Citation Nr: 1753437 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-20 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to a disability rating higher than 10 percent for right foot osteoarthritis. REPRESENTATION Veteran represented by: American Ex-Prisoners of War, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1978, and from April 1979 to July 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board previously remanded these issues in September 2016 and June 2017 for further evidentiary development. In June 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been included in the record. FINDINGS OF FACT 1. Service connection was granted for arthritis under diagnostic code 5003. The Veteran has arthritis of the left hip and intercurrent cause is not shown. By law, arthritis is a chronic disease. 2. The Veteran's right foot osteoarthritis is manifested by pain as well as limitation of motion and is of no greater than moderate impairment. CONCLUSIONS OF LAW 1. Left hip arthritis is a subsequent manifestation of the already service connected arthritis (rated under 5003). 38 U.S.C.A. § 1101 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for a disability rating in excess of 10 percent for right foot osteoarthritis are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a left hip disability and an increased disability rating for right foot osteoarthritis. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in September 2016 and June 2017, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to obtain outstanding Social Security Administration (SSA) records as well as obtain a medical opinion as to the etiology of the Veteran's left hip disability and the severity of his right foot osteoarthritis. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the AOJ obtained outstanding SSA records and the Veteran was provided VA examinations for his left hip disability and right foot osteoarthritis. The Veteran's claims were readjudicated most recently via a September 2017 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist VA has a duty to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. This notice must specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). In a letter mailed to the Veteran in August 2012, prior to the initial adjudication of his service connection claim, VA satisfied this duty. The Board notes that the claim for initial increased disability rating for right foot osteoarthritis is a downstream issue from a rating decision dated in June 2011, which initially established service connection for this disability and assigned the initial rating and its effective date. The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thus, to the extent that there is any noncompliance with the statutorily prescribed VCAA notice requirements with respect to the claim for an initial increased disability rating for right foot osteoarthritis, such noncompliance is deemed to be non-prejudicial to this specific claim. VA also has a duty to assist a claimant in the development of his claims. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2017). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. There is no reasonable possibility that further assistance would aid in substantiating the claims. The pertinent evidence of record includes statements from the Veteran, service treatment records, Social Security Administration (SSA) records, as well as VA treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection and increased rating claims. Here, during the June 2016 Board hearing, the VLJ clarified the issues on appeal (service connection for left hip disability and increased rating for right foot osteoarthritis); clarified the concept of service connection and increased rating claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran's left hip disability and service as well as the current severity of the right foot osteoarthritis; clarified the type of evidence that would support the Veteran's claims; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Veteran was afforded a VA examination for his left hip in January 2017 and for his right foot in February 2011 and January 2017. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. 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). Accordingly, the Board will proceed to a decision. Service connection for left hip disability The Veteran contends that he has a left hip disability that is related to his service, to include injury from playing football. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2017). The AOJ granted service connection for arthritis of a foot under diagnostic code 5003. Therefore, the AOJ accepted that there was a chronic disease, arthritis. 38 U.S.C.A. § 1101. If the AOJ had intended the grant of service connection to be of traumatic origin, the AOJ would have selected the appropriate diagnostic code. Section 3.303 is clear, subsequent manifestations of the same disease process are service connected unless due to intercurrent cause. Intercurrent cause is not shown and service connection as a manifestation of the already service connected arthritis is warranted. Higher evaluation for right foot osteoarthritis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's right foot osteoarthritis is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis). Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a . Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a . 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 (2017); 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). 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. 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 Veteran was provided a VA examination in February 2011. He reported that he injured his right first toe from playing football in service. He further noted pain in his right foot which was progressively worse since his discharge from service. Pain was alleviated by rest, elevation, and massaging the right first toe. He did not use medication, heat, or cold for treatment. He used a cane for ambulation. The VA examiner recorded symptoms of pain, redness and stiffness while standing, walking, and at rest as well as fatigability, weakness, and lack of endurance while standing and walking. The location of the pain, redness, and stiffness was in the big toe joint and the fatigability, weakness, and lack of endurance was in the entire foot. There was no swelling or heat. Functional limitations included being unable to standing for more than a few minutes and walk for more than a few yards. The Veteran reported that the right foot disability had no effect on feeding; mild effect on chores, shopping, recreation, traveling, bathing, toileting, and grooming; moderate effect on exercise and driving; and prevented him from playing sports. Upon examination, the examiner reported evidence of painful motion, swelling, tenderness, instability, and abnormal weight bearing in the first metatarsophalangeal joint. Active and passive range of motion of the first metatarsophalangeal joint was less than 8 degrees with available dorsiflexion from the neutral position. There was also 15 degrees valgus deviation noted in the first toe to first metatarsal relationship. The examiner also noted antalgic gait favoring the right foot but otherwise normal. An X-ray report revealed impressions of no acute fracture or dislocation; probable intracapsular body medial aspect of the first interphalangeal joint; and osteoarthritis. The examiner diagnosed the Veteran with right foot hallux rigidus/limitus and osteoarthritis. The Veteran was provided another VA examination in January 2017. The VA examiner recorded diagnoses of hallux valgus, hallux rigidus, osteoarthritis, and a bone spur of the right big toe. The Veteran reported that he is unable to bend his right big toe which was stiff and painful with walking, running, and standing. He had elevated and reddened areas on the sides of his toe due to irritation from his shoe. He did not report flare-ups. Functional limitations consisted of difficulty bending and walking long distances. The examiner specifically noted moderate severity of the right foot and further noted that while the disability did not compromise weight bearing, the Veteran required soft top shoes with extra width to minimize irritation to the right big toe. The examiner also noted that the right foot disability was manifested by less movement than normal, pain on movement, pain on weight bearing, and disturbance of locomotion. With regard to the diagnosed right foot conditions, the examiner noted that hallux rigidus is defined as arthritis of the big toe and the Veteran developed hallux valgus as a complication of the hallux rigidus. She further noted that bone spurs can result from the arthritis in the right big toe since there is rubbing, irritation, and stiffness of the big toe. The Veteran also reported symptoms associated with his right foot osteoarthritis at the June 2016 Board hearing. He testified that he is unable to lift anything due to the pain in his foot and is unable to bend his big toe. He further stated that walking is painful. Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent under Diagnostic Code 5003 for his right foot osteoarthritis. When rating joints, painful motion is an important factor of disability. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has consistently reported pain in his right foot, and his complaints are credible. These findings are consistent with a 10 percent disability rating. An evaluation in excess of 10 percent is not available under Diagnostic Code 5003 as there is not X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a. Further, the record does not show that the foot disability is moderately severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board acknowledges the Veteran's complaints of symptoms associated with the right foot disability which includes pain, redness, stiffness, fatigability, weakness, and lack of endurance as well as difficulty standing, walking, lifting objects, and running. However, he reported mostly a mild effect on daily activities during the February 2011 VA examination. Further, the January 2017 VA examiner specifically noted moderate severity of the right foot due to the disability after examination of the Veteran. Additionally, although the January 2017 VA examiner reported hallux rigidus and hallux valgus, these disabilities are associated with the right foot osteoarthritis and are manifested by similar symptomatology. As such, a separate rating for these disabilities is not warranted. See 38 C.F.R. § 4.14 (2017). In accordance with 38 C.F.R. §§ 4.40, 4.45 and DeLuca, the Board has considered the Veteran's pain, swelling, weakness and excess fatigability. However, these symptoms have been accounted for in the currently assigned evaluation. As such, the currently assigned evaluation contemplates the Veteran's subjective complaints and the documented objective findings. Accordingly, the assignment of a rating in excess of 10 percent for the Veteran's right foot osteoarthritis is not warranted at any time during the course of the appeal. ORDER Entitlement to service connection for a left hip arthritis is granted. Entitlement to a disability rating higher than 10 percent for right foot osteoarthritis is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs