Citation Nr: 1618771	
Decision Date: 05/10/16    Archive Date: 05/19/16

DOCKET NO.  10-24 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a right knee disorder. 

2.  Entitlement to service connection for a left knee disorder. 

3.  Entitlement to a disability rating in excess of 10 percent for left foot bunionectomy. 

4.  Entitlement to a disability rating in excess of 10 percent for right foot bunionectomy. 

5.  Entitlement to a total disability rating due to individual unemployability (TDIU). 


REPRESENTATION

Veteran represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

D. M. Donahue Boushehri, Counsel 


INTRODUCTION

The Veteran served on active duty from July 1990 to September 1995. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that continued to 10 percent ratings for left and right foot bunionectomy disabilities and found no new and material evidence to reopen the claims for left and right knee disabilities.  In a February 2015 decision, the Board reopened the claims for entitlement to service connection for right and left knee disorders and remanded the claims for additional adjudication.  In a May 2015 decision, the Appeals Management Center (AMC) granted separate noncompensable ratings for scars as a result of the Veteran's service-connected right and left foot bunionectomies; the Veteran did not appeal this determination. 

In November 2014, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ).  A transcript is associated with the record. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a total disability rating based on individual unemployability (TDIU) is part of an appeal for a higher rating claim when such claim is raised by the record.  Here, the Board notes that in an April 2016 statement, the Veteran's representative asserted his right and left foot disabilities and treatment prevented him from working.  As such, the Board finds that the record raises a claim for TDIU.

The issues of entitlement to service connection for right and left knee disorders and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The diagnoses are hallux valgus of the right foot and degenerative joint disease of the left foot. 

2.  The Veteran is in receipt of the maximum ratings for his left and right foot disabilities.


CONCLUSIONS OF LAW

1.  The criteria are not met for an increased disability rating for right foot disability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5280 (2015).

2.  The criteria are not met for an increased disability rating for left foot disability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes 5010, 5280 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As part of this duty, the Veteran should be advised of the elements of a disability rating and an effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  VCAA notice for an increased rating claim does not have to be individually tailored or specific to each Veteran's particular facts, but rather only a generic notice is required.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The duty to notify for the issues in this case was satisfied by a letter sent to the Veteran dated in January 2009.  Moreover, the increased rating issues were last adjudicated by the RO in a May 2015 Supplemental Statement of the Case (SSOC), such that any timing error was cured by a latter readjudication.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Thus, the Veteran has received all required notice in this case, such that there is no error in the content or timing of VCAA notice.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (noting that an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  In the present case, there has not been an allegation of any error in the VCAA notice provided to the Veteran.

With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, and VA examinations.  For his part, the Veteran has submitted personal statements, argument from his representative, and hearing testimony in November 2014.  During the November 2014 Board hearing, the Veteran testified that he receives private treatment for his feet.  In an April 2015 letter, the RO requested the Veteran identify his private treatment providers and either submit the private treatment records or sign a medical authorization which would allow the RO to obtain the records.  The Veteran did not respond to the letter. The Board notes that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a 'one-way street.'  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence.  See, Id.  Under the foregoing circumstances, the Board will not remand this matter again to obtain additional private treatment records related to the Veteran's claims.  Rather, the Board will adjudicate the issues on appeal based upon the evidence that is currently of record.  38 C.F.R. § 3.655 (2015).

VA examinations rating the severity of the Veteran's service-connected right and left foot disabilities were provided in January 2009 and April 2015.  These examinations are adequate as they were conducted upon a review of the claims file, included thorough examinations, and address the Veteran's symptoms as they relate to the relevant diagnostic codes.  Furthermore, there is no need for a more contemporaneous examination as the evidence does not indicate that the current rating may be incorrect or that there has been a material change in the disability.  See 38 C.F.R. § 3.327(a) (2015).

With regard to the November 2014 hearings, a VLJ who chairs a hearing must fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  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.  38 C.F.R. § 3.103(c)(2) (2015); Procopio v. Shinseki, 26 Vet. App. 76 (2012).  At the hearing, the VLJ, the Veteran, and the representative outlined the increased rating issues on appeal.  They engaged in a discussion as to substantiation of those claims.  The Veteran discussed his specific symptoms and why he believed his disorders should be granted a higher rating.  He stated that his feet were painful.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.  Overall, the November 2014 hearing was legally sufficient, and there has been no allegation to the contrary.

With regard to the February 2015 Board remand, the Board finds that the RO substantially complied with the prior remand directives with regard to the increased rating claims.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance).  Specifically, pursuant to the remands, the RO secured additional VA treatment records and afforded the Veteran a VA examination to rate the current extent and severity of his service-connected right and left foot disabilities.  As such, the RO has substantially complied with the Board's instructions.

The Board is therefore satisfied that the RO has provided all assistance required by the VCAA.  38 U.S.C.A. § 5103A (West 2014).  Hence, there is no error or issue that precludes the Board from addressing the merits of the increased rating issues on appeal.

II.  Increased Rating Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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 for that rating.  38 C.F.R. § 4.7.  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 (2015).  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).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

'The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.'  Hart, 21 Vet. App. at 509.  In this case, the Veteran filed his increased rating claim for his right and left foot disabilities in September 2008.  Thus, the relevant temporal focus for the disabilities in question dates back to September 2007.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of 'the normal working movements of the body,' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).

      A.  Right and Left Feet Disabilities 

In this case, the Veteran's right and left feet disabilities are rated as 10 percent disabling for each foot under Diagnostic Code 5280, hallux valgus, unilateral.  38 C.F.R. § 4.71a (2015).  Hallux valgus is defined as an 'angulation of the great toe away from the midline of the body (toward the other toes) [that] can be caused by bunions.'  Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (citing Dorland's Illustrated Medical Dictionary 244, 729 (27th ed.1988)).  A bunion is an abnormal prominence of the inner aspect of the first metatarsal head, accompanied by bursal formation and resulting in a lateral or valgus displacement of the great toe.  See Dorland's Illustrated Medical Dictionary 261 (30th ed. 2003).

During a January 2009 VA examination, the Veteran complained of bilateral foot pain with some intermittent swelling.  The Veteran reported that he worked at DuPont until 1996.  He stated that he has been disabled since that time due to the severe nature of his pain in his hand and feet.  The examiner noted the Veteran currently is on morphine three times a day as well as an unknown muscle relaxer (was switched to Morphine from Methadone by neurology, since he has been living in the Veterans Center).  He indicated he also occasionally takes Motrin on an as-needed basis.  He reported no significant side effects from the medications, except for some sleepiness from the morphine.  There was no history of flare-ups of pain in his feet or instability.  The Veteran reported he is unemployed and he does not use orthotics or any shoe inserts or braces.  The Veteran described his foot pain as severely exacerbated by any kind of prolonged walking which affects all of his activities of daily living.  He reported that he is unable to drive at this time.  This is somewhat due to his pain as well as the medications that he is taking.  He has been instructed that he should not drive while taking morphine.  The Veteran asserted that he is unable to do any of his shopping secondary to pain and discomfort.

Upon physical examination, the examiner noted old surgical incision sites over the dorsal aspect of the right foot at the level of the phalanges.  There was also a well-healed incision over the lateral aspect of the foot over the distal aspect of the fifth metatarsal.  The skin of the foot was warm, dry, and intact.  His dorsalis pedis pulse was palpable.  His gross sensation was intact.  There was well maintained hindfoot range of motion.  There was diffuse tenderness to palpation about the right foot.  There was no midfoot instability with stress testing.  The examiner assessed a diagnosis of mild hallux valgus deformity in the right foot.  The examiner also noted a diagnosis of right foot status-post proximal interphalangeal joint fusion of digits 2 through 5, also with bunionectomy surgery.  The examiner emphasized that there was no hammertoe or claw toe formation noted on the right foot.  Upon physical examination of the left foot, the examiner indicated that the surgical incisions are all well-healed to the dorsal aspect of the foot as well as over the lateral-distal aspect of the fifth metatarsal.  There was some prominence over the midfoot noted.  His dorsalis pedis pulse was palpable.  His gross sensation was intact.  There was no midfoot, hindfoot, or ankle instability noted with stress testing.  There was no hallux valgus deformity noted on the left foot.  The examiner noted diagnoses of left foot with status-post proximal interphalangeal joint fusion.  There was no hallux valgus or claw or hammertoe deformities noted on x-ray and exam of the left foot.  Overall for both feet the surgical procedures seemed to be in good repair and good alignment.  The examiner noted no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance of both feet and toes, with repetitive use.  There was mild functional impairment of daily occupational activities due to these conditions. 

During an April 2015 VA examination, the Veteran complained of mild chronic pain in both feet.  He denied medication for pain but indicated he does use orthotics in his shoes.  The Veteran denied flare-ups and any functional loss or functional impairment.  The examiner indicated the foot disabilities do not chronically compromise weight bearing and do not require custom arch supports, orthotic inserts, or shoe modifications.  Upon physical examination, the examiner noted no pain on the right foot during physical examination.  There was objective evidence of pain on the left foot, but the examiner found the pain does not contribute to functional loss.  There was no evidence of pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time.  There was no evidence of functional loss during flare-ups or when the foot is used repeatedly over a period of time.  The examiner noted the Veteran uses a cane occasionally.  Imaging studies showed degenerative or traumatic arthritis of the left foot, and were unremarkable on the right foot.  The Veteran reported his foot pain impacts his ability to sustain prolonged standing and walking.  

VA progress notes are consistent with the VA examination reports.  In an October 2008 VA progress note, the Veteran complained of a bump on the top of his left foot that he has had for several years.  The diagnosis was possible calcified cystic formation versus exostosis dorsum of the left foot.  Additional VA treatment records include complaints of foot pain. 

During a November 2014 Board hearing, the Veteran testified that he was receiving private treatment for his right and left foot disabilities.  He complained of increased pain levels in his foot, which occasionally prevents wearing dressing shoes.  He denied taking medication, but indicated he has taken medication in the past.  He reported he sees his private examiner about once a month or every four weeks.  

Under Diagnostic Code 5280, a maximum 10 percent rating may be assigned for each foot for unilateral hallux valgus if the disability is severe, analogous to amputation of the great toe, or if operated with resection of the metatarsal head.  38 C.F.R. § 4.71a.  Thus, the currently assigned10 percent ratings are the maximum ratings available under this diagnostic code.  Accordingly, no higher evaluation is warranted under Diagnostic Code 5280.  Upon review of the evidence, the Veteran does not meet the criteria for an increased disability rating greater than 10 percent for right or left foot post-operative hallux valgus.  38 C.F.R. § 4.7.  In this regard, the Board has considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the feet.  The assignment of a particular diagnostic code is 'completely dependent on the facts of a particular case.'  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Here, the January 2009 and April 2015 VA examiners noted left foot degenerative joint disease.  Diagnostic Code 5010 directs the rater to evaluate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003.  Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joints.  When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  38 C.F.R. § 4.71a.  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, however, arthritis is rated as 10 percent disabling when shown by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when show by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Id.  Under 38 C.F.R. § 4.45, for purposes of rating disability from arthritis, multiple involvements of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints.

Significantly, however, it is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating.  38 C.F.R. § 4.59.  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  There are no diagnostic codes specific to limitation of motion of the toes.  In the present case, although a group of minor joints is not involved as only the metatarsophalangeal joint of the left great toe is affected.  In this case, the Board finds that a higher rating under Diagnostic Code 5003 (arthritis) is not warranted because two or more major joints or two or more minor joint groups are not involved.  Furthermore, there is simply no evidence of incapacitating episodes.  While the evidence of record clearly documents pain in the left foot, the lay and medical evidence does not establish or even suggest that the Veteran has had any incapacitating episodes due to the left foot disability.  The term 'incapacitating episode' is not defined under Diagnostic Code 5003.  However, other parts of the rating schedule provide guidance.  For example under 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, incapacitating episodes are defined as acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  The record simply does not demonstrate that the Veteran's left foot was of such severity that the Veteran was prescribed bedrest and treatment by a physician.  For these reasons, the Board finds that an initial disability rating in excess of 10 percent is not warranted under Diagnostic codes 5003 or 5010 for the Veteran's left foot disability.

Additionally, other diagnostic codes for foot disabilities are not more appropriate because the evidence of record does not support the presence of these foot disabilities.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (acquired flatfoot), Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (Morton's disease), Diagnostic Code 5281 (hallux rigidus); Diagnostic Code 5282 (hammer toes), Diagnostic Code 5283 (malunion or nonunion of the tarsal and metatarsal bones).  Therefore, these diagnostic codes will not be applied.  See Butts, 5 Vet. App. at 538 (choice of diagnostic code should be upheld if it is supported by explanation and evidence).

Moreover, Diagnostic Code 5284 refers to 'other' foot injuries; hallux valgus is specifically listed in the rating schedule under Diagnostic Code 5280.  Where a disability is listed in the rating schedule, rating by analogy to another disability is inappropriate.  Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (quoting Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) ('[a]n analogous rating... may be assigned 'only' where the service-connected condition is 'unlisted.'').  The Veteran's service-connected disabilities have been diagnosed as right hallux valgus and left foot degenerative joint disease and there is no other evidence of another service-connected condition of the feet; therefore, Diagnostic Code 5284 does not apply.

Accordingly, the Board concludes Veteran is not entitled to increased evaluations in excess of 10 percent for either his service-connected right or left foot disabilities.  38 C.F.R. § 4.3.

      B.  Extraschedular Rating

The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).  If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Id.  See also 38 C.F.R. § 3.321(b)(1).  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).

There is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration for either the Veteran's service-connected left or right status-post bunionectomies on an individual basis.  38 C.F.R. § 3.321(b)(1).  The Board finds that the Veteran's symptomatology for his bilateral hallux valgus on an individual basis is fully addressed by the rating criteria under which the disability is rated - Diagnostic Code 5280.  The criteria under Diagnostic Code 5280 for hallux valgus contemplate severe symptoms, analogous to amputation of the great toe, or if operated with resection of the metatarsal head.  Although the Veteran has significant feet symptoms, these are encompassed within the definition of being analogous to amputation

Because the rating criteria reasonably describe the claimant's disability level and symptomatology for his bilateral hallux valgus on an individual basis, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96.  Moreover, there are higher ratings available under the schedular rating criteria, but he has not been shown to have such foot or scar symptomatology.  The medical and lay evidence of record thus fail to show that the schedular criteria are rendered inadequate.

In addition, despite the symptoms being contemplated within the diagnostic criteria, the Board acknowledges that the Veteran's service-connected left and right foot disabilities clearly causes functional impairment, but no marked interference, at work.  The Veteran has asserted that he is unable to work, among other reasons, due to his right and left foot pain.  The Board acknowledges the difficulty that these service-connected disabilities cause the Veteran, but does not find it rises to the level of marked interference with employment.  Thus, since the Veteran's disability picture for his service-connected right and left foot disabilities on an individual basis is contemplated by the Rating Schedule, there is no exceptional disability picture that would warrant consideration of factors such as marked interference with employment or frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  See also 38 C.F.R. § 3.321(b)(1).  In making these findings, the Board has fully considered the Veteran's lay statements, but also considered these statements in light of the medical evidence interpreting the severity of these symptoms in light of the functional impact the service-connected disability creates.

Finally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's disabilities are considered by the schedular ratings assigned.  Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.



ORDER

Entitlement to a disability rating in excess of 10 percent for left foot bunionectomy is denied. 

Entitlement to a disability rating in excess of 10 percent for right foot bunionectomy is denied.


REMAND

Pursuant to the Board's 2015 remand request, the AOJ obtained a medical opinion to assist in determining the etiology of the Veteran's right and left knee disabilities.  An April 2015 VA examiner reviewed the Veteran's claims file and opined that the Veteran's knee disabilities were not caused or related to active duty service, due to the Veteran's separation evaluation report showing no knee abnormalities.  The examiner also opined that the Veteran's right and left knee disorders were not caused by or related to his service-connected foot disabilities, the rationale being that the Veteran's feet examination was normal other than well-healed bunionectomy surgeries and mild residual pain on the left foot.  This opinion however is inadequate to decide the claim.

The examiner was to expressly consider whether were caused or aggravated by his service-connected right and left foot disabilities.  The examiner was to provide supporting rationale for his or her opinion.  Unfortunately, the Board's directives were not substantially complied with and another remand is necessary.  Although the Board sincerely regrets the additional delay, an additional remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

Pertinent to the TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice, 22 Vet. App. at 453-5.  While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim, further development is necessary for a fair adjudication of the TDIU aspect of such claim.

Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim.  

Accordingly, the case is REMANDED for the following action:

1.  Provide VCAA notice regarding the issue of TDIU. 

2.  Forward the claims file to the examiner who completed the April 2015 examination report for an addendum opinion regarding the claim for right and left knee disabilities.  If unavailable, records should be forwarded to another qualified examiner.  If the examiner determines another examination is necessary, then such should be arranged.  The entire claims file, including this remand must be provided to the examiner for review, and the examination report should reflect such a review was accomplished.  Any clinically indicated testing and/or consultations should be performed.

Following a review of the claims file, and physical examination of the Veteran if deemed necessary, the examiner is requested to provide an opinion as to whether the it is as likely as not that Veteran's diagnosed right and left knee disorders were chronically aggravated due to his service-connected right and left foot disabilities beyond that which would be due to the natural progression of the disability.  

The term 'as likely as not' does not mean 'within the realm of medical possibility,' but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

The examiner should indicate in his/her report that the claims folder was reviewed.  The reasons behind all opinions expressed should be provided. 

3.  When the development requested has been completed, and after undertaking any additional development deemed by it to be appropriate, readjudicate the Veteran's claims, to include the issue of entitlement to TDIU.  If any action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



							(CONTINUED ON NEXT PAGE)

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs