Citation Nr: 18150582 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-48 747 DATE: November 15, 2018 ORDER Entitlement to a rating in excess of 10 percent for right hallux valgus, status post bunionectomy with arthritis of the great toe, is denied. Entitlement to a rating in excess of 10 percent for left hallux valgus, status post bunionectomy with arthritis of the great toe, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has been in receipt of the maximum schedular rating authorized under Diagnostic Code 5280 for right hallux valgus, status post bunionectomy with arthritis of the great toe; factors warranting extra-schedular consideration are not shown. 2. Throughout the appeal period, the Veteran has been in receipt of the maximum schedular rating authorized under Diagnostic Code 5280 for left hallux valgus, status post bunionectomy with arthritis of the great toe; factors warranting extra-schedular consideration are not shown. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a rating in excess of 10 percent for right hallux valgus, status post bunionectomy with arthritis of the great toe. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Codes 5003-5280 (2018). 2. There is no legal basis for the assignment of a rating in excess of 10 percent for left hallux valgus, status post bunionectomy with arthritis of the great toe. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Codes 5003-5280 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1974 to January 1977. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in March 2016. A transcript of the hearing is of record. The Board acknowledges that an August 2016 rating decision granted a temporary total evaluation of 100 percent for right hallux valgus from May 24, 2011 to November 30, 2011, with a 10 percent disability rating thereafter, and a temporary total evaluation of 100 percent for left hallux valgus from July 11, 2012 to August 31, 2012, with a 10 percent disability rating thereafter. The Board will, therefore, examine only that portion of the appeal period in which the Veteran was not receiving a temporary total rating for his right and left hallux valgus. 1. Entitlement to a rating in excess of 10 percent for right hallux valgus, status post bunionectomy with arthritis of the great toe. 2. Entitlement to a rating in excess of 10 percent for left hallux valgus, status post bunionectomy with arthritis of the great toe. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2018). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the claimant, as well as the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2 (2018); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where reasonable doubt arises as to the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3 (2018). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2018). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2018). Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). With diseases, preference is to be given to the number rating code assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2018). The Veteran’s bilateral hallux valgus with degenerative changes is evaluated under such a hyphenated code. The rating code for traumatic arthritis is listed first, Diagnostic Code 5010, followed by a hyphen and then the rating code for unilateral hallux valgus, Diagnostic Code 5280. Diagnostic Code 5010 rates traumatic arthritis and indicates that traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis is rated under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For the purpose of rating disability from arthritis, multiple involvement of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints. 38 C.F.R. § 4.45(f) (2018). Under Diagnostic Code 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. Throughout the rating period, the Veteran’s service-connected hallux valgus has been rated as 10 percent disabling for each extremity, the maximum allowable evaluation under Diagnostic Code 5280. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2018). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2018). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2018). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2018); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In his May 2010 increased rating claim, the Veteran asserted his bilateral hallux valgus was more severe than his 10 percent ratings reflected. Specifically, he described swelling, pain which caused a limp, and surgeries to correct his left and right foot bunions. At his March 2016 DRO hearing, he testified as to bilateral foot pain and swelling, issues with balance, trouble with ambulation, and inability to walk for an extended amount of time. A June 2010 VA examination report noted the Veteran’s complaints of pain in both feet localized at the bunion area, weakness, stiffness, swelling, and no fatigue while at rest. The Veteran also reported past bunionectomies for both feet and use of over the counter medication for pain management. The examiner noted a superficial bunionectomy scar on both of the Veteran’s feet which measured 5cm. by 0.3cm. The Veteran had normal gait with no sign of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. The examiner noted the Veteran did not usually require the use of an ambulation aid but was using one as a post-operative aid. X-rays of the right foot were normal and reflected changes involving the bunionectomy. X-rays of the left foot were abnormal and reflected degenerative changes involving the great toe and the hallux valgus deformity as well as a severe degenerative change about the first metatarsal phalangeal joint with no acute deformity. The examiner diagnosed bilateral hallux valgus post bunionectomy. The examiner reported the absence of Morton’s neuroma, metatarsalgia, hammer toes, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, and other foot injuries. An October 2015 VA examination report reflects the Veteran’s complaints of bilateral pain on the plantar surface of his feet, pain in the bilateral big toe area, flare-ups leaving the Veteran unable to walk, and bilateral swelling. The examiner found bilateral pain on weight-bearing, bilateral deformity, right foot swelling, bilateral instability, and bilateral lack of endurance. Functional loss was described as pain on weight bearing, lack of endurance, and painful bunionectomy scars. The examiner noted the use of bilateral arch supports, and found the Veteran’s bilateral hallux valgus symptoms to be mild or moderate. The examiner reported the absence of Morton’s neuroma, metatarsalgia, hammer toes, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, and other foot injuries. At a November 2016 VA examination, the examiner noted degenerative arthritis of both feet. The Veteran reported sharp and throbbing foot pain bilaterally, bilateral discoloration, bilateral tingling, lack of endurance, and trouble with ambulation. The examiner noted bilateral pain on movement, pain on weight bearing, pain on non-weight bearing, swelling, deformity, disturbance of locomotion, and interference with standing. Functional loss was noted as the inability to stand, walk, or use the bilateral foot continuously for more than one to two hours. The examiner noted the Veteran’s bilateral hallux valgus symptoms to be mild or moderate. The examiner reported the absence of Morton’s neuroma, metatarsalgia, hammer toes, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, and other foot injuries. Medical treatment records reflect treatment for the hallux valgus of each of the Veteran’s extremities as well as his reports of similar symptoms as described by examination records. As noted above, a 10 percent rating is the maximum rating possible under Diagnostic Code 5280, and a higher rating is therefore not possible under that Diagnostic Code. The Board considered whether a greater disability rating, higher than 10 percent, would be appropriate under alternative diagnostic code provisions. However, the claims file does not demonstrate a diagnosis of, or treatment for, other disorders of the feet, to include Diagnostic Code 5277 (bilateral weak foot), Diagnostic Code 5278 (acquired claw foot), Diagnostic Code 5279 (anterior metatarsalgia), Diagnostic Code 5281 (unilateral, severe hallux rigidis), Diagnostic Code 5282 (hammer toe), Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). The only other rating code that might potentially be applicable would be Diagnostic Code 5284, for foot injuries, other. However, as a matter of law, Diagnostic Code 5284 does not apply to the eight foot conditions specifically listed in § 4.71a. Thus, rating listed conditions under that Diagnostic Code would constitute an impermissible rating by analogy here. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Moreover, the plain meaning of the word “injury” limits the application of Diagnostic Code 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). The Board has also considered any resultant scars from the Veteran’s bunionectomy in determining the propriety of an increased rating. However, the Board notes the Veteran is already service-connected for surgical scars, status post-bunionectomy, of the great toes. The Board had also considered whether an extraschedular rating is warranted for the service-connected left and right hallux valgus, status post bunionectomy with arthritis of the great toe, for any part of the appeal period. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, No. 15-2818 (Vet. App. March 6, 2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran’s hallux valgus of each extremity is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including DC 5280, specifically provide for disability ratings based on moderate, moderately severe and severe foot injuries, including as due to pain and other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors, which are incorporated into the schedular rating criteria. Interference with ambulation is considered as part of the schedular rating criteria under 38 C.F.R. § 4.45, which contemplates disturbance of locomotion, instability of station, and interference with weight-bearing because prolonged walking necessarily involves weight bearing. See Schafrath, 1 Vet. App. at 592 (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca, 8 Vet. App. at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss). In this case, for the entire rating period on appeal, considering the lay and medical evidence, the Veteran’s hallux valgus of each extremity was manifested by symptoms and impairment that more nearly approximates mild to moderate foot injury due to such symptoms as bilateral foot pain, swelling, tenderness, and functional impairment of limited walking. To the extent that the Veteran’s hallux valgus of each extremity caused pain, such pain is considered as part of the schedular rating assigned under DC 5280, to include as due to pain and other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59, which are incorporated into the schedular rating criteria. Additionally, functional limitation with respect to ambulation as due to pain is contemplated as one of the orthopedic factors. Id. Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria, and as described above, the Board has also considered whether alternate ratings are warranted based on other disabilities of the feet. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5284. The Veteran has not asserted that he experiences additional symptoms resulting from the combined effects of his service-connected disabilities which are not contemplated by the respective schedular evaluations. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effects of multiple conditions. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). For these reasons, the Board finds that the schedular rating criteria are adequate to rate the service-connected hallux valgus of each extremity and that referral for consideration of an extraschedular evaluation is not warranted. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. With respect to the Veteran’s hallux valgus of each extremity, there was no indication by any examiner, or the Veteran, that he is unemployable due to his hallux valgus of each extremity. Consequently, the Board concludes a claim for a TDIU has not been raised. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for a higher rating, that doctrine is not applicable in the instant appeal as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, entitlement to a rating in excess of 10 percent for right hallux valgus, status post bunionectomy with arthritis of the great toe, and entitlement to a rating in excess of 10 percent for left hallux valgus, status post bunionectomy with arthritis of the great toe, is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel