Citation Nr: 1805436	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  10-46 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's right fourth and fifth toe dorsal callosities (right foot disability) from December 26, 2008 to October 13, 2009, and since December 1, 2010.

2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1993 to July 1996.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In June 2012 and October 2015, the Board remanded the claim for further development. That development was completed, and the appeal was then returned to the Board for further appellate consideration. It is noted that issue number 1 on the title page is the one that was certified to the Board, having otherwise undergone appropriate appellate steps. 

The Veteran testified at a March 2016 videoconference hearing before the undersigned. A transcript of that hearing is of record. 

In June 2016 and July 2017, the Board remanded the claim for additional development. During recent development, the Veteran was awarded a separate noncompensable rating for scars associated with her right foot disability, effective October 14, 2009. The appeal has since 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. From December 26, 2008 to October 13, 2009, the Veteran's service-connected right foot disability was not manifested by moderately severe or severe impairment.

2. Since December 1, 2010, the Veteran's service-connected right foot disability has not been manifested by moderately severe or severe impairment.

3. The preponderance of the evidence is against finding that the Veteran is unable to obtain and maintain substantially gainful employment due solely to her service-connected disabilities. Apparently, she has been employed since at least March 2016 and has repeatedly failed to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, as requested. 


CONCLUSIONS OF LAW

1. From December 26, 2008 to October 1, 2009, the criteria for entitlement to a rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C. §§ 1155 , 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2017).

2. Since December 1, 2010, the criteria for entitlement to a rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C. §§ 1155 , 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5284.

3. The criteria for a TDIU caused by service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.16 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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 the 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. 

The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate the claim and the Veteran, through her testimony and her representative's statements, demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). There has been no contention to the contrary.

Pursuant to the Board's July 2017 remand, the Agency of Original Jurisdiction (AOJ) retrieved outstanding and pertinent records, requested that the Veteran complete a VA Form 21-8940, and provided the Veteran with a VA examination and opinion which was responsive to the questions asked of the examiner. The AOJ later issued a supplemental statement of the case in October 2017. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's July 2017 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 her 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 Evaluations

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 claim, 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.

Right foot disability

The Veteran seeks entitlement to an evaluation in excess of 10 percent for her service-connected right fourth and fifth toe dorsal callosities (right foot disability) from December 26, 2008 to October 13, 2009, and since December 1, 2010. She had a temporary total disability evaluation assigned from October 14, 2009, to November 31, 2010, for a period of convalescence following surgery on her right toes related to post-operative residuals. 38 C.F.R. § 4.30 (2017). That period is not at issue herein. 

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 (2017).




Turning to the evidence of record, the Veteran was first afforded an examination for her right foot disorder in December 2011. At that time, the examiner diagnosed the Veteran with symptomatic dorsal callosities on all of the toes of the right foot. The examiner also noted that the Veteran did not have hammertoes on her right foot.  

The Board observes that the Veteran has received VA treatment for her feet, and has been diagnosed with hammertoes of her right foot. She was also treated for lymphedema in the right dorsal toes. The Veteran has indicated that she continues to receive VA treatment for her feet.

Pursuant to the Board's June 2016 remand, the Veteran was afforded a VA QTC examination in December 2016. The Veteran complained of sharp pain in her second to fifth toes. The examiner noted that the Veteran experienced pain on weight-bearing and disturbance of locomotion for both feet. The examiner provided the following: 

The [Veteran] has a current diagnosis of hammertoes, bilaterally. The treatment records reflect hammertoes on all five toes on the right foot and calluses. The foot medical problem is 50% or greater incurred in service. Records dated 10/14/2009 s/p right arthroplasty for toes 2-5. There is already an addendum request 1/2009 regarding the hammertoes with supported documentation. 

There were no further remarks.

Pursuant to the Board's July 2017 remand, the Veteran was afforded another VA examination in September 2017. The Veteran reported pain with walking and increased pain without open toe shoes and constant bilateral stinging/burning/ cramping pain. The examiner noted that the Veteran has right foot pain on non weight-bearing. The examiner also noted that the Veteran has right fourth toe hammertoe. The examiner reported that the Veteran's only remaining hammertoe is the fourth toe on her right foot and that there are no dorsal callosities or residual lymphedema present. 

The Board finds that for the period of December 26, 2008 to October 13, 2009, and since December 1, 2010, the Veteran's right foot disability has been no more than moderate in degree. Although the Veteran has been shown to have right foot pain, there is no objective evidence that the pain has had more than a moderate impact on her ability to function in her activities of daily living. Notably, the treatment records and VA examinations did not show any antalgic gait, painful motion, edema, weakness, instability, or abnormal weight bearing, providing highly probative evidence against this case, and providing evidence that outweighs the Veteran's statements regarding the nature and extent of her disability. Moreover, the most recent September 2017 VA examiner found that the only remaining hammertoe is the fourth toe on the Veteran's right foot and that there are no dorsal callosities or residual lymphedema present.

The Board also finds that review of the evidence, as discussed above, does not show the right foot disability has been manifested by additional symptomatology to warrant a rating higher than 10 percent under Diagnostic Code 5276 for acquired flatfoot, Diagnostic Code 5278 for claw foot, or Diagnostic Code 5283 for malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a. Finally, the Veteran was awarded a separate noncompensable rating for scars associated with her right foot disability under Diagnostic Code 7805, effective October 14, 2009. There is nothing to suggest a higher evaluation for her right foot scars is necessary.

Therefore, the Board finds the most probative evidence of record does not show moderately severe or severe impairment of the service-connected right foot disability for the period of December 26, 2008 to October 13, 2009, and since December 1, 2010. As such, an evaluation in excess of 10 percent for both time periods is not warranted.

TDIU

The Veteran contends that her service-connected disabilities render her unemployable and that she is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017).

Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b).

In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

For the Veteran to prevail in a claim for TDIU, the evidence must show that she is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Initially, the Board notes that prior to January 4, 2012, service connection was in effect for the following disabilities: major depressive disorder and posttraumatic stress disorder (PTSD) (30 percent disabling); residuals, contracture of the 4th and 5th toes, left foot, status post osteotomy (30 percent disabling); right knee patellofemoral syndrome (30 percent disabling); right foot disability (10 percent disabling); and residual scars associated with right foot disability (noncompensable). Thus, she was not eligible for entitlement to a TDIU on a schedular basis, because there was no single disability rated 60 percent, and while the ratings combined to 70 percent, no single disability was rated as 40 percent. 

Entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) regardless of the Veteran's disability ratings where the service-connected disabilities alone render her unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for the Agency of Original Jurisdiction (AOJ) to refer the case to the Director of Compensation Service is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For the following reasons, which will be detailed below, the Board finds that a remand to refer this period is not warranted.

Also, as noted above, the Veteran had a temporary total disability evaluation assigned from October 14, 2009, to November 31, 2010, for a period of convalescence following surgery on her right toes related to post-operative residuals and that period will not be discussed. 38 C.F.R. § 4.30. A temporary total disability evaluation was also assigned from November 9, 2011 to January 1, 2012 and that period is not at issue either. 

The Board observes that the Veteran did not meet the relevant TDIU criteria until January 4, 2012. Since that date, service connection has been in effect for the following disabilities: major depressive disorder and PTSD (70 percent disabling); residuals, contracture of the 4th and 5th toes, left foot, status post osteotomy (30 percent disabling); right knee patellofemoral syndrome (20 percent disabling); right foot disability (10 percent disabling); and residual scars associated with right foot disability (noncompensable). Therefore, the Veteran met the schedular requirements. What remains to be determined is whether the Veteran's service-connected disabilities rendered her unemployable.

To begin, February 2013 notes from an informal conference at the RO indicate that the Veteran raised the issue of entitlement to a TDIU. The RO did not adjudicate the claim because, at the time, the Veteran was "actively employed." In June 2016, the Board remanded the Veteran's appeal for evidentiary development, to include sending the Veteran a letter advising her to fill out a VA Form 21-8940, Application for Increased Compensation Based on Unemployability in support of her TDIU claim, which was never received.

The Veteran's claim for TDIU was later remanded again in July 2017 for additional evidentiary development. It appears that the AOJ took appropriate steps and sent the Veteran a notification letter that included instructions to submit a VA Form 21-8940. An October 2017 supplemental statement of the case informed the Veteran that her TDIU claim was denied, at least in part due to her failure to submit this form. No response to these requests has been received to date.

The Board is left to consider the available evidence of record. According to a December 2009 VA psychiatric examination, the Veteran earned a bachelor's degree in business administration and was presently employed at a VA medical center as an administrative support worker. The Veteran stated that she had been employed there for the past 5 years. As discussed above, the Veteran was "actively employed" in February 2013. Further, during the Veteran's March 2016 hearing, she testified that she was currently working at a VA medical center as a medical support assistant. Finally, no functional impact was noted at the Veteran's December 2016 and September 2017 VA foot examinations. 

The above evidence reflects that the Veteran's service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment. Importantly, the Veteran has reported steady employment through at least March 2016. While the Veteran clearly has several service-connected disabilities, none of them are severe enough to preclude her ability to work. Finally, the Veteran has not complied with the repeated requests to submit a VA Form 21-8940 in support of her TDIU claim. 

While the Board has considered the Veteran's contentions concerning her employability, more probative value is assigned to the opinions of the VA examiners because they were conducted by medical professionals after an objective examination of the Veteran and review of her medical and employment history.

After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disabilities alone have not precluded her from obtaining and maintaining substantially gainful employment and a remand to refer the case to the Director of Compensation Service is not required. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b).


ORDER

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's right fourth and fifth toe dorsal callosities (hereinafter right foot disability) from December 26, 2008 to October 13, 2009, and since December 1, 2010 is denied.

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs