Citation Nr: 1802600 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-37 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 30 percent for hallux valgus of the left foot, with hammertoes and fusion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from December 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this matter in March 2017 to afford the appellant his requested Board hearing. However, per an August 2017 Report of General Information and his representative's December 2017 brief, the appellant withdrew his request for such hearing. Thus, his Board hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). In a February 2016 rating decision, the RO granted a total disability rating based upon individual unemployability (TDIU), effective June 15, 2009, as part and parcel of the left foot disability increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). No Notice of Disagreement (NOD) was received within one year of notification of such decision. The Board observes that the appellant is in receipt of a temporary 100 percent rating for convalescence following December 2012 left foot surgery, from December 6, 2012, through August 31, 2013, per November 2014, March 2015, and September 2015 rating decisions. See 38 C.F.R. § 4.30. This decision does not alter the appellant's entitlement to such temporary 100 percent rating. FINDING OF FACT For the entire period on appeal, the appellant's hallux valgus of the left foot, with hammertoes and fusion, was not manifested by actual loss of use the foot. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for hallux valgus of the left foot, with hammertoes and fusion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In a statement received in November 2009, the appellant expressed displeasure with the July 2009 examiner in that what the examiner stated about the appellant's left foot contradicted what the appellant had been told by podiatry clinicians. The appellant reported that he continued to experience fatigability, weakness, heat, lack of endurance, and stiffness. Although the July 2009 examiner stated that his Achilles tendon was normal, the appellant stated that his Achilles tendon is "as tight as ever" and causes pain. He also stated that, contrary to what the examiner noted, he did not have flat feet. The Board observes that a VA podiatry clinician noted that October 2009 findings contradicted those of the July 2009 examination report. Thus, as discussed infra, the Board affords the July 2009 examination report minimal probative weight. Neither the appellant nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The appellant's hallux valgus of the left foot, with hammertoes and fusion, is rated under Diagnostic Code (DC) 5284. Under DC 5284, a 10 percent rating is warranted for a moderate foot injury. A 20 percent rating is warranted if the injury is moderately severe. A 30 percent rating is warranted if it is severe. A note states that, with actual loss of use of the foot, a 40 percent rating is warranted. 38 C.F.R. § 4.73 , DC 5284. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Factual Background In a statement received in January 2009, the appellant reported that his left foot disability had increased in severity and changed the mechanics of walking. A May 2009 podiatry note states that the appellant had pain to the left arch with tight fascia plantar. Examination revealed pain on palpation. No equinus was observed; however, there was pain to the left Achilles with ankle dorsiflexion. A June 2009 podiatry note states that the appellant reported pain on the bottom of his left foot that was tolerable, while pain to the back of the heel was considerably worse. Examination revealed pain on palpation. No equinus was observed; however, there was pain to the left Achilles with ankle dorsiflexion. The appellant was afforded a contracted examination in July 2009. He reported pain, swelling, fatigability, weakness, heat, lack of endurance, and stiffness at rest, when standing, and when walking. Crutches, cane, shoe inserts, and heel lifts were required, and mildly effective. The appellant could stand and walk for 15 to 30 minutes. Examination revealed painful motion of the left foot. Gait was abnormal with a limp on the left side. Examination was negative for left foot callosities, breakdown, unusual shoe wear pattern, skin changes, vascular changes, hammertoes, high arch, or clawfoot. The appellant had flat feet bilaterally. Weight-bearing alignment of the Achilles tendon was abnormal due to malalignment. However nonweight-bearing alignment was normal. Achilles tendon alignment could not be corrected by manipulation; and there was pain on manipulation of the left Achilles tendon. Left foot valgus was approximately 20 percent correctable by manipulation. There was no left forefoot or midfoot malalignment. The appellant was noted to have had surgery for left foot hallux valgus. Dorsiflexion at the first metatarsophalangeal joint was normal for the left foot. There was no active motion in the metatarsophalangeal joint of the left great toe; rather, the appellant had pins on the 2nd and 4th metatarsals of the left foot. Imaging studies revealed post-surgical changes due to fusion of the left great toe. The appellant had hallux valgus deformity of the bilateral great toes. The effect on the appellant's usual occupation and daily activities was mild to moderate for heavy frequent activity. There was no keloid. The appellant was noted to have developed back pain since his foot surgery. An October 2009 podiatry note states that, upon weight-bearing, medial arch was within normal limits. The clinician observed that such findings contradicted those of the July 2009 examination report. No visible edema was observed; however, the appellant stated that it worsened if he is on his feet for more than one hour. The left foot appeared to protrude distally more than the right foot. A July 2010 clinical note states that the appellant reported an ongoing "Charlie horse" feeling of the left leg and Achilles tightness with pain on range of motion. The appellant reported that Baker cysts were larger and caused pain with walking. Abnormal gait due to pain was observed. The appellant was observed to be walking very unsteadily due to his foot and knee pain, for which he was wearing a left knee brace. A September 2010 orthopedic note states that the appellant was otherwise healthy and tried to be active, but could not be too active due to left foot pain. He was noted to have altered gait. Prior surgeries had not bettered his left foot; rather, they may have worsened things. The appellant reported constantly walking on the side of his foot and experiencing spasms in the arch which cause his great toe to stand straight up. Examination revealed a "mild cockup deformity" of the great toe. The second metatarsophalangeal joint was very tender from plantar palpation. All major motor groups were intact. Neurovascular status was for the most part intact. A November 2010 podiatry note states that the clinician reported that the appellant would continue to have ongoing foot pain and would benefit from an employment position which would be non-weight in nature. A December 2010 clinical note states that the appellant was observed to have a significant limp. Tenderness to palpation was present throughout the foot. The appellant was afforded a VA examination in June 2011. The claims file was reviewed. The appellant was noted to experience ongoing foot pain, primarily due to painful calluses which were last debrided in June 2011. He complained of constant, aching pain in his feet, which was more severe in the left foot. Stiffness, swelling, and fatigability with a lack of endurance were endorsed, while weakness, redness, and heat were denied. Daily flare-ups, lasting for approximately six hours, were reported. Such are brought on by prolonged standing and walking. During a flare-up or following repetitive-use, the appellant will be additionally limited by pain, but not by weakened movement, excess fatigability, incoordination, or functional loss. The appellant used a walker and cane but denied the need for other adaptive devices at the time of examination, including braces or crutches. The appellant was noted to wear inserts and heel lifts, but denied the need for corrective shoes or braces. His left foot disability did not interfere with his occupational functioning because he was not employed. However, such did interfere with the performance of daily activities in terms of putting on his shoes. Examination revealed that the feet were anatomically normal. Left foot eversion was measured to 30 degrees and inversion was to 10 degrees. Left dorsiflexion was to 10 degrees with pain at the end of the maneuver, while plantar flexion was to 15 degrees with pain at the end of the maneuver. Pain on motion with the plantar and dorsiflexion of the second, third, and fourth toe, with the greatest noted in the passive movement of the fourth toe. There was no pain on compression of the left heel or sole of the left foot. There was objective evidence of painful motion and tenderness, but not edema, instability, or weakness in the feet. Gait was with a limp favoring the left side. There was a modest functional limitation on standing and walking. Calluses of the feet were located at the medial and lateral aspect. The left great toe was noticeably shorter than the right. There was no breakdown or unusual shoe wear pattern that would indicate abnormal weight-bearing. There were no skin or vascular changes. Capillary refill was instantaneous. Posture on standing was shifted to the right. The appellant reported that he could not squat. Supination and pronation were adequate. The appellant could only rise to his toes and heel on the right side. Mild hammertoes bilaterally were observed, while examination was negative for high arch, claw foot, or other deformity either actively or passively correctable. There was no flatfoot and there was no malalignment of the Achilles tendon. There was no valgus deformity at the ankle. There was no forefoot or midfoot malalignment. There was no hallux valgus; and angulation and dorsiflexion at the first metatarsal phalangeal joints was restricted. Imaging studies revealed fusion of the first metatarsophalangeal joint of the great toe of each foot. Postoperative changes were noted in the second and third metatarsals on the left. The appellant did not have plantar fasciitis of the left foot. The examiner opined that the appellant was able to secure and maintain gainful employment in any capacity requiring sedentary employment when considering his service-connected bilateral foot disabilities and also when considering other nonservice-connected disabilities. Per a July 2011 Report of General Information, the appellant reported that the VA physical therapy department issued him a walker in June 2011. The appellant underwent left foot surgery in December 2012, for which he was awarded a temporary total evaluation for convalescence from December 6, 2012, through August 31, 2013. A January 2013 clinical note states that the appellant was weight-bearing as tolerated in a 3-D boot. Numbness of the left great toe and tingling over the incision in the medial aspect of the left foot were reported. Examination revealed the appellant to be ambulatory without antalgic gait in 3-D boot. Edema of the foot was reported, particularly if he had been up and walking. A June 2013 orthopedic surgery note states that the appellant reported pain, plantar medial helical nerve tenderness, and continued painful callosities on the bottom of the foot. It was noted that there were not any good surgical options remaining and that the appellant was left with a chronically painful foot which he would have to manage with nonsurgical means. The appellant was afforded a VA examination in May 2014. The claims file was reviewed. With respect to his left foot, he was diagnosed with hammer toes, hallux valgus, and arthritis, traumatic. It was noted that the appellant has undergone eight foot surgeries since separation from service, most recently in December 2012. The appellant had exhausted all surgical options for his feet at the current time. He continued to experience severe foot pain. He walks with a cane because he cannot walk normally on his left foot. The appellant reported that most of the toes of his left foot do not touch the ground when he walks, due to chronic swelling at the plantar surface of the foot. Thus, he must bear weight on the lateral aspect of the foot. Persistent left Achilles pain and lower left leg cramping were reported, due to such altered gait. The appellant was noted that standing or walking has become very limited and that, as a result, his mobility is significantly limited. The pain was described as aching, sharp, and shooting. The pain was also characterized as burning when walking. Flare-ups were reported, consisting of increased foot pain, precipitated by any significant weight-bearing activity. Rest and medication partially relieve them. The examiner opined that it was more likely than not that pain, fatigability, and incoordination due to altered gait could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time and that there is additional limitation due to pain, but not weakness, fatigability, or incoordination, with change in the baseline range of motion due to pain on use or during flare-ups. The appellant reported a poor ability to ambulate or tolerate prolonged standing due to chronic and severe bilateral foot pain. Examination was negative for Morton's neuroma, while the appellant was observed to have metatarsalgia of the left first through fourth metatarsals. The appellant was noted to have severe symptoms, with function equivalent to amputation of the left great toe. Posttraumatic arthritis of the left fourth metatarsophalangeal joint was moderately severe. Such chronically compromises weight-bearing. The appellant required arch supports, custom orthotic inserts, or shoe modifications. He was noted to have poor eight-bearing function of the left foot. Incoordination, pain on movement, pain on weight-bearing, pain on nonweight-bearing, swelling, deformity, instability of station, disturbance of locomotion, interference with standing, and lack of endurance all contributed to functional loss. The appellant made constant use of a cane for ambulation not support both feet. He had also been issued shoes with raised soles and custom orthotics for foot support. However his symptoms are not relieved with such devices. The examiner opined that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. The examiner observed a May 2014 clinical note which stated that he had loss of purchase of the great toe. A May 2014 podiatry note states that the appellant's ambulation was cane-assisted due to loss of purchase of the left great toe. An April 2015 clinical note states that the appellant experiences forefoot, plantar, and medical central arch pain. The appellant stated that he was not interested in additional surgery. The clinician indicated that he was not sure whether additional surgery would even help at this stage, and opined that the appellant was unable to work because his feet were chronically painful and his ability to move about was severely hampered. The appellant received a complete foot examination in December 2015. Visual foot inspection was notable for hammer toes. Pedal pulses examination was normal. Sensory foot examination with monofilament was notable for loss of protective sensation (LOPS) to left hallux. He was noted to be level "2" with moderate risk. There was decreased sensation or circulation with deformity. There was no ulceration or history of amputation. Painful calluses to the sub fourth metatarsal head were derided. A January 2016 clinical note states that the appellant had cane-assisted ambulation. Painful calluses to the sub fourth metatarsal head were derided. IV. Analysis Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a schedular disability rating in excess of 30 percent. As set forth in detail above, there is no clinical evidence that the appellant experiences actual loss of use of the left foot. He does not contend otherwise. Rather, although the appellant has competently and credibly reported, and clinical evidence has noted, severe left foot pain, lack of endurance, fatigability, weakness, heat, and an altered gait, he did not experience actual loss of use of the left foot. His symptomatology does not more nearly approximate actual loss of use of the left foot. The May 2014 examiner specifically found that the appellant did not exhibit functional impairment such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. Moreover, the evidence of record establishes that the appellant was able to use his left foot throughout the period on appeal, albeit in a limited and modified fashion. As noted supra, while the July 2009 examination report is entitled to minimal probative weight, it does not change the fact that the claims file contains no probative evidence of actual loss of use of the left foot. In an August 2016 brief, the appellant's representative argued that the appellant's "significant difficulty maintaining any sort of meaningful physical or sedentary employment," as opined by the May 2014 VA examiner, equated to loss of use of the left foot. However, the Board again observes that the May 2014 VA examiner also stated that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. The Board affords the May 2014 examination report in its entirety to greater probative weight. Further, it is consistent with the other evidence of record. The Board has considered whether there are other potentially applicable Diagnostic Codes pertaining to the feet that could afford the appellant a higher rating. In this regard, the clinical evidence reflects that the appellant has been shown to have metatarsalgia and hammer toes. Regardless, 38 C.F.R. § 4.71a , Diagnostic Codes 5277-5283, do not offer ratings in excess of 30 percent for a single foot. Thus, application of these codes would not avail the appellant of a rating in excess of 30 percent. Indeed, the highest rating available for a disability of one foot is 40 percent under Diagnostic Code 5284. That code, however, provides for a 40 percent rating only for actual loss of use of the foot. As explained above, the lay and medical evidence of record does not show that the appellant's bilateral foot disability is the equivalent of loss of use. In this regard, the evidence clearly shows that the appellant is still able to ambulate, albeit with difficulty. Further, the evidence does not show that the appellant meets the criteria for pronounced bilateral flatfoot to warrant a maximum 50 percent rating under Diagnostic Code 5276. Rather, the appellant is also in receipt of a 30 percent rating for his service-connected right foot disability and does not have flat feet. Accordingly, the Board finds that no higher ratings could be assigned under alternative diagnostic codes for the appellant's left foot disability. Similarly, separate ratings are not warranted under 5284 and any other applicable diagnostic code for rating disabilities of the foot as the symptomatology currently rated under 5284 would overlap with that contemplated by the other codes. Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Similarly, although the record establishes that the appellant has arthritis, rating him under a diagnostic code applicable to arthritis would only warrant a maximum 20 percent rating, less than his current rating of 30 percent. The award of a separate rating for arthritis would constitute impermissible pyramiding, as the symptoms of pain and functional loss are already contemplated under his current rating under DC 5284. 38 C.F.R. § 4.14. Although the May 2014 VA examiner stated that the appellant had severe symptoms, with function equivalent to amputation of the left great toe, if the appellant were to be rated under DC 5171 for amputation of the great toe, the maximum schedular rating would be 30 percent. However, the appellant's left great toe has not been amputated. Further, as the appellant's left great toe symptoms are contemplated in the rating under DC 5284 for his left foot disability, a separate rating would constitute impermissible pyramiding. 38 C.F.R. § 4.14. In reaching its decision, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The record establishes that the appellant experiences pain, fatigability, incoordination, pain on movement, and weakness in his left foot, which results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). However, the Board finds that the appellant's rating under DC 5284 already compensates him for such symptomatology, as such criteria are general. 38 C.F.R. § 4.71a, DC 5284. A moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating, and a severe foot injury warrants a maximum 30 percent rating. Id. The Board also observes that clinical record shows that the appellant does not exhibit functional impairment of the left foot such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. See e.g. 38 C.F.R. §§ 4.68 (amputation rule), 4.71a, DC's 5165-5167 (providing for a 40 percent rating for amputation of the leg below the knee permitting prosthesis, amputation proximal to the metatarsal bones, or loss of use of the foot). This was an express finding of the May 2014 VA examiner; and there is no other clinical evidence to the contrary. Indeed, the appellant does not contend otherwise. Thus, the preponderance of the evidence is against the award of a schedular rating in excess of 30 percent for any portion of the period on appeal. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appellant's representative argued, in a brief received in August 2016, that extraschedular consideration is warranted due to the severity of the appellant's left foot disability. However, in this case, the Board finds that the record does not show that the appellant's left foot disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. 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. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate; and no extraschedular referral is required. Id; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence does not indicate that appellant's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. The Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Additionally, the rating criteria in DC 5284 are general, with a moderate foot injury warranting a 10 percent rating, a moderately severe foot injury warranting a 20 percent rating, and a severe foot injury warranting a maximum 30 percent rating. 38 C.F.R. § 4.71a, DC 5284. As such, the appellant's symptoms are not so unusual that they are outside the schedular criteria. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left foot disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Notwithstanding the temporary total evaluations for convalescence regarding the appellant's left foot disability in effect from December 6, 2012, to August 31, 2013, entitlement to a rating in excess of 30 percent for the appellant's hallux valgus of the left foot, with hammertoes and fusion, is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs