Citation Nr: 0000392 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-13 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased (compensable) disability rating for status post residuals of a fracture of the left foot. 2. Entitlement to an increased disability rating for degenerative arthritis of the right foot, with x-ray evidence of left great toe, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran was honorably discharged from the United States Navy in July 1983 with over twenty years of active duty service. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the North Little Rock, Arkansas, Department of Veterans (VA), Regional Office (RO) which, in pertinent part, denied entitlement to a compensable disability rating for status post residuals of a fracture of the left foot and a disability rating in excess of 10 percent for degenerative arthritis of the right foot, with x-ray evidence of left great toe. The veteran filed a timely notice of disagreement (NOD) as the left foot fracture claim only, and was issued a statement of the case (SOC) in July 1998. The RO received the veteran's VA Form 9, Appeal to the Board, in August 1998. At that time, the veteran also expressed dissatisfaction with the compensation level assigned for his degenerative arthritis. The veteran was issued a supplemental statement of the case (SSOC) as to both of the aforementioned issues in October 1998. As his representative's January 1999 VA Form 646 expresses a desire to appeal the degenerative arthritis issue to the Board, and it was received within the applicable one-year delimiting period following notification of the July 1998 rating decision, the Board accept the statement as a timely substantive appeal. See 38 C.F.R. § 20.302(b) (1999); see also Tomlin v. Brown, 5 Vet. App. 355 (1993) (statutory provisions of 38 U.S.C.A. § 7105 do not impose technical pleading requirements). Therefore, both increased rating issues are properly before the Board. REMAND The veteran's claims of entitlement to a compensable disability evaluation for residuals of a fracture of the left foot and a disability evaluation in excess of 10 percent for degenerative arthritis of the right foot, with x-ray evidence of left great toe, are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. Generally, claims for increased evaluations are considered to be well grounded. Claims that conditions have become more severe are well grounded where the conditions were previously service-connected and rated, and the claimant subsequently asserts that higher ratings are justified due to an increase in severity since the original ratings. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). This includes the duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records referred to by the veteran. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations must also address the rating criteria in relation to the veteran's symptoms. Johnson v. Brown, 9 Vet. App. 7 (1996). Consequently, examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). As a preliminary matter, the Board endeavors to clear up some confusion that the veteran appears to be having with respect to his service-connected degenerative arthritis. In the instant case, the veteran contends, in essence, that he should receive a separate rating for degenerative arthritis of the left foot inasmuch as the various x-rays of record clearly show arthritis of both feet. The Board notes, however, that the veteran's degenerative arthritis of the left foot has already been compensated. In this regard, the Board observes that the RO's description of the veteran's service-connected disorder, "degenerative arthritis of the right foot, with x-ray evidence of left great toe", is somewhat of a misnomer and does suggest that only one foot is service-connected. Indeed, the veteran's February 1986 VA examination report, upon which entitlement to service connection for degenerative arthritis was established, includes x-ray evidence of degenerative arthritis of the 1st metatarsophalangeal joints (great toes). Accordingly, a more precise description of the veteran's current service- connected disability would be "degenerative arthritis of the 1st metatarsophalangeal joints (great toes)." As pointed out to the veteran in the October 1998 SSOC, however, the arthritis of the 'left foot' is combined with that of the 'right foot', in the absence of limitation of motion, in order to derive his current 10 percent disability rating under 38 C.F.R. Part 4, Diagnostic Code 5003. Similarly, the current description of the veteran's service- connected fracture, "status post residuals of a fracture of the left foot," is also somewhat of a misnomer in that it is overly broad. Indeed, a review of the record reveals that the veteran sustained a Jones fracture of the left foot. A Jones fracture is defined as a diaphyseal fracture of the fifth metatarsal. Dorland's Illustrated Medical Dictionary 662 (28th ed. 1994). With the aforementioned discussion in mind, the Board notes that although the veteran was afforded a comprehensive VA orthopedic examination in April 1998, the examiner failed to render any pertinent finding with respect to the interphalangeal, metacarpal and carpal joints of the lower extremities. See Johnson, supra. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (1999). The factors of disability effecting joints are reduction of normal excursion of movements in different planes, including less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. For the purpose of rating disabilities due to arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints, multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities, the interphalangeal, metatarsal, and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (1999). Degenerative arthritis is to be evaluated based on the limitation of motion of the joint. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If the joint is affected by limitation of motion but the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating applies for each such major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent rating applies where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating applies when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. Part 4, Diagnostic Codes 5003 (1999). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has stated that the Board may only consider independent medical evidence to support its findings. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board may seek an advisory opinion, order a medical examination or cite recognized treatise in its decisions that clearly support its ultimate conclusions. This procedure ensures that all medical evidence contrary to the veteran's claim will be known. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In view of the complexity of the medical questions involved in this case, it is found that more extensive podiatric examination of the veteran should be scheduled. Thus, to ensure that VA has met its duty to assist the veteran in developing all facts pertinent to his claim, the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of recent treatment received for his service-connected degenerative arthritis of the feet and left foot fracture, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should then schedule the veteran for VA podiatric examination in order to determine the current extent of his service-connected degenerative arthritis and status post fracture of the left foot. Therefore, the veteran's claims folder should be made available to and independently reviewed by the examiner prior to examination. X-rays and/or other diagnostic studies should be done, as deemed appropriate by the examiner. The podiatric examiner must provide a thorough description of the veteran's bilateral foot disabilities, including complete ranges of motion studies of the ankle, interphalangeal, metacarpal and carpal joints, as well as any neurologic pathology. In this regard, the examiner must take care to differentiate symptoms due to the veteran's the service-connected and nonservice-connected pathologies of the feet. In addition, the examiner must render objective clinical findings concerning the severity of the veteran's service-connected disorders, to include observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations, if any, to the exclusion of any nonservice-connected disability. A copy of the Board's Remand order, which sets out the pertinent criteria in this case, should be made available. The podiatric examiner must then render an opinion concerning the effect of the veteran's service-connected foot disorders on his ordinary activity and his ability to procure and maintain employment. The examination report should reconcile the veteran's subjective complaints of bilateral foot pain with the objective findings on examination. A legible copy of the examination report, with a discussion of the salient facts and the medical principles involved will be of considerable assistance to the Board. 3. Following completion of the above action, the RO must review the claims folder and ensure that the foregoing development has been conducted and completed in full. If this development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, that report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. After the above actions have been completed, the RO must re-adjudicate the veteran's increased rating claims. If either of these determinations remain unfavorable to the veteran in any way, he and his representative should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted and any additional applicable laws and regulations. This document should include detailed reasons and bases for the decisions reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purpose of the REMAND is to further develop the record. No action is required of the veteran until he receives further notice. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).