Citation Nr: 18144932 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-05 749 DATE: October 25, 2018 ORDER A higher (compensable) initial disability rating for right foot hallux valgus (right foot disability) for the entire rating period is denied. A higher (compensable) initial disability rating for left foot hallux valgus (left foot disability) for the entire rating period is denied. Compensation benefits under 38 U.S.C. § 1151 for claimed retention of metal surgical equipment in the right lower extremity are denied. FINDINGS OF FACT 1. Throughout the initial rating period from June 5, 2012, the right foot disability was manifested by mild to moderate symptoms of hallux valgus with pain in the right foot aggravated by prolonged standing, walking, lifting, carrying, kneeling, and squatting; there is no history of surgery. 2. Throughout the initial rating period from June 5, 2012, the left foot disability was manifested by mild to moderate symptoms of hallux valgus, a possible small bunion on the first metatarsal of the left foot, and pain in the left foot aggravated by prolonged standing, walking, lifting, carrying, kneeling, and squatting; there is no history of surgery. 3. The Veteran does not have additional right lower extremity disability that was caused or aggravated by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or caused by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for the service-connected right foot hallux valgus disability are not met. U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5280. 2. The criteria for an initial compensable rating for the service-connected left foot hallux valgus disability are not met. U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5280. 3. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for retention of metal surgical equipment in the right lower extremity are not met. 38 U.S.C. §§ 1151, 5103, 5103A; 38 C.F.R. §§ 3.154, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Army from January 1979 to January 1983. These matters are on appeal from June 2013 and November 2014 rating decisions. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Initial Rating Analysis for Right and Left Hallux Valgus Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For the entire initial rating period (i.e., from June 5, 2012), the right and left foot disabilities have each been rated at 0 percent (i.e., noncompensable) pursuant to 38 C.F.R. § 4.71a, DC 5280, for unilateral hallux valgus. Under DC 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus when the condition is severe and disabling to a degree equivalent to amputation of the great toe, or when there has been operation with resection of the metatarsal head. After review of all the lay and medical evidence of record, the Board finds that the criteria for a compensable rating under DC 5280 are not met or approximated for the right foot disability or the left foot disability for any period. For the entire initial rating period, the evidence shows that the right and left foot disabilities were manifested by mild to moderate symptoms of hallux valgus with pain in the right foot aggravated by prolonged standing, walking, lifting, carrying, kneeling, and squatting. Additionally, there was a mild bony prominence at the medial head of the first metatarsal of the left foot suggesting a small bunion. There was no history of surgery. On the January 2016 VA Form 9, the Veteran indicated that symptoms of numbness and pain in the right leg and hip should be considered in rating the service-connected foot disabilities; however, such symptoms are shown to be attributable to nonservice-connected peripheral neuropathy of the right lower extremity, not the service-connected right foot disability. Because the evidence shows no more than mild to moderate hallux valgus with no history of surgery, the right and left foot valgus deformities were not severe and disabling to a degree equivalent to amputation of the great toe and did not require operation with resection of the metatarsal head. For these reasons, a compensable rating under DC 5280 is not warranted for either the right foot disability or the left foot disability for any period. The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). § 1151 Compensation Benefits for Claimed Right Leg Disorder Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. 38 U.S.C. § 1151. In determining whether a veteran sustained additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. The Veteran contends that metal surgical instruments were left in the right lower extremity during a coronary bypass surgery performed at VA in April 2004, and that this causes pain in the right lower extremity. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that claimed right lower extremity disorder was not proximately caused by VA negligence or fault in performing the April 2004 coronary bypass surgery at the Pittsburgh VAMC, and that there was no unforeseen event. In this case, the metal surgical clips that were placed and left in the right lower extremity when the coronary bypass surgery was performed at VA in April 2004 were part of standard surgical procedure, so was not proximately caused by VA negligence or fault, or caused by an event that is not reasonably foreseeable. The September 2014 VA reviewer reviewed the record, described how a coronary bypass surgery was performed, and opined that retention of surgical clips was not caused by or a result of carelessness, negligence, lack of proper skill, error of judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical, or surgical treatment. When providing rationale for the medical opinion, the September 2014 VA reviewer explained that, when a vein was harvested from a leg for bypass surgery, the vein had to be cut to remove a segment of the vein to perform the coronary artery bypass. The September 2014 VA reviewer noted that surgical clips were placed to control the bleeding once the vein was cut and left in place to prevent blood loss. The September 2014 VA reviewer wrote that the cut vessel would bleed if the clips were not left in place and stressed that it was a standard surgical procedure. The September 2014 VA reviewer based the medical opinion on accurate facts and data and medical training and expertise, including knowledge regarding how coronary bypass surgery was performed. The September 2014 VA reviewer also provided sound rationale in support of the medical opinion. For these reasons, the September 2014 VA medical opinion is of significant probative value. There is no competent medical opinion to the contrary of record. The Veteran has contended that he suffers from additional right lower extremity disability due to VA negligence in leaving metal surgical equipment in the right lower extremity when performing coronary bypass surgery in April 2004. As a lay person, he is competent to report any symptoms that come to him through the senses but is not competent to provide an opinion on whether any additional right lower extremity disability was due to VA negligence or an event not reasonably foreseeable. Conversely, the September 2014 VA reviewer has medical training and expertise, so is competent to render a medical opinion on the question of whether there was additional disability caused by VA negligence or carelessness. After reviewing the record, the September 2014 VA reviewer rendered a negative medical opinion on this question. Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that claimed additional right lower extremity disability was not proximately caused by VA negligence or fault or an event that is not reasonably foreseeable; therefore, the criteria for compensation under 38 U.S.C. § 1151 have not been met, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REMANDED A higher (compensable) initial disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND Initial Rating for Bilateral Hearing Loss On the April 2016 VA Form 9, the Veteran indicated that the hearing loss disability had worsened since the last VA examination performed in December 2012; therefore, the Veteran should be provided an opportunity to report for another VA examination to ascertain the current severity and manifestations of the bilateral hearing loss. The issue of initial rating for bilateral hearing loss is REMANDED for the following action: Schedule a VA audiology examination to help determine the current severity of the service-connected bilateral hearing loss disability. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel