Citation Nr: 1756677	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  12-32 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to a disability rating in excess of 20 percent for service-connected status post fracture of the right fifth metatarsal, to include pes planus, hallux rigidus, degenerative joint disease of the first metatarsal phalangeal (MTP) joint and mid-foot, and metatarsalgia.

2. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee strain.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from May 1989 to August 1992.

This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  A March 2012 rating decision denied a rating in excess of 10 percent for service-connected status post right foot fracture of the metatarsal under Diagnostic Code (DC) 5299-5283.  

In August 2014, the Veteran testified during a video-conference hearing before the undersigned as to the issue of entitlement to an increased rating for his status post right foot fracture of the metatarsal.  A transcript of this hearing is associated with the claims file.  In October 2014, the Board remanded the Veteran's claim of entitlement to an increased rating for his status post right foot fracture of the metatarsal.  

A March 2015 rating decision recharacterized the disability on appeal as status post fracture of the right fifth metatarsal, to include pes planus, hallux rigidus, degenerative joint disease of the first metatarsal phalangeal (MTP) joint and mid-foot, and metatarsalgia and assigned an increased rating of 20 percent under DC 5299-5283, effective December 12, 2011, the date of the Veteran's claim for an increase.  The RO also awarded service connection for an acquired equinus deformity of the right foot on a secondary basis and assigned a separate 20 percent rating under DC 5271, also effective December 12, 2011.  The Veteran has not appealed the rating assigned for the acquired equinus deformity of the right foot.  

A July 2015 rating decision granted service connection for left knee strain and assigned the same an initial 10 percent rating.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2014).

The issue of entitlement to an initial disability rating in excess of 10 percent for service-connected left knee strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Since December 12, 2011, the Veteran receives the maximum schedular evaluation allowable for his right foot disability(ies).


CONCLUSION OF LAW
 
Since December 12, 2011, the Veteran is in receipt of a combined 40 percent rating for his service-connected right foot disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes (DC) 5271, 5283 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

As noted above, since the date of his claim for an increase on December 12, 2011, the Veteran is in receipt of a 20 percent under DC 5299-5283 for status post fracture of the right fifth metatarsal, to include pes planus, hallux rigidus, degenerative joint disease of the first MTP joint and mid-foot, and metatarsalgia; and a separate 20 percent rating under DC 5271 for an acquired equinus deformity of the right foot.  As such, the Veteran's combined rating for right foot disabilities is 36 according to table 1, "Combined Ratings Table."  See 38 C.F.R. § 4.25  (2017).  This combined value must then be converted to the nearest whole number divisible by 10, and combined values ending in 5 will be adjusted upward. Accordingly, 36 percent is converted to 40 percent.

Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed.  38 C.F.R. § 4.68.  Here, the combined evaluations for disabilities of the foot shall not exceed the 40 percent evaluation of Diagnostic Code 5167 (noting a 40 percent rating for loss of use of the foot by amputation). 

As the Veteran is currently assigned a combined rating of 40 percent for his right foot disabilities, this equals the maximum evaluation of 40 percent under the amputation rule.  Because the assignment of a higher rating or separate rating would cause the combined rating to exceed 40 percent, the amputation rule precludes the assignment of a higher or separate rating for his right foot disability. See 38 C.F.R. § 4.68.  As such, the Veteran's claim is denied.


ORDER

Entitlement to a disability rating in excess of 20 percent for service-connected status post fracture of the right fifth metatarsal, to include pes planus, hallux rigidus, degenerative joint disease of the first metatarsal phalangeal joint and mid-foot, and metatarsalgia is denied.


REMAND

Regarding the Veteran's claim for a higher rating for his service-connected left knee strain, a new VA examination must be provided that comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Correia mandates that orthopedic examinations include the testing described in 38 C.F.R. § 4.59 (2017), or an explanation as to why such testing is not warranted or not possible.  The most recent June 2015 VA examination does not specify that such testing was performed, including passive range of motion, or whether such testing was considered not warranted or not possible.  

Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment.  It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements.  If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner.  

Further, the most recent VA treatment records associated with the claims file are dated in June 2016.  On remand, the AOJ should obtain the Veteran's updated VA treatment records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Make arrangements to obtain and associate with the claims file the Veteran's updated VA treatment records, dated since June 2016.

2. Upon completion of the foregoing, schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected left knee disability.  The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed.

The appropriate Disability Benefits Questionnaire (DBs) should be filled out.

Range of motion testing in accordance with Correia:  In the examination report, the examiner must include all of the following:
A. Active range of motion testing results.
B. Passive range of motion testing results.
C. Weightbearing range of motion testing results.
D. Non-weightbearing range of motion testing results.

If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation.  In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. 

Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors.  

If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up.  If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. 

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

3. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 (2014).



_________________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs