Citation Nr: 1647165	
Decision Date: 12/16/16    Archive Date: 12/30/16

DOCKET NO.  12-29 625	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hallux valgus. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel



INTRODUCTION

The Veteran served on active duty from April 1966 to February 1968.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  This case was previously before the Board in January 2016 and August 2016 and remanded for additional development.

In August 2016, the Board noted that a claim of entitlement to service connection for a skin disorder, including actinic keratosis, basal cell carcinoma, squamous cell carcinoma, eczema, and dermatitis, claimed as secondary to inservice exposure to herbicides, had been previously remanded by the Board and still pending before the RO.  To date, the matter has not been recertified to Board and thus, the Board will not address the issue at this time.  

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015).


FINDING OF FACT

The Veteran's bilateral hallux valgus, includes resection of right metatarsal head.


CONCLUSION OF LAW

The criteria for an initial 10 percent rating, and no more, for bilateral hallux valgus have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2015).  The Rating Schedule is primarily a guide in the evaluation of disabilities 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 (2015).

The Veteran is seeking a compensable rating for his service connected bilateral hallux valgus.  This disability has been rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5280.  Under Diagnostic Code 5280, unilateral hallux valgus warrants a 10 percent evaluation if it is severe and equivalent to amputation of the great toe, or if it has been subject to surgical treatment, with resection of the metatarsal head.   The 10 percent rating is the maximum schedular rating and only evaluation available under Diagnostic Code 5280.  38 C.F.R. §4.71a, Diagnostic Code 5280.   In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2015).

The Veteran contends that a compensable rating is warranted due to such symptoms as recurring pain requiring steroid injections, special shoes, and orthopedic inserts.  He also maintains that his right hallux valgus surgery performed in 1983 required resection of the metatarsal head.  After a review of the medical evidence of record, the Board finds that an increased rating to 10 percent is warranted throughout the appeal period for the Veteran's service-connected bilateral pes planus under the provisions of Diagnostic Code 5280.  38 C.F.R. § 4.71a.  The October 2016 VA examiner indicated the exact nature of the procedure, notably whether the Veteran's hallux valgus surgery in the 1980's included a resection of the metatarsal head.  Previously, this was unable to be determined because current x-rays only noted surgical changes along the medial aspect of the right, first metatarsal.   However, an April 2011 right foot x-ray revealed a previous bunionectomy, with likely distal metatarsal osteotomy and resection of medial portion of the first metatarsal, as well as acquired hallux valgus deformity on the left.  Affording the Veteran all reasonable doubt, resection of the metatarsal head has been shown, and an initial 10 percent rating under Diagnostic Code 5280, is warranted.  The 10 percent rating is the maximum available under this Diagnostic Code.  

Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation under any other provision of the Rating Schedule. 38 C.F.R. § 4.7 (2015).  Diagnostic Codes 5276 through 5284 rate disabilities of the foot.  38 C.F.R. § 4.71a.  However, none of these diagnostic codes allow for a higher or separate evaluation for the Veteran's service-connected bilateral toe disability (hallux valgus).  Either the manifestations for the listed condition are not shown or the criteria do not provide an evaluation greater than 10 percent.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flatfoot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5283 (malunion or nonunion of the tarsal and metatarsal bones).  With regard to other foot injuries, the Veteran's foot symptomatology has been classified as no more than mild to moderate.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  No probative medical evidence of record supports application for a rating in excess of 10 percent of any of these diagnostic codes, to include VA outpatient treatment records or reports of VA examination dated in 2012 or 2016. Therefore, these diagnostic codes will not be applied.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (finding that the choice of diagnostic code should be upheld if it is supported by explanation and evidence). 

The Board also finds that a separate rating is not available for the scar on the Veteran's right great toe.  The linear surgical scar is 3.5 by 0.2 centimeters long, and is not shown to be deep and nonlinear, poorly nourished, unstable, tender, painful, or limiting function or movement of the right great toe.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2015).

Diagnostic Code 5280 does not evaluate the Veteran's hallux valgus disability with respect to range of motion; therefore, sections 4.40 and 4.45, with respect to pain on motion, are not applicable.  See 38 C.F.R. § 4.40, 4.45 (2015); Johnson v. Brown, 9 Vet. App. 7, 11 (1996); see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2015).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2015). 

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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned ratings inadequate. 

The Veteran's service-connected bilateral hallux valgus is evaluated as a disease or injury of the musculoskeletal system pursuant to 38 C.F.R. § 4.71a, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  The service-connected bilateral hallux valgus includes resection of the right metatarsal head.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the current disability ratings.  The criteria for the 10 percent rating granted in the instant decision reasonably describe the Veteran's disability level and symptomatology.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of this issue for extraschedular consideration is not required.  See 38 C.F.R. § 4.71a, Diagnostic Code 5280; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral hallux valgus, the evidence shows no distinct periods of time during the appeal period, when the Veteran's bilateral hallux valgus, varied to such an extent that a rating greater or less than 10 percent would be warranted.  See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his service-connected bilateral hallux valgus.  In fact, the evidence shows that the Veteran is retired.  The 2012 VA examiner found that hallux valgus did not impact the Veteran's ability to work.  Most recently on examination in 2016, the examiner found that the Veteran's ability to work would be impacted to the extent that it was difficult to stand on his feet for prolonged period of time or walk on uneven surfaces, ladders or inclines;  however, the examiner did not state the Veteran was rendered unemployable.   Therefore, the question of entitlement to a total disability rating based on individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

An initial 10 percent rating for the bilateral hallux valgus is granted, subject to the laws and regulations governing monetary awards. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs