Citation Nr: 1715327	
Decision Date: 05/08/17    Archive Date: 05/22/17

DOCKET NO.  13-13 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey 


THE ISSUES

1.  Entitlement to an increased rating for hallux rigidus on the right, short great and 5th toes caused by osteotomies, currently rated as 10 percent disabling.

2.  Entitlement to an increased rating for lumbar strain with degenerative disc disease, currently rated as 10 percent disabling 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.Connolly, Counsel



INTRODUCTION

The Veteran served on active duty from August 1983 to August 1989.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the Newark, New Jersey, Regional Office.  In May 2015, the Board remanded this case.

The issue of an increased rating for lumbar strain with degenerative disc disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). 


FINDING OF FACT

The Veteran's hallux rigidus on the right, short great and 5th toes caused by osteotomies does not result in impairment which is the functional equivalent of amputation.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for hallux rigidus on the right, short great and 5th toes caused by osteotomies are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71, Diagnostic Code 5280, 5281 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information in a September 2010 letter prior to the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claims.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's treatment records have been obtained and associated with the record.  The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the United States Court of Appeals for Veterans Claims (the Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  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).   

The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements.  See Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman, No. 15-1357, 2016 WL 7240720.  In this case, the Veteran is not rated based on his range of motion, as indicated below, but the symptom has been considered.  

In October 2010, the Veteran was afforded a VA examination.  He reported that he was not under treatment for his foot, but would take Aleve as needed.  He previously underwent metatarsal joint repair surgery and 5th toe right foot osteotomy.  The Veteran reported having pain (while standing and walking, swelling (while standing and walking), heat (while standing and walking, stiffness (while standing and walking, weakness (while standing and walking), lack of endurance (while standing and walking).  The pain was located in big toe joint arch area of the 5th toe, the swelling, heat, stiffness, weakness, and lack of endurance was located in big toe joint.  He had pain on motion of the great and 5th toes.  He also had tenderness upon palpation head of 1st metatarsal.  He reported flare-ups occurring weekly or more often and lasting less than a day.  Standing for long periods and putting shoes on precipitated pain, but resting and pain reliever alleviated pain.  He was able to stand 15-30 minutes and walk 1/4 mile.  The presence of callosities revealed abnormal weight bearing.  He did not have other foot abnormalities.  X-rays revealed osteotomy with 2 cannulated screws in 1st metatarsal and osteotomy of proximal phalanx of 5th metatarsal.  With regard to employment, the Veteran had decreased mobility and problems with lifting and carrying objects.  The Veteran was employed full-time and had lost less than a week from his job.  The Veteran had severe impairment for sports and exercise; moderate impairment for dressing, and mild impairment for shopping and traveling.

The Veteran was afforded another VA examination in December 2015.  It was noted that the Veteran had hallux rigidus on the right side with short great toe and 5th toe caused by osteotomies.  The Veteran stated that his big toe and 5th toe of the right foot were painful, hurt all the time, and when he was standing/walking then the pain was worse.  When he would walk barefoot, the pain was bad.  He reported that he could not wear some shoes.  He also had to be careful while stepping on his right foot.  He stated his right foot hurt even when he was sitting.  He had flare-ups and would not ambulate due to pain.  The examiner opined that the symptoms were mild to moderate.  The aspect of the toes being short was considered a mild impairment.

The Veteran has been assigned a 10 percent rating under Diagnostic Code 5281 for his right foot disabilities.  This code contemplates ratings for hallux rigidus, unilateral, severe.  This code instructs that the condition should be rated as severe hallux valgus, under Diagnostic Code 5280.  Under those criteria, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe, if equivalent to amputation of the great toe.  The Veteran is receiving the maximum 10 percent rating.  The Veteran has undergone osteotomies and although the last examiner described the disability as mild to moderate, with pain considered, the disability is severe.

With regard to other potential diagnostic codes for rating the feet, the Veteran does not have the conditions (nor are they service-connected) which permit higher ratings, such as pes cavus, pes planus, and malunion or nonunion of tarsal or metatarsal bones.  The only remaining diagnostic code which may apply and which permits higher ratings is Diagnostic Code 5284.  

Under Diagnostic Code 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe.  With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167.  However, Diagnostic Code 5284 does not apply to the eight foot conditions specifically listed in the rating schedule under Diagnostic Codes 5276-5283.  Specifically, Diagnostic Code 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code.  The Court has held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284.  Copeland v. McDonald, 27 Vet. App. 333, 337 (2015).  That is the case here as the Veteran is service-connected for his hallux rigidus.  As such, Diagnostic Code 5284 is not for application.  

Finally, higher ratings may be assigned for amputation where there is: amputation of the great toe with metatarsal involvement warrants a 30 percent rating; amputation of one or two toes with metatarsal involvement warrants a 20 percent rating; and amputation of toes three or four without metatarsal involvement and including the great toe, warrants a 20 percent rating.  See Diagnostic Codes 5171, 5172, and 5173.  However, the Veteran does not have amputation and he is able to ambulate.  The evidence does not show that the affected toes are functionally the equivalent of amputations of those toes.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a rating in excess of 10 percent.  

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular 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).

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran'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."  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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's right foot disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe the disability symptomatology.  There have not been any hospitalizations or marked interference with employment.  The Veteran is employed full-time and has sustained this employment for years.  Therefore, the Board finds that the record does not reflect that the feet disabilities is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis.


ORDER

An increased rating for hallux rigidus on the right, short great and 5th toes caused by osteotomies is denied.


REMAND

The Board remanded this case for the Veteran to be afforded a VA examination.  The examination was conducted in December 2015, but the examiner could not perform range of motion due to the Veteran's complaints of pain and dizziness.  However, contemporaneous 2015 VA outpatient records, particularly those dated in March 2015, indicated that the Veteran denied having any dizziness on a neurological evaluation and also denied having pain.  As such, it appears that the complaints of pain and dizziness are intermittent and another attempt should be made to examine him.  In addition, the Court has recently issued the opinion of Correia, which clarified additional requirements that VA examiners should address when assessing musculoskeletal disabilities, particularly in terms of limitation of motion on active/passive motion and weight-bearing/non-weight-bearing.

In that regard, in that case, the Court required a pain assessment in an examination in order for the examination to be adequate.  Specifically, the examiner must test for pain in both active and passive motion, as well as in weight-bearing and no weight bearing.  Such testing has not been performed in this case.  Thus, the new examination should also comply with Correia.  The examiner must test for pain in both active and passive motion, as well as in weight-bearing and no weight bearing.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature and extent of her service-connected lumbar spine disabilities.  The examiner should review the record prior to examination.  

The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for spine disabilities.  The DBQ should be filled out completely as relevant.

The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and no weight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  If the Veteran indicates that pain prevents testing, the examiner should clearly state if the pain is due to orthopedic, neurological, or other reasons.

In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability.  

Any opinions expressed by the examiner must be accompanied by a complete rationale.

2.  Review the medical examination obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

3.  Readjudicate the claims on appeal in light of all of the evidence of record.  If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

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).

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).




______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs