Citation Nr: 1751761 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 03-21 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 40 percent for the service-connected amputation, right second toe, due to osteomyelitis with hallux valgus, right foot, status post bunionectomy, and osteotomy with calluses. 2. Entitlement to a rating in excess of 10 percent for the service-connected hallux valgus, left foot, status post bunionectomy and osteotomy of the great toe, amputation of the second toe, with calluses (excluding the period from December 15, 2010, to March 31, 2011, for which a temporary total rating due to convalescence was assigned). 3. Entitlement to Special Monthly Compensation (SMC) based on the loss of use of both feet. 4. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to September 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2004 and January 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Under this duty to maximize benefits, SMC are to be accorded when a veteran becomes eligible without need for a separate claim. See Bradley, 22 Vet. App. 280, 294 (2008). Consequently, the Board has jurisdiction over the issue of SMC and has modified the issues above accordingly. The Veteran provided testimony before a Veterans Law Judge (VLJ) during a videoconference hearing in June 2009. A transcript is of record. The Veteran was informed that the VJL who previously presided in this matter was unavailable and was provided with an opportunity for a second hearing by way of a June 2017 correspondence. The Veteran elected to proceed without a second hearing per his July 2017 response. When this matter was most recently before the Board in March 2013 it was remanded for additional development and to ensure that the Veteran was informed as to what the evidence must show for the Veteran's claims to be granted. Following this remand, the matter has now returned to the Board and is ready for decision. FINDINGS OF FACT 1. When considering the functional loss caused by the Veteran's pain from his various foot conditions, the Veteran's right foot disability is best characterized as a loss of use of the foot. 2. When considering the functional loss caused by the Veteran's pain from his various foot conditions, the Veteran's left foot disability is best characterized as a loss of use of the foot. 3. Resolving all reasonable doubt in favor of the Veteran the Board finds that for the entire period on appeal theVeteran has experienced the loss of use of both feet due to his service-connected bilateral foot disabilities, 4. The evidence of record demonstrates that throughout the appeal period the Veteran has been unable to secure or follow substantially gainful employment as a result of his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the service-connected amputation, right second toe, due to osteomyelitis with hallux valgus, right foot, status post bunionectomy, and osteotomy with calluses have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5167 (2016). 2. The criteria for a rating of 40 percent and no greater for the service-connected hallux valgus, left foot, status post bunionectomy and osteotomy of the great toe, amputation of the second toe, with calluses rated as loss of use of the foot for the entire period on appeal have been met. (excluding the period from December 15, 2010, to March 31, 2011, for which a temporary total rating due to convalescence was assigned). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5167 (2016). 3. The criteria for an award of SMC under subsection (l) based on loss of use of both feet due to service-connected bilateral feet disabilities have been met. 38 U.S.C.A. §§ 1114, 5107 ; 38 C.F.R. §§ 3.102,3.350, 3.352(a). 4. The criteria for an award of TDIU have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DUTIES TO ASSIST AND NOTIFY Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). MERITS OF THE CLAIM I. GENERAL PRINCIPLES APPLICABLE TO INCREASED RATING CLAIMS Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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). The Court has 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). 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). 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, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2014). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Notably, the provision regarding the avoidance of pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. II. ENTITLEMENT TO INCREASED BILATERAL FOOT RATING The Board finds that the maximum schedular rating of 40 percent for each one of the Veteran's feet under Diagnostic Code 5167 for loss of use of the foot is the appropriate rating as the Veteran's disability more nearly approximates the loss of use of the feet based functional loss due to pain. The Board notes that this represents the maximum schedular rating for each foot under the applicable diagnostic codes, and that it contemplates the Veteran's disability picture as it represents the VA's approximation of the economic impact represented by loss of use of each foot. This also constitutes a denial of an increased rating for the right foot, and a grant of an increased rating for the left foot. Loss of use of the foot" means that no effective function remains other than that which would be equally well-served by an amputation stump below the knee with use of a suitable prosthetic appliance. Id., Tucker v. West, 11 Vet. App. 369, 373 (1998) (holding that the relevant inquiry is not whether amputation is warranted but whether the veteran has any effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance). The Board acknowledges that the VA medical examiners have indicated that the Veteran's disability of the feet is not so severe so as to be equally served by amputation. However, while the Board considers these medical opinions valuable, The responsibility for determining whether there is loss of use rests with the adjudicator, meaning, the Board. VBA Manual M21-1, IV.ii.2.H.1.b. Consequently, the Board makes its own determination that the Veteran has suffered the loss of use of both feet based on the Veteran's significant pain and required use of a wheelchair. As the Veteran's representative correctly points out, the medical evidence of record strongly supports the finding that the Veteran's disability picture best represents a loss of use of both feet. An October 2011 VA Medical Examination indicates that the Veteran may only walk a few feet, and that this is only with the assistance of another person. The February 2015 VA Medical Examination along with the two subsequent addendums indicate that the Veteran's condition has not improved since at least 2011, and in fact, the left foot may have worsened. The 2015 examiner also indicated that it would not be possible to differentiate the Veteran's foot symptomatology based on service-connected and non-service connected conditions. The reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The other medical evidence of record also supports the conclusion that when factors set forth in 38 C.F.R. §§ 4.40, 4.45, and DeLuca are considered, the Veteran's disability for the entire period on appeal has been characterized by the loss of use of both feet. Consequently, the Board grants an increase to 40 percent for the Veteran's left foot under the criteria governing loss of use, and denies entitlement to a rating in excess of 40 percent for the right foot as the Veteran is already compensated for the total loss of use of this foot. Neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change disability rating assigned for the loss of use. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155 . . . or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252 (b). That provision squarely precludes the Veterans Court from determining whether the schedule . . . substantively violates statutory constraints."). However, the Board may assign the Veteran SMC to further compensate him for his disability. III. ENTITLEMENT TO SPECIAL MONTHLY COMPENSATION The Veteran is entitled to Special Monthly Compensation (SMC) because his disability is characterized by loss of use of both feet. SMC will be awarded for the anatomical loss of a foot, or where there is "loss of use" of the foot. 38 U.S.C.A. § 1114(k); 38 C.F.R. §§ 3.350(a)(2). In the previous section the Board found that the Veteran's disability is best characterized by the rating that encompasses the loss of each foot. Accordingly, the criteria for an award of SMC under subsection (l) based on loss of use of both feet due to service-connected bilateral feet disabilities have been met. IV. TOTAL DISABILITY EVALUATION BASED ON INDIVIDUAL UNEMPLOYABILITY DUE TO SERVICE CONNECTED DISABILITIES The Veteran is entitled to TDIU for the entire period on appeal as his service-connected disabilities have precluded him from obtaining employment due to his inability to stand, walk, lift, or adequately deal with his pain in an employment setting. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Board notes that because of the increased ratings granted in this decision, the Veteran meets the schedular criteria for a TDIU as his combined rating is greater than 70 with a single disability rated at 40 percent or more. See 38 C.F.R. § 4.16. Further, this matter was sent by the RO to the Director for Compensation and Pension Services for consideration of TDIU on an extraschedular basis, where the claim was denied. As the Board has the authority to to review the Director's determinations de novo, the Board has the authority to grant TDIU on either extraschedular or schedualr basis for the entire period on appeal. The Board finds that the requirements for entitlement to TDIU have been met for the entire period on appeal. First, the record shows that VA examiners consider the Veteran's disabilities render him unable to secure employment. For example, the February 2015 VA medical examiner concluded that the Veteran's bilateral feet disabilities would make it impossible for him to obtain employment where he had to walk, lift, or stand and that his ability to sit would be limited by his pain. The Board finds this this conclusion persuasive and the record does not contain any persuasive contrary evidence. Since the Board is not aware of any job that could accommodate the Veteran's physical limitations, the consideration of previous experience and education is moot. Accordingly, the Board grants entitlement to TDIU for the entire period on appeal. ORDER Entitlement to a rating in excess of 40 percent for the service-connected amputation, right second toe, due to osteomyelitis with hallux valgus, right foot, status post bunionectomy, and osteotomy with calluses is denied. Entitlement to the maximum rating of 40 percent for the service-connected hallux valgus, left foot, status post bunionectomy and osteotomy of the great toe, amputation of the second toe, with calluses (excluding the period from December 15, 2010, to March 31, 2011, for which a temporary total rating due to convalescence was assigned) is granted pursuant to Diagnostic Code 5167. Entitlement to SMC under 38 U.S.C.A. § 1114(l) based on the loss of use of both feet is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to TDIU for the entire period on appeal is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs