Citation Nr: 1341396 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-30 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for a right great toe disability, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Psychiatrist, and Social Worker ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to November 1998. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that declined to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) and denied an increased rating for a right great toe disability. In October 2010, the Veteran testified before the Board at a hearing held at the RO. In a February 2011 decision, the Board reopened the claim for service connection for PTSD and the claims to provide the Veteran examinations for both of her disabilities. The March 2011 examination reports comply with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). A June 2012 rating decision granted service connection for PTSD. Thus, that issue is no longer on appeal, and the Veteran has not expressed disagreement with the assigned disability rating or effective date. FINDING OF FACT Throughout the rating period, the Veteran's right great toe disability has not been manifested by moderately severe malunion or nonunion of the tarsal or metatarsal bone, or moderately severe foot injury. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right great toe disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5280, 5283, 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to 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, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Neither the Veteran nor representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a January 2006 letter of the criteria for establishing an increased rating, the evidence required, and her and VA's respective duties for obtaining evidence. In an April 2006 letter, she was notified of how VA determines disability ratings. Those letters predated the initial adjudication by the RO in September 2006. The Board notes that the Veteran has not been notified of how VA determines effective dates. However, as the claim for an increased rating is being denied, no effective date is being assigned. Thus, there is no prejudice to the Veteran in the omission of that notice. Bernard v. Brown, 4 Vet. App. 384 (1993). VA also has a duty to assist the Veteran in the development of the claim. That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service medical records, and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with examinations in February 2006 and March 2011 to determine the nature and severity of her disability. When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination reports to be thorough and adequate upon which to base a decision on the claim. The examiners interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to rate the disability under the applicable rating criteria. The Board finds that no further notice or assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). If two ratings are potentially applicable, the higher ratings will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. See 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). 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 (1991). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). 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 below is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The terms mild, moderate, and severe are not defined in the Rating Schedule. 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 (2013). Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. In this case, the Veteran filed her claim for an increased rating for her right great toe disability in November 2005. In a January 2006 statement, she indicated that she has a deformity of the right great toe with limitation of motion and pain on exertion. The Veteran's right great toe disability has been rated as 10 percent disabling under Diagnostic Code 5280 for hallux valgus. 38 C.F.R. § 4.71a (2013). Historically, the Veteran entered active service with a hallux valgus deformity of the right great toe (first metatarsal). While in service, she developed right foot pain due to the hallux valgus and underwent a bunionectomy in August 1997. Since November 2000, VA x-rays have shown degenerative changes of the right first metatarsophalangeal (MTP) joint. Initially, the Board observes that a 10 percent rating is the maximum allowed under Diagnostic Code 5280. Thus, the Board will consider other Diagnostic Codes to determine whether the Veteran's great toe disability warrants a higher rating. Butts v. Brown, 5 Vet. App. 532 (1993). At a February 2006 VA examination, the Veteran complained of right foot pain, stiffness, and swelling. She stated that she could not stand or walk for prolonged times and has limitation of motion. On examination, there was tenderness of the right foot. X-rays showed mild hallux valgus. The diagnosis was right foot status post bunionectomy of the right first metatarsal. A December 2006 VA medical record shows complaints of right foot pain, worse at the end of the day. In a letter issued a few days later, the treating physician stated that the pain due to the right great toe disability had been difficult to control and current medications consisted of a non-steroidal anti-inflammatory drug at the maximum dose and Tylenol. In an August 2008 statement, an acquaintance relayed his observations of the Veteran being in constant pain due to her feet and unable to walk or stand for any length of time without resting. He also noted that work was especially difficult for her as she was required to spend extended time on her feet. August 2008 private x-rays showed hallux valgus with degenerative arthritis of the first MTP joint, but no fractures or aggressive bony lesions. An August 2009 VA medical record shows that a new pain medication was started and repeat surgery was recommended. Records since that time continue to show complaints of right foot pain and that repeat surgery has been recommended. During the October 2010 hearing, the Veteran described her disability as severe, noting that she has chronic pain for which she was on a pain regimen and can only wear tennis shoes. At a March 2011 VA examination, the Veteran complained of daily pain that radiated and was worse with weightbearing, and that she could only wear comfortable, wide shoes. She stated that she was unemployed, last working three years ago as a carpenter. She noted that she was currently taking pain medication and added that she used to miss two to three days of work per week because she did not have any pain medication at that time. She stated that she lost numerous jobs due to her great toe. She reported that she could walk for 15 minutes without medication and for two hours with medication. On examination, there was diffuse tenderness over the MTP joint with reduced range of motion. X-rays showed hallux valgus with degenerative changes of the first MTP joint, and a small anterior calcaneal spur. The examiner provided a diagnosis of right great toe bunionectomy with persistent decrease in range of motion due to degenerative joint disease. The examiner stated that the Veteran's employment would be best served in a sedentary line of work. Considering the above, x-ray evidence has only shown degenerative changes and hallux valgus of the right great toe, and physical examinations have not otherwise shown any malunion or nonunion of the tarsal or metatarsal bone. Thus, without objective evidence of moderately severe malunion or nonunion of the tarsal or metatarsal bone, a higher rating is not warranted under Diagnostic Code 5283. 38 C.F.R. § 4.71a (2013). Without objective evidence of a moderately severe foot injury, a higher rating is not warranted under Diagnostic Code 5284. The Board notes that the Veteran's disability only involves the great toe and is thus not comparable to a moderately severe foot injury. The evidence does not show that the disability is of a severity that would warrant being considered moderately severe. 38 C.F.R. § 4.71a (2013). Therefore, the Board finds that a rating in excess of 10 percent for the Veteran's right great toe disability is not warranted at any time during the rating period. Although the record shows that the Veteran has a postoperative scar from the bunionectomy, the Board finds that the scar is not compensable under the rating criteria. The rating criteria pertaining to scars were revised effective October 23, 2008. However, those changes only apply to claims filed on or after that date or when the veteran has specifically requested consideration under the new criteria, neither of which applies in this case. Thus, the Board will only consider the rating criteria in effect prior to October 23, 2008. A 10 percent is warranted for superficial scars that are poorly nourished with repeated ulceration under Diagnostic Code 7803 and that are tender and painful on objective demonstration under Diagnostic Code 7804, or that are of a size larger than that shown on the Veteran, or cause limited function. After review, the Board finds no evidence that the scar is unstable or painful, or causes limitation of function. The March 2011 examination found the scar to be barely visible, 4.5 centimeters by 0.5 centimeters, and without tenderness. Thus, the Board finds that a separate rating for the scar in not warranted. The record also shows that the Veteran has a small anterior calcaneal spur, or heel spur, as found on x-rays during the March 2011 VA examination. However, as the spur is on the heel, there is no apparent relationship between the spur and the great toe disability. Moreover, after reviewing the x-rays, the examiner did not associate the spur with the great toe disability. Thus, the Board finds that the heel spur is not a manifestation of the service-connected right great toe disability. 38 C.F.R. § 4.14 (2013); Mittleider v. West, 11 Vet. App. 181 (1998). Even if the Board were to concede that it is, with only symptoms associated with the great toe and heel due to a small spur, the Board would still find that the Veteran's disability would not be comparable to a moderately severe foot injury to warrant a higher rating under Diagnostic Code 5284. In conclusion, the Board finds that an increased rating for a right great toe disability is not warranted at any time during the rating period. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must also determine whether the schedular rating is inadequate, requiring referral to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular rating is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular rating is adequate. The Veteran's disability has been assigned the maximum schedular rating under the appropriate Diagnostic Code. An evaluation in excess of that assigned is provided for certain manifestations of the right great toe disability under other Diagnostic Codes, but the medical evidence does not show that those manifestations are present. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. Although the Veteran is using orthotics, the symptom requiring such use, pain, is contemplated in the rating criteria. There is no objective or subjective evidence of any disability symptom or factor of disability which is not encompassed within the assigned rating. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Even if the Board were to determine that the rating criteria were inadequate to address all of the effects of the Veteran's service-connected great toe disability, her disability does not present exceptional or unusual circumstances. To the extent her disability has caused occupational impairment, that impairment has been adequately compensated by the current schedular rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1 (2013). 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 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993) (disability rating itself is recognition that industrial capabilities are impaired). There is also no indication her disability has resulted in frequent hospitalizations or a level of impairment of employment that would be considered marked. To the extent that there is interference with employment, the Board finds that interference would be less than marked. The Veteran has been found capable of sedentary employment despite the toe disability. Thus, the Board finds that referral for extra-schedular consideration is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable, due to her service-connected right great toe disability. She has not explicitly raised a claim of entitlement to a TDIU, nor is such a claim raised by the record. Although she is unemployed, the record does not show that she is unemployable due to her right great toe disability. The March 2011 VA examiner opined that the Veteran can perform sedentary work. Also, during a March 2011 VA psychiatric examination, the Veteran indicated that she was attending community college in pursuit of other employment, further indicating that she was able to work despite her disability. Further, the Board has found that the current schedular rating adequately rates the level of occupational impairment attributable to the Veteran's service-connected disability. Therefore, the question of entitlement to a TDIU has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An increased rating for a right great toe disability, currently rated as 10 percent disabling, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs