Citation Nr: 1120499 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 08-03 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the right toe, status-post bunionectomies, prior to October 10, 2008, on appeal from an initial grant of service connection. 2. Entitlement to an evaluation in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from January 1, 2009, to March 27, 2009, on appeal from an initial grant of service connection. 3. Entitlement to an evaluation in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from July 1, 2009, to the present, on appeal from an initial grant of service connection. 4. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the left toe, status-post bunionectomy, prior to September 29, 2009, on appeal from an initial grant of service connection. 5. Entitlement to an evaluation in excess of 20 percent for hallux valgus of the left toe, status-post bunionectomy, from September 29, 2009, on appeal from an initial grant of service connection. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active military duty from January 1982 to July 1987, and from November 1990 to September 2005. She retired from the US Army in September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. That rating decision granted service connection for disabilities of the right and left feet (toe). For both disabilities, a 10 percent disability rating was assigned. The appellant was notified of that action and she subsequently appealed to the Board for review. The record further reflects that during the course of this appeal, the appellant twice underwent surgery on her right big toe. As a result of those surgeries, the appellant was granted temporary total ratings from October 10, 2008, to December 31, 2008, and from March 27, 2009, to June 31, 2009. Following the second surgery, a 30 percent disability rating was assigned. The RO further found that a 30 percent disability should be assigned for the disability following the first surgical procedure. With respect to the left large toe, after undergoing additional testing of the toe, the RO determined that a 20 percent rating should be assigned for the disability from September 29, 2009. Because of these various assignments, the issues shown on the front page of this action have been modified to show the different increases along with the time frames involved. Moreover, applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant has not withdrawn the appeal as to the issues of disability ratings greater than assigned, therefore, the issues remain in appellate status. It is noted that the appellant's accredited representative submitted additional medical evidence to the Board in February 2011 prior to the issuance of this decision. The appellant waived consideration of the submitted medical documents by the RO and requested that the Board take into consideration those records in conjunction with his appeal. The Board hereby acknowledges that it did review these newly submitted records in making a determination on the appellant's claim. FINDINGS OF FACT 1. The appellant's residuals of bunionectomies of the right large toe is productive of severe impairment due to functional loss from pain, aching, tenderness, abnormal weight bearing, extremely restricted limitation of motion of the toe, numbness, difficulty walking, and the requirement for medications to treat the disability. 2. The appellant's residuals of a bunionectomy of the left large toe is productive of no more than "moderately severe" impairment due to functional loss from pain, aching, tenderness, abnormal weight bearing, some limited motion of the large toe, difficulty walking, and the requirement for medications to treat the disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for a 30 percent disability rating for hallux valgus of the right toe, status-post bunionectomies, but no higher, prior to October 10, 2008, on appeal from an initial grant of service connection, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 5284 (2010). 2. The criteria for a disability rating in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from January 1, 2009, to March 27, 2009, on appeal from an initial grant of service connection, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 5284 (2010). 3. The criteria for a disability rating in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from July 1, 2009, to the present, on appeal from an initial grant of service connection, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 5284 (2010). 4. Resolving reasonable doubt in the appellant's favor, the criteria for a 20 percent disability rating for hallux valgus of the left toe, status-post bunionectomy, but no higher, prior to September 29, 2009, on appeal from an initial grant of service connection, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 5284 (2010). 5. The criteria for a disability rating in excess of 20 percent for hallux valgus of the right toe, status-post bunionectomy, from September 29, 2009, to the present, on appeal from an initial grant of service connection, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 5284 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Before proceeding with an analysis of the merits of the claim, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. With respect to this initial increased rating claim, the Veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the Veteran's claim was substantiated, additional notice thereafter was not required. Nevertheless, the Board would note that the appellant was provided with repeated notices over the long course of this appeal. These notices began in August 2005 and the most recent notification letter was provided to the appellant in May of 2009. VA has fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities where the appellant had been treated, and those other records that the VA was made aware thereof. Given the foregoing, the Board finds that the RO has complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the record reflects that over the course of this appeal, the appellant has undergone numerous orthopaedic examinations of both feet. The most recent of these examinations occurred in October 2009; a copy of that examination report is of record. These various reports involved a review of the claims folder, the appellant's available medical treatment records, and the results of actual testing and examination of the appellant. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. As noted, the appellant provided testimony at a Central Office hearing before the undersigned Veterans Law Judge (ALJ) in February 2011. A transcript of that hearing was produced and a copy has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the appellant provided testimony concerning the severity of her service-connected disorders and presented additional medical evidence along with a waiver of AOJ jurisdiction. She described her ability to function with both foot disabilities, the restrictions caused by the disorders, and any limitations caused by the disabilities. The appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board can adjudicate the claim based on the current record. During the course of this appeal, the appellant has proffered numerous documents and statements in support of her claim. It seems clear that the VA has given the appellant every opportunity to express her opinions with respect to the issues now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2010). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2010) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2010) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2010) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. This appeal does stem from the appellant's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, the Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, staged ratings, per Hart, may also be appropriate. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2010). As previously noted, the appellant retired from active duty in the US Army in 2005. Prior to her release from active duty, she underwent a medical examination in April 2005. At that time, it was noted that bunionectomies had been accomplished on both of her feet in 1986. Repeated surgeries had been scheduled with one accomplished and the other one scheduled for later in the year of 2005. She told the examiner that she continued to suffer from pain in both feet after standing for extended periods of time. Shortly after she retired, she applied for VA compensation benefits. She specifically asked that service connection be granted for the residuals of a bunionectomy of the left great toe and the residuals of bunionectomies of the right great toe. In conjunction with her claim, a VA examination was accomplished in October 2005. X-ray films were also produced at that time. A review of the x-ray film results revealed a diagnosis of degenerative joint disease of the first metatarsophalangeal joints of both feet with associated mild hallux valgus deformity. The appellant complained of pain with the pain being greater in the right big toe. The examiner reported that the appellant's gait was not affected by both great toe disabilities. The examiner further provided the following information: Right big toe shows a fresh surgical scar over the dorsal metatarsophalangeal area. There is tenderness to palpation over the scar. She has hallux valgus deformity. No bunion is present. Range of motion, plantar flexion, metatarsophalangeal 0 [degrees], interphalangeal 20 [degrees], dorsiflexion metatarsophalangeal 20 [degrees], interphalangeal 0 [degrees]. The left big toe shows an old surgical scar over the dorsum of the metatarsophalangeal joint area of the big toe. No tenderness to palpation. She has marked hallux valgus deformity. A bunion persists. Range of motion, MTP joint palmar flexion 30 degrees, dorsiflexion 25 degrees. IP joint, plantar flexion 0 [degrees], dorsiflexion 30 degrees. The next full VA examination of the feet was performed in October 2009. The appellant reported that she continued to suffer from pain and discomfort in both big toes. With respect to the right big toe, she stated that the pain started in the big toe and radiated out to the foot and ankle. She further indicated that the pain was the type that was burning, aching, sharp, and cramp-producing. Her pain level was a 6 out of 10. The pain could be exacerbated by physical activity and was relieved by rest and Ibuprofen. While standing or walking, she had weakness, stiffness, swelling and fatigue. She had difficulty with prolonged walking, standing and performing physical activity. She was unable to lift and carry weight due to chronic pain, weakness and instability of the feet. When examined, the examiner noted that the appellant's gait was within normal limits. There was evidence of abnormal weight bearing on the feet with callosities located at the medial aspect of the feet with tenderness. However, there were no signs of unusual shoe wear patterns or breakdown, and she did not use any assistant devices for ambulation. Both ankles were examined and they were found to be "normal" and capable of normal range of movement. The examiner went on to report the following: Examination of the right foot reveals painful motion, weakness, tenderness and instability. Examination of the right foot does not reveal edema, disturbed circulation, atrophy of the musculature, heat and redness. There is no active motion in the metatarsophalangeal joint of the right great toe. Examination of the left foot reveals painful motion, weakness, tenderness and instability. Examination of the left foot does not reveal edema, disturbed circulation, atrophy of the musculature, heat and redness. There is active motion in the metatarsophalangeal joint of the left great toe. Palpation of the left and right plantar surfaces revealed no tenderness, and alignment of the Achilles tendon of each foot was normal. Pes planus and pes cavus was not diagnosed for either foot. Hallux valgus, however, was diagnosed. The degree of angulation was slight and there was resection of the metarsal head. Hallux rigidus of the right foot was present and the degree of rigidity was adjudged to be severe. The degree of angulation on the left was found to be moderate. Hallux rigidus of the left foot was also present and the degree of rigidity was found to be moderate. The examiner further wrote that the appellant had limitations with standing and walking. She was able to walk 1/4 of a mile. X-ray films of the feet produced the following findings: Both films showed abnormal findings with the right foot showing status post bunionectomy, and mild degenerative joint disease of the first metatarsal phalangeal joint. The left foot film showed hallux valgus with a bunion. Finally, the examiner reported the following (emphasis taken from the examination report): The Claimant has significant functional impairment due to chronic pain and limitation of movement. She needs to avoid strenuous physical activity, prolonged standing, walking, lifting and carrying weight. Follow up with PCP. The effect of the condition on the claimant's usual occupation is significant functional impairment due to chronic pain and limitation of activity. . . . As reported previously, the appellant's post-service medical treatment records for her toe disabilities have been obtained and included in the claims folder. The Board would note that there are no records of treatment between July 2006 and the beginning of calendar year 2008. Nevertheless, a military-sponsored medical examination of the feet, in July 2006, is of record. She specifically sought treatment for both feet - she complained of bilateral moderate pain (five out of ten) at the great toes extending into the bones of the feet. She also pointed out that she could no longer plantar flex the right great toe and that the toe overlapped the toe next to it. The appellant returned to the VA in March and April 2008 for assistance with her foot pain. At that time, she complained of chronic pain, instability, and occasional falling. Her complaints focused upon the bunionectomy residuals of the right foot. When examined, the examiner reported pain and that the range of motion of the right big toe was limited. The examiner further indicated that the right big toe nail had previously fallen off and only a portion of the toe was present. The VA medical treatment records show that the appellant sought repeated care from March until September 2008. It appears from the records that the complaints centered on symptoms and manifestations that were being produced by the right big toe disability. Then, in October 2008, the appellant underwent another surgery on her right big toe. In conjunction with the surgery, the appellant was awarded a temporary total disability rating. This rating was existent from October 10, 2008, to December 31, 2008. A follow-up surgery was accomplished in March 2009. This surgery was classified as an osteotomy of proximal phalanx right hallux. Again the appellant was assigned a temporary total rating; this rating was in effect from March 27, 2009, to August 31, 2009. The record shows that after the appellant had the surgery in March 2009, she was seen repeatedly at the local VA medical facility until it was determined that she no longer needed convalescence. The medical records from July 2009 to the present indicate that the appellant still has difficulties with both conditions of the great toes. The Veteran asserted in October 2006 that she had chronic radiating pain from the large toe to the ankle joints bilaterally. On the right, her great toe had moved further on top of the second toe, so she difficulty finding shoes she could comfortably wear, being able to keep a toenail on, and she had recurring blisters from excessive rubbing in her shoes. In the substantive appeal, she indicated that although she had range of motion on the left side, she had pain with weight bearing and activity. On the right, she had more limited range of motion and problems with walking and balance. She had greater pain with walking and it increased with longer distances. She had fallen several times since she could not maintain her balance and shift weight at the same time. As previously reported, the appellant provided testimony before the Board in February 2011 and a copy of the transcript of that hearing is of record. During that hearing, she described the symptoms and manifestations that have been produced by both disabilities since she retired from the military. She spoke about having difficulty driving due to pain emanating from either foot and having to drive with both feet, depending upon which one was causing her more difficulties that day. She further testified that her ability to function, whether it be in the performance of her work duties, or whether it be as a mother to her children at home. She reported that she has continued to have difficulty walking for extended periods of time and that she elevates her feet, sans shoes and stockings, to relieve the pain and stop the throbbing of the toes. The record shows that the appellant's toe disabilities have been rated as follows: Left Big Toe 10 percent October 1, 2005, to September 28, 2009 20 percent September 29, 2009, to the Present Right Big Toe 10 percent October 1, 2005, to October 9, 2008 100 percent October 10, 2008, to December 31, 2008 30 percent January 1, 2009, to March 26, 2009 100 percent March 27, 2009, to June 30, 2009 30 percent July 1, 2009, to the Present The toes have been rated pursuant to the rating criteria found at 38 C.F.R. Part 4, Diagnostic Codes 5280 and 5284 (2010). Diagnostic Code 5280 provides the rating criteria for hallux valgus and Code 5284 provides the criteria for other foot injuries. In evaluating musculoskeletal disabilities, the Board must assess functional impairment and determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2010). Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40 (2010). However, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Diagnostic Code 5003 provides that arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010). When the limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under 38 C.F.R. Part 4, Diagnostic Code 5003 (2010). For the purposes of rating disability from 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 each considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f) (2010). 38 C.F.R. Part 4, Diagnostic Code 5281 (2010) instructs that hallux rigidus is to be rated as hallux valgus, severe. Diagnostic Code 5280 pertains to unilateral hallux valgus. 38 C.F.R. Part 4 (2010). Under this code, a single, 10 percent disability rating is authorized for severe hallux valgus, if equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. Disabilities from other foot injuries are rated 10 percent when moderate, 20 percent when moderately severe, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2010). With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2010). Words such as "moderate", "moderately severe", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2 and 4.6 (2010). "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etcetera, which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2010). Examples under 38 C.F.R. 4.63 (2010) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop. VA's Office of General Counsel has stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, VA's General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98 (Aug. 14, 1998). A. Left Large Toe - Bunionectomy Residuals Upon review of the evidence, the Board finds that the overall disability picture supports a higher rating - that of 20 percent - for the appellant's residuals of a bunionectomy of the left great toe for the entire period of time that is covered by this appeal. The Board has also considered the medical evidence and the appellant's lay statements - both written and spoken. The VA examinations have noted that the left big toe disability causes pain, aching, tenderness, abnormal weight bearing, difficulty walking, and the requirement for medications to dull the pain and discomfort produced by the condition. The chief difference between the two disabilities, of the right and left large toes, is the fact that only one bunionectomy has been accomplished on the left big toe and four surgeries have been accomplished on the right big toe. Moreover, while the appellant has movement in the left big toe, she no longer has movement in the joint of the right big toe. The Board also recognizes the opinion of the VA doctor, written in October 2009, that stated that as a result of both large toe disabilities, the appellant has "significant functional impairment". Recent VA treatment records and the appellant's lay statements, which the Board finds competent, credible and probative also note continuing symptoms and treatment due to the pain. Her ability to ambulate is limited to 1/4 of a mile and she has been known to use both feet to drive - especially when one foot fails her. Accordingly, the Board finds that the symptoms and manifestations presented by the appellant correspond to a 20 percent rating under Diagnostic Code 5284. 38 C.F.R. Part 4 (2010). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board further finds that the symptoms produced by the great toe disability have remained constant throughout the course of this appeal, a staged is unjustifiable, and a 20 percent rating from the date of her claim is granted. However, a rating beyond 20 percent under this diagnostic code is not warranted. 38 C.F.R. § 4.7 (2010). That is, the evidence as a whole does not show that the criteria for a "severe" foot injury at the 30 percent level have been met at any time during the course of this appeal. The radiating pain, limitation of motion, moderate angulation, painful motion, weakness, stiffness, swelling, fatigue, tenderness and instability were considered in assigning the 20 percent evaluation based on an overall disability picture of moderately severe. The evidence does not show a higher rating is warranted as she is able to move the toe and the angulation has been assessed as moderate. She also has not reported the symptoms she has with the right foot, such as blisters due to her shoes rubbing and the toe nail falling off. The evidence shows that the left foot disability is not as severe as the left foot although the Veteran does report that she now compensates for the lack of ability in the right foot with the left foot. Nevertheless, the evidence as a whole pertaining to the functional impairment shown in the left foot does not show that the criteria for a severe disability are met. Moreover, with respect to an even higher 40 percent rating for loss of use of the foot under 38 C.F.R. Part 4, Diagnostic Code 5284 (2010), while the appellant's left big toe disability is significant, the medical evidence does not show that she has actually lost the use of the foot. She is able to walk and stand, albeit with limitations, and therefore does not suffer from loss of use of the left foot. The evidence demonstrates she has more function in the foot than would be served with an amputation stump. See 38 C.F.R. § 4.63 (2010). There is no evidence of ankylosis from this disability, shortening of the left extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Id. Moreover, other diagnostic codes for foot disabilities that provide a rating beyond 20 percent are not more appropriate because the evidence of record does not support their application as the conditions are either not diagnosed or a maximum 10 percent rating is provided. See 38 C.F.R. § 4.71a, Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (metatarsalgia), Diagnostic Code 5281 (hallux rigidus), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones) (2010). Therefore, these diagnostic codes will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). In addition, pes planus (Diagnostic Code 5276) has not been diagnosed, and as such, the rating criteria found under this diagnostic code is not for application. Therefore, the Board will continue to evaluate the disability under 38 C.F.R. Part 4, Diagnostic Code 5284 (2010) since it provides the potential for the most favorable rating. The assignment of a separate rating on the basis of arthritis pursuant to 38 C.F.R. Part 4, Diagnostic Code 5003 (2010) is allowed so long so long as the evaluation of the foot dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R. § 4.14 (2010). Yet, in this instance, the appellant is being rated under Diagnostic Code 5284 not only for limitation of motion, but also pain, restriction of movement, tenderness, and moderately severe functional impairment. Because the appellant is being awarded a 20 percent disability rating for a moderately severe foot injury based in part upon disability that results in limitation of motion of the joints of the foot, the Board finds that she may not be awarded a separate rating under the diagnostic criteria pertaining to arthritis. In addition, a separate rating under Diagnostic Code 5280 is not warranted as the extent of disability resulting from the hallux valgus is encompassed in the 20 percent rating assigned for moderately severe disability of the foot, including the great toe. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 may be for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that 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 Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In this instance, the evidence specifically shows that with repetitive motion, there was no change in range of motion, weakness, coordination, fatigue, endurance, or increased pain on examination. As such, an increased rating or bump in the rating pursuant to DeLuca is not here warranted. Also, the appellant's symptoms of pain, limitation of motion, swelling, weakness and fatigue were considered, however, the examination report indicates that there was no weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation pursuant to DeLuca, even upon repetitive use. The Board finds the 2009 examination highly probative in that regard as the examiner conducted range of motion studies and assessed whether there was further limitation of motion on use. Thus, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca, 8 Vet. App. at 204-206, do not apply. See also Johnson v. Brown, 9 Vet. App. 7 (1996). In summary, resolving the benefit of the doubt in the appellant's favor, the Board concludes the appellant is entitled to a 20 percent disability rating, but no higher, for "moderately severe" residuals of a bunionectomy of the left great toe, from the time the appellant first submitted her claim, to the present. B. Right Large Toe - Bunionectomies Residuals It is also the decision of the Board that the overall disability picture supports a 30 percent disability rating for the appellant's bunionectomies residuals of the right toe from the time in which she submitted her claim to the present (not to include the time periods in which she was in receipt of a temporary total disability rating). 38 C.F.R. § 4.7 (2010). As previously reported, the Board has reviewed all of the evidence of treatment, including the two VA examinations of record along with the appellant's treatment records stemming from shortly after her retirement from the Army to the present. The Board has also considered her statements made via the written documents she has provided and the testimony that she has given before the Board. The examination reports attest to the fact that the disability causes pain, aching, tenderness, abnormal weight bearing, cramping, difficulty walking, and the requirement for medication to treat the disability. The medical evidence and the appellant's lay statements, along with those provided by her husband during the Board hearing, note continuing symptoms and treatment due to the pain. Most importantly, it appears that the symptoms and manifestations produced by the disability have remained constant throughout the course of this appeal and a VA examiner has opined that the appellant's functional limitations are at the "severe" level. This directly corresponds to the maximum 30 percent rating under Diagnostic Code 5284. Thus, based on the clear evidence of limited movement of the large right toe with functional loss, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and the DeLuca case have been considered, providing a basis for assigning a 30 percent disability rating for the entire period in which this has been an active claim. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate. Since, however, the appellant's right big toe symptoms have remained constant (at a 30 percent level) throughout the course of his pending appeal, a staged rating is unjustifiable. However, a rating beyond 30 percent is not warranted. While the appellant's right big toe disability, and the manifestations it produces, is significant, the medical evidence does not show that she has actually lost the use of the foot. She is able to walk and stand, albeit with limitations, and therefore does not suffer from loss of use of the right foot. Accordingly, the evidence demonstrates she has more function in the foot than would be served with an amputation stump. See 38 C.F.R. § 4.63 (2010). There is no evidence of shortening of the right extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Therefore, the Board will continue to evaluate the disability under Diagnostic Code 5284 since it provides the potential for the most favorable rating. 38 C.F.R. Part 4 (2010). Additionally, the assignment of a separate rating on the basis of arthritis pursuant to 38 C.F.R. Part 4, Diagnostic Code 5003 (2010) is allowed so long so long as the evaluation of the foot dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R. § 4.14 (2010). Yet, in this instance, the appellant is being rated under Diagnostic Code 5284 not only for severe limitation of motion, but also pain, restriction of movement, tenderness, and functional impairment. Because the appellant is being awarded a 30 percent disability rating for a severe foot injury based in part upon disability that results in limitation of motion of the joints of the foot, the Board finds that she may not be awarded a separate rating under the diagnostic criteria pertaining to arthritis. In addition, a separate rating under Diagnostic Code 5280 cannot be assigned as the 30 percent evaluation contemplates the functional impairment in the foot, including the great toe. In summary, resolving the benefit of the doubt in the Veteran's favor, the Board concludes the appellant is entitled to a 30 percent disability rating, but no higher, for "severe" residuals of bunionectomies to the right great toe from the date of the appellant's claim for benefits. C. Extraschedular Evaluation The Board has also considered whether the appellant is entitled to an extraschedular evaluation for the disability. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left and right big toe disabilities is inadequate. The limitation of motion, pain, lack of endurance, stiffness, swelling, weakness, problems on the right side with the great toe nail falling off and blisters, difficulties that the appellant endures when she ambulates for extended periods of time/distance, and difficulties with bending, stooping, and carrying items are contemplated by the schedular criteria for foot injuries. A comparison between the level of severity and symptomatology of the appellant's disorders with the established criteria found in the rating schedule for disabilities of the feet shows that the rating criteria reasonably describes the appellant's disability level and symptomatology. In other words, the rating criteria used to evaluate the appellant's claim adequately addresses the functional impairment and symptomatology associated with her toe disabilities and any resulting industrial impairment. Cf. Smallwood v. Brown, 10 Vet. App. 83, 87-8 (1997). In short, there is nothing in the record to indicate that these service-connected disabilities cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2010) is not warranted. (CONTINUED ON NEXT PAGE) ORDER 1. A disability rating of 30 percent for hallux valgus of the right toe, status-post bunionectomies, prior to October 10, 2008, on appeal from an initial grant of service connection, is granted, subject to the criteria applicable to the payment of monetary awards. 2. Entitlement to an evaluation in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from January 1, 2009, to March 27, 2009, on appeal from an initial grant of service connection, is denied. 3. Entitlement to an evaluation in excess of 30 percent for hallux valgus of the right toe, status-post bunionectomies, from July 1, 2009, to the present, on appeal from an initial grant of service connection, is denied. 4. A disability rating of 20 percent, but no higher, for hallux valgus of the left toe, status-post bunionectomy, prior to September 29, 2009, on appeal from an initial grant of service connection, is granted, subject to the criteria applicable to the payment of monetary awards. 5. Entitlement to an evaluation in excess of 20 percent for hallux valgus of the left toe, status-post bunionectomy, from September 29, 2009, on appeal from an initial grant of service connection, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs