Citation Nr: 1806723	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-17 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for deep venous thrombosis (DVT) with resulting implantation of inferior vena cava filter, pulmonary embolism, arterial fibrillation, and leaking mitral valve, to include as secondary to service-connected metatarsalgia, residual of second metatarsal stress fracture of the left foot.

2.  Entitlement to an initial rating higher than 10 percent for metatarsalgia, residual of second metatarsal stress fracture of the left foot.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services



ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel


INTRODUCTION

The Veteran had active service in the Marine Corps from June 1969 to June 1971.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Veteran's claims file is a "paperless" claims file.  All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS).

When this case was before the Board June 2016, it was remanded for further development.  It is now before the Board for further appellate action.

The issues of entitlement to service connection for peripheral neuropathy in the left foot and leg and right foot and leg have been raised by the record in a May 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

The issues of entitlement to service connection for DVT with resulting disabilities and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDING OF FACT

The Veteran's left foot metatarsalgia more nearly approximates moderately severe disability.


CONCLUSION OF LAW

The criteria for a 20 percent rating, but no higher, for left foot metatarsalgia have been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Assist and Notify

VA's duty to notify was satisfied by a letter dated in May 2010.  See 38 U.S.C §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Records were also obtained from the Social Security Administration (SSA).  VA examinations have been conducted.

The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  The appellant and his representative have not identified any failures in the duty to notify and or assist.  For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.

The Board also finds that there has been substantial compliance with the Board's June 2016 remand as to the issue of a foot disability.  


Evaluation of left foot disability

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, 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. 

In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal.  See generally Fenderson v. West, 12 Vet. App. 119 (1999).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

The Veteran reported repeated trauma to his left foot during service; once when a marine stomped on his foot and another time when a motor fell on his foot.  He developed a fracture of the left 2nd metatarsal as documented on an x-ray conducted during service.  In March 2011, the RO granted service connection for metatarsalgia, residual 2nd metatarsal stress fracture of the foot and assigned a 10 percent evaluation under Diagnostic Codes 5279 and 5299.  The Veteran has perfected an appeal with the initial disability evaluation assigned.  

In April 2010, the Veteran was admitted to the hospital for left foot swelling and pain.  He was diagnosed with deep vein thrombosis.

The Veteran received a VA examination for his feet in August 2010.  He reported pain and lack of endurance while standing and walking in his left foot.  The examiner noted that the walking and standing limitations were currently hard to differentiate between the residuals secondary to the stress fracture and current history of DVT.  Prior to the DVT diagnosis, the Veteran was able to walk 1/4 mile and stand 15 to 30 minutes.  There was severe edema of the entire foot and lower leg, and extending to lower thigh.  The examiner noted moderate-severe varicosities to the medial ankle.  Although the Veteran's gait was very antalgic, this was complicated by current signs and symptoms of DVT to left limb.  The examiner noted that there was no current literature causing or correlating DVTs secondary to stress fracture.  

In an April 2014 statement, the Veteran reported that he used orthotics to relieve pain in his foot, but the pain continued.

The Veteran was afforded a VA examination for his foot in January 2017.  He was diagnosed with metatarsalgia and foot injury due to stress fracture of the left 2nd metatarsal.  The examiner noted that the Veteran had moderate-severe pain on palpation to the left plantar 2nd metatarsal joint and moderate pain at the plantar 3rd metatarsal joint.  The examiner opined that the Veteran had moderately severe foot disability on the left.  The pain moderately compromised weight-bearing, and the Veteran wore orthotic inserts.  There was pain on weight-bearing, pain on nonweight-bearing, disturbance of locomotion, and interference with standing and lack of endurance.  There was also pain, weakness, fatigability or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time.  The examiner noted that the Veteran's employment would be impacted due to his decrease in mobility.  

The Veteran's left foot disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5279 and 5299, for metatarsalgia.  A 10 percent is assigned for metatarsalgia, anterior (Morton's disease), that is unilateral or bilateral.  

Alternatively, other foot injuries are evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, which allows a 10 percent evaluation for moderate disability.  A 20 percent evaluation is assigned where there is moderately severe disability, and a 30 percent evaluation is assigned where there is severe disability. Separate ratings for each foot are available. 

The assignment of a particular diagnostic code to evaluate a disability is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). 

As noted above, the Veteran has been assigned a 10 percent evaluation from May 14, 2010, the date of his initial claim, and he appealed this claim.  The Veteran has been evaluated under DC metatarsalgia, DC 5279.  A 10 percent evaluation is the highest evaluation allowable under this diagnostic code.  As set forth above, the Veteran's left foot disability is noted by the January 2017 examiner to be moderately severe and interference with his job is only due to decrease in mobility.  The Board finds that the signs and symptoms of his left foot disability are more severe than what is contemplated by the 10 percent allowable under DC 5279.  Therefore, it is appropriate to use the broader category of foot injuries under DC 5284 to evaluate this Veteran's disability. 

The August 2010 examiner noted that it was hard to differentiate between the Veteran's DVT and his foot disability, and therefore, the Board does not find the evidence from this examination to be reliable.  He was therefore provided a new examination in January 2017.  The January 2017 examiner found that the Veteran had moderate-severe pain on palpation to the left plantar 2nd metatarsal joint and moderate to plantar 3rd metatarsal joint.  The examiner also found that the Veteran had moderately severe foot disability on the left.  Based on the findings in the January 2017 examination which showed moderately severe foot disability and the clinical records, the Board finds that the left foot metatarsalgia more nearly approximates a 20 percent rating under DC 5284.  The evidence does not show severe pain or severe difficulties with weight-bearing.  Therefore, a 30 percent is not warranted under DC 5284.

The Board acknowledges the Veteran's statements regarding the severity of his foot disability, but the evidence shows that the Veteran has another separate diagnosis of DVT which has resulted in significant pain in left leg that causes pain with walking, difficulty with prolonged standing, and prolonged walking or sitting.  See January 2017 examination for DVT.  DVT has not yet been considered related to service or to his service-connected disabilities.  The Board concludes that the more probative evidence consists of that prepared by neutral skilled medical providers, who have stated that the Veteran's foot disability is no more than moderately severe.  

The Board has also considered whether higher ratings are available under other diagnostic codes applicable to the feet.  While a higher evaluation is available under the criteria for flatfoot, malunion or nonunion of the tarsal or metatarsal bones, or pes cavus, or claw foot, there is no indication of signs or symptoms of these disabilities in the medical evidence; thus, these diagnostic codes are inapplicable.  No other diagnostic code applicable to the feet allows higher evaluations than those assigned herein.

Therefore, the Board finds that a 20 percent evaluation is warranted for the left foot disability under Diagnostic Code 5284 which would replace his currently assigned 10 percent evaluation under Diagnostic Code 5279.  As such, the appeal is granted.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
 

ORDER

Entitlement to a rating of 20 percent for a left foot disability is granted, subject to the regulations controlling the payment of monetary benefits.


REMAND

The Veteran was provided a VA examination in January 2017 to determine whether his DVT and resulting disabilities were related to his service-connected foot disability.  The examiner provided an opinion that it was less likely than not that DVT was caused or aggravated by his service-connected foot disability.  The examiner reviewed all medical evidence in the file, but the examiner only provided a rationale as to why the Veteran's left foot disability was not caused by his left foot disability.  The examiner did not provide a rationale as to why the Veteran's left foot disability was not aggravated by his DVT.  For these reasons, an addendum opinion is needed that includes a rationale as to why the left foot disability is not aggravating the Veteran's DVT and resulting disabilities.  

The Board notes that further development and adjudication of the Veteran's claim for entitlement to service connection for DVT and resulting disabilities might provide evidence in support of his claim of entitlement to a TDIU.  The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination as to the issue of TDIU.  See Henderson v. West, 12 Vet. App. 11   (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the claims are inextricably intertwined.

In a May 2017 letter, the Veteran asked what needed to be provided as he believed he provided all evidence needed.  In this case, the Veteran needs an opinion by a physician that the Veteran's DVT and resulting disabilities are at least as likely as not caused or aggravated by his left foot disability.  The physician should also provide a rationale for his or her opinion.  

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the provider who conducted the January 2017 Artery and Vein Condition examination, if available, for an addendum addressing the Veteran's DVT diagnosis.  The examiner should be requested to review the file and his examination report.  Upon completion of that review, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's DVT and any resulting disabilities are aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected left foot disability (metatarsalgia, residual secondary to 2nd metatarsal stress fracture of the left foot). 

A discussion of the complete rationale for all opinions expressed must be included in the examination report.  

An examination should only be provided to the Veteran if the examiner feels that another examination is necessary in order to provide the requested opinion.  If the January 2017 VA examiner is not available, another competent professional may provide the opinion after reviewing the January 2017 examination report and the claims file.  

If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

2.  After obtaining the opinion, review the opinion to ensure that they address the questions presented.  Any inadequacies should be addressed prior to recertification to the Board.

3.  Readjudicate the Veteran's claims for entitlement to service connection for DVT with resulting disabilities and entitlement to TDIU, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

The appellant 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).
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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 (2012).




______________________________________________
G. A. WASIK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs