Citation Nr: 1341609 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-27 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to increases in the ratings for residuals of a left foot fracture (currently 10 percent prior to April 19, 2012 and 30 percent from that date). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1976 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO) that continued a 0 percent rating for the Veteran's service-connected left foot disability. An interim (May 2011) rating decision increased the rating to 10 percent, effective May 20, 2008 (date of claim). In January 2012, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In March 2012, the Board remanded the matter for additional development. An interim (July 2012) rating decision increased the rating to 30 percent, effective April 19, 2012. The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are for consideration. See AB v. Brown, 6 Vet. App. 35 (1993). The matter of service connection for a 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. FINDINGS OF FACT Prior to September 10, 2010 the Veteran's service connected left foot disability was manifested by symptoms and impairment characteristic of no more than moderate foot disability; from September 10, 2010 to January 25, 2012 the disability was manifested by symptoms and impairment consistent with moderately severe (but not severe) foot injury; from January 25, 2012 the left foot disability picture presented is one characteristic of severe foot injury; loss of use of the foot is not shown. CONCLUSION OF LAW The Veteran's service connected left foot disability warrants staged ratings of 10 percent prior to September 10, 2010; 20 percent [a new stage] from September 10 until January 25, 2012; and 30 percent from [the earlier effective date of] January 25, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes (Codes) 5277- 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328(Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270(Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of his claim for an increased rating for residuals of a left foot fracture prior to the initial, August 2008, adjudication. A June 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, the evidence the Veteran was responsible for providing, and of rating and effective date criteria. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that a RO official or Veterans Law Judge who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the January 2012 videoconference the Veteran alleged worsening of his left foot disability since he was last examined. Testimony regarding the status of the foot (and associated impairment was elicited). The undersigned advised the Veteran that an examination to assess the disability would be scheduled. The Veteran's service treatment records (STRs) are associated with the claims file, and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in December 2009 and April 2012. The examination reports reflect that the examiners considered the Veteran's reported medical history (which is consistent with that shown by the record) and conducted thorough evaluations, with notation of all findings necessary to adjudicate this matter, and the Board finds them adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303(2007). The RO's actions have substantially complied with the March 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271(1998). The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, the Board finds that VA's duty to assist is met. Factual Background Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in 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 of record. 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 relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for residuals of a left foot fracture, rated 0 percent was awarded by rating decision in December 1996. The Veteran filed a claim for an increased rating for his service-connected left foot disability in May 2008. A May 2007 VA primary care clinic note shows the Veteran had an assessment of foot pain. A February 2008 VA podiatry outpatient record notes the Veteran had pain on palpation of the lateral aspect near the sinus tarsi on the left. The assessment was sinus tarsi syndrome. A March 2008 VA podiatry outpatient note shows there was no pain with range of left foot motion. The assessments were sinus tarsi syndrome, resolving, and chronic degenerative joint disease (DJD). On December 2009 VA foot examination, the Veteran reported that his service-connected left foot disability had worsened. He related experiencing pain on the lateral aspect of his left foot that extended to the heel. It was a sharp stabbing pain that developed after standing for 5 minutes on a concrete surface or 20 minutes at the beach or in a woodsy area. He explained that he experienced pain after walking a few miles on woodsy terrain as opposed to a quick onset with concrete floors. When the pain developed, he was unable to walk. He had multiple injections to the left sinus tarsi region (usually when pain was severe). He wore "in-fits" (orthotic devices to support the subtalar joint), and that they were comfortable, other than when there was severe pain. It was noted that he was a volunteer driver for an organization and that he stated that foot pain did not interfere with his ability to do such work. On orthopedic examination muscle strength was 5/5. There was good range of motion of the ankle subtalar joint and no pain or crepitation. He had good range of motion of the forefoot and midfoot regions. X-rays (pedal) showed no evidence of fractures or abnormal pathology. There was no acute abnormality noted. There was mild joint degeneration of the bilateral first metatarsophalangeal joint. Neurological examination revealed light touch, and gross sensation within normal limits. There was no evidence of painful motion, edema, weakness or instability. There was no functional limitation observed for standing or walking; and no evidence of abnormal weightbearing. He did not have misalignment of the Achilles tendon or a flatfoot disorder. X-rays revealed minimal degenerative changes at the left first metatarsophalangeal joint. A September 10, 2010 VA podiatry clinic record shows the Veteran was seen with continued left foot sinus tarsi pain. It was noted that his last visit to that clinic was one and a half years prior, when he received a sinus tarsi injection, which helped for two to three weeks. He generally had pain with ambulation, which inhibited his activities of daily living. On examination he had positive varicosities of the left medial sinus tarsi area along the tarsal tunnel, as well as in the dorsum of the foot. He had left foot pain in the deep peroneal nerve area and with percussion (proximally). He had pain on palpation in the sinus tarsi and with range of motion of the left foot subtalar joint. The impression was left foot sinus tarsitis, and deep peroneal neuritis, likely secondary to varicosities and associated nerve impingement. At the January 25, 2012 videoconference hearing, the Veteran testified that he worked one hour a day driving a car, which did not affect his left foot. He claimed that his left foot disability was severe, and stated that he had difficulty walking for more than 15 minutes on the cement floor in a grocery store and could not stand more than 15 minutes when vacuuming a floor. Negotiating stairs caused much pain. After such activity he had to elevate his feet; otherwise the left foot would swell. He stated that since 1995 he has received about four or five cortisone shots in the left foot. He described the severity of his foot pain in the morning as 3/10, and in the afternoon it is 5 or 6/10. If he walked on a cement floor, it went up to 9.5/10. He takes Tylenol for pain, and wore inserts in his sneakers. He stated that he walks with a limp, and that his left foot disability has gotten progressively worse since his last VA examination in 2009. He related that he had not worked in his landscaping business since 1995, because he could no longer walk to the end of a lawn and turn around; he gave the landscaping business to his brother. He reported that that he was laid off from a 40-hour a week job, and had not worked since 1995. On April 2012 VA foot examination, the Veteran reported having pain in his left foot since he fractured it in service in July 1976. He stated he could no longer walk more than "4 aisles" without being in pain when he goes to the grocery store. He cannot complete shopping in the grocery store because it is too painful to walk. The pain is 8/10 everyday. He wears orthotics, which help very little. On examination he did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus (claw foot), or malunion or nonunion of the tarsal or metatarsal bones. He had severe plantar fasciitis/Achilles tendonitis, and DJD of the left foot. He also had bilateral weak foot, described as crepitus of both feet, with some very mild atrophy at the plantar section of the left foot. The examiner noted that he walked with a limp and wore orthotics every day. There was no functional impairment of the left foot such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner diagnosed a foot injury from a fractured left foot and DJD by x-rays in 2009. The examiner noted that the Veteran's left foot disability impacted his ability to work, in that he transports patients to appointments; his driving is okay, but he cannot stand for long periods of time. His work is sedentary. He had to leave his previous employment because of foot pain. The examiner noted further that the Veteran had worsening pain and worsening gait. He limped more and a distinct widened stance was noted. His pain was worse during the day and when he walked on a hard or bumpy surface. Legal Criteria and Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). §38 U.S.C.A. § 1155 ; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The Veteran's residuals of a left foot fracture are rated under 38 C.F.R. § 4.71a, Codes 5277-5284. The Board notes that Code 5277 is for bilateral disability whereas only the left foot is service connected in the instant case. Regardless, that Code provides for rating the underlying condition, and Code 5284 (for other foot injuries) is appropriate for rating fracture residuals. Under Code 5284 for foot injury, a 10 percent rating is warranted when moderate, a 20 percent rating is warranted when moderately severe, and a [maximum] 30 percent rating is warranted when severe. A note to Code 5284 provides that with actual loss of use of the foot a 40 percent rating is to be assigned. 38 C.F.R. § 4.71a, Code 5284. The words "moderate," "moderately severe," 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 degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The use of descriptive terminology such as "moderate" or "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. Loss of use of a foot [specifically for special monthly compensation purposes] exists when no effective function remains other than that which would be equally served by an amputation stump below the knee with use of suitable prosthesis. The determination is based on whether remaining functions such as balance or propulsion could be accomplished equally by the stump with prosthesis. 38 C.F.R. § 4.63. In rating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. Functional impairment shall also be evaluated on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to September 10, 2010, the disability picture for the Veteran's residuals of a left foot fracture presented was not one characteristic of more than moderate foot injury. While he was seen periodically for complaints of foot pain, the impact on function shown was not characteristic of more than moderate foot injury. The Board finds particularly noteworthy that when the Veteran was seen in December 2009 although he complained of pain on standing 5 minutes or walking on concrete 20 minutes, he also indicated he experienced pain upon walking "a few miles" on woodsy terrain, indicating somewhat lesser limitations on actual function. And while he reported multiple injections at the left tarsi area, he testified at the hearing that the total number of such injections since 1995 was 4 or 5 (i.e., less than one per three years). Such symptoms and impairment do not reflect more than moderate foot injury, and a rating in excess of 10 percent was not warranted. On September 10, 2010 podiatry clinic visit the Veteran described symptoms and functional limitations more consistent with moderately severe (but not severe) foot injury, including more inhibition of activities of daily living, and pain with ambulation. On physical examination pain was elicited with various manipulation. However, limitations of activity characteristic of severe foot injury were not noted. Consequently, from that date a 20 percent (but not higher) rating is warranted. At the January 25, 2012 the Veteran reported increasingly severe left foot symptoms with functional limitation that impacted on daily living activities (such as shopping for groceries). This level of impairment was confirmed by the April 19, 2012 VA examination (on which the RO based their assignment of the 30 percent rating for severe foot disability. The Veteran is competent to observe the nature and severity of his foot symptoms, and the Board finds no reason to question his reports of functional impairment associated with the left foot disability. Accordingly, the Board finds that the severe level disability demonstrated on April 19, 2012 examination was (based on the Veteran's accounts) present at the time of the January 25, 2012 hearing, and that a 30 percent rating under Code 5284 is warranted from that earlier effective date. What remains for consideration is whether at any time the Veteran's service-connected left foot disability has warranted a rating in excess of 30 percent. The next higher rating (40 percent) is warranted when there is a disability picture consistent with loss of use of a foot (or disability approximating such severity; see 38 C.F.R. § 4.7). It is not shown (or even actually alleged) that the Veteran's left foot disability produces impairment consistent with loss of use of a foot. He is not shown to have lost such functions as balance and propulsion, and the level of remaining function far exceeds what could be equally served with an amputation stump and suitable prosthesis. A schedular rating in excess of 30 percent is clearly not warranted. The level of left foot disability (and associated functional impairment) shown throughout has not exceeded the criteria for the schedular ratings assigned. Therefore, the schedular criteria are not inadequate, and referral of this matter to the Director of the Compensation and Pension Service for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b) is not indicated. Finally, the Board is aware that by his reports the Veteran has not engaged in regular substantially gainful employment since 1995 (when he passed on his landscaping business to his brother). Nonetheless, he has engaged in such activities as being a volunteer driver for an organization (and indicated that his foot disability does not impact on such activity). Furthermore, the Board finds nothing in the record suggesting that the left foot disability would impact on/preclude sedentary employment, consistent with his experience running a business. Accordingly, the Board finds that the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is not raised in the context of this claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER A 20 percent rating for residuals of a left foot fracture from September 10, 2010, and a 30 percent rating for such disability from [the earlier effective date of] January 25, 2012 are granted, subject to the regulations governing payment of monetary awards. Ratings in excess of 10 percent prior to September 10, 2010 and/or in excess of 30 percent from January 25, 2012 for the left foot disability are denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs