BVA9500820 DOCKET NO. 93-07 801 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for a left foot disability due to amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from July 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which denied an increased evaluation for a left foot disability due to amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis. The appellant's May 1992 substantive appeal to the Board indicates that the appellant may also be seeking entitlement to service connection for a left ear disorder. This claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant avers that his left foot disability due to amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis, has resulted in severe pain, numbness, and swelling in the left foot that affect his balance and his ability to ambulate. The left foot disability requires him to use a cane or a walker for added stability and to guard against falling down. 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 appellant'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 a disability evaluation in excess of 20 percent for a left foot disability due to amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant's left foot disability, caused by amputation of the second, third, and fourth toes of his left foot, involves complaints of pain, numbness, and swelling, with findings of metatarsalgia and arthritis of the left foot, with a full range of motion, and an ability to rock on heels and toes and squat with some difficulty. 3. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The schedular criteria for a left foot disability evaluation in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5173, 5279, 5284 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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 (1994). Amputation of three or four toes without metatarsal involvement warrants a 10 percent evaluation if the amputations do not include the great toe and a 20 percent evaluation if the great toe is included. 38 C.F.R. § 4.71a, Diagnostic Code 5173 (1994). Unilateral or bilateral anterior metatarsalgia (Morton's Disease) warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5279 (1994). Moderately severe residuals of foot injuries warrant a 20 percent evaluation. A 30 percent evaluation requires severe residuals. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of the use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1994). Review of the claims file indicates that in March 1945 the appellant's left foot was crushed by a railroad freightcar wheel. A March 1945 operation report indicated that the crushing injury of the left foot resulted in a partial amputation of the second, third, and fourth toes, an avulsion of soft tissue, and a compound, comminuted, fracture, with dislocation of the great toe. A February 1981 medical statement from C. R. Gardner, D.O., noted that the appellant had undergone amputations of the second, third, and fourth toes of the left foot. The statement also mentioned that the appellant had a tender callus over the third metatarsal head and a hallux valgus deformity. At a subsequent March 1981 VA physical examination, it was noted that the appellant's gait was characterized by a marked limp, and that he used a cane to ambulate. In January 1992 a VA medical evaluation was conducted. The appellant's chief complaint included a inability to walk due to pain in the left buttocks radiating down to the foot, with numbness and tingling in the legs. The examination confirmed the amputation of the second, third, and fourth toes of the left foot. There was tenderness on palpation over the left metatarsal area, and there was full range of motion in the left foot. He was able to rock on heels and toes and could squat with some slight difficulty. X-ray examination of the appellant's feet showed that the distal phalanges of the second, third, and fourth toes of the left foot had been amputated, including the distal ends of the proximal phalanges. Degenerative joint disease was noted, especially involving the intertarsal and tarsometatarsal joints. The medical examination diagnosis pertaining to the appellant's left foot disability was amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis. Additional diagnoses included post operative residuals of bilateral total knee replacement; vascular hypertension; arthritis of the lumbosacral spine with sciatica, left; and arthritis of both hips. At an August 1992 personal hearing, the appellant testified that he had problems ambulating, which he believed were caused by his left foot disability. He stated that he had a constant pain in one of his remaining toes on his left foot. He explained that the bones in his left foot felt like they were clicking one another when he walked, and he compared the sensation to walking on stones. His testimony revealed that he had fallen down approximately 12 to 15 times in the previous year because his left foot disability caused him to lose his balance. He stated that he had instability in his left foot that required him to use either a walker or a cane to steady himself. He also experienced swelling that would start around the left ankle and continue up to the knee. He claimed that his left lower extremity would be twice the size of his right lower extremity by the end of the day. In addition to the pain and swelling, the appellant described numbness that began around his left knee and radiated into the bottom of his left foot and ended at the amputation sites. VA outpatient treatment reports show complaints relating to various nonservice-connected disorders, including status post cervical laminectomy, degenerative joint disease, and low back pain. The Board notes the history and current problems relating to the appellant's neck, back, and hips. After careful and longitudinal review of the evidence presented in this case, including the appellant's testimony at the August 1992 personal hearing, the Board finds that the appellant's residuals of amputation of the second, third, and fourth toes of his left foot, with metatarsalgia and arthritis, are no more than 20 percent disabling. Under Diagnostic Code 5173, relating to amputation of three or four toes without metatarsal involvement and without amputation of the great toe, a 10 percent evaluation is warranted, and metatarsalgia warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5173 and 5279 (1994). The appellant's great toe was not amputated, and metatarsalgia has been noted, reflected in the 20 percent evaluation currently in effect. We note that, under Diagnostic Code 5284, a severe left foot disability warrants a 30 percent disability rating, and a 40 percent rating, under this code, requires residuals so severe as to result in actual loss of the use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1994). The Board finds that the appellant certainly has the use of his left foot which, although impaired, is not shown to be more than moderately severe. He is able, on examination, to rock on his heels and toes and to squat, and his left foot exhibits a full range of motion. The recent treatment reports of record and the report of the VA evaluation in January 1992 show that, for the most part, the complaints are not focused on symptomatology affecting his left foot and residuals of the toe amputations, but appear to center around symptoms such as pain which radiates into the lower extremities along with numbness and tingling of the lower extremities. The Board finds that the appellant's left toe amputations are properly and adequately compensated at the 20 percent level either under Diagnostic Code 5173 for the amputations or under Diagnostic Code 5284 for moderately severe residuals of foot injuries. Consideration has also been given to the potential application of the various provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). As discussed above, the medical evidence does not show symptomatology more nearly approaching a 30 percent evaluation for the left foot disorder. Moreover, the evidence does not suggest that the left foot disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, the left foot disability has not demonstrated a marked interference with employment or required frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. Therefore, the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994) is not warranted. ORDER A rating in excess of 20 percent for the appellant's left foot disability due to amputation of the second, third, and fourth toes of the left foot, with metatarsalgia and arthritis, is denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.