Citation Nr: 1630358 Decision Date: 07/29/16 Archive Date: 08/04/16 DOCKET NO. 10-33 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a compensable schedular rating for right hallux valgus. 2. Entitlement to a compensable schedular rating prior to May 18, 2011, and a rating in excess of 10 percent as of August 1, 2011, for left hallux valgus with retained surgical hardware. 3. Entitlement to a schedular rating in excess of 10 percent for left lower extremity tibial neuropathy, to include intervertebral disc syndrome (IVDS), sciatic nerve, and foot drop. 4. Entitlement to a schedular rating in excess of 50 percent for bilateral pes planus with plantar fasciitis, pronation, and heel spurs. 5. Entitlement to an extraschedular rating for the combined effect of the Veteran's lower extremity disabilities. 6. Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1966 to February 1968, and from January 1977 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 (pes planus, hallux valgus) and February 2015 (lower extremity tibial neuropathy) rating decisions of the of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and Muskogee, Oklahoma, respectively. Jurisdiction over the appeal is with the Roanoke, Virginia RO. The Board observes that the Veteran filed a claim for an increased rating for his right and left lower extremity tibial neuropathy in July 2014. In a February 2015 rating decision, the RO continued the Veteran's separate 10 percent ratings for each lower extremity. In April 2015-following the March 24, 2015 amended regulation requiring use of the designated Notice of Disagreement form, 38 C.F.R. § 20.201(a)(1)-the Veteran asserted that his February 2015 VA examination was inadequate as to his right lower extremity. This statement cannot be construed as a Notice of Disagreement as to the right lower extremity, as it was not completed on the appropriate form provided with the rating decision. 38 C.F.R. § 20.201(a)(1) (2015). In June 2015, the Veteran filed the correct Notice of Disagreement form, 21-0958, but again specified that his disagreement was with the left lower extremity tibial neuropathy; he did not list right lower extremity tibial neuropathy on the form. 38 C.F.R. § 20.201(a)(4). Consequently, the August 2015 Statement of the Case correctly addressed only the left lower extremity tibial neuropathy. In his October 2015 Substantive Appeal, the Veteran stated that he did "wish to appeal the tibial neuropathy, right lower extremity....[which] was not mention[ed] in the Statement of the Case." However, for reasons described above, that issue is not in appellate status. The Veteran may file a new claim for a higher rating for his right lower extremity tibial neuropathy, should he so choose. In April 2015, the Veteran requested a hearing before a Decision Review Officer (DRO); the Veteran withdrew that hearing request in a June 2016 statement. In April 2016, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The issue of entitlement to a TDIU is part of the Veteran's claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has bifurcated schedular and extraschedular aspects of the increased rating claims as reflected on the title page. Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); The issues of 1) entitlement to a schedular rating in excess of 10 percent for left lower extremity tibial neuropathy, to include IVDS, sciatic nerve, and foot drop, 2) entitlement to an extraschedular rating for the combined effect of the Veteran's lower extremity disabilities, and 3) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Since July 9, 2008, the Veteran's right hallux valgus has been severe. 2. From July 9, 2008 to May 18, 2011, the Veteran's left hallux valgus was severe. 3. A schedular rating in excess of 10 percent for right or left hallux valgus is precluded by the amputation rule. 4. The Veteran is in receipt of the maximum schedular rating for bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for a schedular 10 percent rating, but no higher, for right hallux valgus are met from July 9, 2008. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.40, 4.59, 4.68, 4.71a, Diagnostic Codes 5165, 5280 (2015). 2. From July 9, 2008 to May 18, 2011, the criteria for a schedular 10 percent rating, but no higher, for left hallux valgus are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.40, 4.59, 4.68, 4.71a, Diagnostic Codes 5165, 5280 (2015). 3. As of August 1, 2011, the criteria for a schedular rating in excess of 10 percent for left hallux valgus are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.40, 4.59, 4.68, 4.71a, Diagnostic Codes 5165, 5280 (2015). 4. The criteria for a schedular rating in excess of 50 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.40, 4.59, 4.68, 4.71a, Diagnostic Codes 5165, 5276 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Schedular Ratings for Hallux Valgus The Veteran contends in his April 2016 hearing testimony that his hallux valgus causes pain, cramps, and spasms, as well as tenderness to the touch. See transcript, pp. 13-15. He further reports that he had surgical revision of his hallux valgus on his left foot, but not his right. Id., p. 10. The Veteran's left hallux valgus is currently rated noncompensable prior to May 18, 2011, and 10 percent as of August 1, 2011, under Diagnostic Code 5280. He is in receipt of temporary 100 percent ratings pursuant to 38 C.F.R. § 4.30 from May 18, 2011 through July 31, 2011, and from August 24, 2012 through October 31, 2012, which are not disturbed by this decision. The Veteran's right hallux valgus is currently rated noncompensable. The appeal period before the Board begins in July 2008, the date VA received the increased rating claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Unilateral hallux valgus is rated at a schedular maximum of 10 percent for either an operation with resection of the metatarsal head, or, when it is severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. A 10 percent rating is warranted for the Veteran's right hallux valgus because it is severe. Specifically, the January 2009 VA examiner noted a "severe degree of valgus" present on the right, which "cannot be corrected by manipulation." In November 2011, a VA clinician reviewed x-rays and diagnosed the Veteran with "a severe hallux valgus deformity" of the right foot. Similarly, in September 2012, Dr. Stephenson, a private physician, reviewed x-rays and found that "Frontal, lateral and oblique views of the right foot show[] a severe hallux valgus deformity [of the] first metatarsal phalagneal joint." Attributing the benefit of the doubt to the Veteran, the Board finds that the Veteran's right hallux valgus is severe and, absent any evidence to the contrary, equivalent to amputation of the great toe. Therefore, a 10 percent rating is warranted for right hallux valgus for the entire appeal period. A 10 percent rating is also warranted for the Veteran's left hallux valgus from July 9, 2008 to May 18, 2011. The February 2009 VA examiner noted that hallux valgus was present on the left, and the "degree of angulation is severe." Moreover, in March 2011, a VA physician found that the Veteran's hallux valgus was "painful to palpation," and "with limited, and painful rom [range of motion]." The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 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. 38 C.F.R. § 4.59. Here, the VA physician's finding of limited and painful motion also support a 10 percent rating, which is the minimum compensable rating for the joint. Id. There no evidence of an increase in the Veteran's hallux valgus disability in the year prior to his July 2008 claim. As such, the effective date shall be the date the claim was received, and no earlier. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining that the provisions of 38 U.S.C.A. § 5110 governing the effective date to be assigned for an increased rating require "that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim"). Ratings in excess of 10 percent are not warranted for the Veteran's hallux valgus at any time during the appeal because such ratings would exceed the maximum 40 percent rating allowable for each extremity below the knee under the amputation rule. 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Code 5165. Under the amputation rule, the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Here, the Veteran is in receipt of the maximum schedular rating for pes planus, which is equivalent to 30 percent for each foot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Combining the 30 percent for pes planus with 10 percent for hallux valgus results in a 40 percent rating, which is the maximum for below-the-knee amputation of the leg. 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Code 5165. As 40 percent is the maximum disability rating one can receive under the amputation rule for each leg below the knee, no higher disability rating is available and discussion thereof is not warranted. Id. Increased Schedular Rating for Pes Planus As the Veteran has been in receipt of the maximum schedular rating of 50 percent for bilateral pes planus during the appeal period, a higher schedular rating is not available. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. To the extent the Veteran's representative argues for application of Diagnostic Code 5284 to the Veteran's foot disabilities, because the Veteran's disabilities are specifically contemplated by Diagnostic Code 5276 (pes planus) and 5280 (hallux valgus), other diagnostic codes may not be employed. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). ORDER From July 9, 2008, a schedular rating of 10 percent for right hallux valgus, but no higher, is granted, subject to the applicable criteria governing the payment of monetary benefits. From July 9, 2008 to May 18, 2011, a schedular rating of 10 percent for left hallux valgus, but no higher, is granted, subject to the applicable criteria governing the payment of monetary benefits. As of August 1, 2011, a rating in excess of 10 percent for left hallux valgus is denied. A schedular rating in excess of 50 percent for bilateral pes planus is denied. REMAND Remand is warranted for the Veteran's claim of entitlement to a rating in excess of 10 percent for left lower extremity tibial neuropathy, to include IVDS, sciatic nerve, and foot drop because he competently and credibly testified at his April 2016 Central Office hearing that his most recent VA examination was inadequate. Specifically, the Veteran testified that the January 2015 VA examiner only looked at his toes and hit him on his knees, and did not perform any electromyography (EMG) or nerve conduction studies. See transcript, pp. 27-28. Moreover, in his October 2015 substantive appeal, the Veteran characterized the January 2015 VA examination as "incomplete," and asserted that "There is no way [the examiner] could have made a fair final assessment [because he]....use[d] no medical equipment for the exam....This Veteran respectfully request[s] a new exam by a different doctor." In another October 2015 statement, the Veteran reported that the January 2015 VA examiner "ignored information I was sharing with him and changed my answers on the questionnaire." In order to afford the Veteran every reasonable consideration, a new examination is warranted. Regarding TDIU, the Veteran testified at his April 2016 hearing that he cannot work due to his foot condition, and that he retired from his work as a barber because of his feet. See transcript, pp. 22-23. Therefore, a TDIU is raised in this case, and that portion of his claim must be developed. Moreover, any development of the TDIU issue may have an impact on the complete picture of the Veteran's service-connected lower extremity disabilities and their effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issue of entitlement to an extraschedular rating for the combined effect of the lower extremity disabilities will also be remanded. Finally, updated VA and private treatment records should be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice for a TDIU claim. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Obtain all outstanding VA outpatient records. 3. With any necessary assistance from the Veteran, obtain any outstanding private treatment records, to include any updated records from Dr. Faircloth. 4. Then schedule the Veteran for a VA examination with a physician other than the January 2015 VA examiner to determine the severity of his left lower extremity tibial neuropathy, to include IVDS, sciatic nerve, and foot drop. The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted. In determining the severity of those disabilities, the examiner should consider the following documents: * The Veteran's April 2016 hearing testimony, including his reports of pain, tenderness, spasms, cramps, and inverting (pp. 13-15); loss of effective remaining foot function (p. 36); foot drop (p. 21); limitation of walking to 15 feet (p. 31); falling due to foot drop and muscle weakness (p. 33); and inability to work due to his foot condition (p. 22). * VA examination reports dated September 2012, and January 2009, April 2014, and January 2015. * Dr. Hoover's July 2013 magnetic resonance imaging (MRI) findings. * January 2013 VA EMG findings, abnormal in the left abductor hallucis muscle. * June 2012 VA clinical findings of a tremor in the left leg with onset occurring after arthrodesis in the left foot on March 14, 2012, without evidence of radiculopathy fasciculations or asymmetrical muscle loss on physical examination. * August 2011 VA nerve conduction studies status post May 2011 surgery for left hallux valgus with first metatarsal osteotomy. * February 2011 VA clinical findings of gait instability, plantar fasciitis, pes planus, and flexor arc sensory nerve-related contracture. * Dr. Faircloth's April 2010 letter documenting findings and diagnoses from office visits in January 2009 and March 2009. The examiner should report all pertinent findings. All findings and conclusions should be set forth in a legible report. 5. Then, after taking any additional development deemed necessary, readjudicate the issues of entitlement to a schedular rating in excess of 10 percent for left lower extremity tibial neuropathy, to include IVDS, sciatic nerve, and foot drop, entitlement to an extraschedular rating for the combined effect of the Veteran's lower extremity disabilities, and entitlement to a TDIU. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and afford an appropriate period of time for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs