Citation Nr: 1602317 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 12-22 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable rating for hallux valgus left foot with hammertoe, second digit. 2. Entitlement to a compensable rating for hallux valgus right foot with hammertoes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1980 to September 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO (Videoconference). A hearing transcript has been associated with the record. While the record was held open for 90 days following this hearing to allow for the submission of additional evidence, no such evidence was received by VA. In January 2015, the Board remanded the instant claims, as well as a claim for service connection for bilateral flat feet (pes planus), to the agency of original jurisdiction (AOJ) for additional development. As will be discussed herein, the Board finds that the AOJ has substantially complied with the remand orders with regard to the claims for increased rating and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In April 2015, the AOJ granted service connection for bilateral flat feet and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim, this matter is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In March 2006, VA received an Appointment of Veterans Service Organization (VSO) as Claimant's Representative (VA Form 21-22) designating the Alabama Department of Veterans Affairs as the Veteran's power of attorney (POA). In October 2015, the Veteran submitted a new VA Form 21-22 appointing the Disabled American Veterans as his POA. The Board recognizes this change in representation. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate paperless, electronic Virtual VA file. A review of the Virtual VA file reveals that, with the exception of the August 2013 hearing transcript, the documents are either duplicative of those contained in the VBMS file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's hallux valgus deformity of the left foot with hammertoe on the second digit, manifested by pain, aching, thickened toenails and maceration of the toe webspace, results in moderate impairment of the left foot, without more severe manifestations that more nearly approximate a moderately severe or severe foot injury, amputation of the great toe or severe hallux valgus. 2. For the entire period on appeal, the Veteran's hallux valgus deformity of the right foot with hammertoes, manifested by pain, aching, thickened toenails and maceration of the toe webspace, results in moderate impairment of the right foot, without more severe manifestations that more nearly approximate a moderately severe or severe foot injury, amputation of the great toe or severe hallux valgus. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for left foot hallux valgus deformity with hammertoe on the second digit have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280, 5282, 5284 (2015). 2. The criteria for a 10 percent rating, but no higher, for right foot hallux valgus deformity with hammertoes have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280, 5284 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. With respect to the increased rating claims on appeal, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. With regard to the claims for an increased rating, Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated in September 2009, sent prior to the rating decision issued later that month, advised the Veteran of the evidence and information necessary to substantiate his claims for an increased rating as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, this letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, post-service VA treatment records and VA examination reports have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Veteran was asked to identify the VA and non-VA providers who had treated him for his hallux valgus deformity of the right and left feet and complete appropriate authorization forms in a March 2015 letter. No response was received. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran has been afforded several VA examinations in conjunction with the claim decided herein. Such VA examinations include those conducted in August 2009 and March 2015 to determine the severity of his hallux valgus deformity. Neither the Veteran nor his representative have alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected hallux valgus deformity of the right and left feet as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, neither the Veteran nor his representative has alleged that his hallux valgus deformity of right and left feet have worsened in severity since the last VA examinations. Rather, with respect to such claims, they argue that the evidence reveals that these disabilities have been more severe than the currently assigned ratings for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for increased ratings and no further examination is necessary. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the January 2015 remand directives by requesting that the Veteran identify any outstanding treatment records in the March 2015 letter, obtaining VA treatment records, and obtaining a VA examination in March 2015, as applicable to the instant claims, and, as such, that no further action is necessary in this regard. See D'Aries, supra. Additionally, in August 2013, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2013 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal, which included increased rating for hallux valgus deformities of the right and left feet. Also, information was solicited regarding the Veteran's current symptoms, the severity of such symptoms, and the impact such symptoms had on his activities of daily living. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Furthermore, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included obtaining VA treatment records, affording the Veteran the opportunity to identify any additional records, and obtaining an examination and opinion to determine the nature and severity of the Veteran's hallux valgus deformity of the right and left feet. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis, supra at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. I. Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances 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 therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 enervation, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran's right foot hallux valgus deformity with hammertoes is rated under the diagnostic code for unilateral hallux valgus. His left foot hallux valgus deformity with hammertoe on the second digit is rated by analogy under the diagnostic codes for unilateral hallux valgus and hammertoes. Unilateral hallux valgus warrants a 10 percent rating where it is operated with resection of metatarsal head or if severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. A single hammertoe warrants a noncompensable (zero) rating. A 10 percent rating is warranted when all toes are hammer toes, unilateral without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Other foot injuries warrant a 10 percent rating when moderate, a 20 percent rating when moderately severe, and a 30 percent rating when severe. A 40 percent rating is warranted where there is actual loss of use of the foot. The Board observes that the words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Veteran contends that a higher rating is warranted for his hallux valgus deformity of the right and left feet. During his August 2013 hearing, the Veteran testified that he experienced foot pain with prolonged standing and walking, that he was unable to walk a long distance or run, and that he bought shoes a half-size larger due to foot pain. An August 2009 VA foot examination report reflects the Veteran's complaints that his second through fifth toes on both feet were angled down with chronically macerated skin in the fourth and fifth interspaces of both feet. He reported that the toes on both feet were painful and that he had to wear a size larger shoe to accommodate the change in foot shape. Other symptoms were reported to include pain, stiffness and lack of endurance while standing, walking or at rest in the forefoot and toes. A history of foot related hospitalization or surgery, trauma to the feet, neoplasms, swelling, heat, redness, fatigability, weakness and flare-ups of joint disease were denied. He reported that he was able to stand for 15 to 30 minutes and that he was able to walk about 100 yards. Physical examination revealed chronic maceration between the fourth and fifth toes, a hammertoe deformity on toes two through five and approximately 41 degrees of angulation with mild dorsiflexion on the left foot. Right foot physical examination revealed chronically macerated webspace in the fourth and fifth toes, callosities, a hammertoe deformity in toes two through five and angulation of approximately 44 degrees with mild dorsiflexion. Examination was negative for painful motion, swelling, tenderness, instability, weakness, a skin or vascular foot deformity, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flatfoot and muscle atrophy, all bilaterally as well as abnormal weight bearing in the left foot. An accompanying bilateral foot X-ray revealed moderate hallux valgus with bunion deformities bilaterally. A March 2015 VA foot conditions Disability Benefits Questionnaire (DBQ) report reflects the Veteran's complaints of severe constant aching pain in the feet and toes and that prolonged walking or standing made the pain worse. He reported that the use of over-the-counter pain medication helped with the pain. Other signs or symptoms and flare-ups that impacted the function of the foot were denied. Physical examination revealed hammertoes of the second toe on the right and left foot as well as mild to moderate hallux valgus on the right and left foot. Thickened, yellow flaky toenails were noted to be present on all toes and maceration that was chronic on the webspace between the fourth and fifth toes of the left foot were found. Pain in both feet were also found on physical examination but the examiner found that this pain did not contribute to functional loss. The examiner noted that the Veteran had not undergone surgery for hallux valgus. An accompanying bilateral foot X-ray revealed prominent hallux valgus and bunion deformities bilaterally with no acute fractures or dislocations seen and very minimal degenerative changes at the great toe metatarsophalangeal (MTP) joints. The Veteran also submitted a lay statement in support of his claim. An undated statement from M. G., which appears to have been received by VA in July 2008, indicates that he had observed the Veteran suffering from significant foot discomfort and that the frequency of such episodes have recently increased. In the instant claims, the Board notes that a compensable rating for the Veteran's service connected hallux valgus deformity would be warranted if there has been an operation and resection of the metatarsal head, or if hallux valgus is severe so as to equate with disability that would result from amputation of the great toe. The record does not reflect, and the Veteran has not alleged, that he has undergone an operation and resection of the metatarsal head. Neither VA examiner found that the Veteran's hallux valgus resulted in a level of disability as would equate with an amputation. No other findings from the other VA examinations conducted, or the VA outpatient treatment reports, reflects such severe disability due to hallux valgus as would result from an amputation of either great toe. As such, a compensable rating for the service-connected hallux valgus deformity cannot be assigned under Diagnostic Code 5280 for either foot. The Board has also considered whether the Veteran is entitled to higher or separate ratings under other potentially applicable diagnostic codes. However, there is no lay or medical evidence showing that the Veteran's service-connected hallux valgus deformity is manifested by or more nearly approximates weak foot, claw foot, metatarsalgia, or malunion or nonunion of the tarsal or metatarsal bones in either foot. As such, consideration of Diagnostic Codes 5277, 5278, 5279 and 5282 are inapplicable. The Board also notes that the Veteran is already in receipt of a separate rating for bilateral pes planus. The Board has also considered the Veteran's service-connected hallux valgus deformities of the right and left feet under the diagnostic criteria for other foot injuries. In this case, these disabilities manifested as constant aching and pain in the feet and toes, particularly with prolonged walking or standing as well as thickened toenails on all toes and maceration of the webspace on the feet. The Board finds that such symptomatology results in moderate functional loss consistent with a 10 percent rating, but no higher. The record does not reveal, and the Veteran has not alleged, additional symptomology that would indicate the presence of a moderately severe or severe foot injury. In this regards, the clinical evidence has demonstrated normal strength and sensation in the feet, and no disturbed circulation, weakness, atrophy of the musculature, heat, redness, instability or swelling. Moreover, the March 2015 VA examiner determined that the Veteran's foot condition approximated a moderate severe foot injury. To the extent that the record demonstrates that the Veteran has flatfeet and extreme tenderness of the plantar surfaces of the feet, the Board notes that the Veteran is already in receipt of a separate rating for bilateral flat feet and that consideration of such symptoms herein would constitute pyramiding. 38 C.F.R. § 4.14; Esteban, supra. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected hallux valgus deformity of the right and left beet; however, the Board finds that his symptomatology has been stable for each disability throughout the appeal. Therefore, assigning staged ratings for each such disability is not warranted. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings for which the Veteran has been found to be entitled to by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hallux valgus deformity of the right and left feet with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which each such disability is rated. The Veteran's various subjective complaints-including but not limited to foot pain and aching as well as any functional loss associated with such symptoms-are contemplated by the rating criteria under which each associated disability is rated. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture for each disability. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability. The Board notes that the Veteran is already in receipt of a separate rating for bilateral flat feet. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his hallux valgus deformity of the right and left feet. Moreover, he reported that he was currently employed as a management analyst in an August 2009 VA examination. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record and, consequently, no further consideration of such is necessary. Based on the evidence of record, the Board finds that the Veteran's service-connected hallux valgus deformity of the right and left feet warrants a 10 percent rating for each foot but that there is no basis for an award in excess of 10 percent for each foot. In making this determination, all doubt has been resolved in the Veteran's favor. 38 C.F.R. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A 10 percent rating for hallux valgus left foot with hammertoe, second digit is granted, subject to the law and regulations governing the award of monetary benefits. A 10 percent rating for hallux valgus right foot with hammertoes, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs