Citation Nr: 1339023 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-31 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial compensable rating for left foot hallux valgus for the period prior to June 1, 2012, and in excess of 10 percent for the period from June 1, 2012. 2. Entitlement to an initial compensable rating for right foot hallux valgus for the period prior to May 1, 2012, and in excess of 10 percent for the period from May 1, 2012. 3. Entitlement to an initial compensable rating for scar left foot, status post-surgery. 4. Entitlement to an initial compensable rating for scar right foot, status post-surgery. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1989 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in relevant part, granted service connection for bilateral hallux valgus and assigned initial noncompensable ratings to each foot, effective November 1, 2009. The Veteran testified before the undersigned at an August 2011 hearing at the Houston, Texas, RO. A transcript has been associated with the file. In February 2013, the Board remanded the issues of initial compensable ratings for right and left foot hallux valgus for additional development. The additional development actions have been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). During the course of these actions, the RO increased the disability rating for right and left foot hallux valgus to 10 percent for each foot, effective May 1, 2012 and June 1, 2012, respectively. Additionally, the RO granted service connection for scar right foot, status post-surgery associated with right foot hallux valgus, and assigned an initial noncompensable rating, effective March 9, 2012. Similarly, the RO granted service connection for scar left foot, status post-surgery associated with left foot hallux valgus, and assigned an initial noncompensable rating, effective April 13, 2012. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to June 1, 2012, the Veteran's left foot hallux valgus was not operated on with a resection of the metatarsal head and was not severe or equivalent to the amputation of the great toe. Left foot hallux valgus resulted in symptoms including mild painful motion, abnormal weight bearing, and the use of orthotics to assist with standing and running that more closely approximate a "moderate" foot injury than a "moderately severe" foot injury. 2. From June 1, 2012, the Veteran's left foot hallux valgus manifested with symptoms including continuing chronic pain, misaligned great toes, and walking difficulty that more closely approximate a "moderate" foot injury than a "moderately severe" foot injury. 3. Prior to May 1, 2012, the Veteran's right foot hallux valgus was not operated on with a resection of the metatarsal head and was not severe or equivalent to the amputation of the great toe. Right foot hallux valgus resulted in symptoms including mild painful motion, abnormal weight bearing, and the use of orthotics to assist with standing and running that more closely approximate a "moderate" foot injury than a "moderately severe" foot injury. 4. From May 1, 2012, the Veteran's right foot hallux valgus manifested with symptoms including continuing chronic pain, misaligned great toes, and walking difficulty that more closely approximate a "moderate" foot injury than a "moderately severe" foot injury. 5. The Veteran's scar left foot, status post-surgery, measures 5 x 0.3 centimeters and is painful, but not unstable. 6. The Veteran's scar right foot, status post-surgery, measures 5 x 0.3 centimeters and is painful, but not unstable. CONCLUSIONS OF LAW 1. For the initial rating period prior to June 1, 2012, the criteria for an initial rating of 10 percent, but not higher, for left foot hallux valgus have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 - 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5284 (2013). 2. For the initial rating period from June 1, 2012, the criteria for an initial rating in excess of 10 percent for left foot hallux valgus have not been met. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 - 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5284 (2013). 3. For the initial rating period prior to May 1, 2012, the criteria for an initial rating of 10 percent, but not higher, for right foot hallux valgus have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 - 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5284 (2013) 4. For the initial rating period from May 1, 2012, the criteria for an initial rating in excess of 10 percent for right foot hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 - 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5280, 5284 (2013). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 10 percent, but not higher, for scar left foot, status post-surgery, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1 - 4.7, 4.118, Diagnostic Code 7804 (2013). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 10 percent, but not higher, for scar right foot, status post-surgery, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1 - 4.7, 4.118, Diagnostic Code 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When an initial rating appeal comes before the Board following a decision to grant service connection and assign an initial rating, no additional VCAA notice is required. Courts have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). VA has also satisfied its duty to assist the Veteran in developing the claims. The Veteran's service treatment records and pertinent post-service treatment records, including VA treatment reports, have been secured. The Veteran has not indicated, and the record does not contain, evidence of receipt of benefits from the Social Security Administration. See 38 C.F.R. § 3.159(c)(2). Additionally, VA met its duty to provide a medical examination. In July 2009, October 2010, and June 2013, the Veteran was afforded VA examinations to assess the status and severity of the claimed disabilities. These examinations, taken together, are found to be adequate for rating purposes of the issues on appeal. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of these claims. Disability Rating Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (2013). The United States Court of Appeals for Veterans Claims (CAVC) has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, the Board will evaluate the issue as a claim for higher evaluation of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings - different disability ratings during various time periods - may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson, 12 Vet. App. at 127. Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses, are to be avoided. Id. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so) In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 39; Gilbert, 1 Vet. App. at 57. The Board has reviewed all of the evidence in the Veteran's claims file, to include VA treatment reports in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. Initial Ratings for Hallux Valgus of the Right Foot and Left Foot The Veteran is in receipt of noncompensable ratings for service connected hallux valgus prior to May 1, 2012 for the right foot, and prior to June 1, 2012 for the left foot. From those dates forward, the Veteran is in receipt of a 10 percent rating for each foot under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5280. The Veteran contends that he is entitled to a disability rating in excess of 10 percent for all periods related to this appeal because of associated symptomatology including abnormal weight bearing, callosities, pain, and limitations on standing and walking. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus that was operated on with a resection of the metatarsal head or when severe, if equivalent to the amputation of the great toe. 38 C.F.R. § 4.71a. However, hallux valgus can also be rated under Diagnostic Code 5284 as a foot injury. 38 C.F.R. § 4.71a. Diagnostic Code 5284 allows for a 10 percent rating for moderate foot injuries; a 20 percent rating for moderately severe foot injuries; a 30 percent rating for severe foot injuries; and a 40 percent rating for actual loss of use of the foot. Id. The Board also notes that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to flare-ups or pain, fatigability, incoordination, pain on movement, and weakness causing additional disability beyond that reflected on range of motion measurement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Initial Rating Period prior to May 1, 2012 for the Right Foot and prior to June 1, 2012 for the Left Foot As noted above, the Veteran is currently in receipt of noncompensable ratings for service-connected hallux valgus for the period prior to May 1, 2012 for the right foot, and prior to June 1, 2012 for the left foot. Initially, the Board finds that Veteran's hallux valgus disabilities were not treated by surgery involving resection of the metatarsal heads prior to the operations performed in 2012 and reflected by the post-convalescence dates of May 1, 2012 for the right foot and June 1, 2012 for the left foot. Review of VA Medical Center (VAMC) treatment records show that the March 9, 2012 surgery for the right foot and April 13, 2012 surgery on the left foot were the first of operations of their kind on both of the Veteran's feet. As to the severity of these conditions, the Board notes that surgery was pursued on both feet after "conservative treatments" including stretching, orthotics, night splints, and ice failed to relieve pain associated with hallux valgus. See April 9, 2012 CAPRI entry. During the August 2011 Board hearing, the Veteran testified that his hallux valgus conditions left him unable to run and, after 20 to 30 minutes, unable to stand. He discussed how VA clinicians did not recommend any kind of treatment other than shoe inserts. The Veteran said that he did not use pain medication despite having tender bunions that, when bumped, would cause radiating pain that "just about drop [the Veteran to his] knees." In November 2011, the Veteran received a podiatry consultation wherein he reported aching pain in his right first metatarsophalangeal joint that radiated along the bottom of his foot. While the Veteran shared that this pain had persisted for 15 years, no other complaints were presented during this visit. The October 2010 podiatry compensation and pension (C&P) examination report does not indicate severe hallux valgus in either foot. The VA examiner observed mild painful motion in the left first metatarsophalangeal joint more than the right. No edema, weakness, or instability was noted. Similarly, the VA examiner reported no functional limitations for standing or walking. Weight bearing was seen as abnormal with callouses/hyperkeratotic lesions on plantar aspects of both great toes. The VA examiner noted that the Veteran neither had nor required assistive devices. However the examination report does reflect the Veteran's use of plastic orthotics with additional gel devices. During the July 2009 C&P examination, the Veteran reported pain, weakness, and stiffness in both feet that could be associated with foot conditions including bilateral foot bunions, plantar fasciitis, and bursitis. The Veteran indicated that at the time of pain, he could function without medication. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. The VA examiner noted that the Veteran did not require any assistive device for ambulation. Clinical records from Dr. C.A. reflect several diagnoses of the feet including right foot hallux valgus, a left foot toe sprain, and plantar fasciitis. Among these diagnoses, the Veteran reported moderate foot pain in October 2009. After a review of all the evidence, the Board finds that for the initial rating period prior to May 1, 2012 for the right foot, and prior to June 1, 2012 for the left foot, the weight of the evidence demonstrates that the Veteran's service-connected hallux valgus disabilities were manifested by mild painful motion, abnormal weight bearing, and the use of orthotics to assist with standing and running. This evidence does not demonstrate that service-connected hallux valgus was severe enough to be equivalent to amputation of the great toe; therefore, a rating of 10 percent under Diagnostic Code 5280 is not warranted. See 38 C.F.R. § 4.71a. However, the Board finds that these symptoms closely approximate a "moderate," but not a "moderately severe" foot injury for purposes of Diagnostic Code 5284. 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has weighed how pain symptoms were not relieved by treatments including stretching, orthotics, night splints, and ice. However, the Board has also considered that there is no indication in the record that this pain limited the range of motion in either of the Veteran's feet. In addition, the October 2010 VA examiner reported that there was no weakness, instability, or functional limitations for standing or walking in the Veteran's feet. When describing his symptoms during the August 2011 Board hearing, the Veteran stated that his present symptoms were "gradually getting worse" from the October 2010 VA examination. Thus, the Board finds that a disability rating of 10 percent - the rating for "moderate" foot injury -is warranted under Diagnostic Code 5284 for both the left and right foot. See 38 C.F.R. §§ 4.40, 4.45, 4.71a; DeLuca. In reaching this conclusion, the Board finds these symptoms - without additional factors such as weakness, fatigue, instability, or functional limitation - do not more closely approximate a "moderately severe" foot injury that would warrant a higher 20 percent rating. See 38 C.F.R. § 4.71, Diagnostic Code 5284. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 Initial Rating Period from May 1, 2012 for the Right Foot and from June 1, 2012 for the Left Foot As noted above, the Veteran is currently in receipt of the maximum 10 percent evaluation available under Diagnostic Code 5280 for the period for the initial rating period from May 1, 2012 for the right foot and from June 1, 2012 for the left foot. After a careful review of the evidence, lay and medical, the Board finds that neither of Veteran's service-connected hallux valgus disabilities warrant a higher 20 percent rating under Diagnostic Code 5284 during this period because at no time during this period did the disabilities rise to the level of "moderately severe." The June 2013 VA foot examination report indicates that the Veteran displayed mild to moderate symptoms of hallux valgus in both feet. The VA examiner listed "difficulty with walking" as a functional impact of the Veteran's foot condition on his ability to work. The report indicated that no assistive devices were required; however, the Veteran's use of orthotics for his condition was discussed. In a July 2013 letter, the Veteran stated that he suffers from continuing chronic pain. He also explained that the great toes of both feet continue to point outward from body center toward the minor toes with a slight twist. The Board finds that the weight of the lay and medical evidence demonstrates "mild to moderate" symptoms of hallux valgus in each foot, continuing chronic pain, misaligned great toes, and walking difficulty more closely approximate a "moderate" foot injury than a "moderately severe" foot injury. Significantly, no assistive devices are used to assist with walking and there is no indication that pain has limited the range of motion or functional use of either of the Veteran's feet. Based on these facts, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 5284. See 38 C.F.R. §§ 4.40, 4.45, 4.71a; DeLuca. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 Initial Rating for Scars The Veteran is currently in receipt of noncompensable initial ratings for left and right foot scars associated with surgeries for left and right foot hallux valgus. He asserts that he is entitled to compensable ratings due to the pain he experiences from these scars. Under Diagnostic Code 7801, a burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm) warrants a 20 percent evaluation. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm) warrants a 30 percent evaluation. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater warrants a 40 percent evaluation. 38 C.F.R. § 4.118. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Note (2) indicates that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. In the July 2013 VA foot examination report, the VA examiner noted that two scars were present on the Veteran's feet. Specifically, the VA examiner reported a scar on both the left and right great toe, each of which measured "5 x 0.3" centimeters (cm) and was well healed, nonpainful, and not unstable. In a July 2013 letter, the Veteran indicated that the June 2013 VA examination report misrepresents the pain associated with scars left by surgery associated with left and right foot hallux valgus, and the conversation he had with the VA examiner. The Veteran stated that he suffers from "ongoing shooting pain in the scar, identified by my surgeon as possible scar tissue and that I should apply vitamin E oil routinely to soften the scar tissue." He expressed that sharp, shooting pain persists despite these efforts, and added that scar tenderness affects the activities he performs, how long he can stand, and what types of shoes he wears. After a review of all the evidence, lay and medical, the Board finds that the Veteran has left and right foot scars that are painful, but not unstable. Based on the nondisputed measurements provided by the 2013 VA examiner, these scars each measure 5 x 0.3 centimeters and therefore do not warrant compensable ratings under Diagnostic Codes 7801 (requiring that scars be at least 39 square centimeters for a 10 percent rating) or 7802 (requiring that scars cover an area of at least 929 square centimeters). However, the Veteran is competent to report pain in these scars. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Given the detail provided relating to this pain and the suggested treatment, the Board finds that the Veteran is also credible. Thus, although the Veteran's July 2013 statement differs with the January 2013 VA foot examination report, the Board resolves reasonable doubt in the Veteran's favor and finds that both left and right foot scars are painful. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, an initial rating of 10 percent is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804. As these scars are painful but not unstable, an additional 10 percent is not warranted for the evaluation of either scar. See id. Note (2). The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the issues discussed above. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's right and left foot hallux valgus is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Diagnostic Code 5280 specifically addresses hallux valgus and assigns a compensable rating when the disability either requires surgery involving resection of the metatarsal head, or manifests as "severe," if equivalent to amputation of the great toe. 38 C.F.R. § 4.72. Symptoms beyond these criteria are reasonably considered under Diagnostic Code 5284, which contemplates foot injuries. Id. As foot injuries affect the musculoskeletal system, Diagnostic Code 5284 incorporates consideration of factors including functional loss due to flare-ups or pain, fatigability, incoordination, pain on movement, and weakness causing additional disability beyond that reflected on range of motion measurement. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202. Thus, foot injury symptoms associated with hallux valgus demonstrated throughout the period on appeal - including mild painful motion, abnormal weight bearing, the use of orthotics to assist with standing and running, and misaligned great toes - are contemplated by the criteria discussed above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Similarly, the Board finds that the scheduling criteria, specifically Diagnostic Code 7804, consider painful scarring. The Veteran's symptoms associated with residual scarring were limited to acute pain. Thus, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell, 9 Vet. App. 337; Shipwash, 8 Vet. App. at 227. Lastly, an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), has been considered. During the 2011 Board hearing, the Veteran testified that he was working as a computer technician. He described how certain physical demands of the position, including wiring and climbing ladders, caused pain in his feet. However, he also testified that he had retired from the position. The Veteran has not alleged that he has been unable to secure or follow substantially gainful employment due to his disabilities; therefore, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. (CONTINUED ON NEXT PAGE) ORDER An initial disability rating for left foot hallux valgus of 10 percent, but no higher, for the period prior to June 1, 2012 is granted; an initial disability rating for left foot hallux valgus in excess of 10 percent for the period from June 1, 2012 is denied. An initial disability rating for right foot hallux valgus of 10 percent, but no higher, for the period prior to May 1, 2012 is granted; an initial disability rating for right foot hallux valgus in excess of 10 percent for the period from May 1, 2012 is denied. An initial disability rating for scar left foot, status post-surgery, of 10 percent, but no higher, is granted. An initial disability rating for scar right foot, status post-surgery, of 10 percent, but no higher, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs