Citation Nr: 1752464 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 15-42 469 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to an initial, compensable disability rating for degenerative changes of the right foot, prior to November 1, 2012. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD Roya Bahrami, Counsel INTRODUCTION The Veteran had active service from January 1967 to July 1989. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2012 rating decision in which the RO, inter alia, granted service connection for degenerative changes of the right foot, and assigned a noncompensable rating, effective February 28, 2011. The Veteran filed a notice of disagreement (NOD) in August 2012. In an August 2013 rating decision, the RO assigned a higher, 20 percent rating for degenerative changes of the right foot, effective November 1, 2012. The Veteran submitted a second NOD in September 2013 in which he asserted that the 20 percent rating was warranted from February 28, 2011, the date of his initial claim for service connection, because he filed a timely NOD with the July 2012 rating decision. In a December 2013 statement of the case (SOC), the RO characterized the claim adjudicated as one for an earlier effective date Veteran's claim as one of entitlement to an effective date prior to November 1, 2012, for the increased rating of 20 percent for degenerative changes of the right foot. The Veteran filed a substantive appeal (via letter in lieu of VA Form 9, Appeal to Board of Veterans' Appeals) in January 2014. Here, the Board has phrased the issue as entitlement to a compensable rating for degenerative changes of the right foot prior to November 1, 2012 because, in essence, the RO has granted a staged rating and part of the appeal has been satisfied by the award of a 20 percent rating from November 1, 2012. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (where a veteran timely appeals a rating initially assigned when service connection is granted, the Board must consider entitlement to "staged" ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the appeal. There is therefore no issue with regard to an impermissible freestanding claim for an earlier effective date. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In March 2017, the Board denied the claim for compensable rating for degenerative changes of the right foot, prior to November 1, 2012. The Veteran appealed the March 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the Court issued a Joint Motion for Remand (JMR) filed by representatives for both the Veteran and the VA Secretary, vacating the Board's decision as to the denial of a compensable rating for service-connected right foot disability prior to November 1, 2012, and remanding the claim to the Board for further proceedings consistent with the JMR. While the Veteran previously had a paper claims file, this appeal is now e being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) paperless, electronic claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. For the period from February 28, 2011 through October 31, 2012, the Veteran's degenerative changes of the right foot was manifested by complaints of pain productive of functional loss. 3. The schedular criteria are adequate to rate the Veteran's degenerative changes of the right foot at all pertinent points prior to November 1, 2012, and no claim of unemployability due solely to the right foot disability has been raised . CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent, but no higher disability rating, for service-connected degenerative changes of the right foot, from February 28, 2011 to October 31, 2012, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.31, 4.40. 4.45, 4.59. 4.71a, Diagnostic Codes 5284-5010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is received, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See Pelegrini v. Principi, 18 Vet. App. 112 (2004 and Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With to the claim herein decided, pertinent notice provided in connection with the service connection claim. Where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103 (a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess v. Nicholson, 19 Vet. App. 473,490-491 (2006). Moreover, neither the Veteran nor his attorney has alleged or demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notably, the SOC and SSOCs have set forth the applicable criteria for higher ratings, and for extra-schedular consideration. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of VA treatment records and VA examination reports. Also of record and considered in connection with the claim are the written statements provided by the Veteran and his representative. The Board finds that no additional AOJ action on this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, the Veteran is not prejudiced by the Board proceeding to a decision on matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following a grant of service connection, rating of the medical evidence since the award to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran filed an initial claim for service connection for right foot disability secondary to service-connected left ankle disability on February 28, 2011. In a July 2012 rating decision, the AOJ granted service connection for degenerative changes of the right foot, and assigned a 0 percent (noncompensable) disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5284-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. Here, the hyphenated code indicates disability involving both foot injury (DC 5284) and resulting traumatic arthritis (DC 5010). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under Diagnostic Code 5284, foot injuries are rated as 10 percent disabling when moderate, as 20 percent disabling when moderately severe, and as 30 percent disabling when severe. 38 C.F.R. § 4.71a, DC 5284 (2017). With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5284 (2017). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2017). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in reaching a rating decision. 38 C.F.R. §§ 4.2, 4.6. Disabilities rated under Diagnostic Code 5010 are, in turn, rated pursuant to the criteria of DC 5003. Under DC 5003, arthritis that is established by X-ray will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate code, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2017). In such cases, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Notably, there is no diagnostic code pursuant to which range of motion of the overall foot is evaluated, and the rating schedule does not include any specific provision providing for the assignment of compensable ratings for limitation of motion of individual digits (fingers or toes). See 38 C.F.R. § 4.71a. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. On April 2011 VA examination, the Veteran reported that he developed insidious onset of right foot and heel pain approximately four years prior. He sought treatment by a private provider and was told that his right foot and heel pain was due to his altered gait. He had subsequently undergone three cortisone injections into the right foot, which significantly relieved his right foot and heel pain. He reported intermittent right foot and heel pain with weightbearing activities such as standing and walking. For example, he experienced foot pain after only 15 minutes of standing and walking, although it was also noted standing and walking tolerance were primarily limited by his left ankle condition. He reported no associated weakness or fatigue of the right foot with weightbearing activities. He reported no symptoms of pain, weakness or fatigue while at rest. He took no medication for this condition other than the cortisone injections. He intermittently used over-the-counter shoe inserts, which were not reported to be helpful. On physical examination, there was no evidence of painful motion. There was no evidence of edema, weakness, instability, or tenderness to palpation of the foot. There was no pain with passive or active manipulation of the foot. There were no hammer toe deformities. He had a normal arch. There was a mild bunion at the first metatarsophalangeal joint which was nontender to palpation and did not interfere with range of motion. Weightbearing was normal without excessive pronation and without arch collapse. There were no calluses or areas of skin breakdown. Shoe slightly increased lateral heel wear. The Achilles tendon was nontender to palpation. Alignment was neutral with weightbearing. There was no tenderness to palpation over the metatarsals, metatarsophalangeal joints, great toe, Achilles tendon, longitudinal arch, or heel. There was no pain with active or passive manipulation of the foot. Range of motion of the forefoot and toes was normal and pain free. After repeat testing times three against resistance, there was no change in active or passive range of motion and no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, instability, or acute flares. A November 2010 x-ray revealed mild degenerative changes, first metatarsophalangeal joint. The examiner diagnosed right foot degenerative joint disease and calcaneal spurs. VA treatment records dated in February 2012 reflect that the Veteran presented twice with complaints of pain in the right foot. During his second visit, a podiatrist assessed intractable plantar keratosis, right, sub-first metatarsal head. Based on the foregoing, the Board finds that a higher, 20 percent rating pursuant to DC 5284 is not warranted prior to November 1, 2012. As noted above, the April 2011 VA examination report indicates that the Veteran reported intermittent right foot and heel pain with weightbearing activities such as standing and walking, however, standing and walking tolerance were primarily limited by his left ankle condition. Moreover, the Veteran reported no associated weakness or fatigue of the right foot with weightbearing activities, nor did he report symptoms of pain, weakness or fatigue while at rest. The Veteran's reports were confirmed by the April 2011 physical examination, which revealed no painful motion, functional loss, or other foot abnormalities. Collectively, this evidence indicates that the Veteran's disability is less than moderate in severity, pursuant to DC 5284. Again, the term "moderate" is not defined by regulation; however, the overall regulatory scheme contemplates 10 percent ratings in cases of ankylosis in good weight bearing position, or problems so disabling that there is atrophy, disturbed circulation and weakness, or where there is inward bowing of the tendo Achillis with pain on manipulation and use, or definite tenderness with dorsiflexion of the great toe and limitation of dorsiflexion of the ankle. See 38 C.F.R. § 4.71a, DC 5270, 5276, 5277, 5278. The record does not indicate that the Veteran's foot disability approximates such degree of severity for the time period in question. No such comparable disability is shown in this case. Thus, the Board finds that the Veteran does not meet the criteria for a compensable rating under DC 5284. However, as noted above, in Burton, the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, the Board should address its applicability. While compensable limitation of motion was not demonstrated on April 2011 VA examination, the pertinent evidence does reflect that he complained of painful motion of his right foot. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §4.59; Burton, 25 Vet. App. at 3-5. A veteran experiencing an actually painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate diagnostic code to the joint involved. In other words, section 4.59 does not require "objective" evidence of painful motion. If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. Petitti v. McDonald, 27 Vet. App. 415, 424-30 (2015). There is credible medical and lay evidence that the Veteran has experienced pain in the right foot resulting in some functional loss. Thus, for period from February 28, 2011 through October 31, 2012, a 10 percent rating for degenerative changes of the right foot is warranted under DC 5003. 38 C.F.R. § 4.59, Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5, The Board notes that the Veteran's disability is not shown to involve any other factor(s) warranting evaluation under any potentially applicable diagnostic code. The medical evidence of record prior to November 1, 2012 is devoid of any findings of flatfoot, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe or malunion or nonunion of the metatarsal bones, Morton's neuroma or other right foot deformity. Thus, he is not entitled to a higher l or additional rating under DCs 5276, 5277, 5278, 5279, 5280, 5281, 5282, or 5283, respectively. With regard to extra-schedular consideration, the Board finds that at no point prior to November 1, 2012 was the disability under consideration shown to be so exceptional or so unusual s to render inadequate the applicable schedular criteria for rating the disability, and to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veteran's claims,(Court), explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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 rating is, therefore, adequate, and no referral is required. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has compared the level of severity and symptomatology of the Veteran's service-connected disability at issue with the established criteria found in the rating schedule. The Board finds that the disability at issue is fully addressed by the rating criteria under which this disability is rated, as the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to the service-connected disability at issue and there are no additional symptoms of this disability. In this regard, as described above, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the Veteran's service-connected right foot disability at issue. The rating criteria under Diagnostic Code 5284 allow for the Veteran's left foot disability to be rated based on severity of symptoms. Any symptom which the Veteran could possibly have would be considered under the categories of moderate, moderately severe, or severe. The Board has additionally considered various diagnostic codes applicable to the foot, as well as 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or malaligned joints, and crepitation as well as any painful arthritic motion. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disability addressed above at all pertinent points. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. The Board also notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where rating of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. In this case, however, the Veteran's right foot disability is appropriately rated as a single disability. As this matter does not involve rating of multiple service-connected disabilities, the holding of Johnson is inapposite here. Under these circumstances, the Board concludes that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) are not met, and that referral of the claim for extra-schedular consideration is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board acknowledges that, if the claimant or the record reasonably raises a question as to whether a veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, there is no specific evidence that, for the period in question, the Veteran's degenerative changes of the right foot, alone, rendered him unable to secure or follow a substantially gainful occupation; as there is no suggestion of actual or effective unemployment due solely to the service-connected degenerative changes of the right foot, consideration of a TDIU in connection with the higher rating claim on appeal is not warranted. For all of the foregoing reasons, the Board concludes that initial, 10 percent, but no higher, rating is warranted for service-connected degenerative changes of the right foot for the pertinent period prior to November 1, 2012. . The Board has favorably applied the benefit-of-the-doubt doctrine in reaching the decision to award the initial 10 percent rating, but finds that the preponderance of the evidence is against assignment of any higher or additional rating at any pertinent point. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial 10 percent rating for degenerative changes of the right foot, from February 28, 2011 through October 31, 2012, is granted, subject to the legal authority governing the payment of compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs