Citation Nr: 1226025	
Decision Date: 07/27/12    Archive Date: 08/03/12

DOCKET NO.  09-40 178 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a disability evaluation in excess of 10 percent for service-connected status post left third metatarsal stress fracture with chronic pain and mild numbness (claimed as left foot nerve damage).


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

Sara Schinnerer, Associate Counsel




INTRODUCTION

The Veteran had active service from December 1983 to June 1984, November 1986 to February 1992, and from July 1997 to April 1998.

In October 2009, the Veteran requested a hearing before a decision review officer.  See VA Form 9.  In a November 2009 letter, the Veteran was informed that a hearing had been scheduled for December 2009.  In a December 2009 written communication, the Veteran cancelled his hearing request.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  


FINDING OF FACT

The Veteran's residuals of a stress fracture of the left third metatarsal are consistent with no more than moderate impairment of the left third metatarsal, with subjective complaints of impaired walking, objective evidence of tenderness and mild swelling of the third metatarsal digit over the dorsum, and posttraumatic arthritis; there is no competent evidence of painful motion, weakness, instability, claw foot, hallux valgus, hammer toe or malunion or non-union of the tarsal or metatarsal bones of the left foot.


CONCLUSION OF LAW

The criteria for a disability evaluation greater than 10 percent for status post left third metatarsal stress fracture with chronic pain and mild numbness have not been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2011).   


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Notice was provided in a July 2008 letter.  

The Veteran was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim.  Overton v. Nicholson, 20 Vet. App. 427 (2006).  Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his increased rating claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected.  

As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, VA outpatient treatment records, afforded the Veteran an examination, and assisted the Veteran in obtaining evidence.  Based on the foregoing, all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.     

Increased Rating

The Veteran maintains that he is entitled to a disability evaluation in excess of 10 percent for his service-connected status post left third metatarsal stress fracture with chronic pain and mild numbness.  In that regard, disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Moreover, while the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  

In the present case, 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.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Left Third Metatarsal

In a February 2002 rating decision, the RO granted service connection and assigned an initial zero percent disability evaluation for status post left third metatarsal stress fracture with chronic pain and mild numbness, effective from October 10, 2001, the date of claim.  In granting service connection, the RO noted the Veteran's service treatment records during his third period of active service demonstrate significant evidence of stress fracture that had its onset in October 1997.  In a September 2002 rating decision, the RO increased the disability evaluation from noncompensable to 10 percent disabling, effective, October, 10, 2001.  In July 2008, the Veteran initiated a claim for an increase in his disability evaluation.  In the August 2008 rating action on appeal, the RO continued the Veteran's 10 percent disability evaluation.  

The Veteran's left third metatarsal disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284, for foot injuries other than those specified in other diagnostic codes.  

Under DC 5284, foot injuries are rated at 10 percent disabling if moderate, 20 percent disabling if moderately severe, and 30 percent disabling if severe.  38 C.F.R. § 4.71a, DC 5284.  

The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 
38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6.

In determining whether the next higher 20 percent rating is warranted, the pertinent evidence of record has been reviewed and a discussion of such evidence follows.  

VA outpatient treatment records dated from December 2007 through April 2008 note the Veteran's status post left third metatarsal stress fracture was asymptomatic.  

VA outpatient treatment records dated from August 2008 through May 2009 show the Veteran sought treatment for chronic pain and swelling of his left foot.  On examination in August 2008, there was pain at palpation over the dorsal of the left third metatarsal.  At the time, the Veteran reported that he experienced pain while walking.  X-rays of the left foot demonstrate soft tissue swelling of the dorsum of the left foot and degenerative changes of the toes.  The examiner recommended that the Veteran use a cane due to his persistent pain while walking.  A May 2009 record notes the Veteran's use of a cane due to his unstable gait; the diagnosis was post- traumatic arthritis of the left foot.    

In December 2009, the Veteran underwent a VA examination.  At the time, the Veteran reported that he experienced pain in his left third metatarsal.  He reported such pain was an intensity of 7/10, to include worse pain upon ambulation and standing.  He indicated that he experienced lack of endurance associated with ambulation, however, stated that he was able to ambulate for 15 minutes.  He reported that he had weekly flare-ups which lasted several hours and were alleviated by left foot elevation.  He stated that he took pain medication on a daily basis, but, such medication provided very little relief.  He indicated that he currently used a cane.  He denied a history of hospitalization and surgery.  He reported that he was independent in self care and currently unemployed.  

Physical examination of the left third metatarsal, as well as the other toes of the left foot did not demonstrate an obvious deformity; there were no skin or vascular changes.  There was no evidence of objective painful motion, instability, or weakness of the left third metatarsal.  There was tenderness of the left foot dorsum at the third digit.  The Veteran's gait was antalgic.  He limped from his left foot.  There was no evidence of callosity or breakdown.  There was no evidence of hammertoes, high arch, or clawfoot.  The weight bearing and non weight bearing alignment of the Achilles tendon was appropriate.  There was no evidence of valgus or hallux valgus.  There was no evidence of forefoot and/or midfoot malalignment.  There was active motion of the metatarsophalangeal joint of the left great toe.  X-rays show degenerative changes of the left toes and soft tissue swelling at the dorsum of the left foot.  The diagnosis was left foot third metatarsal fracture with posttraumatic arthritis.    

Upon review of the record, the Board finds the evidence supports no more than the currently assigned 10 percent disability evaluation indicative of moderate impairment for the Veteran's service-connected residuals of his left third metatarsal stress fracture with chronic pain and mild numbness.  VA outpatient treatment records dated from August 2008 through May 2009 demonstrate the Veteran's subjective complaints of left third metatarsal pain and difficulty walking, as well as use of a cane.  The records also show objective evidence of pain at palpation over the dorsum of the left third metatarsal.  The December 2009 VA examination report reflects the Veteran was tender to examination of the left third metatarsal at the dorsum without an obvious deformity.  There was x-ray evidence of degenerative changes to the left toes and mild soft tissue swelling at the dorsum of the left foot.  The Veteran did not demonstrate painful motion, weakness, or instability with respect to his left third metatarsal, nor did he exhibit impairment of range of motion for the remainder of his left toes, including the metatarsophalangeal joint.

In light of the aforementioned VA outpatient treatment records and VA examination, the Board finds that the Veteran's current overall disability shows no more than moderate disability, which is contemplated by the currently assigned 10 percent disability evaluation.  38 C.F.R. § 4.71a, DC 5284.  Such a determination is supported by the findings of tenderness and soft tissue swelling of the left third metatarsal at the dorsum of the foot, and no painful motion, weakness, or instability with respect to the left third metatarsal.  The record does not indicate that the Veteran's disability approximates the degree of severity contemplated by any of the other Diagnostic Codes specific to a foot disability for the left third metatarsal.  

The Board acknowledges the Veteran's complaints of pain and traumatic arthritis of his left third metatarsal bone; however, as above, such symptomatology is contemplated by the Veteran's current 10 percent disability evaluation under DC 5284.  Inasmuch as DC 5284 is not based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not apply.  See Johnson v. Brown, 9 Vet. App. 7  (1996).

In addition, the Board has considered whether the Veteran's disability would warrant a higher disability evaluation under other Diagnostic Codes pertaining to the foot, however, as noted above, service connection is in effect for residuals of a stress fracture of the left foot third metatarsal bone only; the criteria pertaining to bilateral weak foot, claw foot (pes cavus), hallux rigidus, hammer toe, malunion or nonunion of the tarsal or metatarsal bones, are not demonstrated by the medical evidence of record, nor are they applicable.  38 C.F.R. § 4.71a, Diagnostic Codes (DC's) 5277, 5278, 5281, 5282, 5283.

The Board acknowledges the Veteran's contentions that his service-connected residuals of a stress fracture of the left third metatarsal bone, with posttraumatic arthritis in the left third digit warrants an increased disability evaluation.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left metatarsal disability.   See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. 
§ 3.159(a)(1) and (2) (2011).

In sum, there is no support for a disability evaluation in excess of 10 percent for the Veteran's service-connected left third metatarsal disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  
See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54 (1990). 
 
Extraschedular Considerations

The Veteran did not contend, nor is there an indication that the service-connected left third metatarsal disability affected the Veteran's employment or activities of daily living.  Thus, the issue of whether referral for extraschedular consideration is warranted is not raised.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  

ORDER

Entitlement to a disability evaluation in excess of 10 percent for service-connected status post left third metatarsal stress fracture with chronic pain and mild numbness (claimed as left foot nerve damage) is denied.  




____________________________________________
M. E. LARKIN 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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