Citation Nr: 18152074 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-36 856 DATE: November 20, 2018 ORDER Entitlement to an initial compensable rating for hallux valgus and limitus of the left foot (left foot disability) is denied. Entitlement to an initial 10 percent rating, but no higher, for a right foot scar is granted. FINDINGS OF FACT 1. Left hallux valgus is manifested by complaints of foot pain and foot swelling without severe impairment of the left foot or resection of the metatarsal head. 2. The Veteran’s right foot scar is painful, stable, superficial, does not cause limited motion, and is less than 39 square centimeters (sq. cm). CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for the service-connected left foot disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5280. 2. The criteria for an initial 10 percent rating, but no higher, for the service-connected right foot scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to August 2011, including four tours of duty in Iraq. The Veteran has been awarded a Combat Action Badge among other commendations. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) 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. 1. Left foot disability The Veteran is service connected for left foot hallux valgus (deviation of the great toe, also called a bunion) and hallux limitus (stiffness of the great toe), but the disability has been rated as non-compensable. The Veteran is also service connected for bilateral pes planus (flat feet), which has received a separate rating of 30 percent and is not the subject of this appeal. The Veteran’s left foot disability is evaluated under Diagnostic Code 5280 (hallux valgus, unilateral). Unilateral hallux valgus when operated with resection of the metatarsal head, or if the hallux valgus is severe and equivalent to amputation of the great toe, warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, such as Diagnostic Code 5280, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran has never had any operation on his left great toe. Thus, there is no evidence nor does the Veteran contend that he has undergone an operation whereby the metatarsal head of the left great toe has been resected. The Board finds that the Veteran’s hallux valgus on the left foot is not shown to meet that part of the criteria for a 10 percent rating under Diagnostic Code 5280. The evidence is also against a finding that the disability is so severe that the disability picture is equivalent to amputation of the great toe. In a July 2011 VA examination, the Veteran mainly complained of pain in his feet and the report encompasses both the pes planus and the hallux valgus. He rated the left foot hallux valgus pain between 2 to 5 out of 10. The left foot great toe had a 15- degree valgus deviation. There were no other painful areas in the fore foot, hind foot, or with Achilles tendon manipulation. The Veteran could stand on his toes and heels and performed a tandem gait. The examiner found no calluses or deformities and the neurological examination was normal. The diagnosis was left foot hallux valgus and limitus. In February and March 2013, the Veteran reported bilateral foot pain and his work required him to be on his feet 18 hours a day. In May 2013, a VA Podiatrist evaluated the Veteran, noting he wore work boots while working in the oil fields. The Veteran complained of pain not only in his arch but also on the top of the first metatarsal phalangeal joint. The range of motion for both the foot and the ankle joints were intact and there were no signs of muscle wear or loss of sensation. A computed tomography scan did not demonstrate any arthrosis or coalition. Regarding the left foot disability, the examiner diagnosed hallux valgus of the left foot with pain in the metatarsal head. In an August 2014 VA examination, the Veteran reported that he is currently working full time as a rough neck on an oil well rig in Western North Dakota. The VA examiner diagnosed mild or moderate bilateral hallux valgus. The Veteran felt it inhibited participation in sports and his activities at work. It resulted in recurring pain and swelling. It was aggravated by prolonged standing, crouching, and going up and down ladders or stairs. He could stand a maximum of 6 hours and walk for two to three hours. There had not been any hospitalizations or true episodes of incapacitation in the prior year. The Veteran had a smooth and symmetric gait without limp or antalgic reaction. The VA examiner noted the Veteran verbally complained of left foot pain but there was no reactivity or functional limitation in standing or walking. He could toe walk and heel wall as well as walk on the lateral aspects of both feet. The VA examiner noted no objective evidence of excess fatigability, loss of coordination, or any further loss of function with repetition of toe standing. The Board notes that besides hallux valgus, the VA examiner diagnosed bilateral pes planus, which as noted is already service connected, and asymptomatic pes cavus. The Veteran described pain and swelling which became worse with prolonged standing or long walking. He was able to remain independent and perform activities of daily living (such as driving and shopping) and work in the oil fields in what appears to be a demanding job. He could stand for 6 hours and/or walk for up to three hours. On physical examination, the Veteran walked normally without impairment, limp, or signs of antalgia. The VA examiner reported there was no evidence of painful motion, edema, instability, or weakness of the great toe. Overall, the VA examination reports and treatment records show mild, or at worst, moderate bilateral hallux valgus with pain and stiffness. This does not satisfy the requirement of being severe and equivalent to amputation of the great toe as required for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5280. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In this regard, the Veteran has reported he has pain and swelling, especially with his job in the oil fields. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. The Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. Thus, the Board finds the findings and opinions of the VA examiners and clinicians to be significantly more probative than the Veteran’s lay assertions as it relates to the severity of this disability. For the foregoing reasons, the Board concludes the criteria for a compensable rating under Diagnostic Code 5280 for the left foot disability have not been met at any time during the appeal period. Rating under another diagnostic code would not be appropriate. 2. Right foot scar The Veteran’s right foot scar is evaluated under Diagnostic Code 7805. Relevant to this claim scars are covered under Diagnostic Codes 7801 to 7805 (Diagnostic Code 7800 concerns of the head, face, or neck). 38 C.F.R. § 4.118. Initially, the Board notes the Schedule of ratings–skin was revised by a final rule during the appeal period, effective August 13, 2018. 83 Fed. Reg. 32,592-97 (July 13, 2018), as corrected at 83 Fed. Reg. 38663 (Aug. 7, 2018). As VA’s General Counsel held in a precedent opinion that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects, the Board will consider both the old and new regulations since August 13, 2018. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). When looking at the old and new regulations, ultimately a compensable rating can be awarded with evidence of: a scar associated with underlying soft tissue damage that measures at least 6 square inches (39 sq. cm.), a scar that is deep or causes limited motion in an area exceeding 6 square inches (39 sq. cm.), a scar not associated with underlying soft tissue damage or limitation of motion that measures 144 square inches (929 sq. cm.) or greater, a scar that is unstable or painful, or other disabling affects such that a rating could be assigned under a diagnostic code other than the ones relevant to scars (e.g., limitation of motion of a body part caused by the scar). 38 C.F.R. § 4.118 (2017 & 2018). In an August 2014 VA examination, the examiner noted the right foot scar had healed well. There was no scar tissue breakdown or limitation, no pain, and no instability. The scar was 9 cm in length by .3 cm in width (2.7 square cm) and had a linear, flat appearance. It was non-tender, non-keloid, and not adherent. The hypopigmented scar extended from the dorsal area of the foot to the first metatarsal region. There was no evidence of erythema, induration, exudation, ulceration or skin breakdown. The scar had no effect on joint or muscle functioning. While the scar was not painful on VA examination, in his October 2014 VA Form 9 the Veteran reported that the scar does in fact become painful when he works and that the scar may appear normal on examination when it has not been irritated for a day or two, the swelling has gone down, and he has had asprin. The Board finds the Veteran’s statements about the right foot scar being painful to be credible. Thus, a 10 percent rating is warranted under Diagnostic Code 7804. 38 C.F.R. § 4.118. This award requires that the diagnostic code used to rate the Veteran’s disability be changed to more accurately reflect the extent of his disability. (Continued on the next page) A rating in excess of 10 percent is not warranted at any point for the right foot scar. The Veteran has a single scar that is not unstable and does not meet the area requirements for a higher rating. See 38 C.F.R. § 4.118. Moreover, the scar is not shown to cause limitation of motion or any other disabling effects such that rating under a diagnostic code other than those relevant to scars would be appropriate. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel