint of the great toe, moderate valgus of the fourth toe, healed fractures of the neck of the proximal phalanx of the fourth toe and the distal aspect of the proximal phalanx of the second toe, slight degenerative changes in the interphalangeal joints and intertarsal joints, slight to moderate arterial calcification, and a small Achilles calcaneal spur, with a small plantar calcaneal spur on the left foot. On June 2011 VA examination, the Veteran reported partial effectiveness in relieving his foot symptoms by taking medications including codeine with acetaminophen, ibuprofen, and acetaminophen, with no relief from rest, elevation, applying heat, or applying cold. His reported symptoms included pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance, each while standing, walking, and at rest. He reported flare-ups of foot joint disease weekly or more often and lasting less than one day, precipitated by walking even for a short distance, and alleviated with pain medication; he reported an inability to do anything during the flare-ups. He reported being unable to stand for more than a few minutes or walk more than a few yards. He reported using a cane and a wheelchair for arthritis of the feet, knees, back, shoulders, neck, and Achilles tendon. On physical examination of the left foot, there was evidence of tenderness at the metatarsal phalangeal joint, but there was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was no muscle atrophy of the foot, and there were no other significant physical findings. His gait was antalgic with a cane; he was mostly non-ambulatory and used a scooter. The diagnoses included degenerative joint disease of the bilateral feet and residual injury of left foot fractures. The examiner noted that the physical exam of the left foot was unremarkable, yet the Veteran reported chronic pain and there was radiologic evidence of a healed fracture of the neck of the proximal phalanx of the fourth toe and the distal aspect of the proximal phalanx of the second toe. Regarding the impact of the disability on the Veteran's activities of daily living, the examiner noted that he was dependent on his spouse for everything and used a scooter for ambulation, so it was difficult to estimate. Based on these findings, the July 2011 rating decision on appeal granted service connection for residuals of a fracture to the second and fourth toes of the left foot at a 0 percent rating, effective September 21, 2010, based on findings that the evidence did not show moderate symptoms associated with foot injury. A November 2011 rating decision granted an initial 10 percent rating for the disability, again effective September 21, 2010, based on findings of metatarsalgia of the left foot due to chronic complaints of pain, X-ray evidence of degenerative changes of the fourth toe, and objective evidence of tenderness shown on examination. In an April 2013 statement, the Veteran stated that he is unable to walk without dragging his feet. In June 2013, the Board remanded the matter to afford the Veteran a new VA examination to determine the current severity of his left foot disability. On June 2013 VA examination, the Veteran reported leg pain and stated that he is unable to walk and is completely disabled due to the left foot injury. There were no findings of Morton's neuromas, metatarsalgia, hallux valgus, claw foot (pes cavus), malunion or nonunion of the tarsal or metatarsal bones, bilateral weak foot, or any other foot injuries. Hammer toe of the left fourth toe was noted. Hallux rigidus was also noted albeit with no symptoms. The Veteran reported regular use of crutches due to inability to walk. The examiner noted that X-rays showed degenerative arthritis in multiple joints of both feet. The diagnoses included hammer toes, hallux rigidus, and degenerative joint disease of the bilateral feet. The examiner opined that the Veteran's left foot disability does not impact his ability to work. The examiner stated that he was unsure for what left foot disability the Veteran is service connected, noting that he had been seen for VA treatment 787 times since 1999 and there was no mention of a chronic left foot condition. The examiner noted that September 2010 bilateral foot X-rays revealed bilateral foot degenerative joint disease and calcaneal spurs, which were likely normal age-related findings given that the Veteran was 81 years old at that time. Additional treatment records show symptomatology largely similar to that reflected on the VA examinations cited above. At no time during the appeal period is the Veteran's left foot disability shown to have been manifested as moderately severe; indeed, the June 2011 VA examiner noted that physical examination of the left foot was unremarkable, and the June 2013 VA examiner opined that the left foot disability would not impact the Veteran's ability to work. The criteria for a higher rating of 20 percent are neither met nor approximated. Lay statements submitted by the Veteran in support of this claim support that this disability causes him pain. However, they do not support that a rating in excess of 10 percent is warranted, as disability consistent with moderately severe foot injury is not shown. Although he has reported inability to stand or walk for prolonged periods, the VA examiners have stated that it is difficult to estimate the impact of the disability on his activities of daily living, because he is dependent on his spouse for everything and uses a scooter for ambulation due to multiple disabilities that are predominantly not service connected. The Board has considered whether this disability could warrant a rating higher than 10 percent under any other Diagnostic Code. As there is no evidence of flatfoot, claw foot, or malunion or nonunion of the tarsal or metatarsal bones, the Diagnostic Codes for each of these disabilities would not apply to this claim. Under Diagnostic Code 5281, for rating hallux rigidus, such disability is to be rated as hallux valgus; under Code 5280 for unilateral hallux valgus, a 10 percent rating is warranted for either severe hallux valgus equivalent to amputation of the great toe, or for post-operative residuals with resection of the metatarsal head. There is no evidence that these criteria are shown at any time, therefore the Veteran's disability would not warrant a compensable rating under that Diagnostic Code. Likewise, under Diagnostic Code 5282, for rating hammer toes, a 10 percent rating is warranted if all toes of one foot are affected, without claw foot; hammer toes of single toes warrant a noncompensable rating. Although there were findings of hammer toe on June 2013 VA examination, the left foot did not show all toes affected; the Veteran's disability would not warrant a compensable rating under that Diagnostic Code. The Board notes that 10 percent is the maximum rating under the other Diagnostic Codes applicable to foot disabilities (5277 for bilateral weak foot; 5279 for metatarsalgia (Morton's disease); 5280 for unilateral hallux valgus; and 5003 for arthritis - here shown by X-ray - with painful motion). Accordingly, rating the disability under these other Diagnostic Codes would not benefit the Veteran. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating, noting the three-step inquiry in Thun outlined above. Comparing the manifestations of the Veteran's left foot disability and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria, and consequently those criteria are not inadequate. The Veteran has not alleged any symptoms or impairment that exist, but are not encompassed by schedular criteria. Therefore, referral for consideration of an extraschedular rating is not necessary. Finally, as the record shows that the Veteran is retired (see June 2011 VA examination), the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating higher than 10 percent for left foot disability is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs