Citation Nr: 1600842	
Decision Date: 01/08/16    Archive Date: 01/21/16

DOCKET NO.  13-11 318	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial disability rating higher than 10 percent for left foot arthritic changes.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from January 1991 to October 1994 and from September 1997 to September 2010.

This case initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that granted service connection for a left foot disability and assigned an initial noncompensable evaluation, effective October 4, 2012.  A March 2013 rating decision granted a 10 percent evaluation from October 4, 2012.

In June 2015, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development.

Medical evidence recently added to the claims file suggests that the Veteran may have a neurological disability that had its onset in service, though he has not yet filed a service connection claim for it.  A September 2015 VA examiner reported signs of neurological dysfunction in the Veteran's left lower extremity, and that review of his service treatment records showed a diagnosis of an essential tremor of the upper extremity.  Further neurological tests were recommended.  Results of an electromyography/nerve conduction (EMG/NCV) study of the Veteran's left lower extremity performed in October 2015 indicated he had hereditary motor and sensory neuropathies (HMSN), type I, or Charcot Marie Tooth disease, type I.  


FINDING OF FACT

Since the initial grant of service connection, the Veteran's left foot disability has been manifested by symptoms that approximate the criteria for a 30 percent rating for claw foot without loss of use of the left foot.


CONCLUSION OF LAW

The criteria for an initial 30 percent rating, but no higher, for the service connected left foot disability, has been met since October 4, 2012.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.7, 4.14, 4.21, 4.20, 4.71a, 4.124a, Diagnostic Code 5278 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

This appeal arises from disagreement with the initial rating following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA has obtained all available records, including service treatment records and VA and non-VA medical records.  A review of the Veteran's electronic file does not reveal any additional evidence relevant to the increased rating claim on appeal.

The Veteran underwent VA examination in December 2012, and the examination report is of record.

There was substantial compliance with the Board's June 2015 remand, as the Veteran underwent VA examination in September 2015 and VA treatment records, dated to October 2015, were obtained.

The December 2012 and September 2015 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners considered an accurate history, and provided findings sufficient to rate the left foot disability.  There is no evidence of a change in the disability since the September 2015 examination.

The Board finds the duties to notify and assist have been met.

II. Facts and Legal Analysis

Contentions

In January and April 2013, he reported that his symptoms included loss of balance, frequent stumbling, and supination of the foot.  His left foot hurt from walking on the outer edge and his left shoe wore out more quickly than the right one.  He was unable to run, jump, or do a toe raise.  The Veteran wanted to be a police officer or customs agent but believed he would fail the agility test.  Thus, he maintains that a higher rating is warranted.

Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2015).

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, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (court) noted that where, as here (as to the right lower extremity radiculopathy), the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  Id.   

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Where there is a question as to which of two evaluations is to 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 (2015).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2015). 

Competent medical evidence means 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 mean 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).  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 the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

The Veteran's statements describing the symptoms of his service-connected left foot disability are deemed competent.  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2015).

VA's policy is to treat actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  This regulation applies to any service-connected joint disability, not just arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned.  This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. at 32, 33, 43.

Rating Criteria

The Veteran's service-connected left foot disability is rated under Diagnostic Code 5284, other foot injuries.  38 C.F.R. § 4.71a.  

Under Diagnostic Code 5284, a 10 percent evaluation is provided for a "moderate" foot injury.  A 20 percent evaluation is provided for a "moderately severe" foot injury.  A 30 percent evaluation is provided for a "severe" foot injury.  The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot.  38 C.F.R. § 4.71a. 

"Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. § 4.63 (2015). 

Under 38 C.F.R. 4.63, what constitutes loss of use of a foot includes extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop, equally well served by amputation. 

VA's General Counsel stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion.  Thus, the VA General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case.  See VAOPGCPREC 9-98.  In the present case, consideration of functional loss and DeLuca is warranted since the Veteran's left foot disability involves his complaints of painful motion.  See e.g., Veteran's April 2013 statement and September 2015 VA examination report (noting Veteran's complaints of interference with locomotion especially during flares).

Although the Veteran's disability has been rated under Diagnostic Code 5284, as other foot injuries, he has diagnosed foot disabilities that are listed in the rating schedule and a rating under Diagnostic Code 5284 is improper.  Copeland v. McDonald, 27 Vet. App. 333 (2015).  The Board is granting a 30 percent rating under Diagnostic Code 5278.  A higher rating under Diagnostic Code 5284 would require loss of use of the left foot, which as discussed below has not been found.

Facts

Private medical records from M.P., D.C., and G.M., DPM., dated in March and May 2012, respectively, describe the Veteran's treatment for left foot pain.  In March 2012, he complained of left foot alignment and constant pain.  His left foot was swollen, with minor redness, and a callus.

The May 2012 podiatry record shows that the Veteran felt like he had a pivot point on his second metatarsal and felt out of balance since 2009.  He saw a chiropractor and military X-rays revealed metatarsus adductus and pes cavus deformity and increased PASA (proximal articular set angle) deformity and hammer toe second toe left foot.  The Veteran was advised that he would need a bunionectomy with correction of the PASA and lengthening of the extensor tendon of the second toe. 

In December 2012, the Veteran underwent VA examination and reported symptoms that started in 2009 in service.  He had hallux valgus with no symptoms.  There was no metatarsalgia, hammertoes, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones.  The Veteran did not use an assistive device.  His gait and posture were within normal limits.  Imaging showed degenerative or traumatic arthritis in multiple joints of the left foot and there was forefoot varus appearance.  The Veteran's left foot disability impacted his ability to work in that it was difficult to stand for long, and walking long distances, running, and climbing ladders, were difficult.  

X-rays of the Veteran's left foot showed a markedly deformed midfoot and proximal forefoot from old trauma.  Arthritic changes were present.  A degree of coalition could be present as well between several of the osseous structures.

May 2015 VA treatment records indicate that the Veteran suspected he had an Achilles tendon rupture years ago, with subsequent atrophy of muscle, foot callous, and gait concerns.  He requested an orthopedic consultation.  Examination revealed atrophy of his left leg musculature and he appeared to walk on the lateral aspect of his foot.  There was no deformity.

X-rays of the Veteran's left ankle taken in May 2015 revealed no fractures or dislocations.  Joint spaces of the ankle were preserved.  There was focal inflammation of Kager's fat pad.  No additional soft tissue abnormalities were seen.  The impression was inflammation of Kager's fat pad and that a soft tissue tendinous injury could not be excluded.

According to an August 15, 2015 VA orthopedic surgery consult, the Veteran had pain in the dorsum of his left foot that appeared to be radicular in origin.  There was atrophy of his left lower extremity quadriceps and calf muscles.  He walked with a cavus foot on the left and slight antalgia.  There was a decreased ankle reflex on the left.  Motor examination was 4/5 to plantar flexion, toe extension, and flexion.  There was decreased sensation to light touch in the deep first dorsal web space, plantar surface, and lateral foot.  The ankle, itself, showed intact Achilles, ankle "P.T." (posterior tibial?) and peroneals, but generalized weakness.  X-rays of the left ankle were unremarkable.  The examiner observed that it did not look like the Veteran had a musculoskeletal problem, and seemed to have a neurological one.   

A September 2015 VA orthopedic surgery note indicates that the examiner reviewed magnetic resonance images (MRIs) of the Veteran's left ankle and lumbosacral spine.  The examiner concluded that the MRI findings did not explain the Veteran's left leg atrophy and his weakness and decreased sensation.  Additional diagnostic tests and a neurology consultation were recommended to assist in detecting if there was a neurological lesion and where it was located.  The Veteran was also referred for a physical medicine and rehabilitation evaluation, given the lack of function of his left leg.

The Veteran underwent VA examination in September 2015.  The examiner noted diagnoses of hammertoes and acquired pes cavus in 2015 and a foot injury-sprained ankle and foot in 2002.  The Veteran complained of ongoing left foot and ankle problems including altered balance, weakness, and decreased strength.  He denied foot pain on examination but had flare ups of dorsal pain that lasted one to two weeks that self-resolved and a callous laterally due to favoring his left foot for weight bearing.

The Veteran had left foot functional loss related to decreased strength and weakness.  He was able to run, but with some difficulty due to an inability to distribute his weight correctly that caused him to apply his weight laterally.  

There was no pes planus.  The Veteran had left foot swelling, characteristic callouses, and marked deformity, specifically a limited ability to evert the foot. Findings were consistent with acquired pes cavus as all toes were tending to dorsiflexion, that the examiner speculated might be associated with a neurological disorder.  There were hammertoes of the right foot and left great toe, and 2nd and 3rd toes.  The examiner checked a box indicating that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.

There was no left foot pain on physical examination.  There was functional loss with less movement than normal, weakened movement, swelling, deformity, disturbance of locomotion, and slight antalgia.  The examiner reported that the Veteran had functional loss due to flare ups with episodes of swelling of the proximal dorsum region of the foot and lateral left foot callous formation and swelling, attributed to weight bearing over the lateral left foot.  There was decreased left foot strength during flare ups.  Results of a MRI of the left ankle were negative.  

The examiner reported signs of neurological dysfunction manifested by muscular atrophy in the Veteran's left leg and decreased reflexes and strength to left lower extremity.  Review of his service treatment records showed a diagnosis of essential tremor to upper extremities noted during service.  An orthopedic evaluation as well as a MRI ruled out a musculoskeletal disorder and pointed toward a neurological disorder.  The examiner concluded that the foot examination was not sufficient to illustrate abnormal findings in left lower extremity.  The Veteran was referred back to his primary care provider for further evaluation with consideration for examination with a neurologist.

An October 2015 VA physical medicine and rehabilitation record reflects the Veteran's history of left ankle injury and chronic instability since.  He had occasional pain of his dorsal left foot and denied any sensory loss.  The Veteran had an ankle brace that stabilized the ankle but hurt his lateral ankle.  There was left calf atrophy.  His gait was essentially normal but he walked on the lateral foot on the left and there was a callous on the left lateral foot.  He was unable to toe walk on the left and there was decreased inversion and eversion of the left foot.  The assessment was left ankle instability with a history of severe ankle strain/sprain in the past and left leg atrophy and weakness.  An EMG/NCV of the bilateral lower extremities and a new ankle brace were ordered.

The October 2015 EMG/NCV indicated that the Veteran had HMSN, type I, or Charcot Marie Tooth disease, type I.  

Schedular Rating

The VA and non-VA medical records and December 2012 and September 2015 VA examiners' findings of a callus on the left foot, pain within the dorsum of the left foot, and a slight antalgic gait were consistent with the Veteran's account of increased left foot pain and that pain in the left foot made his standing for long periods, walking long distances, running, or climbing ladders difficult.  Such limitation of endurance reasonably constitutes moderately severe disability of the left foot.  

However, the disability shown from that point does not rise to the level of severe disability in the left foot.  The evidence indicates that the Veteran is still able to stand and walk for limited durations and distances and there is no atrophy of the left foot attributed to the service-connected arthritic changes of the left foot.  The neurological dysfunction in his left lower extremity has been associated with non-service connected HMSN, type I, or Charcot Marie Tooth disease, type I.  

A rating in excess of 20 percent for the left foot is not warranted at any time since the Veteran filed his original service connection claim.  In fact, while the December 2012 reported degenerative traumatic arthritis of the left midfoot and forefoot, the September 2015 VA examiner reported that imaging studies did not document degenerative or traumatic arthritis.  There was swelling, characteristic callouses, and marked deformity, including a limited ability to evert the left foot in September 2015.  Overall, the VA examinations and VA and non-VA treatment records, and the Veteran's own assertions, do not support a rating greater than 20 percent in his left foot.  Severe disability is not shown such as to warrant a 30 percent disability rating under Diagnostic Code 5284.

Moreover, with respect to an even higher 40 percent rating for loss of use of the foot under Diagnostic Code 5284, while the Veteran's left foot arthritic changes cause episodes of dorsum pain and weakness, the evidence does not show that he has actually lost the use of his foot.  He is able to walk and stand with reported limitations, and the examiner found that he would not be equally well served by amputation with prosthetic in place.  Although the examiner did not provide explicit reasons for this opinion, it was supported by other examination findings such as the absence of pain complaints.  The evidence demonstrates he has more function in the foot than would be served with an amputation stump.  See 38 C.F.R. § 4.63.  There is no evidence of ankylosis from this disability, shortening of the left extremity, or complete paralysis of the external popliteal nerve and consequent footdrop.  Id.  

Furthermore, a rating higher than 20 percent is not more appropriate based on pes planus, because the Veteran does not have most of the symptoms listed in the criteria for a severe disability, such as marked pronation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flat foot), 

The Veteran does have pes cavus affecting all toes.  He had hammer toes, but the hammer toes did not affect all toes on the left.  There was also a varus deformity and he was unable to evert the foot.  There was not an explicit finding as to whether the callosities were very painful of the varus deformity was marked; but it is apparent that the disability approximates the criteria for a 30 percent rating under Diagnostic Code 5278 (claw foot).  Hence a 30 percent rating is warranted under that diagnostic code.

Absent loss of use of the foot, the diagnostic codes applicable to the foot do not provide for a rating in excess of 30 percent.  Further, separate ratings under multiple codes is not warranted, because they contemplate pain and tenderness or hammer toes.  Hence, the rating criteria are not entirely separate and additional ratings would constitute prohibited pyramiding.  38 C.F.R. § 4.14 (2015).

With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40.  The effects of pain reasonably shown to be due to the Veteran's service-connected foot disability are contemplated in the currently assigned initial 20 percent for the left foot disability.  Even with consideration of the VA examiner's report of functional loss during flare-ups, there is no indication that pain, due to disability of the left foot, caused functional loss greater than that contemplated by the currently assigned evaluation.  38 C.F.R. §§ 4.40, 4.45; DeLuca.  A separate rating for pain is not for assignment.  Spurgeon v. Brown, 10 Vet. App. 94 (19967).

As such, the Board concludes that an initial 30 percent rating, but not higher, is warranted for the left foot arthritic changes since the initial grant of service connection on October 4, 2012.  The benefit of the doubt has been resolved in the Veteran's favor to this limited extent.  38 U.S.C.A. § 5107(b).  See Gilbert v. Derwinski.

Extra Schedular Rating and TDIU

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2015). 

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. at 339.  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here the Board has considered Mittleider and attributed all potentially service-connected symptoms to his service-connected left foot disability before considering if the Veteran is entitled to an extra-schedular rating.

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

The Veteran's left foot disability is manifested by pain, swelling, deformity, and some limited movement.  The rating schedule contemplates these symptoms.  See Diagnostic Code 5284.  No additional manifestations have been reported, thus indicating that there are not additional manifestations beyond the scope of the rating criteria.

The rating schedule is meant to compensate for average impairment in earning capacity and for considerable time lost from work commensurate with the percentage evaluations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration.  Id.; see also Thun v. Peake, 22 Vet. App. at 111.

VA is also required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities.  Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014).  The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating.  Johnson v. McDonald, at 1365-6.  In addition to the left foot disability, service connection is in effect for tinnitus, rated 10 percent disabling and a disability of the lumbar spine, rated 10 percent disabling.  There is no evidence or argument that the combined schedular rating fails to contemplate the combined level of the service connected disabilities.  Referral for consideration of a combined extraschedular rating is not warranted.

Entitlement to a total rating based on individual unemployability (TDIU) is potentially an element of all claims for increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  To raise such a claim as part of a claim for increase, there must be evidence of unemployability.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the March 2012 private treatment record shows that the Veteran was presently working for an aerospace company in aviation life support.  He has not asserted, and the record does not otherwise contain, evidence of unemployability due to his service-connected left foot disability.  Thus, any further consideration of TDIU is not warranted.

The Board finds that at no time since the Veteran filed his most recent claim for service connection for left foot disability, has the disability on appeal been more disabling than as currently rated under the present decision of the Board.  Fenderson.


ORDER

A higher initial rating of 30 percent for left foot arthritic changes, is granted from October 4, 2012.



____________________________________________
Mark D. Hindin 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs