Citation Nr: 1530486 Decision Date: 07/16/15 Archive Date: 07/24/15 DOCKET NO. 12-03 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for hallux valgus of the left foot. 2. Entitlement to an initial compensable rating for hallux valgus of the right foot. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The record reflects that the Veteran requested a hearing before a Veterans Law Judge, however, she later withdrew her request. In December 2014, the Board remanded the claim for further development. The issue of entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis, was also originally developed for appellate review and was remanded by the Board in December 2014 for further development. In a February 2015 rating decision, service connection was granted for bilateral pes planus with plantar fasciitis. As a result, this issue has been resolved and is not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). FINDINGS OF FACT 1. Hallux valgus of the left foot has not been operated with resection of the metatarsal head and it is not equivalent to amputation of the big toe. 2. Hallux valgus of the right foot has not been operated with resection of the metatarsal head and it is not equivalent to amputation of the big toe. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hallux valgus of the left foot are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5281 (2014). 2. The criteria for an initial compensable rating for hallux valgus of the right foot are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5281 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Accordingly, the Board will address the merits of the Veteran's claims. LAW AND ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran's hallux valgus of both the left foot and of the right foot has been rated noncompensably disabling by the RO under Diagnostic Code 5281. Under the Schedule for Rating Disabilities, severe unilateral hallux rigidus is rated as severe unilateral hallux valgus and is evaluated at a maximum of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5281. Under Diagnostic Code 5280, a 10 percent evaluation is authorized for severe unilateral hallux valgus if equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. Separate compensable ratings may be assigned for multiple, associated disabilities, but only so long as the symptoms do not overlap. See Murray v. Shinseki, 24 Vet.App. 420, 423 (2011). When determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any ... conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Id. (quoting Esteban, 6 Vet.App. at 262). If the Veteran's symptoms are "distinct and separate," then he is entitled to separate disability ratings for the various conditions. Id. In this case, both Diagnostic Codes 5280 and 5281 specifically provide for "unilateral" evaluation of hallux valgus. Accordingly, the Board finds that each foot should be separately evaluated pursuant to Diagnostic Codes 5280 and 5281. On VA (QTC) examination in May 2008, hallux valgus was present in the right foot. The degree of angulation was slight with no resection of the metatarsal head present. Hallux valgus of the left foot was also present. The degree of angulation was slight with no resection of the metatarsal head. X-rays of the right and left foot were within normal limits. The diagnosis was mild bilateral hallux valgus with callus formation. On VA examination in November 2011, there was active motion in the metatarsophalangeal joints of the right and left toes. Hallux valgus of the left foot was present. The degree of angulation was slight with no resection of the metatarsal head present. X-rays of the right foot were within normal limits. X-rays of the left foot were abnormal with the results suggesting early hallux valgus. The examiner noted that the Veteran had slight hallux valgus of the left foot. As for the right foot, the examiner noted that there was no change in the diagnosis but at the present time, the condition was quiescent. The conditions did not affect the Veteran's usual occupation or her daily activities. On VA examination in January 2015, the examiner noted that the Veteran had mild to moderate symptoms due to hallux valgus of the left foot which appeared asymptomatic with full and non-painful hallux range of motion at 1st MTP joint. The Veteran had not had surgery for the hallux valgus. Comparing the description and assessment of the Veteran's service-connected right and left hallux valgus with the rating criteria, the Board finds that the criteria for a 10 percent rating are not more nearly approximated. As for the left foot, the examination reports indicate the severity of the hallux valgus as ranging from mild to moderate. The evidence of record shows that the Veteran has not received surgical treatment of her hallux valgus of the left foot. Overall, the evidence of record reveals that the severity of the left foot hallux valgus does not equate to amputation of the great toe throughout the appeal. As for the right foot, there are no reported symptoms at present. Accordingly, the Board finds that the Veteran's hallux valgus of the left foot and of the right foot more closely approximates the current noncompensable disability rating. The Board finds that the preponderance of the evidence is against the claims for increased evaluations for these disorders. The claims for initial compensable disability ratings for right and left hallux valgus are therefore denied. Moreover, the Board notes that the evidence of record does not indicate that the current disability levels are significantly different from any other period during the Veteran's appeal. Therefore there is no basis for considering staged ratings in this case. The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for the service-connected disability, an extra-schedular evaluation will be assigned. Consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. In this case, the Board finds the evidence in this case does not present such an exceptional disability picture that the available schedular evaluations for the service-connected hallux valgus disabilities are inadequate. In this regard, the Board notes that the rating criteria reasonably describe the claimant's disability levels and symptoms. Thun, 22 Vet. App. at 115. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER An initial compensable evaluation for hallux valgus of the left foot is denied. An initial compensable evaluation for hallux valgus of the right foot is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs