Citation Nr: 1342084	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  09-25 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating, in excess of 10 percent, for residuals of a fracture of the tarsal and metatarsal bones of the right foot.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Bruce, Counsel

INTRODUCTION

The Veteran had active service from June 1988 to June 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas.

The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in April 2011. A transcript of the hearing is of record.

This claim was previously remanded by the Board in September 2011.

A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal.


FINDING OF FACT

The Veteran's residual of a fracture of the tarsal and metatarsal bones of the right foot produces mild symptoms and does not cause limitation of motion of the feet.


CONCLUSION OF LAW

The criteria for an increased rating, in excess of 10 percent, for residual of a fracture of the tarsal and metatarsal bones of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5283 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1).

In July 2008, the RO provided VCAA notice with respect to the Veteran's claim for residuals of a fracture of the tarsal and metatarsal bones of the right foot. In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006).

The current appeal is a result of a notice of disagreement with the ratings assigned, and thus gives rise to no further duty to notify under VCAA. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement).

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports.

In the September 2011 remand the Board requested that the RO/AMC obtain the Veteran's VA and private treatment records and afford him a new examination to include an opinion with regard to the current severity of the Veteran's right foot condition.

The record reflects that the Veteran's additional treatment records were obtained and associated with his claims file. The VA examination to include an opinion with regard to severity was also obtained. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

The Veteran was provided with a VA examinations in August 2008 and October 2011. The report of the examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2012).

In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the April 2011 Travel Board hearing, the undersigned Veterans Law Judge and representative for the Veteran engaged in colloquies with the Veteran as to substantiation of the claims. The Veteran was asked about and provided testimony regarding the severity of his current right foot condition. In particular he was asked to describe how his right foot injury affected his daily life including his ability to work.

Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's April 2011 hearing or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claims. The Board finds that any error in notice provided during the Veteran's hearing constitutes harmless error. See 38 C.F.R. § 20.1102. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal.

All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

Merits of the Claim

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013).

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Musculoskeletal disabilities of the foot are rated under Diagnostic Codes 5276 to 5284 (38 C.F.R. § 4.71a). The Veteran's right foot condition is currently rated under Diagnostic Code 5283, which governs ratings of the tarsal and metatarsal bones. 

Diagnostic Code 5283 provides that a rating of 10 percent is assignable for malunion or nonunion of the tarsal or metatarsal bones that is moderate, a 20 percent rating is assignable for a moderately severe disability and 30 percent is assignable for a severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5283 (2013). If there is actual loss of use of the foot, the disability is to be rated 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5283, Note (2013). 

Diagnostic Code 5284 governs other foot injuries and provides a 10 percent rating for moderate disability, a 20 percent rating for moderately severe disability, and a 30 percent rating for severe disability. 

The Board observes that the words "slight," "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. 38 C.F.R. § 4.71a (2012). In applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion" See also 38 C.F.R. § 4.59 (2013).

The Veteran was afforded a VA examination in August 2008. The Veteran reported pain along the second metatarsal that extended back towards the ankle and was worse when he flexed his foot. He reported problems walking on uneven ground and on stairs. He reported no pain at rest, but pain after prolonged periods of standing and walking. He had some stiffness and some difficulty curling his toes. There was no weakness, swelling, heat, redness, fatigability, or lack of endurance. He reported no flare-ups or use of assistive devices. He further reported no hospitalizations or surgeries. He stated that he worked in management and that his foot problems did not affect his ability to do his job. He was able to do chores around the house as well as walk and stand as long as he needs to, although all of these activities involved pain. He is unable to run. 

Upon examination it was noted his foot was normal in appearance, with no deformities, objective evidence of painful motion, edema, instability, or weakness. There was minimal tenderness with palpation over the area of the second metatarsal. He had a normal gait, with no callosities, breakdown, or unusual shoe wear pattern or other evidences of abnormal weight bearing. There were no skin or vascular issues. He did not have hammertoes, high arch, claw foot, or other deformity. He was able to flex the toes of his right foot with 30 degrees of flexion at the metatarsal phalangeal joints (MTP) and 40 degrees of flexion at interphalangeal joints. An x-ray revealed slight deformity of the proximal shaft of the second metatarsal that was consistent with a history of a remote fracture. There was complete healing and normal alignment, but mild degenerative joint disease of the first tarsal metatarsal joint. The Veteran was diagnosed with fracture of second metatarsal of right foot, previously determined to be service-connected. 

The Veteran was again afforded a VA examination in October 2011. The Veteran was diagnosed with residuals of a fractured second metatarsal right foot with dorsal bossing (degenerative changes). He reported continued pain in the dorsum of the right foot that increased with activity especially walking on uneven surfaces and inclines. He reported swelling and redness of the foot, but no history of further injury or trauma. He stated that he took over the counter medications for pain and used gel shoe inserts on occasion. His work was not limited, although he experienced pain at work with excessive walking. Walking on uneven surfaces is limited to two hours and standing to an hour and a half without pain. He reported no giving away, falling, unsteadiness, fatigue, lack of endurance, or weakness. He reported some stiffness, but no pain on rest. Upon examination there was no evidence of Morton's neuroma or metatarsalgia, hammertoes, hallux valgus, hallux rigidus, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, other foot injuries, or bilateral weak foot. The examiner noted that the Veteran had dorsal bossing to the right foot (degenerative changes) as seen on x-ray. Previous x-rays showed no evidence of malunion or nonunion, the fracture had healed. There was no use of assistive devices. There was no other limitation of function. X-rays revealed degenerative traumatic arthritis of the right foot, but no evidence of nonunion. The examiner did note that x-rays from August 2008 revealed a slight deformity of the proximal shaft of the second metatarsal. He displayed equal and full range of motion of all toes bilaterally. He had foot pain with torsion, especially at the first tarsometatarsal joint. Both feet were normal in appearance, but with dorsal bossing. Range of motion of the foot could not be measured exactly but it was noted that it was equal bilaterally. There was no further limitation with repetitive motion. There was no evidence of pain, weakened movement, excess fatigue, incoordination, or flare-ups. The examiner determined that the residuals of the fracture were productive of less than moderate (very minimal) disability.

Private treatment records dated March 2011 noted the Veteran reported intermittent pain related to activity. He further reported that at the time he liked to run and had an active lifestyle including biking that did not make the pain worse. He reported that he had a twisting injury a week before the appointment that had pain and swelling that was better after 3 days. His pain was dorsum on his midfoot. He had no neurologic symptoms. Upon examination he had neutral alignment with standing. There was no evidence of swelling, marks, or lacerations. There were no neurological issues. He had point discomfort to palpation over the first tarsal metatarsal joints. He had pain with abduction, adduction, dorsiflexion, and plantar function. X-rays revealed three views of the right foot weight bearing which demonstrated mild arthritic changes through tarsal metatarsal joints at this time. There was no evidence of gross subluxation. The impression was right midfoot tarsal metatarsal joint arthritis. 

At his April 2011 Travel Board hearing, the Veteran reported that he was limited in his pain-free standing and walking as well as physical activities like running. He noted a specific incident where he injured himself running a 5 kilometer race on uneven terrain because of his previous injury. He stated that his flexion in his foot had decreased and that a private physician suggested that he use orthotics which did help with the pain. 

The Veteran is competent to report lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, the Veteran's lay assertions of increased pain and loss of function are essentially contradicted by the medical findings after clinical evaluation. The Veteran's allegations, as investigated by competent medical authority, do not support an increased rating for the service-connected residuals of a fracture of the tarsal and metatarsal bones of the right foot. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2013).

The preponderance of the probative evidence is against the claim. The Veteran's right foot disability is not noted to be moderately severe, or severe and does not exhibit objective evidence of marked deformity, edema, instability or weakness. There is evidence that the Veteran had degenerative arthritis in his right foot, but as noted under Diagnostic Code 5003, he would be entitled to no more than the 10 percent he is currently assigned for degenerative arthritis. There was no indication that his right foot exhibited the criteria necessary to be assigned a higher 20 percent rating. The Veteran's residuals of a fracture of the tarsal and metatarsal bones of the right foot presented consistently with pain after activity and walking on uneven surfaces, tenderness to palpation, stiffness, and occasional swelling and redness, indicative of a 10 percent rating for no more than a moderate disability. Indeed, the October 2011 VA examiner noted that the Veteran's disability was "productive of less than moderate (very minimal) disability." A rating in excess of 10 percent is not therefore warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5283.

The Board has also considered whether the Veteran would be entitled to a higher evaluation under other diagnostic criteria related to the foot. In this regard, the Board notes initially, that Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281, and 5282 are not for application in the instant case because there is no evidence of flat foot, pes planus (Diagnostic Code 5276) weak foot (Diagnostic Code 5277), pes cavus, claw foot (Diagnostic Code 5278), metatarsalgia, anterior/Morton's disease (Diagnostic Code 4279), hallux valgus (Diagnostic Code 5280), hallux rigidus (Diagnostic Code 5281), or hammer toe (Diagnostic Code 5282).

With respect to other foot injuries under Diagnostic Code 5284, it was noted on examination in October 2011 that the Veteran's right foot condition indicated a less than moderate (very minimal) disability. Other findings on examination reports also do not demonstrate any more than moderate impairment, as described above. Moderate impairment in his feet would not warrant a rating higher than 10 percent under Diagnostic Code 5284.

In evaluating the Veteran's claims for higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected residuals of a fracture of the tarsal and metatarsal bones of the right foot is inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected disability, with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Veteran's right foot disability is manifested by pain after activity and when walking on uneven surfaces, tenderness to palpation, stiffness, and occasional swelling and redness indicating at most a moderate disability. This impairment is contemplated by the 10 percent rating assigned under Diagnostic Code 5283. 

Even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for her disability. There is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Veteran reported no hospitalizations or surgeries. Although he reported that he experienced pain at work with excessive walking, he stated that he worked in management and that his foot problems did not affect his ability to do his job. He was found to have no occupational impairment as a result of his feet. Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.

An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered; but the record does not show the Veteran has been rendered unemployable as a result of his right foot disability, nor does he contend that it renders him unemployable. Therefore, there is no inferred TDIU claim in this case.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this instance, the benefit of the doubt doctrine, however, is not applicable with regard to the Veteran's claim at any time during the appeal period as the preponderance of the evidence is against a rating in excess of that currently assigned.


ORDER

An increased rating, in excess of 10 percent, for residuals of a fracture of the tarsal and metatarsal bones of the right foot is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs