Citation Nr: 18145640 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 11-33 735 DATE: October 30, 2018 ORDER Entitlement to a rating in excess of 10 percent for left foot hallux valgus with limitus and arthritis is denied. REMANDED Entitlement to service connection for right foot hallux limitus, to include as secondary to service-connected left foot disabilities, is remanded. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s left foot hallux valgus with limitus and arthritis has been assigned the maximum schedular rating authorized under Diagnostic Code 5280; the symptomatology associated with the Veteran’s left foot hallux valgus with limitus and arthritis is adequately addressed by this rating. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for left foot hallux valgus with limitus and arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5280 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to November 1999. This matter was remanded by the Board in February 2015 for further development. On September 14, 2018, the Veteran elected to participate in VA’s Rapid Appeals Modernization Program (RAMP), selecting the option for “Higher-Level Review.” This selection is applicable for his claim of a total disability rating for individual unemployability (TDIU) only. As such, the issue of entitlement to TDIU will not be addressed in this decision. Entitlement to a rating in excess of 10 percent for left foot hallux valgus with limitus and arthritis. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s left foot hallux valgus with limitus and arthritis is rated as 10 percent disabling under Diagnostic Code 5280 for unilateral hallux valgus. Under that diagnostic code, hallux valgus that has been operated on with resection of the metatarsal head or severe hallux valgus equivalent to the amputation of the great toe warrants a 10 percent disability rating. This is the only disability rating available under Diagnostic Code 5280. 38 C.F.R. § 4.71a. The record indicates that the Veteran has had mild to moderate hallux valgus of the left foot throughout the period on appeal. The record also indicates that the Veteran has not had surgery for his hallux valgus but has had surgery recommended for all of his foot disabilities. The Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran’s left foot hallux valgus with limitus and arthritis. He has been assigned a 10 percent rating under Diagnostic Code 5280 for hallux valgus; this is the maximum rating assignable 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. The Veteran’s left foot hallux valgus with limitus and arthritis may also be rated under Diagnostic Code 5003 for his arthritis; therefore, the consideration is given as to whether a higher rating is warranted under this diagnostic code. Under Diagnostic Code 5003, a 10 percent rating is applicable when x-ray evidence shows arthritis in two or more major joints or two or more minor joints. A 20 percent rating is applicable when x-ray evidence shows arthritis in two or more major joints or two or more minor joints with occasional incapacitating exacerbations. As the Veteran’s left foot arthritis does not impact two or more major joints or two or more minor joints, a higher rating under Diagnostic Code 5003 would not be appropriate. To the extent the Veteran argues that he has additional symptoms in his left foot that warrant a higher rating, the Board notes he has separate ratings for service-connected left foot pes planus and left foot hammertoes. Based on the foregoing, the Board finds that a rating in excess of 10 percent for service-connected left foot hallux valgus with limitus and arthritis is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5280. In accordance with Fenderson, supra, staged ratings have been considered, but because the Veteran’s disability has been fairly consistent throughout the appeal period, a staged rating is not warranted. REASONS FOR REMAND The issue of entitlement to service connection for right foot hallux limitus, to include as secondary to service-connected left foot disabilities, is remanded. In the Board’s February 2015 remand, it was noted that although an August 2013 VA examiner had opined that the Veteran’s right hallux limitus was unrelated to his left foot disability, the examiner did not comment on whether the Veteran’s right hallux limitus was aggravated by his service-connected left foot disability. Moreover, the Board also noted that the examiner did not consider all of the Veteran’s service-connected left foot disabilities in forming that medical opinion. Therefore, the Veteran’s claim was remanded for an additional examination, which was conducted in December 2016. During the December 2016 VA examination, the examiner diagnosed multiple disabilities in the Veteran’s bilateral feet, including pes planus, hammertoes, hallux valgus, and hallux rigidus. The examiner also opined that these disabilities were related to the Veteran’s bilateral foot issues during service. Therefore, service connection was awarded for the foot disabilities that were not already service-connected, i.e., bilateral pes planus, hammertoes in the right foot and left foot, and right foot hallux valgus with arthritis. See September 2017 rating decision. Regarding the Veteran’s claim for service connection for right foot hallux limitus, as this was not diagnosed during the December 2016 VA examination, the examiner did not provide an etiological opinion for that condition and the claim continued to be denied. See October 2017 supplemental statement of the case. However, a review of the record shows that the Veteran has had a diagnosis of right foot hallux limitus during the period on appeal. Therefore, for VA rating purposes, the Veteran has a current disability of right foot hallux limitus. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In light of the foregoing, the Board finds that the matter should be remanded again for an addendum opinion. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right foot hallux limitus is: a) at least as likely as not related to his military service, or b) at least as likely as not caused or aggravated by his service-connected bilateral pes planus, left foot hallux valgus to include hallux limitus with arthritis, left foot hammertoes, right foot hammertoes, and/or right foot hallux valgus with arthritis. In providing the requested opinions, the examiner should note that the Veteran was consistently diagnosed with right foot hallux limitus between April 2010 and August 2013. Therefore, if it is again the examiner’s opinion that the Veteran does not have a current diagnosis of right foot hallux limitus, this discrepancy in the record must be explained. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If it is determined that the requested opinion may not be provided without a physical examination, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel