Citation Nr: 1754729 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-32 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hallux rigidus/hallux limitus, status post arthroplasty. 2. Entitlement to a rating in excess of 10 percent prior to February 25, 2011 and 20 percent from that date for lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from March 1995 to July 2008. These matters are before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ) in Oakland, California. In October 2016, a videoconference hearing was held before the undersigned. A transcript of that hearing is of record. The issue of an increased rating for lumbar strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the rating period on appeal, the Veteran's right foot disability has been assigned the maximum disability rating authorized under Code 5281; the symptomatology associated with the Veteran's right foot hallux rigidus/hallux limitus, status post arthroplasty, is adequately addressed by this rating. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hallux rigidus/hallux limitus, status post arthroplasty, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (Code) 5280, 5281 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 contends he is entitled to a rating in excess of 10 percent for hallux rigidus/hallux limitus, status post arthroplasty, of the right foot. The Board finds that the evidence of record does not support a rating in excess of 10 percent. On January 2009 VA examination, the Veteran reported level 7 pain in the right great toe joint, metatarsal phalangeal area, with any walking. He also reported pain at rest, increased pain during cold weather and indicated that he wears inserts in his shoe. He did not report alteration in gait and does not use a cane, brace or any other assistive devices. On examination, the Veteran had a brisk coordinated gait and there was no abnormal shoe wear; however, he did have tenderness in the right foot on lateral compression. The Veteran had a 6 centimeter scar on the right toe which was tender on palpation of the joint and scar area. The diagnosis was hallux rigidus and hallux limitus of the right great toe status post arthroplasty. X-ray examination showed 1st MTP (metatarsophalangeal) hemiarthroplasty, hardware intact, and chronic posttraumatic deformity of the second metatarsal. The Primary Diagnostic Code was noted as "minor abnormality." VA treatment records include podiatry consultation notes from 2009 to 2011 which show assessments of bilateral bunion pain (status post right 1st MPJ (metacarpophalangeal joint) implant) symptom relief with custom orthotics and limited range of motion of the right 1st MTP joint as compared to the left side. See, e.g., Podiatry Note dated August 28, 2009, et seq. These records also include assessments of pes cavus foot type - flexible, and heel pain, likely plantar fasciitis. During his October 2016 Board hearing, the Veteran's representative acknowledged that the Veteran was at the highest percentage for the applicable Diagnostic Code and that, after speaking with the Veteran, the concern seemed to focus on an ankle disability. The Veteran indicated his intent to file a secondary service-connection claim for a right ankle disability. Notably, VA Form 21-0966, Intent to File a Claim for Compensation, was received on October 17, 2016; however, a complete application for service-connection for a right ankle disability has not been received. The Veteran testified that his right foot disability is essentially productive of pain and difficulty walking and standing. The Board has conducted a thorough review of the evidence and finds that a higher rating for disability of the right great toe is not warranted. The Veteran has been assigned a 10 percent rating under Code 5281 for hallux rigidus/hallux limitus, status post arthroplasty, of the right foot (he is also assigned a separate 10 percent rating for scar, residuals status post arthroplasty right foot, under Code 7804). Code 5281 contemplates ratings for hallux rigidus, unilateral, severe, and instructs that the condition should be rated as severe hallux valgus, under Code 5280. Under those criteria, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe, if equivalent to amputation of the great toe. The Veteran is receiving the maximum 10 percent rating. It is inappropriate to rate the Veteran's disability by analogy to other Codes as the Veteran is service-connected for hallux rigidus which has its own Diagnostic Code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). It is argued on behalf of the Veteran that a separate 10 percent rating should be assigned for the right foot under Code 5003. See Statement of Accredited Representative in Appealed Case (In lieu of VA Form 646) dated July 28, 2014. However, Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. A rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes. In the present case, as noted above, the Veteran is in receipt of a compensable rating for his right foot disability. In addition, a rating in excess of 10 percent requires X-ray evidence of involvement of 2 or more major joints, or 2 or more minor joint groups with occasional incapacitating exacerbations. The evidence does not support such findings. Furthermore, the Board finds that the Veteran is not entitled to the assignment of a higher rating as a result of functional loss due to weakness, fatigability, incoordination, or pain on movement. As noted above, the Board finds that. As the Veteran is currently in receipt of the maximum rating provided by Code 5281, there is no basis for the assignment of a higher evaluation based on DeLuca and the related provisions of 38 C.F.R. § 4.40, 4.45, and 4.59. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (finding that consideration of DeLuca is not applicable where claimant is in receipt of the maximum schedular rating for limitation of function under the pertinent diagnostic code). The Board acknowledges the Veteran's assertions of right foot impairment. He is competent to report lay-observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, whether or not there is underlying pathology constituting increased disability, or whether there is a symptom related to a disability, is a medical question beyond the capability of the Veteran's own lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence to demonstrate the Veteran has the training and expertise to determine the underlying pathology or symptomology of his service-connected right foot disability. At no time during the appeal period has the Veteran's service-connected right foot disability been more than 10 percent disabling; as such, staged ratings are not warranted. Hart; Fenderson; supra. The Board acknowledges that the medical evidence of record indicates that the Veteran has a residual surgical scar of the right foot. However, service connection has been established for scar, residuals status post arthroplasty right foot, rated 10 percent. The preponderance of the evidence is against the assignment of a higher rating. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for hallux rigidus/hallux limitus, status post arthroplasty, of the right foot is denied. REMAND Regarding the Veteran's claim for higher ratings for his service-connected lumbar strain, he has reported increased symptoms since his most recent February 2011 VA spine examination. Further, the February 2011 VA examination report does not fully satisfy the requirements for orthopedic disabilities that require joint tests in active and passive motion, and in weight-bearing and non-weight bearing. As such, a new examination and retrospective opinion should be obtained. On remand, additional/updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. 2. The AOJ should arrange for an examination of the Veteran to determine the nature and severity of his service-connected thoracolumbar spine disability. The claims file should be made available to and reviewed by the examiner. Based on review of the record, and interview and examination of the Veteran, the examiner should describe in detail all manifestations of the service connected low back disability. In particular, the examination report should address the following: a) Please conduct range of motion testing of the thoracolumbar spine, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b) The examiner must also provide an opinion as to the range of motion throughout the appeal period (since receipt of the Veteran's July 15, 2008 claim for service connection) in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing. If such assessment cannot be made, the opinion provider is requested to explain why that is so. c) The examiner should consider any reports of flare-ups and portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. In providing the requested opinions, the examiner should elicit the Veteran's subjective complaints (including flare-ups), report all clinical findings in detail, and comment on the resulting functional impairment. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, the AOJ should review the record and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs