Citation Nr: 18146508 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-21 863 DATE: October 31, 2018 ORDER Prior to October 2, 2009, entitlement to an initial rating in excess of 10 percent for bilateral pes cavus with bilateral hallux valgus (bilateral foot disability) is denied. From October 2, 2009 to February 14, 2011, entitlement to a rating in excess of 30 percent for bilateral foot disability is denied. From February 14, 2011, entitlement to a rating of 50 percent for bilateral foot disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to October 2, 2009, the Veteran’s bilateral foot disability has been manifested primarily by complaints of pain, tenderness on the outer side of the bilateral feet, callosities, and bilateral hallux valgus deformity. 2. From October 2, 2009 to February 14, 2011, the Veteran’s bilateral foot disability has been manifested primarily by marked tenderness and abductovarus cavus foot rigidity. 3. From February 14, 2011, the Veteran’s bilateral foot disability more nearly approximates a disability picture for claw foot involving hammer toes, very painful callosities, and marked varus deformity. 4. Prior to February 14, 2011, the Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. 5. After resolving reasonable doubt, the evidence of record is at least in equipoise that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 2, 2009, the criteria for a rating in excess of 10 percent for bilateral foot disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5278 (2018). 2. From October 2, 2009 to February 14, 2011, the criteria for a rating in excess of 30 percent for bilateral foot disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5278 (2018). 3. From February 14, 2011, the criteria for a 50 percent disability rating for the service-connected bilateral foot disability have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5278 (2018). 4. Prior to February 14, 2011, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16 (2018). 5. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1964 to July 1984. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a hearing. The transcript of the hearing is of record. By way of background, in September 2011 the Board granted service connection for the Veteran’s bilateral foot disability. See September 2011 Remand BVA or CAVC. In September 2011, the RO granted a 10 percent disabling rate prior to October 2, 2009 and 30 percent thereafter. See September 2011 Rating Decision – Narrative. The Veteran timely submitted a notice of disagreement. See September 2012 Correspondence. During the appeal period, in September 2018, the RO granted 50 percent disabling rate for the Veteran’s bilateral foot disability. See September 2018 Rating Decision – Narrative. In a September 2018 statement, the Veteran’s representative waived consideration of all evidence added to the claims file following the last adjudication of the claim. 1. Increased rating for bilateral foot disability Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 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’s bilateral foot disability is rated as acquired claw foot under 38 C.F.R. § 4.71a, Diagnostic Code 5278. Under 38 C.F.R. § 4.71a, Diagnostic Code 5278, acquired pes cavus is noncompensable for slight pes cavus. Unilateral or bilateral pes cavus with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under metatarsal heads is rated at 10 percent. Unilateral pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right ankle, shortened plantar fascia, and marked tenderness under the metatarsal heads is rated at 20 percent; bilateral pes cavus with the same symptomatology is rated at 30 percent. Unilateral pes cavus with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity is rated at 30 percent; bilateral pes cavus with the same symptomatology is rated at 50 percent. At the outset, the Veteran filed a claim for service connection for his bilateral foot disability in October 2007. Currently, the Veteran’s bilateral foot disability is rated 10 percent effective October 22, 2007; 30 percent effective October 2, 2009; and 50 percent effective May 11, 2018. 38 U.S.C. § 4.71a, Diagnostic Codes 5278. In 2007, the treatment records note that the Veteran has a small component of club feet bilaterally. See June 2009 Medical Treatment Record – Government Facility. The treatment records show that the Veteran’s bilateral foot disability progressively worsened. In 2009, the Veteran was noted to have severe foot deformity. Specifically, the Veteran’s forefoot deformity was noted to have metatarsus adductus with plantarflexed first metatarsal; and rearfoot deformity was noted to have rearfoot varus more on the left than the right. See April 2000 Medical Treatment Record – Government Facility. In 2011, the Veteran was noted to have significant callus buildup to the lateral aspects of the bilateral feet; bilateral fixed uncompensated rearfoot varus deformity with a cavovarus foot type; plantarflexed 1st metatarsal; metatarsophalangeal joint extension contractures 2-5, semi-reducible in nature; and hammertoe deformities 2-5 at the proximal and distal interphalangeal joints, semi-reducible in nature. See April 2009 Third Party Correspondence. An x-ray scan of the bilateral feet revealed a significant cavus foot deformity with accessory ossicles present, posterior talus, as well as inferior cuboid area on the lateral view. The Veteran was diagnosed with the following: painful cavovarus foot deformity secondary to uncompensated rearfoot varus; hallux abductovalgus; metatarsus adductus; metatarsophalangeal joint contractures; and hammertoe deformities. The physician stated that surgical intervention was not recommended as full correction was not possible for the Veteran. In 2012, the Veteran had multiple hyperkeratoses plantar aspect of the bilateral feet due to severe valgus formation and bursal formation or mild cystic formation at the 5th metatarsal base. See February 2014 Medical Treatment Record – Non-Government Facility. A review of the records shows that the Veteran was afforded VA examinations in February 2008, February 2014, and August 2018. In the February 2008 VA examination, the Veteran complained of bilateral foot pain in the lateral side of the foot when standing and walking. On examination, the examiner noted that there was objective evidence of tenderness on the outer side of the bilateral feet, callosities, unusual shoe wear pattern, and bilateral hallux valgus deformity. An x-ray scan of the bilateral feet revealed minor abnormality of bilateral hallux valgus deformity. See also January 2015 Medical Treatment Records – Furnished by SSA. The Board finds these findings are consistent with the treatment records. In the February 2014 VA examination, the examiner noted that the Veteran was negative for Morton’s neuroma, metatarsalgia, and hammer toe. However, the Veteran had mild to moderate symptoms of hallux valgus. The Veteran was also noted to have pes cavus with definite tenderness under metatarsal heads, shortened plantar fascia, and marked varus deformity in the bilateral foot. A July 2012 x-ray scan of the bilateral feet revealed major abnormality such as bilateral hallux valgus deformity; mild degenerative changes in the first MTP, midfoot, and ankle joints; and prominent left talar ridge that may predispose to ankle impingement. During the May 2018 hearing, the Veteran attested that he has hammer toes in all of his toes and painful callosities. The Veteran also stated that he would lose his balance and stability. The Veteran affirmed that he uses a cane and shoe prosthetics and wears inserts. The Veteran alleged worsening since his last VA examination. As such, the Veteran was afforded another VA examination. In the August 2018 VA examination, the examiner noted that the Veteran had hallux valgus and acquired pes cavus in the bilateral feet. The examiner noted that the Veteran was negative for Morton’s neuroma, metatarsalgia, but found hammer toe in the little toe of the left foot. The examiner determined that the Veteran had mild to moderate symptoms of hallux valgus condition. Like the February 2014 VA examination, the Veteran was noted to have pes cavus with definite tenderness under metatarsal heads, very painful callosities, shortened plantar fascia, and marked varus deformity in the bilateral feet. Prior to October 2, 2009 Based on the records, the Board finds that prior to October 2, 2009 the Veteran is not entitled to a rating in excess of 10 percent. The records show that the Veteran had objective evidence of tenderness on the outer side of the bilateral feet, callosities, and bilateral hallux valgus deformity. See December 2008 VA Examination. Even the x-ray scan of the bilateral feet revealed only minor abnormality of the bilateral hallux valgus deformity. See also January 2015 Medical Treatment Records – Furnished by SSA. As such, the Board finds that the Veteran is entitled to a 10 percent disabling rating. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent as the records do not show that the Veteran’s toes had limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads in either foot. As such, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent prior to October 2, 2009. From October 2, 2009 to February 14, 2011 The Board further finds that from October 2, 2009 to February 14, 2011, the Veteran’s bilateral foot deformity is consistent with a 30 percent disabling rating. In 2009, the Veteran was noted to have foot deformity. Specifically, the Veteran’s bilateral foot was noted to have abductovarus cavus foot rigidity. See January 2010 Medical Treatment Record – Government Facility. The Board finds that the Veteran is not entitled to a higher rating of 50 percent – the highest possible rating- as there was no evidence of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, or marked varus deformity. From February 14, 2011 The Board concludes, in the light most favorable to the Veteran, that a 50 percent disability rating is warranted for the bilateral foot disability under Diagnostic Code 5278 from February 14, 2011. After a review of all the evidence, the Board finds that the disability picture of the service-connected bilateral foot disability more nearly approximates the criteria for a 50 percent rating for pes cavus with very painful callosities and marked varus deformity under Diagnostic Code 5278. Specifically, on February 14, 2011, the Veteran was noted to have severe forefoot and rearfoot deformity; significant callus buildup; bilateral fixed uncompensated rearfoot varus deformity with a cavovarus foot type; plantarflexed 1st metatarsal; metatarsophalangeal joint extension contractures 2-5, semi-reducible in nature; and hammertoe deformities 2-5 at the proximal and distal interphalangeal joints, semi-reducible in nature. See April 2009 Third Party Correspondence and April 2000 Medical Treatment Record – Government Facility. In December 2011, the Veteran continued to exhibit severe varus deformity, pes cavus, metatarsophalangeal joint contractures 2 through 5, hammertoe deformities, and contracture proximal distal interphalangeal joints. See September 2012 Medical Treatment Record – Non-Government Facility. Despite these significant findings, surgical intervention was not recommended as it was determined that no surgical intervention can improve the Veteran’s condition as it is not a correctable disability. See November 2012 Third Party Correspondence. In 2012, the Veteran had severe cavus foot type such as a high arch. See September 2012 Medical Treatment Record – Non-Government Facility. In addition, the Board finds that there was no significant difference between the February 2014 and August 2018 VA examination. For instance, both examinations found the Veteran with mild to moderate symptoms of hallux valgus; tenderness under the metatarsal heads; shortened plantar fascia, and marked varus deformity in the bilateral feed. The only difference between the two examinations was that there was a hammer toe in the little toe of the left foot and very painful callosities in the August 2018 examination. However, the treatment records already noted that the Veteran has a history of significant callus buildup and pain. Based on the record, the Board finds that the Veteran is entitled to a rating of 50 percent – the highest possible rating - as of February 2011 for his bilateral foot disability as it more nearly approximates the criteria for a 50 percent rating for pes cavus with very painful callosities and marked varus deformity. 2. Entitlement to a TDIU due to service-connected disabilities is granted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes that the Veteran is service connected for bilateral foot disability rated at 10 percent, effective October 22, 2007 to October 2, 2009, and at 30 percent effective October 2, 2009 to February 14, 2011, and at 50 percent effective February 14, 2011. The Veteran is service connected for left knee osteoarthritis rated at 10 percent, effective October 22, 2007, and 30 percent, effective April 1, 2010. The Veteran is also service connected for gastroesophageal reflux disease (GERD) rated at 30 percent, effective July 14, 2009; left leg sciatic radiculopathy rated at 20 percent, effective May 11, 2018; left ankle sprain rated 10 percent, effective September 20, 2012; right ankle sprain rated 10 percent, effective September 20, 2012; low back disability rated at 10 percent, effective February 22, 2010; and bilateral hearing loss at a noncompensable rating effective October 22, 2007. The Veteran had a combined evaluation of 70 percent as of April 1, 2010. At the outset, the Board affords some probative value to the December 2009 Social Security Administration (SSA) decision wherein the SSA found the Veteran disabled. The SSA found that the Veteran did not engage in substantial gainful activity since March 2008. The SSA also determined that the Veteran’s past relevant work consisted of a mechanic and maintenance technician, both of which are heavy in exertional demands. The Veteran was also noted to have at least a high school education. The Board adopts these findings from the SSA. Upon review of the record, the Board finds that the preponderance of the evidence establishes that the Veteran’s service-connected disabilities do preclude the Veteran from securing or following a substantially gainful occupation. The records show that the Veteran is service-connected for a low back disability, bilateral foot disability, left knee disability, radiculopathy of the left leg, left ankle disability, right ankle disability, GERD, and bilateral hearing loss. Regarding the Veteran’s low back disability, the February 2011 and July 2018 VA examiners opined that the Veteran’s low back disability would cause problems with lifting and carrying heavy objects, climbing ladders or stairs, and sitting or standing for prolonged period of time. See February 2011 VA Examination and July 2018 C&P Exam. As for the Veteran’s bilateral foot disability, the February 2008, February 2014, and August 2018 VA examiners all opined that his bilateral foot disability has significant effects on the Veteran’s occupation as his bilateral foot disability would decrease mobility. Specifically, the February 2014 and August 2018 VA examiners stated that the Veteran would be unable to perform prolonged walking, standing, or driving but no restrictions as to sedentary work. Regarding the Veteran’s left knee disability and radiculopathy of the left leg, the June 2010 VA examiner opined that the Veteran’s left knee disability would decrease mobility and would cause problems with lifting and carrying due to weakness, fatigue, and decreased strength. See June 2010 VA Examination. The July 2018 examiner opined that the Veteran would have problems climbing stairs and ladders, walking on uneven ground, and standing for more than 15 minutes or sitting for prolonged time due to left knee pain. See July 2018 C&P Exam. As for the Veteran’s bilateral ankle disability, the November 2012 examiner opined that the ankle disability would not have any impact in the Veteran’s ability to work as the Veteran was retired. See November 2012 VA Examination. The July 2018 examiner opined that the Veteran would have problems climbing stairs or ladders, walking on uneven ground, and standing for a prolonged of time. See July 2018 C&P Exam. Regarding the Veteran’s GERD, the March 2010 examiner determined that there was no significant effect on the Veteran’s occupation. See March 2010 VA Examination. In support of his contention, the Veteran submitted a medical opinion from Dr. H. In August 2011, Dr. H. opined that as a result of the Veteran’s bilateral foot disability the Veteran is totally disabled and obviously unable to work. See February 2014 Medical Treatment Record – Non-Government Facility. Dr. H. reasoned that the Veteran’s bilateral foot disability caused considerable amount of abnormal gait and stress on the lower extremities which also placed a great deal of stress on the low back. Accordingly, Dr. H. opined that the Veteran was totally disabled and obviously unable to work. The Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s disabilities precludes the Veteran from engaging in substantially gainful activity. For instance, the Board notes that due to the Veteran’s low back disability and left knee disability he is unable to sit for prolonged period of time. See July 2018 C&P Exam records. However, due to the Veteran’s bilateral foot disability, he is unable to perform prolonged walking or standing. As such, the records indicate that the Veteran is unable to sit, walk, or stand for any extended period consistent with sedentary work. As such, in the light most favorable to the Veteran, the Board finds that the evidence of record is at least in equipoise that the Veteran’s service-connected disabilities would preclude him from securing or following a substantially gainful occupation. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel