Citation Nr: 18156130 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 09-13 590 DATE: December 7, 2018 ORDER Prior to August 5, 2014, entitlement to a disability rating in excess of 10 percent for amputation of the left second toe is denied. From August 5, 2014, entitlement to a disability rating of 30 percent, but not higher, for amputation of the left second toe is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to a disability rating in excess of 10 percent for varices of the left thigh is remanded. FINDINGS OF FACT 1. Prior to August 5, 2014, the Veteran’s left second toe amputation manifested as no more than a moderate foot injury. 2. From August 5, 2014, the Veteran’s left second toe amputation has manifested as a severe foot injury. CONCLUSIONS OF LAW 1. Prior to August 5, 2014, the criteria for an evaluation in excess of 10 percent for a second left toe amputation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, Diagnostic Code 5284 (2018). 2. From August 5, 2014, the criteria for an evaluation of 30 percent, but not higher, for a second left toe amputation have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, Diagnostic Code 5284 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Navy from November 1980 to June 1992. In August 2010, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that a March 2009 Statement of the Case (SOC) awarded an increased 10 percent disability rating for the Veteran’s service-connected left toe disability, effective October 12, 2007. Moreover, a subsequent October 2011 rating decision awarded the Veteran a 10 percent disability rating for her left thigh varices, effective October 19, 2007. As these ratings are less than the maximum benefit available under the applicable diagnostic codes, and since the Veteran has not indicated satisfaction with the ratings assigned, the appeals remain pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). With regard to representation, the Board notes that a July 2015 VA Form 21-22 appointed Disabled American Veterans (DAV) as the Veteran’s general power of attorney. However, in August 2016, the Veteran submitted a VA Form 21-22a appointing Kathy A. Lieberman, Esq., as her limited power of attorney regarding those issues as stated on the title page of this decision. Generally, a limited power of attorney does not revoke a prior, general power of attorney. 38 C.F.R. § 14.631(f). As such, Ms. Lieberman maintains limited power of attorney over the Veteran’s claims for increased ratings for left thigh varices and amputation of the second left toe, and DAV retains power of attorney over any additionally existing issues. These matters were remanded for further development in November 2010 and April 2014, and then were denied by the Board in June 2015. However, in August 2016, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand and remanded the matters for further development. Pursuant to the motion, the matters were once again remanded for additional development in April 2017. They have since been returned to the Board for readjudication. In the August 2016 Joint Motion, the parties noted that the question of the finality of the September 1992 rating decision granting service connection for the issues of amputation of the second left toe and varices of the left thigh had been raised by the record. Accordingly, the parties requested that the Board refer the issues of entitlement to compensable initial ratings for amputation of the second left toe and varices of the left thigh to the Regional Office (RO) for further consideration. Since these issues have not yet been adjudicated by the RO, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 38 C.F.R. § 19.9 (b). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, in exhaustive detail, each and every piece of evidence the Veteran submitted or that VA has obtained on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each and every piece of evidence). Rather, the Board’s analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In this case, the Veteran contends that a higher disability evaluation is warranted for her service-connected amputation of the left second toe, currently evaluated as 10 percent disabling under diagnostic code 5199-5284. By way of a March 2009 rating decision, the evaluation was changed from Diagnostic Code 5199-5172 (amputation of toes) to Diagnostic Code 5199-5284 (other foot injuries), under which the Veteran’s disability is currently evaluated. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. A diagnostic code ending in the digits “99” is used when there is no specifically applicable diagnostic code and the disability is rated by analogy. Here, the first hyphenated code indicates the disability is rated by analogy to DC 5284. Diagnostic code 5172 evaluates amputation of the toes, other than the great toe. Where there is removal of the metatarsal head, a 20 percent evaluation is warranted. Without metatarsal head involvement, a non-compensable evaluation is warranted. Foot disabilities may also be rated under diagnostic codes 5276 (acquired flat foot), 5277 (bilateral weak foot), 5278 (acquired claw foot), 5279 (metatarsalgia), 5281 (unilateral, severe, hallux rigidus), 5282 (hammer toe), 5283 (malunion of, or nonunion of, tarsal or metatarsal bones), and 5284 (other foot injuries), when appropriate. Diagnostic code 5284 provides for ratings of 10, 20, and 30 percent, respectively, for moderate, moderately severe, and severe foot injury. If there is actual loss of use of the foot, a 40 percent rating is warranted under diagnostic code 5284. Words such as “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board observes in passing that “mild” is defined as “not very severe.” Webster’s New World Dictionary, Second College Edition (1999), 694. “Moderate” is defined as “of average or medium quantity, quality, or extent.” Id. at 704. “Severe” is generally defined as “extremely intense.” Id. at 1012. The Board notes that a May 2016 rating decision awarded a separate rating under diagnostic code 5276, and the Board’s April 2017 remand decision referred the issues of separate ratings for plantar fasciitis, hammer toes, metatarsalgia, hallux valgus, and hallux rigidus to the RO for adjudication. The Board’s analysis, therefore, will focus on the evaluation under diagnostic code 5284. 1. Prior to August 5, 2014, entitlement to a disability rating in excess of 10 percent for amputation of the left second toe The Veteran was afforded a VA examination in connection with her claim in December 2007. The examiner reported the Veteran’s left toe was disarticulated at the proximal interphalangeal joint, that the stump moved dorsally, and that the Veteran developed a large area of hardening and hypertrophy of the skin over the head of the second metatarsal. The remnant stump was rotated upwards and was quite painful from time to time. The examiner further reported that there was a painful callus formation under the head of the second metatarsal, and that in cold weather the stump was painful at rest; otherwise, it was not painful at rest. The Veteran reported that her foot would become painful if she stood for too long or put weight on it for too long. There was no weakness, stiffness, swelling, heat, or redness of the foot, but there was increased fatigability and lack of endurance. The examiner noted that symptoms were not present at rest, nor with regular walking or standing. The Veteran reported receiving no treatment for her foot and did not report flare-ups. She did not use an ankle brace, a cane to walk, or special shoes. The Veteran reported that she did not use corrective shoes but noted that her shoes had to be comfortable. She also reported using shoe inserts. The examiner noted that the condition did not affect the Veteran’s activities of daily living; and that her work as a grocery store clerk, which required being on her feet, was only occasionally affected by pain in the toe. VA treatment records show that in November 2008, the Veteran complained of discomfort to the enlarged callous/skin enlargement to the remnants to the second toe. The examining physician found that at the distal end of the tissue envelop to the second digital remnant, there was hypersensitivity with no accompanied Tinel’s sign. A November 2008 VA skin examination revealed the wound of the foot of the left second digit to be healed. There was no evidence of cellulitis or other skin infection. There were no sores evident and the surgical site was stable. There was no erythema of the area. There was some tenderness, especially over the callus that formed over the second metatarsal head on the left plantar surface. There was no tenderness with palpation of the amputation stump. The diagnosis was amputation of left second digit with history of postoperative cellulitis that has resolved without residuals. At a November 2008 VA podiatry consultation, the Veteran complained of discomfort to the enlarged callous/skin to the remnants to the second toe. She reported a boney enlargement at the medial aspect to the first metatarsal head—” i.e., a bunion.” She reported that footwear irritated the bunion. She also noted discomfort to the dorsum of the left foot on dorsiflexion, which was particularly problematic during extensive walking. The Veteran reported having to rest and elevate her foot. She would also soak her foot periodically. She denied any numbness, tingling, or burning sensation; she also denied pain at rest or claudication. The examining podiatrist found hypersensitivity with no accompanied Tinel’s sign. At a December 2008 VA prosthetics consultation, the Veteran complained of pain in joints involving lower leg, callous at the plantar surface of the amputated toe, and pain to the dorsum across the metatarsal head. At a February 2009 orthotics consultation, the Veteran stated that she was very pleased with the orthosis she had received and stated that she had 80% relief. Subsequently, she attended physical therapy for foot problems that included disabilities other than the toe, such as great toe hallux rigidus and a bunion. During her August 2010 Board hearing, the Veteran testified that she was concerned about severe arthritis in her toe traveling up her leg into her knee. The Veteran was afforded another VA examination in July 2011, during which she reported wearing a rubber circular sleeve to wear on her right toe to help with the bunion she developed in the first metatarsophalangeal joint. She reported it was helpful, and that she wore it on most days, especially when working. The Veteran also reported obtaining relief by soaking her foot. She reported recently developing pain in the proximal plantar fascia area of her foot, which was helped by her orthotics. She reported using a pumice stone for filing off calluses on her foot. She further reported being able to stand or walk on aggregate at least 45 minutes to an hour. The examiner observed no development of ulceration of the skin of the left foot or leg. Physical examination showed that the Veteran had a well-healed, remote sagittal incision over the distal left second ray space consistent with her amputation through the proximal interphalangeal joint. The proximal interphalangeal joint was absent, and the stump was well-healed distally and slightly erythematous at the tip but without cellulitis. The Veteran’s left foot presented with tenderness on mobilization of the insertion of the Achilles tendon into the calcaneus, but there was no excess lateral valgus deviation. Range of motion of the toes of the left foot was limited by stiffness, followed by pain, but not fatigability, weakness, or incoordination. She had a callus that was two centimeters in diameter over the base of the second left metatarsophalangeal joint. VA treatment records from March 2013 show the Veteran was treated for debridement of the hyperkeratosis to the plantar left foot. She reported using male tennis shoes with a rocker outer sole and orthotics. She denied any numbness, tingling, burning sensation, rest pain, claudication, history of ulceration, or slow healing wounds. In September 2013, the Veteran reported intermittent numbness to the hallux left foot. There was evidence of enlarged callous/skin to the region which was the remnants to the second toe. At the distal end of the tissue envelop to the second digital remnant, there was hypersensitivity, with no accompanied Tinel’s sign. The Veteran was afforded another VA examination in June 2014, during which she denied additional surgery or injections to the left foot since her last rating. The examiner noted her purchase of expensive orthotics/shoes, which had been of some relief. The Veteran reported finding reflexology helpful, though ultimately only temporary relief for her pain at the left forefoot. She reported regular use of a brace for her arthritic left knee and occasional use of a cane to relieve some of the discomfort at her left knee, low back, and left foot. The examiner found that the scar at the amputation site was not painful or unstable, and the total area was not greater than 39 square inches. There was mild atrophy of the 3rd and 4th dorsal interossei muscle compartments noted. The examiner found the functional impact of amputation to be difficulty with prolonged standing and walking, as well as with repetitive foot controls on the left and repetitive stair climbing. After careful review of the evidence, the Board finds that the Veteran’s left toe amputation disability most nearly approximates a moderate degree of foot injury prior to August 5, 2014. During this period, the Veteran described symptoms of pain and tenderness with prolonged standing and walking. She reported obtaining relief of her symptoms with rest, elevation, and foot soaks. It was not until June 2014 that use of orthotics was noted; prior to that point, the Veteran reported only that her disability necessitated wearing “comfortable” shoes. The Veteran reported being able to walk and stand for 45 minutes to an hour. Her disability had minimal impact on her job as a grocery store clerk, and it was not found to impact activities of daily living. The Veteran exhibited no ulceration of the skin on her toe, but she did have hypersensitivity and callouses to the remnants of the amputation. Overall, for the period prior to August 5, 2014, the Board finds that the severity of the Veteran’s symptoms of pain, swelling, calluses, and hypersensitivity, and the removal of only a portion of the her left second toe are more consistent with a moderate foot injury, rather than a moderately severe, or severe foot injury. Accordingly, an evaluation in excess of 10 percent for this period is not warranted. 2. From August 5, 2014, entitlement to a disability rating in excess of 10 percent for amputation of the left second toe The Veteran was afforded another VA examination concerning her left toe amputation and residuals on August 5, 2014. The examiner noted diagnoses of hammer toes, hallux valgus, hallux rigidus, plantar fasciitis, and arthritis associated with the Veteran’s left toe amputation. The Veteran reported experiencing on and off pain in the left foot, including extreme inflammation with temperatures that were too hot or too cold. She also reported flare-ups, during which she could no longer walk, stand, or sit for long periods of time. She reported functional impairment of loss of flexibility in the toe. The examiner found that the Veteran had pain on use of the left foot, which was accentuated on manipulation. The examiner also noted indication of swelling on use and characteristic calluses, with extreme tenderness of the plantar surfaces, not relieved by orthopedic shoes or appliances. The examiner commented that the Veteran did not have flat feet, but that she had onset of intermittent pain in 2014. Regarding other foot conditions related to her left toe amputation, the examiner noted mild or moderate symptoms of hallux valgus, severe symptoms of hallux rigidus, and severe arthritis in the first toe and inflexibility of all toes. The Veteran exhibited pain on physical examination which contributed to functional loss. Functional loss included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, pain on weight-bearing, pain on non-weight bearing, swelling, deformity, disturbance of locomotion, and interference with standing. The examiner noted pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or after repeated use, which necessitated elevation and icing of the foot. The Veteran reported regular use of a brace and constant use of a cane for ambulation. The Veteran reported that pain in her left foot caused her to walk with a limp, causing strain on her lower back. The Veteran was afforded another VA examination in March 2016. With regard to her left toe amputation, the Veteran reported experiencing soreness and swelling in the amputation site with walking or prolonged standing, necessitating the constant use of orthotic shoe inserts. The examiner noted that the Veteran’s left toe amputation resulted in chronic left foot pain with hypersensitive second toe amputation/stump area pain with prolonged standing or walking. With regard to her left foot, the Veteran reported a left foot pain score of 8 on a scale of 0 to 10. She reported bilateral foot pain with prolonged standing by the end of the work day. The examiner noted pain on use, pain on manipulation, indication of swelling on use, characteristic callouses, and tenderness of the plantar surfaces, not improved by orthopedic shoes or appliances. The examiner found marked pronation of the Veteran’s left foot, not improved by orthopedic shoes or appliances, and hallux valgus causing alteration of the weight-bearing line. The Veteran was found to have metatarsalgia of the left foot, and she exhibited moderate pain and tenderness on palpation of the partially amputated left second toe stump and dorsal surface of the great toe, third, and fourth toe areas. Mild swelling was noted at the base and tip of the second toe stump. The examiner noted a large painful callous at the plantar surface base of the Veteran’s amputation stump, which was of moderate severity and chronically compromised weight bearing. The examiner noted functional loss and limitation of motion, including less movement than normal, pain on movement, pain on weight-bearing, pain on non-weight bearing, swelling, deformity, disturbance of locomotion, and interference with standing. Pain, weakness, fatigability and incoordination were found to significantly limit functional ability during flare-ups or on repeated use. Overall, the examiner described the Veteran as having chronic left foot pain with a hypersensitive second toe amputation/stump area. The Veteran was afforded another VA examination in March 2018. The Veteran reported chronic left foot pain and limitation of motion, indicating the pain was primarily in the distal foot, especially in the area of the first and second MTP joints. She reported constant use of orthotics and was noted to have developed calluses under the second MTP joint which were painful and required periodic shaving by a podiatrist. She was also found to have other calluses on the toes due to her altered gait. She reported swelling in the distal foot during the day that would go back down at night. She indicated that her left foot condition limited walking to about 10 minutes at a time, at which point the pain would become severe enough to necessitate taking weight off the foot before resuming. She reported that standing was “ok.” She reported experiencing constantly severe foot pain every day. The examiner found the Veteran’s left foot condition to be severe, and that it chronically compromised weight bearing and required the use of arch supports, custom orthotic inserts, or shoe modifications. Residual signs or symptoms due to foot surgeries included a moderate, tender, painful callus, as well as additional calluses due to altered gait and “loss of mobility of the foot in all directions, with pain to passive range of motion which the Veteran will not tolerate.” Pain, weakness, fatigability, and incoordination were found to significantly limit functional ability during repeated use. The examiner found the Veteran unable to do occupational activity requiring walking greater than 10 to 15 minutes at a time or high impact activity. He also found the Veteran’s condition to be “severe” based on reported pain level and foot disability. Overall, the Board finds that the Veteran’s left second toe amputation most nearly approximates a severe foot disability during the period starting August 5, 2014, the date of the VA examination showing severe symptoms. During this time, the Veteran reported constant, chronic pain due to her toe amputation, resulting in loss of mobility of the foot in all directions and an inability to stand and walk for more than 10 to 15 minutes at a time. She exhibited callouses to her stump, as well as on her other toes due to the altered gait caused by her disability. She also frequently experienced swelling of the foot. The Veteran consistently reported regular use of orthotics and other devices such as a cane, but these did not relieve her symptoms. Her disability was found to be “severe” based on her reported pain level and impairment. Therefore, based on the foregoing, the Board finds that a 30 percent evaluation is warranted for the Veteran’s left toe amputation disability for the period starting August 5, 2014. A higher 40 percent evaluation is not warranted, as the evidence does not show actual loss of the foot. REASONS FOR REMAND Although the Board regrets the delay, the issue of entitlement to an increased rating for the Veteran’s service-connected varices of the left thigh must once again be remanded for further development. The Veteran’s condition is rated under Diagnostic Code 7120, which provides for a 20 percent disability rating for “persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.” Both the July 2011 and June 2014 VA examiners found the presence of “trace edema.” In its June 2015 decision denying entitlement to an increased rating, the Board determined that because the edema was “trace,” it was not “persistent.” However, the Court found that the Board did not adequately explain its finding that “trace” edema does not constitute “persistent” edema under the applicable diagnostic code and therefore remanded the matter for clarification. Accordingly, the Veteran was afforded another VA examination in March 2018. The examiner found no evidence of edema during the examination and did not offer any discussion concerning what constitutes “persistent” edema such that a higher rating would be warranted under the diagnostic code. While the examiner described the current severity of the Veteran’s varicose veins condition, there is still insufficient information to determine the level of severity of the Veteran’s condition throughout the entire period on appeal. To that end, the Board finds that remand is warranted for a retroactive opinion to address whether the Veteran has experienced “persistent” edema at any point during the period on appeal. Specifically, a retroactive opinion is warranted to determine whether the “trace edema” noted in the July 2011 and June 2014 VA examination reports could constitute “persistent edema” under the diagnostic code. Therefore, the matter is REMANDED for the following actions: 1. Return the Veteran’s claims file, along with a copy of this decision, to the March 2018 VA examiner (or to a different practitioner if unavailable) for a retrospective medical opinion concerning the nature and severity of the Veteran’s left thigh varices for the entire period on appeal. Specifically, the examiner is asked to address the findings of “trace edema” in both the July 2011 and June 2014 VA examination reports and determine whether the “trace edema” noted in those reports could also be considered “persistent” in severity. If possible, the examiner should include an explanation of the difference between “trace edema” and “persistent edema.” In reaching a conclusion, the examiner must also address the Veteran’s lay testimony of record, corroborated by the July 2011 and June 2014 VA examination reports, that her leg and thigh swell daily from mid-morning through the evening. The examiner is advised that the Veteran is competent to report her symptoms, and her reports must be considered and discussed in formulating the requested opinions. If her reports are discounted, the examiner should provide an explanation for doing so. (Continued on the next page)   In the event the examiner is unable to offer any of the requested opinions, the examiner must explain why. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Thereafter, the RO should readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the Veteran and her attorney an appropriate opportunity to respond. The case should then be returned to the Board as warranted. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel