BVA9500684 DOCKET NO. 92-08 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased evaluation for a left foot disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, her husband, and her mother ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from May 1980 to April 1982. This appeal arises from March 1990 and subsequent rating decisions of the Pittsburgh, Pennsylvania, regional office (RO). The March 1990 rating decision denied an evaluation in excess of 10 percent for residuals of a fracture, first cuneiform, of the left foot. An October 1990 rating decision again confirmed this denial. In September 1992, the veteran's case was returned to the RO to allow the veteran's representative an opportunity to submit a VA Form 1-646. Following receipt of additional evidence, the RO, in October 1992, granted the veteran an evaluation of 30 percent for her left foot disorder. In July 1993, the Board of Veterans' Appeals (Board) remanded the case to the Winston-Salem, North Carolina, regional office (WRO) for additional development. By rating decision of March 1994, the WRO continued the 30 percent evaluation, and granted an earlier effective date from August 22, 1988, for the 30 percent evaluation. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that she is entitled to a 40 percent evaluation for her left foot disorder. She contends that she has lost the use of her foot, that she has constant pain, and that she unable to walk on the foot for any distance. Her representative requests that all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 30 percent for a left foot disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's service-connected left foot disorder causes severe disability, but the medical evidence does not demonstrate that the veteran has lost the use of her left foot. 3. The regular schedular standards are adequate to rate the veteran's disability and the case does not present an exceptional or unusual disability picture which renders the application of the regular schedular standards impractical. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for fusion, first and second cuneiforms to the navicular and first and second metatarsals of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b)(West 1991); 38 C.F.R. Part 4, §4.7, Codes 5283, 5284 (1993). 2. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, she has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The service medical records show that the veteran suffered a fractured first cuneiform of the left foot in February 1982. Service connection was initially granted for residuals, fracture of the first cuneiform, left foot, in January 1983. A noncompensable rating was assigned under code 5284 from April 1982. An August 1989 rating decision increased the evaluation to 10 percent, from August 1988. In October 1989, the veteran underwent a fusion osteotomy and tendon transfer of the left arch and heel. In July 1992, she underwent fusion of the left first metatarsomedial cuneiform joint, fusion of the second metatarso middle cuneiform joint, fusion of the cuneonavicular joints, fusion of the base of the first and second metatarsals, opening wedge osteotomy of the cuboid, and left anterior iliac crest bone graft. Reginald L. Hall, M.D., who performed this surgery, noted abduction of the forefoot with prominence in the region of the navicular. Dr. Hall also reported that the posterior tibial was palpable active and that the anterior tibial appeared to be posterior to its normal insertion. In October 1992, the RO granted a 30 percent evaluation for fusion of the first and second cuneiforms to the navicular and first and second metatarsals, pursuant to Diagnostic Code 5283, effective from December 1992. By rating decision of March 1994, the WRO continued the 30 percent evaluation, and granted an earlier effective date, August 1988, for the 30 percent evaluation. The veteran continues to contend that she is entitled to a higher rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). The veteran's left foot disability is currently evaluated under Code 5283. 38 C.F.R. Part 4, Code 5283 (1993). This code contemplates a 40 percent evaluation where actual loss of use of the foot is demonstrated. The current 30 percent evaluation is appropriate where severe malunion of the tarsal or metatarsal bones is shown. 38 C.F.R. Part 4, Code 5283 (1993). Code 5284, under which the veteran's foot disability was previously rated, also requires actual loss of use of the foot for a 40 percent evaluation to be assigned. A 30 percent evaluation is appropriate for a severe foot injury without loss of use of the foot. 38 C.F.R. Part 4, Code 5284 (1993). An August 1993 letter from a private physician stated that the veteran had been advised against wearing high heels, participating in sports activities, running, and jumping. The physician also stated that the veteran required a job in which she would be sitting most of the time. The veteran was described as walking on the balls of her feet resulting in corns and calluses. The examiner stated that the veteran had extensive damage and constant pain secondary to the inservice injury. Pursuant to the Board's remand, a VA orthopedic examination was conducted in September 1993. The veteran reported pain with ambulation, difficulty with shoes, and a general change in lifestyle secondary to the foot condition. On examination, the ankle motion appeared normal, with 10 degrees of active dorsiflexion and 40 degrees of plantar flexion. Subtalar motion demonstrated an arc of 10 degrees. Motion at the forefoot was naturally fused. Toe motion was normal. There was global tenderness across the forefoot tarsalia and metatarsals, and multiple surgical scars and calluses across the metatarsal heads. X-rays showed staples and bone screws as well as minimal osteoporotic changes. In a subsequent written statement dated in February 1994, the examiner elaborated on his findings. The examiner stated that he found no evidence of instability in the veteran's foot, and beyond the fusion mass motion and strength were normal. He stated that there was some dysfunction in the foot which would do such things as slow the veteran in running. He concluded by stating that the veteran could ambulate on the foot in a fashion consistent with most jobs. The medical record in this case shows that the veteran has a severe left foot disability which causes pain and affects her ability to walk. However, the medical record does not indicate that she has lost the use of her left foot, which is the sole criterion for a 40 percent evaluation. The Board finds that the veteran's disability is properly evaluated at the 30 percent level. This evaluation encompasses a severe level of foot disability and the resultant pain and hardship. 38 C.F.R. Part 4, § 4.7, Codes 5283, 5284 (1993). Accordingly, an evaluation in excess of 30 percent for the veteran's left foot disability is denied. There is no equipoise between the positive and negative evidence in this case, therefore no reasonable doubt issue is raised. 38 C.F.R. § 3.102 (1993). The schedular evaluations are adequate to compensate the veteran's disability. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. §§ 3.321(b)(1) (1993). ORDER An evaluation in excess of 30 percent for a left foot disorder is denied. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.