Citation Nr: 1340775 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-30 634A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an increased rating in excess of 30 percent for right foot osteoarthritis and fracture residuals. 2. Entitlement to a separate compensable evaluation for right foot osteoarthritis and fracture residual scars. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1973 to December 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of a convalescent rating effective August 3, 2012 for surgery due to the Veteran's service-connected right foot disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a disability rating for right foot scarring due to the Veteran's service-connected osteoarthritis and fracture residuals being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's right foot osteoarthritis and fracture residuals are manifested by pain, limitation of motion, and unsteady gait requiring use of a cane or walker equating to no more that severe impairment; actual loss or loss of use of the foot has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for right foot osteoarthritis and fracture residuals have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5167, 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in August 2008. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's right foot disability is rated 30 percent under Diagnostic Code 5010-5284. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Additionally, in a May 2011 rating decision, the RO awarded a temporary total evaluation for convalescence from surgery effective January 20, 2009. The Veteran's 30 percent rating was continued as of April 1, 2009. Under Diagnostic Code 5284, foot injuries are rated as moderate, moderately severe, or severe, with a 30 percent maximum rating for severe foot injuries. A note corresponding to the diagnostic criteria indicates that with actual loss of use of the foot a 40 percent rating is warranted. Loss of use of a foot is rated at 40 percent under Diagnostic Code 5167, which includes a note that the loss of use of a foot is also entitled to special monthly compensation. 38 C.F.R. § 4.71a. Thus, in addition to benefits under the schedular criteria set out in 38 C.F.R. § 4.71a, loss of use of the foot also warrants entitlement to compensation under the special monthly compensation regulations set forth in 38 C.F.R. § 3.350. Loss of use of a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. For example, extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches or more, will constitute loss of use of the foot involved, as will complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 U.S.C.A. §§ 1114, 1134 (West 2002); 38 C.F.R. §§ 3.350, 4.63 (2013). In November 2008 the Veteran was afforded a VA examination. He reported constant pain in his right foot. He also reported weakness, stiffness, swelling, and fatigue. The examiner noted that the Veteran limped and on examination found tenderness, painful motion, weakness, edema, heat, redness, instability, and atrophy or disturbed circulation in the Veteran's right foot. He had hallux valgus and hallux rigidus. The examiner noted that the Veteran wears orthopedic shoes for relief of his symptoms and pain. The Veteran was also noted to use a cane or crutches in the morning and to be unable to walk more than fifty feet and do prolonged standing. The record reflects that in January 2009 the Veteran underwent a lapidus bunionectomy with internal screw fixation, McBride bunionectomy, and Lisfranc's arthrodesis with internal screw fixation. In August 2009 x-rays showed three broken screws in the mid-foot area. The Veteran complained of pain after the surgery on follow-up visits. The Veteran underwent a VA examination in August 2010. He reported pain in his foot and great toe and stated that he was able to function during the pain with medication. He reported being unable to walk without a limp or orthotic boots and braces. He reported pain, weakness, stiffness, and swelling at rest and when standing or walking, as well as fatigue at rest. The examiner noted the Veteran had an antalgic gait due to imbalance. He had no signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. He used a cane for ambulation due to right ankle pain. Examination of the right foot showed painful motion and tenderness with no edema, disturbed circulation, weakness, muscle atrophy, heat, redness, or instability. The examiner noted no active motion in the metatarsophalangeal joint of the right great toe. The plantar surface of the right foot was not tender to palpation. Alignment of the Achilles tendon was normal. He had hallux valgus and hallux rigidus of the right foot. The examiner noted the Veteran had some painful range of motion as a result of the osteoarthritis right foot fracture. The Veteran also reported pain with prolonged ambulation. An August 3, 2012 note by the Veteran's treating doctor of podiatric medicine indicates that on that date the Veteran underwent a first metatarsophalangeal joint fusion and removal of fixation, requiring three months of healing. The Veteran underwent another VA examination in December 2012. He reported extreme pain, swelling, rolling, unsteady gait, and constant limping due to his right foot disability. The Veteran was noted to constantly use a cane for ambulation. The examiner noted the Veteran had first metatarsophalangeal joint ankylosis secondary to his surgical fusion and pain on palpation. The examiner described the Veteran's right foot injury as moderate. The examiner opined that the Veteran's functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. In May 2013 the Veteran testified at a Board hearing. He testified he cannot run or bend down and pick things up. He reported he has pain and inflammation as well as numbness and tingling. He states that if he steps wrong or on an uneven surface like a rock or crack his foot can roll and break. He reported he does not walk on uneven places. He reported he loses his balance because of his foot every day and noted he has fallen. He said he wears orthopedic shoes prescribed by the VA and uses a walker in the morning. He reported five of the six screws put in his foot during surgery have broken. He stated that he sees a doctor for treatment of his foot every two to three months. The Board notes that the Veteran also discussed his right ankle disability; however, only the rating for the Veteran's right foot disability is on appeal. Service connection for a right ankle disability secondary to the Veteran's right foot disability was denied by the RO in January 2013. After consideration of the relevant evidence, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's right foot disability because the evidence does not show actual loss of use of the right foot. The evidence, including the Veteran's own statements, shows that the Veteran is still able to use his right foot to walk, albeit with pain and with the aid of a cane or a walker. However, given that he retains function in his right foot and continues to ambulate, it cannot be said that he would be equally well-served by an amputation stump with a prosthetic foot. In fact, that was the opinion provided by the December 2012 VA examiner, and there is no medical opinion to the contrary. Thus, a 40 percent disability rating is not warranted for loss of use of the right foot. None of the diagnostic codes applicable to the feet provide a rating in excess of 30 percent for one foot absent evidence of loss of use of the foot. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for right foot osteoarthritis and fracture residuals must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected right foot disability that would render the schedular criteria inadequate. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Veteran's symptoms, including pain, loss of range of motion, and unsteady gait for which the Veteran uses a cane to ambulate, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is evidence of surgery in 2009 and 2010 but no frequent hospitalization. In addition, the Board finds the record does not reflect that the Veteran's service-connected right foot disability markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule 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). Although the Veteran is not currently employed, the evidence suggests his unemployment is as much due to non-service connected psychological and physical limitations. The January 2012 VA examiner found the Veteran's right foot disability impacted the Veteran's ability to work only as much as he was limited by pain with walking. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in November 2008, prior to the initial adjudication of the increased rating claim on appeal. The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the May 2013 Board hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services, and the VLJ and the representative asked questions regarding the nature and severity of the Veteran's claimed right foot disability. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to private treatment records. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records and private treatment records identified by the Veteran. The Veteran also submitted lay statements. 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 claim that has not been obtained. The Veteran was afforded VA medical examinations in November 2008, August, 2010, and December 2012. The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary physical examinations. The examiners provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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, 16 Vet. App. 183. ORDER An increased rating in excess of 30 percent for right foot osteoarthritis and fracture residuals is denied. REMAND The December 2012 examiner noted the Veteran had the following surgical scars on his foot: a 6 cm by 0.7 cm scar on the mid dorsal aspect of the foot, a 4.5 cm by 0.5 cm scar on the right lateral foot, and a 10 cm by 1 cm first metatarsophalangeal joint bunionectomy scar. The examiner stated that the scars are not painful or unstable and do not cover more than 39 square centimeters. The examiner noted the scars are discolored without tenderness, erythema, keloid, adherence to underlying tissues, or warmth. At the Veteran's May 2013 Board hearing the Veteran was asked about scarring as a result of surgeries on his foot. He reported that he has scarring and specifically pointed to scarring on the top of his ankle. He then generally stated that the scars hurt, particularly when touched. Thus, it is unclear as to whether the surgical scars on the Veteran's right foot due to his service-connected right foot osteoarthritis and fracture residuals have become painful since the December 2012 VA examination or whether at his Board hearing the Veteran was referring to only the ankle scars as being painful. The Board finds that the Veteran should be afforded a scars examination to clarify the nature of the scarring on his right foot that is due to his service-connected right foot disability. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for a VA scars examination to determine the nature and severity of scarring on his right foot due to his service-connected right foot osteoarthritis and fracture residuals. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs