Citation Nr: 1761148
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-10 522 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to an initial disability rating in excess of 10 percent for hammertoes of the left foot.

2. Entitlement to an initial disability rating in excess of 10 percent for hammertoes of the right foot.

3. Entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324.

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

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

L. Bristow Williams, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1979 to May 1982.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in relevant part, granted the Veteran’s claim for service connection for bilateral hammertoe disabilities and assigned each a noncompensable disability rating effective July 29, 2009.

In May 2014, the Board remanded the claim for further development. In January 2017, the Board added a claim for a TDIU and remanded all claims for further development. The claim is now returned to the Board for further appellate review.

In a June 2017 rating decision, the RO granted an initial disability rating of 10 percent for the entire appellate period for the Veteran’s service-connected bilateral hammertoes

The Board notes that the Veteran has been diagnosed with a variety of foot disorders, to include pes cavus, hallux rigidus, and hallux valgus. If he wishes to file a claim for these disabilities, he is invited to submit the proper application form to VA.

FINDINGS OF FACT

1. The Veteran has been awarded the maximum schedular rating for hammertoes of the right and left feet throughout the appeal period. He is not service-connected for any other foot disability.

2. The Veteran does not have multiple noncompensable service-connected disabilities for any portion of the appeal period.

3. The Veteran’s service-connected disabilities are not of such nature and severity as to prevent him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for hammertoes of the left foot have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5282 (2017).

2. The criteria for a rating in excess of 10 percent for hammertoes of the right foot have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5282.

3. The criteria for entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities have not been met. 38 C.F.R. § 3.324 (2017).

4. The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017).

(CONTINUED ON NEXT PAGE)

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With respect to the Veteran’s claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”) Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Bilateral Hammertoe Disabilities

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Under Diagnostic Code 5282, a noncompensable rating is warranted for hammertoe of a single toe, and a maximum 10 percent rating is warranted for hammertoe of all toes, unilateral without claw foot.
In its January 2017 decision, the Board remanded the Veteran’s claim for an initial compensable rating for his bilateral hammertoe disabilities. In its remand directives, the Board requested that the Veteran be scheduled for a VA examination and sought clarification as to the number of toes affected by the hammertoe disabilities, as the record contained contradictory evidence.

In June 2017, the Veteran underwent a VA examination. During the examination, the Veteran reported constant daily bilateral foot pain, left ankle swelling, bilateral foot pain with manipulation, and increased pain with weight bearing. He reported bilateral pain on weight-bearing and non-weight bearing; bilateral disturbance of locomotion, bilateral interference with sitting and standing, and bilateral lack of endurance. On examination, the examiner noted objective evidence of bilateral pain on use of the feet, bilateral pain on manipulation of the feet, bilateral characteristic callouses, objective evidence of marked deformity on both feet, as well as marked pronation of both feet. The Veteran was diagnosed with bilateral hammertoe deformities with second, third, fourth, and fifth toe deformities on both feet. He was also diagnosed with bilateral pes cavus, bilateral hallux valgus, and bilateral hallux rigidus.

In seeking to clarify the contradictory evidence of record, the examiner stated that it was not uncommon for medical notes to address only the specific body part being treated and not to address the global presence of a disease not affecting the area of concentration.

As to the Veteran’s diagnoses of bilateral pes cavus, bilateral hallux valgus, and bilateral hallux rigidus, the examiner opined that these disabilities were less likely than not caused by the Veteran’s service-connected bilateral hammertoe deformities. Specifically, the examiner stated that medical literature indicated hammertoe deformities develop as a result of pes cavus and that the unstable structure of the foot causes the development of the hammertoe deformities in an attempt to maintain balance. Additionally, the examiner stated that the development of hammertoes in a foot with pes cavus was considered a natural progression.

Based upon the findings of the June 2017 VA examination, the Veteran was awarded an initial disability rating of 10 percent for the entire appellate period for each of his service-connected hammertoe disabilities.

The Board has also considered the Veteran’s statements regarding the severity of his bilateral foot symptoms. It appears the Veteran’s bilateral foot pain may be due to overlapping symptoms. The Board credits the Veteran’s statements regarding the symptoms he experiences since he is competent to report symptoms which are observable by his five senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board defers to the medical expertise of the medical professionals to determine the source of the Veteran’s symptoms as he is not competent to assess which disability may be causing which symptom.

The Board has given consideration to the functional loss of the Veteran’s disabilities under 38 C.F.R. § 4.40. However, Diagnostic Codes 5282 is not based on limitation of motion. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996); Johnston v. Brown, 10 Vet. App. 80, 84-85 (citing 38 C.F.R. § 4.40.) Further, since the Veteran is receiving the maximum schedular rating available under Diagnostic Code 5282, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. Id.

In conclusion, the Board finds that the currently assigned 10 percent for hammertoe disabilities of the right and left feet are the appropriate ratings. This is the maximum rating for the Veteran’s hammertoe disabilities. Further, although the Veteran may suffer from additional foot conditions, none of these conditions have been caused or aggravated by his service-connected disabilities. As stated above, he is invited to apply for service connection for these disabilities by submitting the appropriate VA form.

III. Entitlement to a 10 Percent Disability Evaluation under 38 C.F.R. § 3.324

If a Veteran is suffering from two or more separate permanent service-connected disabilities of such character as to clearly interfere with normal employability, but none of the service-connected disabilities are assigned compensable ratings, the rating agency is authorized to assign a 10 percent rating for multiple non-compensable disabilities. See 38 C.F.R. § 3.324. However, a rating pursuant to 38 C.F.R. § 3.324 may not be assigned in combination with any other rating.

The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993).

As discussed above, the Veteran is in receipt of 10 percent ratings for his service-connected hammertoe disabilities for the entire appeal period; therefore, the Veteran’s claim for compensation under 38 C.F.R. § 3.324 is moot. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).

IV. TDIU

TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013).

In its January 2017 decision, the Board found that the issue of entitlement to a TDIU had been reasonably raised by the record as the Veteran reported during his November 2009 VA examination that he was unemployed and had not worked in ten years due to his hammertoe disability. In its remand directives, the Board directed the RO to provide the Veteran with appropriate VCAA notice, as well as with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability.)

In March 2017, the RO sent a letter to the Veteran’s address of record that contained information on how to support a claim for TDIU, as well as a copy of the VA Form 21-8940. The letter stated that if the Veteran believed he qualified for a TDIU, he was to complete, sign and return the enclosed VA Form 21-8940. To date, the Veteran has not submitted a completed VA Form 21-8940.

Service connection is in effect for ankylosis of the right wrist, rated as 50 percent disabling; right foot hammertoes, rated as 10 percent disabling; and left foot hammertoes, rated as 10 percent disabling. The service connected disabilities combine to be 60 percent disabling; as such, the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) are not met.

Moreover, even if the criteria were met, the evidence of record does not demonstrate that the Veteran is precluded from employment due to his hammertoe or wrist disabilities. Although the Veteran reported during his November 2009 VA examination that he was unemployed and had not worked in ten years due to his hammertoe disability, the examiner who conducted the Veteran’s November 2009 VA examination concluded that there were no functional limitations on standing or walking due to the service-connected hammertoe disabilities. Also in November 2009, a VA examiner noted that the Veteran was unemployed, but that his wrist did not affect his employment. He was noted to have been unemployed for 10 to 20 years, and was laid off as a dish washer.

During the July 2014 VA examination, the examiner observed the Veteran walking slowly with the assistance of a cane but concluded that his service-connected hammertoe disabilities did not impact his ability to perform any type of occupational task. Upon examination of the Veteran’s wrist in July 2014, it was noted that the Veteran reported an inability to use his right hand due to pain, and that it affected his ability to work as he was unable to move his wrist actively or passively without apparent severe pain. Significantly however, the examiner noted that the Veteran provided out of the ordinary responses and made any examination incomplete or invalid.

Although the June 2017 VA examiner opined that the Veteran’s foot disabilities impact his ability to perform occupational tasks such as standing, walking, and lifting, as his bilateral foot conditions severely affected his ability to weight bear, several of the disabilities considered in this assessment are not service-connected, and have symptoms described by the VA examiner as unrelated to the Veteran’s service-connected hammertoes, as discussed above.

The Veteran’s assertions that his service-connected hammertoe disabilities have rendered him unemployable have been contemplated by the Board. However, the more objective clinical evidence described above is the most probative evidence with regard to evaluating whether a service-connected disability has rendered the Veteran unemployable. Indeed, the examiners above have articulated that although the Veteran has several foot disabilities that impair his ability to walk, the hammertoes themselves cause little functional impairment. In light of the fact that the Veteran did not return VA Form 21-8940, which would have provided insight in the Veteran’s prior training and education, as well as his work history, that physicians who have examined the Veteran identified little occupational impairment due to hammertoes, that the Veteran was not a reliable responder with respect to his assessment of his service-connected wrist disability, and that the remaining evidence contains no indication that the Veteran is precluded from working because of his hammertoes and wrist, the Board finds that the preponderance of the evidence is against the claim for a TDIU; referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted, and entitlement to a TDIU is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to an initial rating in excess of 10 percent for hammertoes of the left foot is denied.

Entitlement to an initial rating in excess of 10 percent for hammertoes of the right foot is denied.

Entitlement to a 10 percent disability rating for multiple non-compensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is denied.

Entitlement to a TDIU is denied.

____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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