Citation Nr: 1300911 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-03 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for service-connected bilateral plantar callosities, rated at 10 percent prior to June 25, 2009. 2. Entitlement to an increased rating for service-connected bilateral plantar callosities, with right hallux valgus, status post bunionectomy and club toe, rated at 30 percent from June 25, 2009. 3. Entitlement to a separate disability rating for hallux valgus, post-operative residuals of a right great toe, prior to June 25, 2009. 4. Entitlement to a separate disability rating for post-operative residuals of right fifth hammertoe disability prior to June 25, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Chicago, Illinois. Procedural history The Veteran was initially granted service connection for bilateral callosities in an October 1974 rating decision, wherein the Veteran was assigned a 10 percent disability rating pursuant to hyphenated diagnostic codes 5299-5284. 38 C.F.R. § 4.71a. In a January 1991 letter from the RO, the Veteran was notified of a proposed reduction to his rating for bilateral plantar callosities. By an April 1991 rating decision, the Veteran's disability rating was reduced to a noncompensable level under 38 C.F.R. § 4.71a, Diagnostic Code 5299 and 38 C.F.R. § 4.118, Diagnostic Code 7819, hyphenated as 5299-7819. At a hearing in July 1991, the severity of the Veteran's bilateral plantar callosities was discussed, and the Veteran raised the issue of entitlement to an increased rating for his foot disorder. Moreover, the Veteran's representative raised the issues of entitlement to service connection for hallux valgus of the right first digit and service connection for hammer toe of the right fifth digit, both secondary to his service-connected bilateral plantar callosities. In a May 1992 rating decision, the Veteran was denied service connection for postoperative right first and right fifth toe conditions and denied an increased rating for bilateral plantar callosities. In September 1992, the Veteran submitted a notice of disagreement with respect to the May 1992 rating decision. In May 1993, the Veteran submitted a statement that was considered by the RO to be a claim of entitlement to a compensable evaluation for his service-connected bilateral plantar callosities. After undergoing a VA examination, the RO issued a rating decision, dated in September 1993, continuing the noncompensable rating. Although provided notice of this decision, the Veteran did not perfect an appeal thereof and the decision became final. In June 2005, the Veteran submitted a claim for entitlement to an increased evaluation for a 'service[-]connected...right foot condition.' In the November 2005 rating decision, the Veteran's claim was captioned and evaluated as entitlement to a compensable evaluation for service-connected bilateral plantar callosities, which was denied. The Veteran subsequently filed a timely notice of disagreement. In the December 2006 statement of the case (SOC), which ultimately granted the Veteran an increase to 10 percent, the disability was captioned and evaluated as 'bilateral plantar callosities with right hallux valgus.' Using the same caption, this increase was subsequently effectuated by the December 2006 rating decision pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7819 and 38 C.F.R. § 4.71a, Diagnostic Code 5280, hyphenated as 7819-5280. In a February 2009 remand, the Board determined that additional development was needed to determine the current nature and severity of the Veteran's bilateral plantar callosities. The Board also found that there were unresolved issues of entitlement to service connection for postoperative residuals of right fifth toe and right great toe disabilities stemming from the September 1992 notice of disagreement. In an August 2010 SOC, the RO denied the Veteran's claims for service connection for postoperative residuals of right fifth toe and right great toe disabilities. The Veteran perfected his appeal as to these issues. In a February 2012 decision, the RO granted the Veteran an increase to 10 percent effective July 1, 1991, and 30 percent effective June 25, 2009. The disability was captioned and evaluated as 'bilateral plantar callosities, with right hallux valgus, status post bunionectomy'. Using the caption 'bilateral plantar callosities,' this increase was subsequently effectuated by a February 2012 rating decision pursuant to 38 C.F.R. § 4.118, Diagnostic Code 5280 and 38 C.F.R. § 4.71a, Diagnostic Code 5284, hyphenated as 5280-5284. The RO noted that service connection for right first toe bunionectomy and fifth toe calluses are granted and combined with the disabling effects of the service connected bilateral plantar callosities. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to June 25, 2009, right foot plantar callosities were manifested by pain on walking with mild plantar calluses, mild tenderness, and mild lack of endurance with no lack of coordination, and mild restriction of repetitive use. 2. Prior to June 25, 2009, hallux valgus with post-operative residuals of a right great toe is manifested by pain after operation without resection of metatarsal head. 3. Prior to June 25, 2009, post-operative residuals of right fifth toe are manifested by hammer toe of a single toe. 4. From June 25, 2009, the Veteran's right foot disorder equates to a severe foot injury as manifested by severe bilateral plantar callosities with right hallux valgus. 5. Throughout the course of the appeal, the Veteran's left foot callosities have been manifested by pain, but not by moderate foot disability. CONCLUSIONS OF LAW 1. Prior to June 25, 2009, the criteria for an evaluation in excess of 10 percent disabling for right plantar callosities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Codes 7819-5284 (2012). 2. From June 25, 2009, the criteria for an evaluation in excess of 30 percent for right plantar callosities, with right hallux valgus, status post bunionectomy and club toe, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2012). 3. Prior to June 25, 2009, the criteria for a separate evaluation for post-operative residuals of a right great toe disability have been not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5281 (2012). 4. Prior to June 25, 2009, the criteria for a separate disability rating for post-operative residuals of right fifth toe disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5282 (2012). 5. The criteria for assignment of a separate 10 percent evaluation for left foot callosities are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 7804 (2001) and (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran'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, the extensive evidence submitted by or on behalf of the Veteran. 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 claims. The Veteran must 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 Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The record reflects that the Veteran was provided all required notice in a letter mailed in March 2009. While the March 2009 letter was sent after the initial adjudication of this claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that service treatment records and post-service VA and private treatment records have been obtained. The Veteran was also provided with appropriate VA medical examinations in response to his claims. The Board finds that the examinations were adequate to allow proper adjudication of the issues on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability thereafter are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). 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. Under Diagnostic Code 5280, a 10 percent rating is warranted for severe unilateral hallux valgus, if such condition is equivalent to an amputation of the great toe. See 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2012). A 10 percent evaluation is also assigned for post-operative residuals of hallux valgus where there is a resection of the metatarsal head. See 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2012). A higher rating than 10 percent is not available under this Diagnostic Code. Under DC 5282, a 10 percent rating is available for hammer toe affecting all toes, unilateral without claw foot. See 38 C.F.R. § 4.71. Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injuries, a 20 percent rating is assigned for moderately severe foot injuries, and a 30 percent rating is assigned for severe foot injuries. With actual loss of use of the foot, a 40 percent rating is assigned. See 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The Board observes that the words 'moderate', 'moderately severe', 'marked', 'pronounced' and 'severe' are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just.' See 38 C.F.R. § 4.6 (2012). The Board observes in passing that 'moderate' is generally defined as 'of average or medium quality, amount, scope, range, etc.' See Webster's New World Dictionary 871 (1988). 'Severe' is generally defined as 'of a great degree: serious.' Id., 1078. 'Marked' is defined as 'noticeable; obvious; appreciable; distinct; conspicuous.' Id. at 828. The Board notes that the 'amputation rule' provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68 (2012). In this case, the evaluation for amputation of the forefoot, amputation proximal to metatarsal bones (more than one-half of metatarsal loss) is 40 percent. Factual Background An August 1990 VA surgical report indicated the Veteran underwent silver type bunionectomy with Akin procedure of the proximal phalanx, right hallux; partal phalangectomy of the head of the proximal phalanx, fifth right digit with an associated heavy phalangectomy of the lateral aspect of the intermedial phalanx, fifth right digit. A November 1990 VA examination noted that the Veteran complained of callosities on the metatarsal heads and heels. The Veteran was status-post bunionectomy in the last 8 to 10 weeks. He also underwent arthroplasty of the fifth right digit. The examiner noted very nice result with minimal callosities, but it was too soon post-operation to make any concrete conclusions. During an August 1991 examination, the Veteran reported he walked more on the left foot and the deformities caused on the left foot are callosities on the heel and on the lateral area of the small toe and hyperkeratosis in the interdigital toe area of the left foot. Because he favors the right foot, callosities have developed. Upon examination, the examiner noted callosities on the heel and on the lateral area of the small toe. The examiner opined that because he favors the right foot, these callosities have developed; therefore, he has plantar callosities on the small toe, heel area, and lateral area of the foot secondary to surgery done on the right foot. The examiner noted that he has status-post right hallux valgus and fifth hammertoe, residuals of surgery, plus bilateral plantar callosities, and now with plantar callosities on the left foot with subjective symptoms of pain, there is no deformity on the left foot. An October 1991 hearing officer decision reported that the Veteran testified that he had more mobility prior to the surgery than afterwards. He also complained of increased pain and an altered gait since surgery. He admitted that while the calluses on his right foot had improved since the surgery, he developed worsening calluses on his left foot. He further reported that he has had his callous shaved repeatedly, but they always grow back. The Veteran asserted he was seeking an increased evaluation because his foot was getting worse as evidenced by the need to have surgery. The Veteran complained of a burning sensation in his right fifth toe, and throbbing in his big toe after walking. VA progress notes dated September to November 1991 indicate ongoing complaints of joint pain at the first metatarsophalangeal joint (MPJ) on the right foot. Upon physical examination, the examiner noted pain on dorsiflexion and plantar flexion, and mild pain on palpation. During a May 1992 VA examination, the Veteran complained that he has to rest for 15 minutes every two hours. He described the pain worse in the left foot after surgery on the right foot. He reported calluses under the bottom of the first MPJ right foot and a corn which is now worse after the surgery. Upon physical examination, he had good range of motion to the first MPJ on the right and a corn under the right fifth toe. An X-ray report from that time found mild hallux valgus deformity and resection of the distal end of the fifth proximal phalanx. The impression was post-surgical change with ostectomy head of first metatarsal and ostectomy distal end proximal fifth phalanx. During an August 1993 VA examination, the Veteran complained of pain related to prolonged weight bearing or exercise primarily of the right foot. The examiner noted there was no deformity of the foot on the left. Upon physical examination, the examiner noted that the Veteran has callosities involving the left little and fourth toes and the heels. The calluses were not tender. There appeared to be no complications as indicated above and he had a normal gait and station. Final diagnosis was bilateral plantar callosities. In VA progress notes date from June 1998 to February 2012 indicate ongoing complaints of bilateral foot pain. A September 2005 X-ray report found evidence of past bunion surgery with lateral deviation of hallux along the first metatarsal right and circlage wire in base of the right proximal phalanx. There was no evidence of osteoarthritis within the joint space. The diagnoses were metatarsalgia right foot and hallux valgus right with prominent medial eminence. During a September 2005 VA examination, the examiner found right great toe with moderate valgus deformity, mild plantar calluses under the metatarsal heads on both feet, mild tenderness over metatarsal heads, low arches, no pronation, and full metatarsal and subtalar joint motion without pain and without weakness. There were no other abnormalities noted on examination. The examiner noted that his feet, particularly, the right foot, has mild lack of endurance and no lack of coordination and mild restriction of repetitive use. The examiner noted that the Veteran's bilateral foot pain, particularly the right foot is directly related to his period of military service. He has moderate calluses on both feet and significant bunions at the base of the right great toe with limitation motion and restriction from any running. During a June 2009 VA examination, the Veteran complained of pain in the right foot with walking longer distances. He reported he will shave the right plantar surface foot calluses every three to four weeks in order to walk. Upon physical examination, the examiner found hard calluses moderate to severe at the first and second digits on the plantar services of the right foot. Examination of the heel also revealed moderate to severe calluses on the medial side of the heel. On the lateral side of the heel there is a moderate severe callus also. Gross examination of the foot revealed deformity of the big toe, which is moderate in character. Palpation to the right foot revealed moderately severe tenderness on the plantar surface of the foot at the level of the first and second digit ball of the foot. The diagnoses were severe arthritis of first MPJ, recurrent bunion right foot, mild to moderate in character, valgus deformity moderate, moderate severe hard callus right ball of the foot, severe hard callus, heel, medial and lateral side. During a May 2011 VA examination, the Veteran reported pain in the right foot is primarily an 8/10 and aggravated by walking. He stated he shaves the calluses approximately three to four times a month which relieves the discomfort associated with the calluses and he has subsequently, since the surgery, he started developing callosities on the left foot as well. When he his home, he soaks his feet several times a day and he takes over the counter medication. Upon physical examination, the examiner noted the Veteran has pes planus deformity on the right foot. There was a recurrence of hallux valgus with prominence of the first metatarsal. There were also several non-tender, mobile callosities on the right foot over the prominences of the first metatarsal and fifth metatarsal. The assessment included multiple calluses of the right foot. An X-ray of the right foot found first metatarsophalangeal (MTP) joint bunion and slight interval progression of the right MTP joint degenerative joint disease. On the left foot, the examiner noted there is a mild bunion to the left with multiple calluses including the medial aspect of the first metatarsal and second tatarsal head of the plantar surface of the foot. There was some sensory deficit. The diagnosis was mobile multi calluses of the left foot. During an October 2011 VA examination, the VA examiner found the Veteran's right foot has a moderate hallux valgus deformity. He also has calluses which were described as mild to moderate, on the forefoot plantar surface, as well as calluses that were severe on the right fifth toe. The Veteran was found to have mild calluses medial and lateral to the posterior calcaneus and heel. The examiner found that the Veteran has a recurrent bunion of the right big toe which is moderate in character. Upon palpation, the examiner noted tenderness of the hind foot medially and laterally, tenderness at the ball of the foot, and tenderness moderate severe fifth digit. Additionally, the examiner noted limited and painful motion, weakness of the right foot, and lack of endurance. The examiner further reported the Veteran cannot run or jump and has to have the podiatry procedure on the fifth digit every seven to eight weeks. A January 2012 VA opinion indicated the Veteran had a first toe bunionectomy and shaving (several occasions) of the fifth toe callus. Both procedures are related to his original disability of bilateral plantar callosities. Rating Prior to June 25, 2009 As determined in the February 2012 RO decision, service connection for right first toe bunionectomy and post-operative right fifth toe hammertoe are granted. The Board has considered whether a separate compensation evaluation for post-operative residuals of right fifth hammertoe is warranted prior to June 25, 2009. Diagnostic Code 5282 provides that hammer toes of all toes of the foot without claw foot warrant a 10 percent evaluation. While a hammertoe of the right fifth toe is clearly shown, the evidence prior to June 25, 2009, does not show hammer toes of all the toes in either foot as contemplated by a compensable evaluation. Accordingly, a separate disability evaluation based on hammertoes of either foot is not warranted. Similarly, the Board has considered whether a separate compensation evaluation for hallux valgus is warranted prior to June 25, 2009. Diagnostic Code 5280 provides that hallux valgus, unilateral, operated with resection of the metatarsal head or severe, if equivalent to amputation of the great toe warrants a 10 percent evaluation. Though the evidence shows the Veteran underwent a bunionectomy, there is no indication that the bunionectomy included resection of the metatarsal head of the great toe or a disorder so severe as to be equivalent to amputation of the great toe. Accordingly, a separate disability evaluation based on hallux valgus is not warranted. Prior to June 25, 2009, the Veteran was rated under Diagnostic Codes 7819-5280. Under Diagnostic Code 7819 for benign neoplasms of the skin, the disability is to be rated as a scar. The applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended, effective August 30, 2002 [see 67 Fed. Reg. 49490-99 (July 31, 2002)] and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim in 1991. Under the pertinent diagnostic criteria in effect prior to August 30, 2002, a 10 percent disability evaluation was warranted for superficial scars that were poorly nourished with repeated ulceration (Diagnostic Code 7803) or tender and painful on objective demonstration (Diagnostic Code 7804). 38 C.F.R. § 4.118 (2001). Further, other scars could be rated on limitation of function of the part affected (Diagnostic Code 7805). Id. Under the pertinent diagnostic criteria effective August 30, 2002, a 10 percent disability evaluation is warranted for superficial scars that are unstable (Diagnostic Code 7803) or painful on examination (Diagnostic Code 7804). 38 C.F.R. § 4.118 (2003). An 'unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar while a 'superficial' scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 remained unchanged in the August 30, 2002 revisions. Prior to June 25, 2009, the evidence does not show that the Veteran's callosities were poorly nourished, manifested by repeated ulceration, or otherwise unstable as contemplated by a compensable evaluation under either version the pre- August 30, 2002 or post-August 30, 2002 versions of Diagnostic Code 7803. Nevertheless, the evidence has continuously showed that the Veteran's callosities were reported to have caused pain. These manifestations are specifically contemplated by a 10 percent disability evaluation under both the pre-August 30, 2002, and post-August 30, 2002 versions of Diagnostic Code 7804. Notably, neither version of Diagnostic Code 7804 provides for a rating in excess of 10 percent evaluation. While the Veteran's complaints have been predominately related to his right foot and the August 1993 VA examination shows that the Veteran's left foot was not tender, the record suggests that he had continuous pain in his left foot as well. While the RO has assigned a single compensable evaluation for both feet, the Board is of the opinion that, giving the Veteran's complaints and objective evidence of painful callosities on each foot, a separate compensable evaluation for each foot is warranted. With respect to Diagnostic Code 7805 pertaining to limitation of function of the body part affected, in this case the feet, the Board also finds that the Veteran is not entitled to a disability rating in excess of 10 percent for the period prior to June 25, 2009, under Diagnostic Code 5284 for foot injury. A rating in excess of the 10 percent assigned under these criteria a compensable evaluation contemplates foot disability that is at least moderate in severity. Despite the Veteran's complaints of pain in his feet, the weight of the evidence shows that the overall level of disability associated with his service-connected foot disabilities is not moderate in severity. On the contrary, on a September 2005 VA examination, the examiner found the Veteran had a mild plantar calluses, mild tenderness, and mild lack of endurance with no lack of coordination, and mild restriction of repetitive use. Therefore, the Board finds that the Veteran's disability picture, when considered as a whole, more nearly approximates that of a mild disability of the each foot and the Veteran is not entitled to a higher 20 percent disability rating under Diagnostic Code 5284 for either foot. The Board notes that there is no hallux rigidus, no metatarsalgia and no claw foot, as noted during the Veteran's VA examinations. Additionally, there is no indication that there is malunion or nonunion of the tarsal or metatarsal bones. Thus, Diagnostic Codes for these conditions are not for application. Beginning June 25, 2009 The Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for the period from June 25, 2009, for service-connected right foot plantar callosities, with right hallux valgus, status post bunionectomy, under Diagnostic Code 5284. However, giving the Veteran the benefit of the doubt, the Board concludes that a separate compensable evaluation is warranted for painful callosities in the left foot. However, at no time has the Veteran's left foot disability been manifested by moderate disability as contemplated by a higher evaluation under Diagnostic Code 5284. While moderate deformity of the right foot and severe right foot disability was observed in June 2009 and October 2010, the Veteran has not complained, and the evidence does not show, comparable symptomatology, in the left foot. Accordingly, a rating in excess of 10 percent for left foot disability is not met at anytime during the course of the appeal. With regard to the right foot, in June 25, 2009 VA examination, the examiner found moderate to severe hard calluses at the first and second digits on the plantar services of the right foot, and medial and lateral sides of the heel. Additionally, there was a moderate deformity of the big toe, and moderately severe tenderness on palpation of the plantar surface of the foot at the level of the first and second digit ball of the foot. Therefore, the Board finds that the Veteran's disability picture, when considered as a whole, more nearly approximates that of a severe disability of the right foot. As there was no evidence of loss of use of the right foot on the most recent VA examination, the Veteran is not entitled to the maximum rating of 40 percent under Diagnostic Code 5284. Other Considerations The Board has considered the impact of DeLuca v. Brown, 8 Vet. App. 202 (1995), with regard to the Veteran's bilateral foot disorders. The Court of Appeals for Veterans Claims (Court) held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). However, the Court has also held that where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Inasmuch as Diagnostic Codes 5276-5284 are not based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not apply. The Board additionally notes that there is no hallux rigidus, no metatarsalgia and no claw foot, as noted during the Veteran's VA examinations. Additionally, there is no indication that there is malunion or nonunion of the tarsal or metatarsal bones. Thus, Diagnostic Codes for these conditions are not for application. Consideration has been given to assigning additional staged ratings; however, at no time during the periods in question has the disability warranted more than the assigned ratings. The Board recognizes that an X-ray report from the May 2011 VA examination indicates a diagnosis of degenerative joint disease of the right foot. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As there is only evidence of a single joint and no diagnostic code with which to rate limitation of motion of the toe, a disability rating under Diagnostic Code 5003 is not warranted. Extra-Schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, the Board must 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 Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran'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 veteran'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 Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for the Veteran's foot injury, but the Veteran does not meet those criteria. It does not appear that the Veteran has an 'exceptional or unusual' disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected foot disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for the disabilities are adequate in the present case. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, supra. The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In the instant case, however, the Veteran has not explicitly raised the issue of TDIU. ORDER Entitlement to an increased rating for service-connected right foot plantar callosities with right hallux valgus, status post bunionectomy, rated at 10 percent prior to June 25, 2009, is denied. Entitlement to an increased rating for service-connected right foot plantar callosities, with right hallux valgus, status post bunionectomy and club toe, rated at 30 percent from June 25, 2009, is denied. Entitlement to a separate 10 percent disability rating for service-connected left foot plantar callosities is granted. Entitlement to a separate disability rating for hallux valgus, post-operative residuals of a right great toe is denied. Entitlement to a separate disability rating for post-operative residuals of right fifth toe disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs