Citation Nr: 1709577 Decision Date: 03/28/17 Archive Date: 04/07/17 DOCKET NO. 07-06 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right foot disability. 2. Entitlement to a rating in excess of 10 percent for a left foot disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976 and from August 1977 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded the matter in August 2009 and February 2010 for additional development. In April 2013, the Board remanded the matter again for further development, to include obtaining outstanding VA treatment records. The case has been returned to the Board for further appellate review. The Veteran's claims as to entitlement to service connection for left and right arm disabilities are addressed in a separate appellate decision. . FINDINGS OF FACT 1. The Veteran's right foot disability is manifested by hallux valgus/rigidus, hammertoes, callouses and degenerative joint disease. 2. Hallux valgus/rigidus of the right foot is currently assigned the maximum disability rating authorized under Diagnostic Code (DC) 5280. 3. The Veteran's left foot disability is manifested by hallux valgus/rigidus, hammertoes, callouses and degenerative joint disease. 4. Hallux valgus/rigidus of the left foot is currently assigned the maximum disability rating authorized under DC 5280. CONCLUSION OF LAW 1. The criteria for an increased rating in excess of 10 percent for hallux valgus of the right foot have not been met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5280 (2016). 2. The criteria for an increased rating in excess of 10 percent for hallux valgus of the left foot have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5280 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2016). For increased-rating claims, section 5103(a) requires the Secretary "to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment." Vazquez-Flores v. Peake, 24 Vet. App. 94, 102-03 (2010) (Vazquez-Flores v. Peake II) (citing Vazquez-Flores v. Peake, 580 F.3d 1270, 1279-80 (Fed.Cir.2009) and Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008)). The Veteran was mailed appropriate VCAA notice in January 2003, prior to the initial May 2003 rating decision. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the February 2010 and April 2013 Board remands, additional letters were sent in March 2010 and October 2013, followed by re-adjudication. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim. Id. VA's duty to notify has been satisfied. VA's duty to assist has also been satisfied. The Veteran has been afforded adequate VA examinations to assess the severity of his left and right foot disabilities, and he has not identified any outstanding pertinent evidence. In this regard, the Veteran was most recently afforded a VA examination in March 2014. Additionally, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the August 2009, February 2010 and April 2013 remand directives. The Board notes that the August 2009 and February 2010 Board remands directed the AOJ to obtain a potential outstanding separate March 2004 VA examination of the right foot conducted at VAMC Richmond. The record shows in July 2010, the AOJ contacted VAMC Richmond and verified that only a March 2004 examination of the left foot was of record. It was determined that the negative response for a right foot examination was evidence that only examination of the left foot was conducted. See the July 2010 Report of General Information. In accordance with the February 2010 remand, the Veteran underwent an August 2010 VA examination in which the VA examiner specifically commented on the presence of any neurological disorders of the feet. Finally, the AOJ obtained updated treatment records in compliance with the April 2013 Board remand. The AOJ also sent a VCAA dated October 2013 in which it requested information regarding potential outstanding medical records and Social Security Administration (SSA) benefits. The Board notes that in a letter dated November 2013, the Veteran indicated that he was not in receipt of any SSA benefits and that there were no outstanding medical records. As the AOJ has substantially complied with the Board's August 2009, February 2010 and April 2013 remand directives, no further action is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Veteran has not indicated that he has any further evidence to submit to VA or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained; therefore, there is no further action to be undertaken in order to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. Merits of the Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DC). 38 C.F.R. § 4.27 (2016). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation for distinct periods of time, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). At the outset, the Board notes that, included under 38 C.F.R. § 4.71a are multiple diagnostic codes for evaluation of evaluate impairment resulting from service-connected disorders of the feet, to include DC 5276 (acquired flatfoot), DC 5277 (bilateral weak foot), DC 5278 (acquired claw foot), DC 5279 (anterior metatarsalgia), DC 5280 (unilateral hallux valgus), DC 5281 (unilateral, severe hallux rigidus), DC 5282 (hammer toe), DC 5283 (malunion or nonunion of the tarsal or metatarsal bones) and DC 5284 (foot injuries, other). When evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected hallux valgus/rigidus of the right and left feet are separately rated as 10 percent disabling, the maximum allowable evaluation under DC 5281. See 38 C.F.R. § 4.71a, DC 5281. He seeks an increased rating in excess of 10 percent for each foot. The Rating Schedule provides a disability rating in excess of 10 percent for the feet for the following disabilities: severe flat feet or pes planus; claw foot or pes cavus; malunion or nonunion of the tarsal or metatarsal bones; at least a moderate foot injury; or actual loss of the use of the foot. The Board finds that the evidence of record is against increased ratings in excess of 10 percent for service-connected hallux valgus of the right and left feet. VA and private treatment records from this period demonstrate the Veteran's continued treatment for, and debridement of, painful calluses as well as the use of orthotics. An August 2002 private podiatry consultation report showed reports of chronic pain, despite changing shoe-gear and trimming calluses on both feet. Upon examination, the physician noted decreased first metatarsal phalangeal joint range of motion of the bilateral feet and bilateral laterally deviated hallux. The Veteran underwent multiple VA examinations to determine the severity of his left and right feet disabilities. Upon VA examination in January 2003, the Veteran complained bilateral foot pain. He reported that standing was limited to 15 minutes and walking was limited to one block. He also reported that flare-ups occurred during rain and cold weather. The examiner noted calluses and hallux valgus deformity at the metatarsal phalangeal joint of the great toes, bilaterally. The left foot diagnosis was hallux valgus deformity with crossover deformity, and lesser toe claw toe deformity. The right foot diagnosis was hallux valgus and claw toe deformity. A March 2004 VA examination report was limited to the evaluation of the left foot. The examiner opined that the Veteran's claw toe deformity was related to service. Examination of the Veteran's foot showed no subtalar tenderness to palpation and the Veteran had good movement of the calcaneus with normal alignment of the Achilles tendon. The arch was preserved without pes planus. The examiner noted that there was no evidence of marked interference with employment or frequent periods of hospitalization. The Veteran underwent another VA examination in April 2009, which evaluated both feet. During that examination, the examiner noted tenderness of the of both feet with abnormal weight bearing and callosities. There were no signs of painful motion, swelling, instability or weakness of either foot. There was slight contracture and varus rotation of toes 3 and 4, but no claw was shown. Evaluation of the first metatarsophalangeal joint showed 10 degrees of angulation and dorsiflexion to 40 degrees, with no stiffness of the joint. There was no findings of flatfoot, muscle atrophy, or malunion/nonunion of the tarsal or metatarsal bones on either foot. On the left foot, there were callouses on the medial edge of the first toe, on the plantar surface of the fifth toe, and on the sole beneath the fifth metatarsal. On the right foot, there were callouses on the medial surface of the big toe, on the ventral surface of the second toe, the plantar surface of the fourth toe, and on the sole below the fifth metatarsal. An August 2010 VA examination showed results consistent with the April 2009 examination and the examiner opined that the Veteran's calluses and bunions with claw toe deformity/hammertoes of both feet, with degenerative joint disease of the first metatarsophalangeal joint bilaterally, was at related to the Veteran's service-connected foot disabilities. The Veteran was afforded another VA examination of the bilateral feet in March 2014. The examiner confirmed the diagnosis of bilateral hallux valgus with hammer toes, degenerative joint disease, and calluses. The examiner noted that both feet had hammertoes of the second, third, fourth and fifth toe. There were plantar callouses over the right second metatarsophalangeal joint on both feet. There was evidence of bilateral weak foot as the Veteran was unable to rise up on his toes due to pain and extension of the bilateral great toes was measured at 4 out of 5. The examiner opined that the Veteran's disabilities of the feet impact the Veteran's ability to work as the Veteran estimated that he missed approximately 10 days of work per year due to bilateral foot pain. The Board has conducted a thorough review of the evidence and finds that a higher rating for disabilities of the left and right feet is not warranted. As indicated, the currently assigned 10 percent rating for severe hallux valgus is the highest rating permitted under DC 5281. The Board has considered whether a greater disability rating would be appropriate under alternative diagnostic code provisions; however, a higher rating his not warranted. Although the Veteran has a diagnosis of hammertoes of the bilateral feet, under DC 5282, a noncompensable rating is assigned unless hammer toe affects all toes on one foot. In this case, hammer toe does not affect all toes on either foot. Similarly, the Veteran has a claw foot deformity of the bilateral feet; however, under DC 5278, a noncompensable rating is warranted for claw foot as the evidence shows slight symptoms of clawfoot. A higher rating of 10 percent is not warranted unless the great toe is dorsiflexed with some limitation of dorsiflexion at the ankle and definite tenderness under the metatarsal heads. The Board notes that that the March 2014 VA examination shows evidence of bilateral weak foot. DC 5277 provides a 10 percent rating for a symptomatic condition of weak foot secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. Under this code, the underlying condition is to be rated. 38 C.F.R. § 4.71a , DC 5277. The highest rating available under DC 5277 is 10 percent rating for bilateral weak foot. 38 C.F.R. § 4.71a , DC 5277. Therefore, a higher initial rating is not warranted under DC 5277, as the Veteran has already been granted a 10 percent disability rating under DC 5281 and to provide a separate compensable rating under this code and the rating criteria specifically provided for the hallux rigidus is not appropriate, considering the underlying symptoms and the structure of the rating code. See 38 C.F.R. § 4.14. The Veteran has not been diagnosed with pes planus, anterior metatarsalgia, or malunion/nonunion of the tarsal or metatarsal bones therefore DC 5276, DC 5279 and DC 5283 are not applicable. The Board has also considered the application of DC 5284 for "other" foot injuries. However, in June 2015 the United States Court of Appeals for Veterans Claims (Court) issued Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). In Copeland, the Court held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'"). The Court explicitly rejected the appellant's argument that to rate under Diagnostic Code 5284, for "foot injuries, other," would not be rating by analogy; the Court held that to do so would ignore the plain meaning of the term "other," and would make the remaining eight foot-related diagnostic codes redundant. Given that the Veteran's symptoms of the Veteran's bilateral foot disability are specifically listed in the rating schedule, the Board finds that DC 5284 is inapplicable. As for the degenerative joint disease of the first metatarsophalangeal joint of the bilateral feet, the Board finds that the presence of arthritis does not provide a basis for any higher or additional rating. DC 5010 provides that arthritis due to trauma that is substantiated by x-ray findings is to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The evidence does not show compensable limitation of motion, therefore a higher or additional rating is not warranted. The Board has considered whether the Veteran's bilateral foot disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321 (b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Board has also considered the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected foot disabilities is not warranted based on functional loss due to pain or weakness, as the Veteran's symptoms are supported by pathology consistent with the separate 10 percent ratings assigned under DC 5281. The Veteran has complained of pain throughout the appeal. However these complaints do not, when viewed in conjunction with the other evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations. As such, higher ratings are not warranted based on functional loss due to pain or weakness. The preponderance of the evidence is against the assignment of higher ratings than those already assigned. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no exceptional or unusual factors with regard to the Veteran's bilateral foot disabilities. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are "exceptional or unusual" factors which render application of the schedule impractical.") The schedular rating criteria used to rate his service-connected bilateral foot disabilities reasonably describes and assesses his disability level and symptomatology. The criteria rate his bilateral hallux valgus/rigidus, hammertoes, callouses and degenerative joint disease of the first metatarsal phalangeal joint, on the basis of severity of symptoms including pain, weakness, and loss of function. Thus, the demonstrated manifestations - namely pain, gait, tenderness, and inability to walk and stand for long periods of time- are contemplated by the provisions of the rating schedule, the Deluca factors, and the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, 4.150. His disability pictures are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Referral for extraschedular consideration is not warranted. ORDER A disability rating in excess of 10 percent for a right foot disability is denied. A disability rating in excess of 10 percent for a left foot disability is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs