Citation Nr: 1603855 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-00 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable disability evaluation for hallux valgus, status post left great toe fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant & his wife ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned Veterans Law Judge at a September 2014 hearing conducted via videoconference. A transcript of the hearing has been associated with the Veteran's Virtual VA claims file. The Board previously remanded the claim in February 2015 for additional development. There has been substantial compliance with the mandates of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In the February remand, the Board requested additional development for the issues of service connection for radiculopathy of the bilateral lower extremities and dizziness. Service connection for these disabilities was subsequently granted in a May 2015 rating decision. Therefore, those issues are no longer before the Board. FINDING OF FACT The Veteran's left hallux valgus has been manifest by no more than mild to moderate symptoms that are not the equivalent of amputation of the left great toe and he has not had an operation with resection of the metatarsal head; however, the Veteran's left foot hallux valgus with degenerative arthritis was manifested by painful motion, disturbance of locomotion and interference with movement. CONCLUSION OF LAW The criteria for an initial disability rating of 10 percent, but no higher, for left hallux valgus are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b), 4.14, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5280 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA's Duties to Notify and Assist 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). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for hallux valgus, status post left great toe fracture. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. With regard to the duty to assist, the claims file includes the Veteran's service treatment records (STR), Social Security Administration (SSA) records, VA treatment records, private treatment records and the Veteran's statements in support of the claim. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. Additionally, the Veteran underwent a VA contracted examination in April 2015 and a VA examination in September 2012 to assess his toe and feet. The examinations and the opinions are adequate. The examiners considered the Veteran's history and the examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Higher Evaluations and Rating Criteria In the rating action on appeal, the Veteran was granted service connection for hallux valgus, status post left great toe fracture, and assigned a noncompensable disability evaluation. Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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). The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's left great toe hallux valgus has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280. Under that DC, a 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. There are other diagnostic codes pertaining to foot disabilities; however, because the Veteran's service-connected disability is specifically listed in the Rating Schedule, it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127 (1993). 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. 38 C.F.R. § 4.59, entitled "Painful motion," provides in its fifth sentence as follows: "It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." Section 4.59 "is one of several regulations that precede the rating schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the DCs appearing therein." Specifically, it "provides guidance for noting, evaluating, and rating joint pain." Burton v. Shinseki, 25 Vet. App. 1 (2011). The provision is not limited to arthritic conditions. Id. at 4-5. As noted above, the minimum rating under DC 5280, applicable to hallux valgus, unilateral, is 10 percent. Under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint." 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). 38 C.F.R. § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence. Id. The Veteran underwent a contracted VA examination in April 2015. The examiner noted diagnoses of flat feet, hallux valgus, and hallux rigidus. It was also noted that he had degenerative joint disease (DJD) in the left great toe. The following history was noted: "In 1974 [the Veteran] was in Germany and was painting inside of [a] building and had to move a 'hearing register' weighing 500 lbs. There were about 4 people lifting the equipment and one person lost his grip and dropped the equipment on [the Veteran's] left great toe. [The Veteran] was evaluated in a clinic and told to take pain medication. [The Veteran] was advised to be off his feet for about 1 week." The examiner noted the following current symptoms: The Veteran "has constant pain and wearing shoes increases the pain. Walking and running worsens the pain. [The Veteran] states that his pain is about 7/10 when wearing shoes." The Veteran currently takes Tylenol for his foot pain. The pain increases when he walks more than a block. He experiences flare-ups "at least once every six weeks" of a moderate level of severity. The examiner noted that the Veteran has pain with use of his feet. However, the Veteran did not have pain with manipulation of his feet. There was no indication of swelling with use and there were no characteristic calluses. He did not have extreme tenderness of plantar surfaces. The Veteran does have decreased longitudinal arch on weight-bearing. There is no objective evidence of marked deformity or marked pronation. The weight-bearing line does not fall over or medial to the great toe. There is an adduction or inturning of the left great toe. It overlaps the 2nd left toe. He does not have Morton's neuroma or metatarsalgia. The Veteran has not undergone surgery because of his hallux valgus. The examiner noted that the Veteran's hallux valgus is of a mild or moderate level of severity. His hallux rigidus is also noted to be of a mild or moderate level of severity. The examiner noted the Veteran has pes planus but no other injuries or disabilities related to the toes or feet. Upon examination the Veteran was noted to have pain in the left great toe and foot. However, the examiner noted that there was no functional loss and no loss of range of movement. The symptoms that were observed included pain on movement, pain on weight-bearing, pain on non-weight-bearing, deformity, disturbance of locomotion, and interference with standing. The examiner noted that the Veteran does not have other functional loss during flare-ups or when the foot is used repeatedly over a period of time. The Veteran does not use any assistive device as a normal mode of locomotion. The examiner noted that the Veteran's foot condition does not result in functional impairment equal to amputation with prosthesis. Upon diagnostic testing, the examiner reported that the Veteran has moderate hallux valgus deformity with mild degenerative changes at the first metatarsophalangeal joint. The Veteran underwent an earlier examination in September 2012. Hallux valgus was diagnosed at that examination. The examiner noted that the condition was "mild or moderate" in severity. At that earlier examination it was noted that the Veteran did not have hallux rigidus. Upon diagnostic testing it was shown that there were bilateral hallux valgus deformities, left greater than right, with soft tissue prominence at the medial aspect of the first metatarsophalangeal joint consistent with bunion formation. It was also noted that there was no significant degenerative changes. There was an earlier examination in April 2012; however, that examination report does not provide any additional information on the left great toe. The Board also reviewed the treatment records in the claims file. The SSA records concern several of the Veteran's disabilities but do not offer any additional evidence relevant to the Veteran's left great toe or foot. Similarly, the post-service treatment records from VA do not offer any medical evidence different than what is included in the examination reports. As outlined above, the VA examination findings would not warrant a conclusion that the Veteran's condition more closely approximates the criteria for severe unilateral hallux valgus, if equivalent to amputation of the great toe; or, due to an operation with resection of the metatarsal head. meets this standard. His disability was not described as severe with symptoms equivalent to amputation of the great toe. The condition has always been described as "mild to moderate" by the examiners. Further, the evidence of record states that the Veteran has never had surgery on his toe or foot. Although DC 5280 does not itself contain a provision for a 10 percent disability rating based on painful motion, the Veteran has consistently reported pain in the left great toe and the same was noted on VA examinations. VA treatment records note that the Veteran has consistently reported left foot pain made worse with walking and wearing shoes. The Veteran has, throughout the course of his appeal and to health care professionals, credibly reported that he experiences bilateral pain in his toe. At the April 2015 examination, the Veteran reported constant left toe pain upon movement with standing or walking. Thus, because the trigger for a minimum disability rating under 38 C.F.R. § 4.59 is an actually painful, unstable, or malaligned joint, assignment of a 10 percent rating is warranted. Petitti, 27 Vet. App. at 415. The Board further finds that the weight of the lay and medical evidence demonstrates that the criteria for a disability rating in excess of 10 percent have not been met or more nearly approximated for any part of the initial rating period. The Board has considered application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra, specifically the additional limitations of motion due to pain. Further, the Veteran has been awarded the highest schedular rating possible for hallux valgus (10 percent). See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has considered whether there are other potentially applicable diagnostic codes. The Board notes that the examination report from April 2015 indicates that the Veteran may have pes planus. However, service connection for this condition has not been established. Nor has service connection been established for other left foot conditions. Indeed, there is no indication from the pertinent medical evidence that the Veteran's service-connected left hallux valgus has been productive of any other conditions. Accordingly, the Board finds that the preponderance of the evidence is for a rating of 10 percent, but no higher, for left hallux valgus. See 38 C.F.R. § 4.71a, DCs 5003, 5280. III. Extraschedular Consideration The discussion above reflects that the symptoms of the Veteran's hallux valgus disability are contemplated by the applicable rating criteria. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. 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 service-connected disability. As such, 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. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial 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 record indicates that the Veteran has not claimed that his service-connected hallux valgus make him unemployable. A claim for TDIU has not been raised in the record. ORDER Entitlement to an initial disability rating for the left foot hallux valgus with degenerative arthritis of 10 percent, but no higher, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs