BVA9507986 DOCKET NO. 93-14 400 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for residuals of a left foot gunshot wound resulting in the amputation of the left great toe, including the metatarsal, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for residuals of a left foot gunshot wound resulting in the amputation of the second toe, including the metatarsal, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Lori R. Bucci, Associate Counsel INTRODUCTION The veteran served on active duty from July 1991 to June 1992. This appeal arises from a rating decision in December 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left foot gunshot wound residuals are more severely disabling than the current evaluations reflect. Essentially it is maintained that the gunshot wound residuals cause considerable pain, and constant discomfort which precludes doing basic tasks. The veteran specifically maintains that the combined effect of his service connected wounds is productive of far greater disability than is reflected by the assignment of a combined 40 percent rating. 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 claims of entitlement to increased evaluations for residuals of a left foot gunshot wound resulting in amputation of the left great toe, including the metatarsal, and for residuals of a left foot gunshot wound resulting in amputation of the second toe, including the metatarsal. FINDINGS OF FACT 1. The veteran’s residuals of a gunshot wound to the left foot are primarily manifested by the amputation of both the left great and second toes, with each amputation including the loss of the corresponding metatarsal bone. 2. The veteran’s service connected left foot gunshot wounds are not productive of a functional loss of use his left foot, or by a loss of more than half of the left foot’s metatarsal bones. 3. The veteran’s service connected left foot gunshot wound residuals are not manifested by such related factors as a marked interference with employment or the need for frequent hospitalization. CONCLUSIONS OF LAW 1. The schedular and extraschedular criteria for an evaluation in excess of 30 percent for residuals of a left foot gunshot wound resulting in amputation of the left great toe, including the metatarsal, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.68, 4.71a, Code 5171 (1994). 2. The schedular and extraschedular criteria for an evaluation in excess of 20 percent for residuals of a left foot gunshot wound resulting in amputation of the second toe, including the metatarsal, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.68, 4.71a, Code 5172 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background On December 6, 1991, the veteran was admitted to Bethesda Hospital in Zanesville, Ohio, after he sustained an accidental gunshot wound from a 20 gauge deer slug. The admission diagnosis was a shotgun wound of the left foot with compound, comminuted fractures of metatarsals 1, 2, 3, and 4, and probable nonviability of the first three toes with significant loss of all tissues of the mid and forefoot. Physical examination of the left foot showed a large laceration-type of entry wound which measured three inches in length in a zigzag fashion across the dorsomedial aspect of the mid foot and forefoot. There was a large stellate exploding-type of multiple lacerations involving the plantar aspect of the foot out to the base of the toes and back to the heel across the entire arch area involving almost the entire two-thirds of the underside of his foot. There was obvious bone loss, and instability of the forefoot. X-rays showed markedly comminuted fractures of the first, second, third, and fourth metatarsals. The tarsal bones and phalanges appeared intact. He was immediately taken into surgery for initial debridement, irrigation, open packing, and evaluation of the wound. A few days later, a repeat debridement and redressing were performed. On December 12, 1991, the examiner noted that the gun discharge had inflicted significant trauma and a through-to-through wound of the left foot. The entrance wound was approximately six centimeters in diameter and located over the mid point of the first and second metatarsals. Both of these bones were missing from the wound. The wound was then debrided and the great toe was amputated. The distal portion of the metatarsal as well as all of the phalanges and nail were removed. On December 18, 1991, further debridement of a significant amount of necrotic tissue was performed. During the procedure, some additional bone was removed. On December 19 and 23, 1991, the wound was again debrided. On December 26, 1991, the wound was debrided and partially closed. At that time, the second toe was amputated. The examiner noted that the metatarsal of the second toe had been blown out in the initial blast, and that the proximal head had been removed at the initial debridement. The extra tissue of the second toe was then fileted and used to gain coverage of the wound. On December 30, 1991, another debridement was performed and the wound was further closed. On January 12, 1992, the veteran's wound was debrided and the sutures were removed. Two days later, the veteran was discharged to convalescent leave. Service medical records reveal that the veteran was transferred to the Naval Hospital, Great Lakes, Illinois, in February 1992. In March 1992, the veteran appeared before a Medical Board. The Medical Board reiterated the history of the veteran's gunshot wound treatment as follows: Upon admission to the Naval Hospital in February 1992, the initial physical examination revealed that the veteran had a markedly antalgic gait and was unable to bear weight on the left lower extremity. Visual inspection of the left foot showed loss of the medial half of the forefoot. There was a claw toe deformity of the third ray and multiple scars overlying the area of the defect particularly on the plantar surface. There were soft tissue protuberances at the confluence of the reconstructive flaps. There were several areas of hypersensitivity consistent with neuromas along the medial border of the skin. The sensation over the dorsal surfaces was limited to deep pressure. The veteran had protective sensation to light touch. Light touch or finger versus nail discrimination was not present. Sensation along the inferior aspects of the third, fourth, and fifth toes was normal. Palpation of the metatarsal heads of third, fourth, and fifth toes showed a dorsiflexed fourth ray and irregular soft tissue coverage. Dorsalis pedis and posterior tibialis pulses were intact and normal. Distal capillary fill was normal. There was a small area on the inferior aspect of the third metatarsal with persistent drainage. Roentgenograms of the left foot revealed loss of the entire first ray. The proximal two centimeters of the second ray was intact. The third, fourth, and fifth toes were present; however, there were fractures at the level of the neck on the third and fourth toes. They were healing with some callus formation, but were 100 percent displaced and poorly aligned, particularly the third ray. The veteran started on physical therapy for desensitization of his foot. He was seen by podiatry who had no further recommendations with the exception of a forefoot prosthesis. The veteran was discharged from the hospital after two days. At the time of discharge, the examiner noted that the maximum benefits of therapy had not been obtained and he would not be able to run or walk normally due to his foot deformities. However, the veteran was able to wear normal foot wear. The final diagnosis was gunshot wound to the left foot with metatarsal malunion. At a November 1992 VA compensation examination, the veteran stated that he had had approximately ten surgeries on his left foot. His most recent surgery was in March 1992 secondary to cellulitis. He complained of pain with increased ambulation and upon standing for extended periods of time. He also stated that changes in the weather increased his left foot pain. He had some paresthesias with respect to the incision site. He had no infection of the left foot since March 1992. Physical examination revealed that the veteran's gait was somewhat "crippled" secondary to his left foot, although he had a prosthesis and he ambulated fairly well. His great toe, second toe, and the medial aspect of the forefoot were amputated. He also lacked one of his phalanges to the third toe. There was some scarring secondary to the multiple surgeries of his left foot. There was disfigurement; however, there was good healing of the wounds. The areas were essentially nontender, although with palpation he had increased paresthesia to the left foot. He had no swelling. There was some gross deformity of the third toe, but the fourth and fifth toes were within normal limits. The left ankle was nontender and had a full range of motion. His left foot had an obvious decreased of range of motion. His third toe had an increased range of motion secondary to the lack of phalanx. He had some hypesthesia to the left foot in the area of the wound and scars. The diagnosis was a status post gunshot wound, probable osteoarthritic changes, hypesthesia and gross disfigurement of the left foot. The impression of the left foot x-ray was status post gunshot wound with an absence of the first and second digits and metatarsals. Also included with the November 1992 VA compensation examination was a report by a VA podiatrist. Observing the veteran as he walked across the parking lot and in the waiting room, the examiner noted that he had a very tender foot. The veteran had difficulty removing his shoe due to the heightened sensation of the scarred areas and nerve endings. He had quite a bit of pain because the third toe overlapped and was malpositioned. Upon physical examination, the veteran was very sensitive in the whole forefoot region with painful areas under the fourth and fifth metatarsal heads. The veteran had scarred areas which he preferred not to touch and he stated that these areas would wake him at night if anything touched them. He had transient phantom pain associated with the amputations which was very unpleasant. The veteran worked at a pharmacy and was putting time in on the computer. However, he could not stand for more than an hour, or an hour and a half due to the pain. The examiner's recommendation was that the left foot was probably as good as could be expected. He suggested pinning the third toe for better positioning, or excising the third toe since there was "no metatarsal" and possibly no joint. At a future date, the examiner thought the veteran might require a transmetatarsal amputation. Analysis Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on an average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Diagnostic Code 5310 provides that a 30 percent evaluation is warranted for a severe injury to Muscle Group X (intrinsic muscles of the plantar aspect of the foot). Diagnostic Code 5171 provides that a 30 percent evaluation is warranted for the amputation of the great toe with removal of the metatarsal head. Diagnostic Code 5172 provides that a 20 percent evaluation is warranted for amputation of one or two toes, other than a great toe, with removal of the metatarsal head. Diagnostic Code 5166 provides that amputation of a forefoot proximal to the metatarsal bones warrants a 40 percent evaluation if more than one-half of the metatarsals are lost, with entitlement to special monthly compensation. Diagnostic Code 5167 provides that the loss of use of a foot warrants a 40 percent evaluation with entitlement to special monthly compensation. Diagnostic Code 5165 provides that amputation of a leg below the knee warrants a 40 percent evaluation when the level of amputation is such as to permit a prosthesis to be worn, with entitlement to special monthly compensation. The loss of use of a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. The combined ratings for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. For example, the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, diagnostic code 5165. 38 C.F.R. § 4.68. In this case, the Board observes that the veteran is in receipt of the maximum evaluations permissible under the above Diagnostic Codes. In sum, the maximum evaluation for the damage to muscle group X for a severe foot injury is 30 percent. However, as his left foot disability is more severe than is reflected by a 30 percent evaluation, the veteran's left foot disability warrants separate evaluations for the great and second toe amputations according to Diagnostic Codes 5171 and 5172. In this regard, the veteran was assigned a 30 percent evaluation for the amputation of his great toe and a 20 percent evaluation for the amputation of his second toe. These are the maximum evaluations permissible under Diagnostic Codes 5171 and 5172. However, the combined evaluation for the veteran's toe amputations is 40 percent which is the maximum evaluation that could be assigned even if the entire foot were amputated below the knee. 38 C.F.R. §§ 4.68, 4.71a, Code 5165. Thus, the currently assigned evaluation represents the maximum evaluation permissible for the veteran's left foot disability, and hence, the benefits sought on appeal must be denied. In reaching this decision, the Board considered the veteran's entitlement to a special monthly compensation. However, at the November 1992 VA examination, the veteran ambulated fairly well with his prosthesis, and the third through the fifth toes remained viable. Thus, the veteran still has greater functional use of his left foot than he would have if the foot was amputated. Moreover, despite the severity of his gunshot wound residuals, more than half of the left foot metatarsals remain in place. Therefore, special monthly compensation for the loss of use of a foot under 38 C.F.R. § 4.63, or under Diagnostic Code 5166 is not warranted. The Board also considered the veteran’s entitlement to an extraschedular rating. The veteran’s left foot disabilities do not, however, present an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment, so as to render impractical the application of regular schedular standards. An extraschedular evaluation is thus not in order. 38 C.F.R. § 3.321(b)(1). The Board acknowledges as a matter of fact that the veteran’s left foot gunshot wound residuals are productive of pain and discomfort. The assignment of a compensable rating, however, reflects consideration of the degree of disablement due to pain. Moreover, it is well to recall that the disability rating itself is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). While the Board considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). While the Board is unable to award increased evaluations at this time the veteran should understand that should his disability increase in severity at any time in the future he may file a new claim for an increased rating. VA would then evaluate his entitlement to an increased evaluation based on the evidence presented, and the laws and regulations in effect at that time. Lastly, the Board wishes to take this opportunity to inform the veteran of his potential entitlement to vocational rehabilitation. Exact details on this program are available from a veteran’s benefits counselor, however, in general, a wide variety of educational, on-the-job and apprentice training program assistance is available. ORDER An increased evaluation for residuals of a left foot gunshot wound resulting in amputation of the left great toe, including the metatarsal, is denied. An increased evaluation for residuals of a left foot gunshot wound resulting in amputation of the second toe, including the metatarsal, is denied. DEREK R. BROWN 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. The Board acknowledges that the November 1992 VA examination included the opini the third toe’s metatarsal was also absent. X-ray study in November 1992, howev third metatarsal, while showing evidence of a healed fracture, was still extant.