Citation Nr: 1756626 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 04-31 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a right third metatarsal fracture and degenerative joint disease (DJD). 2. Entitlement to a compensable rating for residuals of a left third metatarsal fracture and DJD. ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active service from November 1991 until November 1995. These issues initially came before the Board of Veterans' Appeals (BVA or Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Hartford, Connecticut. The Board notes that this appeal has a complex procedural history, which will be summarized below. In March 2008, the Board denied the claims which were on appeal pending from the October 2001 RO rating decision and the Veteran appealed to the Veterans Claims Court. In December 2009, the Clerk vacated the Board's decision and remanded the case pursuant to a Joint Motion for Remand (JMR). In March 2011, the Board remanded the above listed issues, and a number of other issues that are no longer before the Board, for evidentiary development. In March 2012, the Board remanded the above listed issues for additional evidentiary development. A number of other issues were decided, and are also no longer before the Board. In February 2015, the Board remanded the above listed issues for more evidentiary development. A number of other issues were also remanded, but are no longer before the Board as well. In December 2016, the Board remanded the above listed issues for supplementary evidentiary development. Other issues were also either remanded or decided, and are not before the Board at this time. The Board observes that there has been some confusion regarding the Veteran's representation. In the past, he has been represented by a Veteran's Service Organization and an attorney. The Veteran was asked to clarify his representation, but did not respond. In its December 2016 decision, the Board explained that it will continue with the understanding that he wishes to proceed pro se. In a July 2017 correspondence, the Veteran's most recent representative, an attorney, stated that the Veteran had discharged her as his representative. The Veteran was subsequently informed of this communication and he has not advised the Board of a new representative. Therefore, he will continue to proceed pro se. The Board further observes that the Veteran has been in receipt of a total rating based on individual unemployability or a combined 100 percent disability rating since May 2009. He is also in receipt of special monthly compensation based on the need for regular aid and attendance since November 2009. Nevertheless, the issues of increased ratings could arguably result in additional benefits for him and the case has been returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. The Veteran has been in receipt of a 10 percent rating for his residuals of a right third metatarsal fracture and DJD for over 20 years. 2. Throughout the rating period on appeal, a preponderance of the medical evidence establishes that the Veteran does not meet any applicable criteria for a disability evaluation in excess of 10 percent for his service-connected residuals of a right third metatarsal fracture and DJD. In other words, his symptoms have been shown to be no more than moderate in degree. Although his disability may have improved, his 10 percent rating has become protected. 3. Throughout the rating period on appeal, a preponderance of the medical evidence establishes that the Veteran's residuals of a fracture, left third metatarsal have been shown to be less than moderate in degree. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for residuals of a fracture, right third metatarsal have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.951(b), 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2017). 2. The criteria for entitlement to a compensable evaluation for residuals of a fracture, left third metatarsal have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159, and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Pursuant to the Board's December 2016 remand, the AOJ provided an additional VA examination that responded to the Board's directives. The AOJ then issued a supplemental statement of the case in June 2017. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Analysis The Veteran appeals the denial of a rating in excess of 10 percent for residuals of a right third metatarsal fracture and DJD and a compensable rating for residuals of a left third metatarsal fracture and DJD. The 10 percent rating currently assigned to his right third metatarsal fracture has been in effect since November 12, 1995. The 10 percent rating has become protected. See 38 C.F.R. § 3.951(b) ("A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes...will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."). Notably, in Murray v. Shinseki, 24 Vet. App. 420 (2007), the Court stated that after a rating for a particular disability has become protected, VA is required to discuss 38 C.F.R. § 3.951(b) in any subsequent adjudication involving that disability, regardless of the extent of protection afforded by that regulation. Id. at 424. The RO has rated the Veteran's right foot disability under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Diagnostic Code 5284 is used to evaluate "Foot Injuries, other," and provides a 10 percent rating for moderate foot injuries, 20 percent for moderately severe injuries, 30 percent for severe injuries, and 40 percent for actual loss of use of the foot. The rating schedule does not define the terms "moderate," "moderately severe," and "severe" as used in this diagnostic code. Adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. Throughout the appeal, the Veteran has complained that his originally service-connected right and left foot disabilities were productive of cavus and equinus deformities with neurological impairment due to nerve entrapment. The evidence of record includes complaints of foot pain, as shown in VA and private clinical records from 1996 to 2000. In a June 1996 VA record, the Veteran stated that he had right foot pain when putting on or removing socks and shoes. A November 1996 report indicated intermittent right foot pain. Range of motion was pain-free and unlimited. A December 1997 VA outpatient treatment report indicated that the veteran had been using orthotics, but that the veteran's feet felt better without them. At that time, he reported right foot pain when wearing shoes. Upon VA examination in September 2001, the Veteran complained of cramps in his feet. He stated that his feet tire easily. The Veteran hiked about every other week, but his feet felt weak after approximately two miles. He was not using orthotics but had tried steroid treatments, which did not help relieve his symptoms. Objectively, there was no stiffness, swelling, heat, or redness. There was fatigability and lack of endurance. The Veteran could walk on his toes and heels without difficulty. He could squat fully. There was some popping of the ankle ligaments. He had right foot dorsiflexion to 15 degrees, plantar flexion to 60 degrees, inversion to 45 degrees, and valgus to 45 degrees. There was right foot tenderness over the tarsal phalangeal joint. There was no evidence of painful joints, except for tenderness all through the right third tarsal phalangeal joint. There was no limitation of motion, and no evidence of painful motion, edema, instability, or weakness. There was no limitation on standing or walking. Subsequent evidence of record continued to reflect complaints of foot pain. An August 2002 VA clinical record noted bilateral painful pes cavus deformity. He stated that most of his pain was at the top of both feet. Additionally, he stated that both his ankle and feet felt weak at times. Additional complaints and treatment are seen since approximately October 2002. A May 2012 private podiatry treatment report showed no evidence of arthritic changes in the feet. The Veteran's assessment was pes cavus deformity, severe gastrocnemius equinus, and subtalar joint strain. In a May 2014 written statement, a private chiropractor opined that the Veteran's bilateral equinus, pes cavus, foot nerve entrapment, and foot degenerative arthritis were all related to the injuries he sustained in service. However, the chiropractor did not provide a rationale for these conclusions. The Veteran was examined in conjunction with his residuals of left and right metatarsal fractures in October 2014. At the 2014 VA examination, the examiner indicated that bilateral foot entrapment was related to his service, but provided no opinion regarding pes cavus or any of the other diagnosed foot disorders. The Board notes that since then, VA has granted the Veteran service connection for bilateral pes cavus, bilateral equinus deformities, and bilateral nerve entrapment as secondary to his originally service-connected fracture residuals. However, as these are separately rated as well as separately on appeal as described above, the Board may not consider any impairment attributable to such disabilities in rating the residuals of his metatarsal fractures in service. See 38 U.S.C. § 1155; 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 259-60 (1994). The October 2014 examination report indicates that nerve entrapment, residuals of metatarsal fractures, and foot DJD constitute "other injuries" that were mild. A December 2016 private podiatry treatment report showed diagnoses of gastrocnemius soleus equinus deformity, bilaterally, and lower lumbar radiculopathy. In addition, the Veteran has claimed "bilateral weak foot" in the past, and the October 2014 examination report did not address whether such condition exists. Notably, that assertion in and of itself presents another medical question, insofar as the rating criteria for weak foot indicates it is a "symptomatic condition secondary to many constitutional conditions" and is to be rated primarily based on the "underlying condition." See 38 C.F.R. § 4.71a. While a previous July 2013 examination report notes bilateral weak foot, it does not indicate whether there is an underlying disability, whether it is a residual of his fractures in service, or whether it is a separate and distinct disability. In light of the above and pursuant to the Board's December 2016 remand, the Veteran was afforded another VA examination in March 2017. The Veteran reported foot pain when standing for more than 10 minutes. He also reported that he could no longer perform outdoor activities like running and climbing. The examiner then provided a summary of the Veteran's prior treatment history. X-ray testing showed an unremarkable right foot, and a probable bone island in the cuboid of his left foot. In a subsequent addendum opinion, the same VA examiner clarified that while arthritis was reportedly noted on X-ray in 2009, subsequent X-rays do not document any foot arthritis, bilaterally. The examiner also stated that although the Veteran reported foot pain and there was tenderness on palpation, the examiner was unable to associate the pain he complained of with his now healed residuals of right and left foot third metatarsal fracture. The examiner then opined that the identified residuals of only the Veteran's left and right foot fracture, third metatarsals, (without consideration of any manifestations attributable to the separately service-connected and separately evaluated bilateral pes cavus, equinus deformities and/or foot nerve entrapment) can be characterized as mild. The Board acknowledges that there was prior evidence of degenerative joint disease or arthritis. However, degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. See 38 C.F.R. § 4.71a , Diagnostic Codes 5003, 5010 (2017). As the Veteran is now in receipt of 10 percent ratings under Diagnostic Code 5271 on the basis of limitation of bilateral ankle motion, a separate rating on the basis of degenerative joint disease of the feet is not currently warranted in view of the negative findings. The Board finds that the Veteran's right foot disability does not more nearly approximate a moderately severe foot injury at any time during the appeal period and the left foot is not moderate in degree. The evidence discussed above shows that the Veteran's bilateral foot disability results primarily in objectively verifiable pain, and the Veteran has reported pain with walking and stability. Given the above, his right foot disability is best described as, at most, a moderate right foot injury, and does not more nearly approximate a moderately severe foot injury. Moreover, it appears that his condition may have actually improved, but the current 10 percent rating for residuals of a right third metatarsal fracture have become protected. Further, nothing in the record suggests that his residuals of a left third metatarsal fracture can be described as moderate, and a compensable rating is not warranted. Moreover, there are no other diagnostic codes under which the Veteran is entitled to a separate or higher rating for his service-connected bilateral foot disability. As demonstrated by evidence of record, including the most recent VA examination, the Veteran either does not have weak foot, clawfoot, Morton's disease, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones, or the corresponding disability has already been service-connected and separately rated. Therefore, no additional or higher ratings are warranted for the Veteran's bilateral foot disability. See 38 C.F.R. §§ 4.14 (the use of manifestations not resulting from service-connected injury must be avoided); 4.71a, Diagnostic Codes 5276-5283. For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's residuals of a right third metatarsal fracture have not more nearly approximated the criteria for rating higher than 10 percent for the entire appellate period, nor have his residuals of a left third metatarsal fracture warranted a compensable rating. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against assigning a rating higher than those assigned herein, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 10 percent for residuals of a right third metatarsal fracture and degenerative joint disease (DJD) is denied. Entitlement to a compensable rating for residuals of a left third metatarsal fracture and DJD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs