Citation Nr: 18141648 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-03 442 DATE: October 11, 2018 ORDER Entitlement to a compensable disability rating for right foot hallux valgus is denied. Entitlement to a compensable disability rating for left foot hallux valgus is denied. FINDINGS OF FACT 1. The Veteran’s right foot hallux valgus is productive of, at most, mild to moderate symptoms. 2. The Veteran’s left foot hallux valgus is productive of, at most, mild to moderate symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right foot hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. 2. The criteria for a compensable rating for left foot hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s appeal originally included a claim for an increased rating for service-connected irritable bowel syndrome (IBS). However, a March 2015 rating decision granted the maximum 30 percent rating available for IBS, effective the date of her claim for an increased rating. The Veteran has not indicated disagreement with that rating or that she was no longer satisfied with a 30 percent rating. Thus, that matter is no longer on appeal. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. Increased Ratings The Veteran was initially awarded service connection for bilateral hallux valgus (bunions) in January 1992 and was assigned a noncompensable disability rating. She filed a claim for increased ratings in June 2012, which was denied by the RO in August 2013 and again in March 2015. The Veteran continues to assert that the severity of her bilateral bunion disability warrants higher ratings. In statements in support of her claim in February 2013 and July 2014, she reported that her bilateral bunions manifested tenderness, swelling, and pain that interfered with her ability to perform her duties as a mail carrier. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is rated under Diagnostic Code 5280 for hallux valgus of the left and right foot. 38 C.F.R. § 4.71a. In order to warrant a 10 percent rating under Diagnostic Code 5280, the evidence must show unilateral hallux valgus that is either severe or operated with resection of metatarsal head. Id. This is the highest rating available. A showing of severe hallux rigidus will also be rated under Diagnostic Code 5280 for hallux valgus, severe. 38 C.F.R. § 4.71a., Diagnostic Code 5281. As hallux valgus often involves surgical intervention, separate 10 or 20 percent ratings may also be warranted under Diagnostic Code 7804 for scars that are unstable or painful. 38 C.F.R. § 4.118. Additionally, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran was afforded a VA foot examination in February 2015. She reported pain, swelling, and tenderness in both of her big toes from her bunions, which was aggravated by constant walking in her employment as a mail carrier. She did not report that flare-ups impacted function of the foot or that there was any functional loss or functional impairment of the foot. She denied use of an assistive device. Physical examination revealed a diagnosis of bunions and hallux rigidus, bilaterally, manifested by pain on weight bearing, swelling, deformity, disturbance of locomotion, and interference with standing. No other condition was diagnosed and there were no other pertinent physical findings, complications, conditions, signs or symptoms related to her disability. There was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. While the examiner did indicate that the Veteran’s left foot disability impacted her ability to perform occupational tasks as a mail carrier since it imposed limitations on walking and carrying less than 40 pounds of weight, it was noted that there was no functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Thus, the examiner opined that that the overall severity of her condition was mild or moderate. The remaining record is negative for any additional medical findings or treatment for her bilateral foot disabilities. Based on the foregoing, the Board finds that the Veteran’s bilateral hallux valgus has been productive of mild or, at most, moderate symptoms. The Veteran has no history of surgery for her hallux valgus with rigidus, and there was not functional impairment of the feet such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran’s reported symptoms and the findings upon VA examination are contemplated by the assigned non-compensable rating under Diagnostic Code 5280. See 38 C.F.R. § 4.71a. The Board has also considered whether higher or separate ratings are available under any other diagnostic codes. However, as flat feet, weak foot, pes cavus, metatarsalgia, hammer toe, malunion/nonunion of the tarsal/metatarsal bones, or scars have not been shown in the record, Diagnostic Codes 5276, 5277, 5278, 5279, 5282, 5283, and 7804 are not for application. See 38 C.F.R. §§ 4.71a, 4.118. further, as the diagnostic criteria accounts for the Veteran’s bilateral foot disabilities, Diagnostic Code 5284 for other foot injuries is also not for application. The Board is sympathetic to the Veteran’s lay statements that her disability is worse than currently evaluated, and those statements have been considered. She is competent to report symptoms as this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel