Citation Nr: 1753978	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  13-25 837	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUES

1.  Entitlement to an initial rating for a left hip stress fracture and trochanteric bursitis (left hip disability), in excess of 10 percent from May 26, 2009, to October 25, 2015, and in excess of 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion, all from October 26, 2015.

2.  Entitlement to service connection for left foot metatarsalgia.

3.  Entitlement to service connection for left sided hypesthesia.  

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to December 3, 2014.  




REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 2005 to May 2009.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The appeal was certified to the Board by the RO in Cheyenne, Wyoming.  

In November 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

The case was most recently remanded by the Board to the Agency of Original Jurisdiction (AOJ) in July 2015 for additional development.  The case has since been returned to the Board for review.

The issue of entitlement to a TDIU prior to December 3, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's left hip disability was manifested by painful motion from May 26, 2009, to October 25, 2015.  

2.  From October 26, 2015, the Veteran's left hip disability has been manifested by no more than objective findings of left hip bursitis that resulted in less movement than normal, with extension to 5 degrees, flexion to 90 degrees, abduction lost beyond 10 degrees, and rotation greater than 15 degrees with toes-out; there was no objective finding of instability, flailed joint, impairment of the femur, painful motion, or ankylosis.

3.  The Veteran does not have left foot metatarsalgia.  

4.  The Veteran does not have left sided hypesthesia.


CONCLUSIONS OF LAW

1.  From May 26, 2009, to October 25, 2015, the criteria for an initial disability rating for a left hip disability, in excess of 10 percent have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2017).

2.  From October 26, 2015, the criteria for an initial disability rating in excess of 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion for a left hip disability have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5251, 5252, and 5253 (2017).

3.  Left foot metatarsalgia was not incurred or aggravated in active service.  38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017).

4.  Left sided hypesthesia was not incurred or aggravated in active service.  38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Ratings

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. § 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).

Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted.  In that case, the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App. 505 (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. § 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 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.

Subsequent to the last VA examination for hip and thigh conditions in November 2015, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  A review of the record reveals that the November 2015 VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion.  They also do not specify whether the results are weight-bearing or non-weightbearing.  Nevertheless, the Board finds that a remand to satisfy the requirements of Correia is not warranted here.  Initially, remanding for another examination would not remedy the lack of testing performed at the Veteran's prior VA examinations.  With regard to the most recent November 2015 VA examination, the Board finds that upon active range of motion testing, the clinical evidence shows that the Veteran exhibited no objective evidence of painful motion.  The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain.  In this case, the Veteran's lack of objective evidence of pain during his current November 2015 VA examination demonstrates that Correia does not apply. 

The Veteran's left hip disability has been rated under the provisions of Diagnostic Codes 5251, 5252, and 5253.  38 C.F.R. § 4.71a.  Diagnostic Codes 5251, 5252, and 5253 provides for the evaluation of limitation of motion of the thigh.  See 38 C.F.R. § 4.71a.  

Diagnostic Code 5251 provides a sole 10 percent rating for extension of the thigh limited to 5 degrees. 

Under Diagnostic Code 5252, a Veteran is entitled to a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. 

Diagnostic Code 5253 provides for a 10 percent rating where there is impairment of the thigh, resulting in limitation of rotation of the affected leg, such that she cannot toe-out more than 15 degrees, or there is a limitation of abduction such that the Veteran cannot cross her legs.  A 20 percent rating is warranted under Diagnostic Code 5253 where impairment of the thigh causes limitation of abduction of, motion lost beyond 10 degrees.  38 C.F.R. § 4.71a.

Normal flexion of the hip is from 0 degrees to 125 degrees, and normal abduction is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71 Plate II (2017).

The Veteran contends that her service-connected left hip disability is worse than presently rated.

In November 2009, the Veteran underwent a VA examination for her left hip.  The Veteran's claims file was reviewed.  The Veteran developed pain in the left groin after running around April 2006.  She reported the pain as constant, moderate, and achy.  She stated that the pain was worse during pregnancy.  An August 2006 x-ray was negative for any abnormality.  No flare-ups were reported.  On examination, no deformity, instability, weakness, episodes of dislocation or subluxation, locking episodes, swelling, effusion, heat, or redness was found.  The Veteran reported stiffness.  No assistive devices were used.  She reported a limitation of walking two to three blocks and standing 20 to 30 minutes.  On examination, the Veteran's left hip had 0 to 90 degrees of flexion, 0 to 30 degrees of extension, and 0 to 45 degrees of abduction.  She was able to cross her left leg over the right and cant her toes past 15 degrees.  There was objective evidence of pain during the initial examination and upon repetitive testing.  No additional functional loss was noted upon repetitive testing.  No crepitus, deformity, or tenderness was noted.  The examiner diagnosed the Veteran with a left hip stress fracture and trochanteric bursitis.  

VA records dated in August 2011 show that the Veteran complained of increased pain in her hip when she walked longer than 30 minutes.  She also had an increase in "snaps, crackles and pops" in the hip.  

A June 2013 physical therapy consult indicates that she had an aspiration and irrigation of the left hip in May 2010 and that after the aspiration she started having significantly more pain on the left side.  

At her November 2014 videoconference hearing, the Veteran testified that she had a hip wash and that after the procedure, her leg discrepancy got bigger and she had more pain and her limp became more pronounced.  

In October 2015, the Veteran underwent range of motion testing for her left hip.  On examination, the Veteran's left hip had 0 to 90 degrees of flexion, 0 to 5 degrees of extension, 0 to 30 degrees of abduction, 0 to 10 degrees of abduction, external rotation measured 0 to 40 degrees, and internal rotation measured 0 to 25 degrees.  Upon repetitive use testing, the Veteran's left hip had 0 to 90 degrees of flexion, 0 to 5 degrees of extension, 0 to 10 degrees of abduction, 0 to 10 degrees of abduction, external rotation measured 0 to 40 degrees, and internal rotation measured 0 to 25 degrees.  The Veteran reported that her left leg was shorter than her right.  The examiner found that her left leg was approximately 1 centimeter shorter.

In November 2015, the Veteran underwent a disability benefits questionnaire (DBQ) for hip and thigh conditions.  The VA examiner reviewed the Veteran's claims file.  The Veteran reported that her left hip collapsed and became swollen.  She reported hypersensitivity to the left leg and stabbing or electric pain in her hip, which started in-service.  No flare-ups were reported.  On examination, the Veteran's left hip had 0 to 90 degrees of flexion, 0 to 5 degrees of extension, 0 to 30 degrees of abduction, and 0 to 10 degrees of abduction.  The Veteran was able to cross her legs.  There was no pain noted on examination, no localized tenderness or pain on palpitation of the joint or associated soft tissue, and there was no objective evidence of crepitus.  Upon repetitive use testing, the Veteran's left hip had 0 to 90 degrees of flexion, 0 to 5 degrees of extension, 0 to 10 degrees of abduction, and 0 to 10 degrees of abduction.  Muscle strength was rated 4/5.  The VA examiner stated that the she was unable to differentiate the Veteran's lack of effort during the examination as compared to her October 2015 range of motion findings.  The Veteran's visual flexion was 10 degrees, but a month prior her flexion was 90 degrees.  The VA examiner opined that her range of motion was more accurate during the October 2015 examination.  No muscle atrophy, ankylosis, or arthritis was noted.  No malunion or nonunion of the femur, flail hip joint, or leg length discrepancy was found.  No scars were found and no surgeries were reported.   The Veteran was diagnosed with left hip bursitis.  No functional loss was found in her left hip or thigh.  The examiner found that the Veteran's June 2013 x-rays and July 2013 magnetic image (MRI) of the left hip did not support a previous fracture of the left hip.  There was no obvious leg length discrepancy and the x-rays measured the same length of 17.5 centimeters.  

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. § 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 prior to October 26, 2015, and in excess of 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion for a left hip disability from that date.

As previously explained, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).  Prior to the October 26, 2015 VA examination, during the Veteran's November 2009 VA examination, her range of motion measured at 0 to 90 degrees of flexion, 0 to 30 degrees of extension, and 0 to 45 degrees of abduction without loss of motion due to pain.  Though objective evidence of painful motion was not observed, the Veteran reported a constant, moderate, achy pain of her left hip.  From May 26, 2009 to October 25, 2015, the Veteran received a 10 percent evaluation based on pain.  However, from October 26, 2015, the Veteran received a rating of 10 percent for limited extension and 20 percent for limited abduction as the October 2015 VA treatment note listed her abduction from 0 to 10 degrees and extension from 0 to 5 degrees.  The AOJ found that the Veteran was no longer entitled to a single rating based on pain alone as had been in effect prior to October 26, 2015, since the Veteran was now being assigned two separate ratings for limitation of motion (abduction and extension) to include any painful motion and there was no evidence of limitation of flexion to a compensable degree.  Accordingly, as it was factually ascertainable that the criteria for a 10 percent rating for limited extension and 20 percent rating for limited abduction was warranted for the left hip disability given the findings in the 2015 VA treatment note and November 2015 VA examination report, the Board finds that assignment of a staged rating for the Veteran's left hip disability is appropriate.  

In evaluating the medical evidence of record, the Board finds that the medical evidence does not show that a rating higher than 10 percent from May 26, 2009 to October 25, 2015, and higher than 10 percent for limited extension and in excess of 20 percent for limited abduction and in excess of a noncompensable evaluation for limited flexion, all from October 26, 2015 is warranted.

The Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding.  38 C.F.R. § 4.14. However, here, the Board finds that the assignment of separate ratings based on limitation of extension, flexion, and rotation of the left hip under Diagnostic Codes 5251, 5252, and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14.  In this regard, separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions."  Esteban v. Brown, 6 Vet. App. 259 (1994).  Here this key consideration has been met, in that limitation of extension, flexion, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip.  38 C.F.R. § 4.45.  If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability.  38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (providing that separate ratings may be assigned for disability of the same joint where Veteran has both limitation of flexion and limitation of extension of same leg).

As for other potentially applicable diagnostic codes pertaining to the hip, the record does not contain evidence of ankylosis of the left hip or evidence that his left hip osteoarthritis is manifested by pathology such as femur fracture or flail joint; therefore, ratings under Diagnostic Codes 5250, 5254, or 5255 are not appropriate at any time during the rating period.  38 C.F.R. § 4.71a.  

The Veteran is currently rated the highest available schedular rating of 10 percent and 20 percent, respectively, under 38 C.F.R. § 4.71a, Diagnostic Codes 5251 and 5253.  In order to get a higher rating based on limitation of motion, the evidence must show ankylosis in the hip, flail joint, a femur impairment, or ankylosis, which is not shown.  Further, a compensable rating for the Veteran's left hip flexion is not warranted as she had 0 to 90 degrees of flexion during her November 2009 VA examination, October 2015 VA range of motion appointment, and her November 2015 VA examination.  The VA examiners noted that the Veteran was able to cross her legs, toe out beyond 15 degrees, and that there was no pain noted on examination, no localized tenderness or pain on palpitation of the joint or associated soft tissue, and there was no objective evidence of crepitus.  No muscle atrophy, ankylosis, or arthritis was found.  Also, there was no obvious leg length discrepancy as the x-rays measured the same length of 17.5 centimeters.  Therefore, a rating higher than 10 percent from May 26, 2009 to October 25, 2015 and a rating higher than 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion from October 26, 2015 is not warranted for the Veteran's left hip disability based on limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, and 5253. 

The Board has considered whether the left hip disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted.  See 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule.  Thun v. Peake, 22 Vet. App. 111, 118 (2008).  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. 

In this regard, the Veteran's left hip disability is manifested by functional loss, with no signs of ankylosis, which impairs her ability to perform tasks requiring full range of motion.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability and interference with weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. 

Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.  Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's left hip disability picture as described in her correspondence to VA, her statements to medical examiners and the examination findings.

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. § 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 for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion.  

For all the foregoing reasons, the Board finds that a rating higher than 10 percent from May 26, 2009 to October 25, 2015, and higher than 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion, all from October 26, 2015 is not warranted for the left hip disability.  There are no objective medical findings that would support the assignment of any higher ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Veteran's service treatment records (STRs) include an August 2006 diagnosis of metatarsalgia that was worsened with running.  In September 2007, the Veteran complained of left foot pain in the soft tissue.  X-ray evidence did not show a deformity, yet a bone scan was ordered.  The Veteran was diagnosed with paresthesia due to heel impacts when running.  No abnormality was found in the Veteran's left heel during an October 2007 bone scan.  In October 2008, a medical evaluation board stated that the Veteran failed to meet retention criteria due to her cervical spine injury and pain.  She was medically discharged in March 2009 and received a disability retirement.  

Post-service, in November 2009, the Veteran underwent a VA examination for metatarsalgia of the left foot.  The Veteran's claims file was reviewed.  The Veteran denied any pain or injuries to the left foot.  She reported a constant lateral numbness of the foot with an onset of April 2006.  No flare-ups were reported.  She reported a limitation of walking two to three blocks and standing 20 to 30 minutes.  No assistive devices were used.  The examiner concluded that the Veteran had a normal foot as no pathology was found and there was no current complaint of metatarsalgia of the left foot.  

In March 2013, the Veteran underwent a DBQ for miscellaneous foot conditions.  The VA examiner reviewed the Veteran's claims file and noted that the Veteran was diagnosed with metatarsalgia in 2005.  The Veteran reported that she had foot pain in early 2005 or 2006 and that her foot did not work all of the time.  She did not receive much treatment in-service.  Post service, she was told that she had a short left leg.  On examination, the Veteran did not have metatarsalgia, Morton's neuroma, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion or nonunion of the tarsal or metatarsal bones, or any other foot injuries.  There was no evidence of a bilateral weak foot.  The examiner noted that the Veteran was unable to move her left foot, yet upon weight bearing she exhibited a heel to toe gait with normal push off bilaterally.  No assistive devices were used.  Imaging studies did not reveal any abnormalities.  No significant leg length discrepancy was found.  The VA examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the Veteran did not exhibit symptoms of metatarsalgia or other foot conditions during the examination.  

In November 2009, the Veteran underwent a VA examination for hypesthesia of the left side of her body.  The Veteran's claims file was reviewed.  The Veteran reported numbness and tingling of the left face, arm, and upper chest with onset in January 2006.  She reported numbness of her lateral thigh, calf, and foot with onset in March 2006.  She complained of mild left leg and left hand weakness, as well as limping.  She reported that her symptoms were getting worse.  No flare-ups, treatment, or hospitalizations were reported.  She reported a limitation of walking two to three blocks and standing 20 to 30 minutes.  No assistive devices were used.  No disease process was found to account for the Veteran's complaint of hypesthesia of the left side of her body.  

During the November 2014 videoconference hearing, the Veteran testified that she continued to have numbness and tingling on the left side and had absolutely no sensory perception or use of certain sections from the fingertips, to the shoulder, all the way down through the hip and foot on the left side.  

In November 2015, the Veteran underwent a VA examination for her left foot and left side hypesthesia.  She reported a foot injury in March 2006 that caused numbness from the bottom of her foot to her hip.  She was treated by a physical therapist for bursitis.  She stated that she had numbness of the left side of her body since March 2006.  Left foot burning and numbness began in 2006, but stopped when the Veteran was off active duty.  The burning sensation returned in 2010 after her son was born.  She reported that there were no records of her burning foot symptom until after her separation from active duty.  The Veteran reported that she currently had pain and numbness to the left foot with increased discomfort during temperature changes.  She also reported a leg length discrepancy.  On examination, no leg length discrepancies were found.  The examiner opined that the Veteran did not have a diagnosis of left foot metatarsalgia that was at least as likely as not (50 percent or greater probability) incurred in or caused by her active duty service.  The examiner rationed that the Veteran had a normal foot examination in November 2009 without any chronicity identified at the time.  The November 2009 examination found that there was no foot pathology found and no current complaint of metatarsalgia.  Further, the Veteran's medical records did not support a diagnosis of metatarsalgia of the left foot.  The VA examiner opined that the Veteran did not have a diagnosis of left side hypesthesia that was at least as likely as not (50 percent or greater probability) the result of cervical spondylosis with left upper extremity radiculopathy, carpal tunnel syndrome, left shoulder tendonitis, and/or left hip fracture and bursitis.  The examiner rationed that the Veteran's November 2009 VA examination found that no disease process was found to account for her complaint of hypesthesia of entire left side of her body.  A December 2013 electromyogram (EMG) of the lower left extremity was normal.  The Veteran's leg lengths were evaluated by x-ray in March 2013 and no discrepancies were found.  The feet appeared to be the same size.  The left calf measured 42 centimeters and the right calf measured 43 centimeters.  An October 2007 bone scan revealed normal results.  On examination, no objective evidence of pain was found.  The examined indicated that numbness is a subjective symptom which was not verified with objective evidence.  The examiner opined that the mild incomplete paralysis of the various left lower extremity nerves noted on the January 2015 peripheral nerves examination is less than likely related to active service and is less than likely proximately due to or aggravated by her service connected disabilities.  The examiner opined that her upper extremity symptoms are related to her upper extremity pathology.  Medical literature indicated that upper body pathology does not extend to below the waist. No medical evidence supported the Veteran's hip pathology being related to her lower extremity numbness.  Objectively, there is no pathology to the left lower extremity.  A December 2012 EMG found her lower extremity to be normal.  Also, there is no electrodiagnostic evidence for an active neuropathy or radiculopathy.  Hypesthesia is a subjective symptom.  The examiner opined that the Veteran's lack of strength to the left lower extremity on examination was more likely than not due to a lack of effort as demonstrated by Veteran during her physical examination.

The Court consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed).  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). A "current disability" means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997).

In this case, there are no current diagnoses of left foot metatarsalgia or left sided hypesthesia.  Therefore, in the absence of proof of a present disability, there can be no valid claim.  Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992).  Therefore, service connection for left foot metatarsalgia or left sided hypesthesia is not warranted.

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


ORDER

Entitlement to an evaluation in excess of 10 percent from May 26, 2009, to October 25, 2015, and in excess of 10 percent for limited extension and in excess of 20 percent for limited abduction and a compensable evaluation for limited flexion, all from October 26, 2015 for a left hip stress fracture and trochanteric bursitis is denied.

Service connection for left foot metatarsalgia is denied.  

Service connection for left sided hypesthesia is denied.  


REMAND

Unfortunately, due to reasons that follow, an additional remand is required, in accordance with the previous Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders).  Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration.

In March 2015, the RO in pertinent part granted a 100 percent rating for anxiety disorder and special monthly compensation (SMC) at the housebound rate.  Both benefits were awarded from December 3, 2014.  While not specifically adjudicated, the associated code sheet indicates that because the Veteran was now at a schedular 100 percent, the issue of TDIU was a moot point.  It further indicated that there was no evidence of unemployability prior to the permanent 100 percent.  

A claim of entitlement to TDIU is "part of," and not separate from, a claim of entitlement to an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the issue of entitlement to TDIU is arguably moot from December 3, 2014 (the date SMC was awarded), the Board disagrees that it is moot prior to that date.  See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008).  

The July 2015 Board remand directed the RO to readjudicate the issue of entitlement to a TDIU prior to December 3, 2014.  The July 2015 Board remand specifically stated that the Veteran reported in her December 2014 Application for Individual Unemployability that she last worked in May 2009, as well as Social Security Administration (SSA) records suggested unemployability beginning in March 2010.

A January 2016 rating decision granted a TDIU from November 25, 2013 as that was when the Veteran met the schedular criteria for unemployability.  The January 2016 rating decision did not address the fact that the Veteran was not working since May 2009 because of her service-connected disabilities, the SSA records, or entitlement to an extraschedular TDIU.  Therefore, the Board finds that the claim must be remanded for the AOJ to adjudicate the issue of entitlement to a TDIU prior to November 25, 2013.  

It is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that veterans who fail to meet the schedular criteria for a total disability rating shall be considered for such a rating on an extraschedular basis.  38 C.F.R. § 4.16 (b).  The Board is precluded from awarding a TDIU on an extraschedular basis in the first instance, but must ensure that the claim is referred to the Director of VA's Compensation and Pension Service.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  Therefore, a remand is required for referral to the Director of Compensation and Pension for extraschedular consideration.  See 38 C.F.R. § 4.16(b).

Accordingly, the case is REMANDED for the following action:

1.  Refer the claim of entitlement to a TDIU prior to November 25, 2013 under 38 C.F.R. § 4.16(b) to the appropriate VA compensation and pension officials for extraschedular consideration.

2.  Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and her representative time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.  

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. §§ 5109B, 7112 (West 2014).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs