Citation Nr: 1416042 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 08-13 639 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable evaluation for the service-connected hammertoe and residuals of a proximal interphalangeal fusion of the second digit of the right foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from June 1985 until June 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2007 rating decision of the RO. The Board previously remanded the claim in March 2012 for further development. The case was subsequently returned to the Board for appellate review. The Virtual VA and VBMS files have been reviewed. FINDINGS OF FACT 1. The service-connected hammertoe deformity and the residuals of the proximal interphalangeal fusion is shown to involve the second digit of the right foot. 2. The service-connected right hammertoe and the residuals of the proximal interphalangeal fusion of the right second digit is shown to be manifested by no motion of the distal portion of the right second toe due to fixation and chronic pain and to be productive of a disability picture that more nearly approximates that of moderate overall foot disability. CONCLUSION OF LAW The criteria for the assignment of an increased 10 percent evaluation, but no higher for the service-connected residuals of the right hammertoe proximal interphalangeal fusion are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a including Diagnostic Code 5282, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Requirements As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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, 3.326(a) (2013). As this is an appeal arising from the initial grant of service connection, the notice that was provided in October 2007 is legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006). The RO has obtained the service treatment records, VA outpatient treatment records, private medical records and the reports of VA examinations. The Board notes that the March 2012 VA examination of the feet did not specifically address painful motion, excess fatigability or incoordination as requested in the prior March 2012 Board remand. However, the examination discussed weakened movement and pain and provided sufficient findings to grant an increased evaluation. Furthermore, other evidence of record includes findings concerning such symptoms. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that the March 2012 examination and other evidence of record substantially complies with the remand directives and further remand solely to obtain an opinion addressing painful motion, excess fatigability and incoordination would only result in unnecessary delay of adjudication. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Merits of the Claim The Veteran seeks a compensable evaluation for the service-connected residuals of a hammertoe with a proximal interphalangeal fusion of the second digit of the right foot. The RO granted service connection for this disability in a December 2007 rating decision. At that time a noncompensable evaluation was assigned pursuant to Diagnostic Code 5282. The Veteran contends the current rating evaluation does not accurately reflect the severity of this service-connected disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, all reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As noted, the service-connected disability was rated under Diagnostic Code 5282. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammertoe of a single toe and a 10 percent rating is assigned for all toes, unilateral without claw foot. A 10 percent is the highest rating assignable under this Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Another potentially applicable Diagnostic Code is Diagnostic Code 5284 which evaluates other foot injuries. Under this Diagnostic Code moderate foot injuries warrant a 10 percent disability rating. If the foot injury is moderately severe, a 20 percent disability rating is assigned. For severe foot injury, a maximum 30 percent disability rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The evidence for consideration in this case includes VA outpatient treatment records, private treatment records, VA examination reports, and lay statements. This appeal stems from the initial grant of service connection. As the Veteran has not challenged the July 1, 2007, effective date of service connection, the relevant question in this matter is the state of his disability for the period beginning on July 1, 2007. 38 C.F.R. § 3.400. The private treatment records from Dr. T.N.L., D.P.M. indicate the Veteran underwent surgery for his hammertoe in June 2006. Post-surgical records in August 2006 reflect complaints of pain but note the Veteran was satisfied with the surgical outcome. Clinical examination reflected the 2nd toe was in good straight alignment. The Veteran was afforded a VA examination in November 2007. He described having occasional pain and an inability to bend at the proximal interphalangeal joint. The condition affected his occupation occasionally. There was pain with heavy lifting or walking. It did not affect activities of daily living. He denied having flare-ups. Standing and walking were affected if he did so for prolonged periods. The clinical examination revealed no corns or calluses, edema, flatfeet, or Achilles tendon tenderness. There was no painful motion, abnormal weight bearing or weakness or instability. He had a linear scar over the second toe. He was unable to flex at this joint, and it was permanently extended. The X-ray studies revealed post-surgical change of the second toe with mild accelerated osteoarthritis change of the second toe metatarsophalangeal joint. The diagnosis was that of right second toe hammertoe status post fusion of the proximal interphalangeal joint with resulting inability to flex the proximal interphalangeal joint and occasional pain. The Veteran was afforded another VA examination in March 2012. The examiner diagnosed hammertoe and noted the hammertoe surgery resulted in fusion and chronic pain. The examination revealed no Morton's neuroma, metatarsalgia, hallux valgus, hallux rigidus, claw foot or malunion or nonunion of tarsal or metatarsal bones. There was no evidence of weak foot. There were noted to be a hammertoe of the right second toe and a scar from the surgery. The examiner noted that the surgery resulted in complete fusion of the toe with no range of motion in the proximal interphalangeal or distal interphalangeal joint of the second toe. He used orthotics. The examiner indicated that the functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The X-ray studies of the foot showed a calcaneal spur of the right foot. The condition impacted the Veteran's employment as a warehouse manager as he had decreased productivity and had problems standing for prolonged periods. The examiner noted the condition was moderate in severity per the Veteran's report and on examination. The VA and private treatment records reflect complaints of pain and indicate treatment for a variety of foot disabilities including hammertoe, heel pain, spurs and plantar fasciitis. They reflect the Veteran was treated with cortisone injections and orthotics. Significantly, a June 2008 record noted that the Veteran had degenerative arthritis of the right and metatarsophalangeal joint and multiple interphalangeal joints. This arthritis restricted his foot and toe motion and contributed to his foot pain and the physician felt he should qualify for 10 or 20 percent evaluation. As an initial matter, the record reflects that the Veteran has other diagnoses pertaining to the right foot, most significantly bone spurs, heel pain and plantar fasciitis. The records do not differentiate between the symptomatology attributed to the nonservice-connected disabilities and the service connected hammertoe. Accordingly, all symptoms will be considered as part of the service-connected disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In this case, the evidence clearly does not reflect hammertoe disability of all toes. In fact the March 2012 VA examination clearly reported the only affected toe was the second digit of the right foot. As such, an increased evaluation under Diagnostic Code 5282 is not warranted. After reviewing the evidence of record, however, the Board is of the opinion that the service-connected hammertoe is productive of moderate disability of the right foot, and therefore an increased 10 evaluation is warranted under Diagnostic Code 5284. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting the assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."). Although the service connected disability is hammertoe, the record clearly reflects that after the 2006 surgery, the Veteran had no range of motion of the 2nd toe resulting in pain and limitation in prolonged standing and walking. The March 2012 VA examiner in turn concluded that the disability was moderate. In light of these findings, the Board finds that the finding more closely resemble moderate overall foot disability under Diagnostic Code 5284. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). An evaluation in excess of 10 percent is not warranted as the evidence does not reflect a moderately severe disability. Although an October 2011 private record described severe heel pain, this record did not include clinical findings that supported such a finding. There was no crepitus or deformity, although the foot was described as inflexible. Symptoms were noted to be relieved by recent treatments. Similar clinical findings of no crepitus or deformity, but inflexibility were noted in a February 2011 private record when the pain was described as "occasional and improving." Additionally, the VA and private treatment records generally note that the condition is improved after cortisone injections. In fact, during the March 2012 VA examination, even the Veteran did not describe the condition as moderately-severe and the examiner felt that the symptoms and clinical findings supported a finding of moderate severity. In other words, even considering the pain noted above, the overall evidence does not demonstrate that such pain has resulted in additional functional limitation consistent with greater than moderate disability. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Based on the foregoing, there is no basis for a rating in excess of 10 percent for the service-connected disability of the right second toe under Diagnostic Code 5284. The Board has also considered whether a rating in excess of 10 percent is warranted under other potentially applicable diagnostic codes. While Diagnostic Code 5003, contemplating degenerative arthritis could apply, the evidence does not reflect x-ray evidence illustrating the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. Diagnostic Code 5276, contemplating acquired flat foot; Diagnostic Code 5278, contemplating claw foot and Diagnostic Code 5283 contemplating malunion or nonunion of the tarsal and metatarsal bones, are not applicable as the medical evidence of record is silent for evidence of such. Accordingly, these Diagnostic Codes may not serve as bases for a disability rating higher than what has been assigned herein. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5276, 5278, 5283. In sum, the evidence of record supports the award of a 10 percent disability rating, but no higher, for the Veteran's right hammertoe disability. As there appears to be no time period identified during the period of the appeal during which this disability manifested symptoms meriting a disability rating in excess of the rating assigned herein, staged ratings are not warranted. See Hart, 21 Vet. App. 505. Extraschedular Evaluation The Board has also considered whether the Veteran's hammertoe warrants referral for extraschedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In this case, the evidence does not show that the service-connected disability picture is exceptional or unusual, insofar as his symptoms are expressly contemplated by the rating schedule. As outlined, the Veteran has reported symptoms such as pain, limited motion and difficulty standing as a result of his hammertoe. Hammertoe is expressly considered by Diagnostic Code 5282 and as described above Diagnostic Code 5284 contemplates pain, limited motion and other problems of the foot. Additionally, symptoms such as pain are contemplated by the schedular criteria in conjunction with 38 C.F.R. § 4.40 (discussing functional loss), 4.55 (discussing less movement, more movement, weakened movement, fatigability, incoordination, and pain on movement including instability of station) and 4.59 (discussing painful motion). In other words, the Veteran has not provided evidence of any symptoms that are not expressly contemplated by the rating criteria. To the extent to which the March 2012 VA examiner noted an impact on work, he explained this resulted in decreased productivity and problems standing. Neither the examiner nor the Veteran suggested that the condition resulted in marked interference with employment. As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met, and referral for the assignment of an extraschedular consideration is not warranted. ORDER An increased 10 percent evaluation, but no more, for the service-connected hammertoe and residuals of a proximal interphalangeal fusion of the second digit of the right foot is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs