Citation Nr: 1333562 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-29 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable disability rating for hallux valgus of the left foot. 2. Entitlement to an initial compensable disability rating for hallux valgus of the right foot, prior to October 14, 2005. 3. Entitlement to an initial disability rating in excess of 10 percent for hallux valgus of the right foot, as of December 1, 2005. 4. Entitlement to an initial disability rating in excess of 10 percent for radial collateral ligament injury of the right thumb, previously rated as status post right thumb sprain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2001 to February 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted service connection for hallux valgus of the left foot and right foot at a noncompensable disability rating for each foot and for status post right thumb sprain at a 10 percent disability rating. The Veteran subsequently relocated and jurisdiction of this case was transferred to the RO in Montgomery, Alabama. In a December 2005 rating decision, the RO increased the disability rating for hallux valgus of the right foot to 100 percent from October 14, 2005 and 10 percent, effective December 1, 2005. The noncompensable rating for the left foot hallux valgus was continued. In June 2011, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system reveals the Veteran's September 2013 appellate brief and additional medical treatment records from the Birmingham VA Medical Center (VAMC). The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left hallux valgus has been manifest by no more than mild symptoms that are not the equivalent of amputation of the left great toe. He has not had an operation with resection of the metatarsal head. 2. Prior to October 14, 2005, the Veteran's right hallux valgus was manifest by no more than mild symptoms that were not the equivalent of amputation of the right great toe. 3. The Veteran underwent surgical correction of his right hallux valgus on October 14, 2005. 4. The maximum schedular rating assignable for unilateral hallux valgus is 10 percent; the Veteran's right hallux valgus symptomatology is adequately addressed by this rating. 5. Throughout the appeal period, the Veteran's right thumb disability has been manifested by pain, but the clinical evidence does not show a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, and there has been no other objective evidence of functional impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable initial disability rating for left hallux valgus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.14, 4.71a, Diagnostic Code (DC) 5280 (2013). 2. The criteria for a compensable initial disability rating for right hallux valgus, prior to October 14, 2005, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.14, 4.71a, DC 5280 (2013). 3. The criteria for an initial disability rating in excess of 10 percent for right hallux valgus, from December 1, 2005, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.14, 4.71a, DC 5280 (2013). 4. The criteria for an initial disability rating in excess of 10 percent for radial collateral ligament injury of the right thumb, previously rated as status post right thumb sprain, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5228 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in June 2011 to obtain updated medical treatment records from the VAMC in Birmingham since September 2007 and a VA examination to determine the current severity of the Veteran's bilateral hallux valgus and right thumb condition. Upon remand, the RO secured the Veteran's relevant treatment records from the Birmingham VAMC from September 2007 to May 2012. The Veteran was notified of his July 2011 VA examinations at the Birmingham VAMC but failed to appear. In August 2011, the RO contacted the Veteran and was informed that he moved to Houston, Texas and had not received the notification of his July 2011 VA examinations. As a result, the RO rescheduled the Veteran's VA examinations with the Houston VAMC in September 2011. The Veteran was notified of the new VA examinations but again, failed to appear and provided no good cause for such failure. See 38 C.F.R. § 3.655(b). Thus, it appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). However, notice was provided in August 2004, August 2005, April 2006 and September 2007 letters. As for the duty to assist, the Veteran's service treatment records (STRs) and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Three VA examinations have been secured in connection with the current claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). Taken together, the Veteran's May 2004, September 2005 and September 2007 VA examinations are sufficient as the VA examiners considered the entire record, noted the history of the disabilities, addressed relevant evidence, and provided the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). While the Veteran claimed that his conditions have worsened since his September 2007 VA examination, the Veteran failed to appear for new VA examinations scheduled for July 2011 and September 2011. Where the Veteran fails to report for an examination scheduled in connection with a claim for an increase, the claim shall be denied. 38 C.F.R. § 3.655(b). However, as the Veteran did appear for the May 2004, September 2005 and September 2007 VA examinations, the Board will determine the merits of his claim based on the evidence of record. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claims at this time. III. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating 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. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that staged ratings for the Veteran's right hallux valgus disability is warranted. While various manifestations of a single disability may be assigned separate disability evaluations, VA regulations preclude the evaluation of the same manifestations of a disability under different diagnoses, a process called pyramiding. See 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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 evidence submitted by the Veteran 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 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59 (2013). Hallux Valgus The record reflects that the Veteran received an initial noncompensable rating for bilateral hallux valgus, effective February 18, 2004. As a result of surgery on his right hallux valgus, he then received a 100 percent rating (temporary total convalescent) for his right hallux valgus disability effective October 14, 2005. See 38 C.F.R. § 4.30. As of December 1, 2005, he was assigned a 10 percent disability rating for his right hallux valgus. See 38 C.F.R. § 4.71a, DC 5280. The Veteran claims he is entitled to an initial compensable disability rating for his left hallux valgus, an initial compensable disability rating for his right hallux valgus prior to October 14, 2005 and an initial rating in excess of 10 percent for his right hallux valgus as of December 1, 2005. Hallux valgus is evaluated under the criteria set forth in 38 C.F.R. § 4.71a, DC 5280 (2013). A maximum 10 percent rating is warranted for unilateral hallux valgus if the condition is severe and disabling to a degree equivalent to amputation of the great toe, or if it has been operated on with resection of the metatarsal head. Foot disabilities may also be rated under DCs 5276, 5277, 5278, 5279, 5281, 5282, 5283, and 5284, when appropriate. Under DCs 5277, 5279, 5281, and 5282, ratings of up to 10 percent are available for weak foot, metatarsalgia (Morton's disease), hallux rigidus, and hammer toes, respectively. Under DC 5283, ratings of up to 30 percent are available for malunion or nonunion of the metatarsal bones. Under DCs 5276 and 5278, ratings of up to 50 percent are available for acquired flatfoot and acquired clawfoot. DC 5284 provides for ratings of 10, 20, and 30 percent, respectively, for moderate, moderately severe, and severe foot injury. If there is actual loss of use of the foot, a 40 percent rating is warranted under DC 5284. The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 (2013). However, the Court has held that where a diagnostic code is not predicated on a limited range of motion alone, such as with DC 5280 (hallux valgus), the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In April 2004, the Veteran filed a claim of entitlement to service connection for bilateral hallux valgus. In May 2004, the Veteran was afforded a VA examination for his bilateral foot condition. He reported persistent pain bilaterally in the great toe, made worse by walking, running or jumping. The Veteran was able to walk, but had to walk slowly when he was in pain. He could only stand in one position for 15 minutes without changing position due to the pain in his great toes. The Veteran had no history of surgery for this condition and was not currently receiving treatment. Upon physical examination, the Veteran's was ambulatory with no distress and his gait appearing satisfactory. Inspection of his feet showed mild hallux valgus present. There was some tenderness at the level of both great toes proximally which were tender to palpitation. The range of motion of the toes otherwise appeared full. The VA examiner's impression was bilateral hallux valgus. A May 2004 X-ray of the Veteran's feet showed mild bilateral hallux valgus. An April 2005 podiatry consult documents the Veteran's complaints of painful bunions on both feet. The VA doctor noted a bilateral hallux valgus deformity with a normal range of motion of the first metatarsophalangeal joint (MPJ) with no pain. The doctor discussed a surgical procedure to correct the Veteran's bunion deformity and made a prosthetic request for custom rigid orthotics with full-length soft cover and a pair of wide athletic shoes. The VA doctor's assessment was hallux valgus deformity and pes planus with excessive pronation. Impressions from an April 2005, X-ray of the Veteran's feet were mild bilateral hallux valgus deformities at the MPJ of the right and left great toes. The joint space appeared normal with no fractures. There were no abnormal soft tissue calcifications. In August 2005, the Veteran returned to the VA podiatry clinic and stated he had been given shoes and orthotics but they had been of minimal help. He requested to have a surgical correction of his bunion deformities. In September 2005, prior to his bunion surgery, the Veteran was provided with a second VA foot examination. The VA examiner noted the Veteran required no assistive devices and that the podiatry staff had recommended the Veteran receive surgical correction of his bunions. The Veteran complained of pain in the first MPJ of both feet. Physical examination of both feet showed bilateral hallux valgus, 30 to 40 degrees bilaterally, moderate prominence of the first metatarsal head and irritation of the skin and soft tissues over the metatarsal head suggesting pressure from a shoe. Bilaterally, range of motion in the first MPJ was extension to 45 degrees and flexion to 60 degrees, with ligaments intact and normal alignment of his Achilles tendon. X-rays of the feet showed mild bilateral hallux valgus deformities at the MPJ. There was no increased limitation of motion due to weakness, fatigability, or incoordination following repetition. The overall finding was mild to moderate bilateral hallux valgus. On October 14, 2005, the Veteran underwent reconstructive foot surgery in order to have his right bunion removed. See Letter from Dr. M. D. W., September 2005; see also Birmingham VAMC, Podiatry Clinic Note, October 2005. At a third post-operative podiatry visit in October 2005, the Veteran stated his right foot was no longer sore unless his bent his toe back (dorsiflexion of about 15 degrees). At a November 2005 follow-up appointment, the Veteran stated that "his foot is much better," and he could passively dorsiflex his right foot beyond 15 degrees without discomfort. In September 2007, the Veteran was afforded a third VA foot examination. The Veteran complained of foot pain since basic training in 2001. He reported numbness at the site of his 2005 bunion surgery with pain in his right great toe with flexion of the joint. The Veteran complained of pain, swelling and redness in his left foot at the first metacarpal that occurs while standing and walking. He stated he could stand for up to one hour, walk a quarter of a mile, and required no assistive devices. Upon physical examination of the left foot, there was no objective evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, hammertoes, skin or vascular abnormality, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy. The VA examiner found very little angulation at the first MPJ of approximately 5 to 6 degrees, with no stiffness of the joint, dorsiflexion to 60 degrees and flexion to 30 degrees. The right foot examination showed no objective evidence of painful motion, swelling, tenderness, instability, abnormal weight bearing, hammertoes, skin or vascular abnormality, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy. However, the VA examiner documented mild weakness of the right hallux valgus against resistence for lateral movements but with normal strength for flexion and dorsiflexion. There was normal alignment of the right first MPJ with dorsiflexion to 60 degrees, flexion to 25 degrees and no stiffness. Impressions from an X-ray were mild hallux valgus bilaterally. The Veteran sought treatment of his bilateral foot condition and in November 2007 complained that his right foot is in constant pain. See Nursing Telephone Triage Note, November 2007. A December 2007 VA podiatry note documents the Veteran's complaints of right foot pain at the first MPJ and some numbness of the side of the first metatarsal head area. Upon physical examination, there was pain to dorsiflexion at the right first MPJ. The assessment was hallux rigidus on the right and hallux valgus on the left. In May 2009, the Veteran stated that he was having a great deal of pain and instability in his feet bilaterally and was unable to stand for any prolonged period of time or wear certain types of shoes due to the pain. See Veteran's Statement in Support of Claim, May 2009. Birmingham VAMC treatment records from May 2012 document the Veteran's complaints of right foot pain and the Veteran's request for a cane as a result of his right foot condition. See Birmingham VAMC, Primary Care Physician Note, May 2012. Left Hallux Valgus As noted above, the Veteran is in receipt of an initial noncompensable rating for his left hallux valgus from February 18, 2004. Under DC 5280, unilateral hallux valgus warrants a maximum 10 percent rating if it is severe and equivalent to amputation of the great toe or after surgical resectioning of the metatarsal head. Medical evidence reflects that throughout the appeal period, the Veteran's left hallux valgus has not resulted in severe symptoms, equivalent to amputation of the left great toe. Additionally, the Veteran has not had any surgery on his left hallux valgus. May 2004, April 2005 and September 2005 X-rays showed the Veteran had mild hallux valgus bilaterally. The September 2005 VA examiner found the Veteran suffered from no increased limitation of motion due to weakness, fatigability, or incoordination following repetition. The VA examiner's diagnosis was mild to moderate bilateral hallux valgus. Upon physical examination in September 2007, there was no objective evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, hammertoes, skin or vascular abnormality, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy on the left foot. The VA examiner found very little angulation at the first MPJ, with no stiffness of the joint, dorsiflexion to 60 degrees and flexion to 30 degrees. September 2007 X-rays findings showed mild bilateral hallux valgus. Although the Veteran complained in May 2009 of pain and instability in his feet and an inability to stand for a prolonged period of time, during the appeal period there has been no objective evidence of severe left hallux valgus symptoms equivalent to amputation of the left great toe that would warrant a maximum 10 percent rating. The Board has considered whether there are other potentially applicable diagnostic codes. The Board notes that some of the post-service medical evidence indicates that the Veteran may have had bilateral pes planus. However, service connection for this condition has not been established. Nor has service connection been established for left weak foot, claw foot, metatarsalgia, hallux rigidus, hammertoes, or malunion or nonunion of the tarsal or metatarsal bones. Indeed, there is no indication from the pertinent medical evidence (as outlined above) that the Veteran's service-connected left hallux valgus has been productive of any of these conditions. Accordingly, the Board finds no basis for the assignment of higher or separate evaluations under DCs 5276, 5277, 5278, 5279, 5281, 5282, or 5283. See 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability is to be avoided). Further, the Veteran's disability has been diagnosed as left hallux valgus and there is no other evidence of trauma (other injury) to the left foot so DC 5284 is not for application. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a initial compensable evaluation for left hallux valgus. See 38 C.F.R. § 4.71a, DC 5280. Right Hallux Valgus Prior to October 14, 2005 As noted above, the Veteran is in receipt of an initial noncompensable rating for his right hallux valgus from February 18, 2004, a 100 percent rating (temporary total convalescent) effective October 14, 2005 and a 10 percent rating as of December 1, 2005. See 38 C.F.R. § 4.71a, DC 5280. Under DC 5280, unilateral hallux valgus warrants a maximum 10 percent rating if severe and equivalent to amputation of the great toe or after surgical resectioning of the metatarsal head. Medical evidence reflects that prior to October 14, 2005, the Veteran's right hallux valgus did not result in severe symptoms, equivalent to amputation of the right great toe nor did his right hallux valgus undergo surgery. May 2004, April 2005 and September 2005 X-rays showed the Veteran had mild hallux valgus bilaterally. An April 2005 podiatry consult documents complaints of painful bilateral bunions and a diagnosis of bilateral hallux valgus deformity with a normal range of motion of the first MPJ with no pain. In August 2005, the Veteran requested to have a surgical correction of his bunion deformities. However, the September 2005 VA examiner noted the Veteran required no assistive devices for ambulation and suffered from no increased limitation of motion due to weakness, fatigability, or incoordination following repetition. The VA examiner's diagnosis was mild to moderate bilateral hallux valgus. Prior to October 14, 2005, there is no objective evidence of severe right hallux valgus symptoms equivalent to amputation of the right great toe that would warrant a maximum 10 percent rating. The Board has considered whether there are other potentially applicable diagnostic codes. The Board notes that some of the post-service medical evidence indicates that prior to October 14, 2005, the Veteran may have had bilateral pes planus. However, service connection for this condition has not been established. Nor has service connection been established for right weak foot, claw foot, metatarsalgia, hallux rigidus, hammertoes, or malunion or nonunion of the tarsal or metatarsal bones. Indeed, there is no indication from the pertinent medical evidence that prior to October 14, 2005, the Veteran's service-connected right hallux valgus was productive of any of those conditions. Accordingly, the Board finds no basis for the assignment of higher or separate evaluations under DCs 5276, 5277, 5278, 5279, 5281, 5282, or 5283. See 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability is to be avoided). Further, the Veteran's disability has been diagnosed as right hallux valgus and there is no other evidence of trauma (other injury) to the right foot so DC 5284 is not for application. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a initial compensable evaluation for right hallux valgus, prior to October 14, 2005. See 38 C.F.R. § 4.71a, DC 5280. Right Hallux Valgus as of December 1, 2005 The Veteran's right hallux valgus is rated at 10 percent as of December 1, 2005. See 38 C.F.R. § 4.71a, DC 5280. DC 5280 provides a maximum 10 percent disability rating for unilateral hallux valgus if the condition is severe and equivalent to amputation of the great toe or after resectioning of the metatarsal head. As discussed above, the Veteran underwent right foot bunion removal surgery on October 14, 2005. During follow-up consultations in October and November 2005 there was documentation of improvement in his foot condition such that the Veteran could passively dorsiflex his right foot beyond 15 degrees without discomfort. Upon physical examination of the right foot in September 2007, there was no objective evidence of painful motion, swelling, tenderness, instability, abnormal weight bearing, hammertoes, skin or vascular abnormality, malunion or nonunion of the tarsal or metatarsal bones or muscle atrophy. While the VA examiner documented mild weakness of the right hallux valgus against resistence for lateral movements, there was normal strength for flexion and dorsiflexion. There was normal alignment of the right first MPJ with dorsiflexion to 60 degrees, flexion to 25 degrees and no stiffness. Impressions from an X-ray were mild hallux valgus bilaterally. The Veteran complained in May 2009 of pain and instability in his feet and an inability to stand for a prolonged period of time. The record shows in May 2012, the Veteran requested a cane as a result of his right foot condition. However, as of December 1, 2005, the Veteran has been rated at the maximum 10 percent for right hallux valgus. The rating criteria reflect that the 10 percent rating is appropriate following surgical correction as undergone by the Veteran - the rating correctly describes his level of disability. Accordingly, as of December 1, 2005, the Veteran's symptomatology does not warrant a disability rating greater than 10 percent for the hallux valgus of the right foot. A rating in excess of 10 percent for post-surgical right hallux valgus is denied. The Board also has considered whether a greater disability rating would be appropriate under alternative diagnostic codes. The only diagnostic codes for foot disabilities that provide ratings in excess of 10 percent are DCs 5276, 5278, 5283 and 5284. These codes are used to evaluate pes planus, pes cavus, malunion or nonunion of the tarsals or metatarsals, and other foot injuries. However, there is no medical evidence that as of December 1, 2005, the Veteran experienced pes planus, pes cavus or malunion or nonunion of the tarsals or metatarsals. Further, his disability has been diagnosed and there is no other evidence of trauma (other injury) to the right foot, so DC 5284 is not for application. Thus, consideration of an increased rating for the service-connected hallux valgus of the right foot under these diagnostic code provisions is not warranted. 38 C.F.R. § 4.71a, DCs 5276, 5278, 5283, 5284 (2013). Accordingly, as of December 1, 2005, the Board finds that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent for right hallux valgus. See 38 C.F.R. § 4.71a , DC 5280. Right Thumb Radial Collateral Ligament Injury The record reflects that the Veteran received an initial 10 percent disability rating for his right thumb radial collateral ligament injury, effective February 18, 2004, pursuant to 38 C.F.R. § 4.71a, DC 5228. The Veteran claims he is entitled to an initial disability rating in excess of 10 percent for his right thumb radial collateral ligament injury. Pursuant to DC 5228, limitation of motion of the thumb provides a non-compensable rating for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. The ratings are the same regardless of whether the hand affected is the major or minor hand. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In April 2004, the Veteran filed a claim of entitlement to service connection for a right thumb disability. In May 2004, the Veteran was afforded a VA examination for his right thumb condition. He reported a history of tearing a ligament in his right thumb in March 2003 that required a cast for three weeks and an August 2003 dislocation and stretching of the ligaments that required a cast for six weeks. The Veteran reported presently having pain, weakness, stiffness, swelling, locking and fatigability in his right thumb. He was unable to perform activities such as uncapping bottles and it was difficult for him to write as he is right handed. He experienced a flare-up every two weeks that lasted for 5 to 10 minutes at a time. The VA examiner estimated an additional 40 percent limitation of motion with flare-ups. There was no inflammatory arthritis. Upon physical examination, there was no sign of deformity of the right thumb. Range of motion of the right thumb showed restriction on flexion and the Veteran was unable to reach the palm of his hand by two inches. On repeat motion, the restriction was increased to two and a half inches between palm of the hand and the Veteran's right thumb. The impression was status post sprain right thumb. An August 2004 X-ray of the right hand showed no abnormalities in the bones, joints, or soft tissues. The right hand was found to be radiographically normal. The Veteran sought treatment for his thumb condition in December 2004, wherein he complained of chronic right thumb pain. The VA doctor noted that he had previously diagnosed the Veteran with a right thumb radial collateral ligament injury. He was previously placed in a cast where he received three of the recommended six weeks of immobilization. Physical examination showed pain at the right thumb MPJ. The impression was incomplete radial collateral ligament injury. A February 2005 VA plastic surgery note documents a follow up three weeks after the Veteran had a cast placed for right thumb MPJ radial collateral ligament splinting. The Veteran reported discomfort along the radial aspect of his right thumb MPJ. Physical examination showed minimal laxity of the right thumb MPJ. The VA doctor recommended an additional three weeks of casting, but the Veteran declined. In September 2005, the Veteran was provided with a second VA thumb examination. The Veteran provided a history of his right thumb condition, including a series of cast immobilizations that did not improve his symptoms and his joint becoming somewhat stiff when the casts were removed. The Veteran reported still having difficulty with grasping objects, especially removing jar and can tops. Any type of strenuous grasping activity caused pain in his MPJ. Upon physical examination, there was a definite marked degree of laxity of the radial collateral ligament, which was strongly suggestive of a tear of the radial collateral ligament structures. Ulnar collateral was tight. Range of motion of the joints was 45 degrees of flexion with unremarkable abduction. Grip strength was somewhat weaker in the left hand. X-rays showed the right hand was radiographically normal. The VA examiner's impression was radial collateral ligament rupture, right first MPJ. In September 2007, the Veteran was afforded a third VA thumb examination. The Veteran reported that his thumb condition was worse, particularly when it was held or turned. He stated his thumb was weak and he had difficulty opening a two liter soda bottle. He had pain in his right thumb when trying to use it and when writing. The Veteran complained of pain, limited motion, swelling, weakness and stiffness in his right thumb. The VA examiner found no history of flare-ups. There was an eight degree angulation deformity at the MPJ of the right thumb. There was a gap of less than an inch between the Veteran's right thumb pad and tips of fingers on attempted opposition of thumb to fingers. The Veteran had decreased strength for twisting and a handgrip of 30 kilograms in the right hand and 36 kilograms in the left hand. Flexion of the right thumb was to 50 degrees with no pain and extension to eight degrees with no pain. An X-ray of the Veteran's right thumb showed no significant change since the August 2004 X-ray. The VA examiner's diagnosis was right thumb radial collateral ligament injury. In September 2009, the Veteran sought treatment of his right thumb condition and complained that his thumb was giving him a lot of problems and that the pain was getting worse. See Birmingham VAMC, Primary Care Outpatient Note, September 2009. The Veteran was found to have point tenderness in his right thumb and was referred for an orthopedic consultation. Treatment records from May 2012 document the Veteran's complaints of progressively worsening right hand pain with any movement of his right thumb. The VA physician found no muscle wasting or paresthesias. The Veteran was referred to the hand clinic and given a spica wrist splint as he had recently lost his. A May 2012 X-ray of the Veteran's right hand showed no significant change from an August 2004 X-ray of the Veteran's right hand. He had no acute fractures or dislocations, no significant degenerative changes, his bone density was within normal limits and his soft tissue was unremarkable. The Board finds that the relevant evidence of record weighs against assignment of an initial rating in excess of 10 percent for the Veteran's right thumb disability. As noted above, the next higher (20 percent) rating under DC 5228 requires evidence of a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. This is simply not shown by any of the relevant evidence. The Board additionally finds that a higher rating is not warranted for the Veteran's right thumb under DC 5224, as that Code requires evidence of ankylosis, which is not documented in the evidence. In reaching this conclusion, the Board has, consistent with DeLuca, considered the Veteran's functional loss due pain and other factors as set forth in 38 C.F.R. §§ 4.40 and 4.45; however, the pertinent medical evidence reflects that the assigned 10 percent rating properly compensates the Veteran for the extent of any such loss. In this regard, the September 2005 examiner found range of motion of the Veteran's right MPJ with 45 degree of flexion and unremarkable abduction. September 2005 X-rays showed the right hand radiographically normal. While the September 2007 examiner found that the Veteran had decreased strength for twisting in his right hand and six kilograms less of handgrip in his right hand as compared to his left hand, flexion of his right thumb was to 50 degrees with no pain and an X-ray showed no significant changes. A May 2012 VA physician found no muscle wasting in the Veteran's right thumb. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a initial evaluation in excess of 10 percent for the Veteran's right thumb condition. See 38 C.F.R. § 4.71a, DC 5280. Extraschedular Consideration The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's left and right hallux valgus and right thumb radial collateral ligament injury symptoms and disability levels. The Veteran's left hallux valgus disability is manifest by pain at the MPJ, with very little angulation and no stiffness of the joint. Prior to December 1, 2005, the Veteran's right hallux valgus disability was manifest by pain at the MPJ. As of December 1, 2005, the Veteran's right hallux valgus disability was status post bunion removal surgery with mild weakness and pain. The Veteran's right thumb disability is manifest by pain and decreased strength for twisting. These factors are contemplated by the rating criteria. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected left hallux valgus, right hallux valgus or right thumb disabilities. Hence, referral for consideration of an extraschedular rating is not warranted. IV. Total Rating for Compensation Based on Individual Unemployability Total rating for compensation based on individual unemployability (TDIU), is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The evidence in the record shows that during the appeal period the Veteran has worked full time as an airline fueler, a carpet cleaner, at a pipe and foundry company and at a manufacturing plant. See Birmingham VAMC, Mental Health Outpatient Consult, December 2006 and March 2007; see also VA Examinations, September 2005 and September 2007. Additionally, in December 2006, the Veteran was a full-time pharmacy student. While there is evidence in the record that the Veteran had some difficulty with the physical aspects of his occupation due to his service-connected disabilities, he has been gainfully employed at various times during the appeal period. There is no evidence in the record of unemployability and the Veteran has not claimed to be unemployable due to his service-connected disabilities. Hence, further consideration of TDIU is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable disability rating for hallux valgus of the left foot is denied. Entitlement to an initial compensable disability rating for hallux valgus of the right foot, prior to October 14, 2005, is denied. Entitlement to an initial disability rating in excess of 10 percent for hallux valgus of the right foot, as of December 1, 2005, is denied. Entitlement to an initial disability rating in excess of 10 percent for radial collateral ligament injury of the right thumb, previously rated as status post right thumb sprain, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs