Citation Nr: 18152421 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 13-12 279 DATE: November 21, 2018 ORDER An initial rating in excess of 10 percent for left foot arthritis with hammertoe of the second toe is denied. An initial rating in excess of 10 percent right foot arthritis is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s left foot arthritis with hammertoe of the second toe is manifested by painful and limited motion, tenderness, swelling, and hammertoes of the second and third toes, resulting in no more than a moderate foot injury. 2. For the entire appeal period, the Veteran’s right foot arthritis is manifested by painful and limited motion, tenderness, swelling, and hammertoes of the second, third, and fourth toes, resulting in no more than a moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left foot arthritis with hammertoe of the second toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282-5003. 2. The criteria for an initial rating in excess of 10 percent for right foot arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5282-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2017, the case was remanded for additional development and it now returns for further appellate review. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran is service-connected for left foot arthritis with hammertoe of the second toe, evaluated as 10 percent disabling under Diagnostic Code 5282-5003, and right foot arthritis, evaluated as 10 percent disabling under Diagnostic Code 5282-5284, effective September 28, 2011. 38 C.F.R. § 4.71a. He contends that his left and right foot disabilities are more severe than as reflected by the currently assigned ratings. Therefore, he alleges that higher initial ratings are warranted. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. Pursuant to Diagnostic Code 5282, a noncompensable rating is warranted where there are hammertoes of single toes, and a maximum 10 percent rating is warranted when there is hammer toe, without claw foot, of all toes unilaterally. Pursuant to Diagnostic Code 5284, a 10 percent rating is assigned for a moderate foot injury; a 20 percent rating is assigned for a moderately severe foot injury; a 30 percent rating is assigned for a severe foot injury; and a 40 percent rating is assigned where there is actual loss of use of the foot. Descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. At an April 2012 VA examination, the Veteran complained of occasional pain at the metatarsophalangeal (MTP) joint of his left second toe with no consistent trigger. The examiner noted the Veteran’s diagnosis of hammertoe of the left second toe and arthritis of the bilateral feet, with tenderness to palpation of the MTP joint of the bilateral second toes. Additionally, diagnoses of metatarsalgia and hallux valgus on X-ray of the bilateral feet was noted. However, there was no evidence of Morton’s neuroma, hammertoes of any digits other than the left second toe, hallux rigidus, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, or weak foot. The examiner further indicated that the Veteran had a moderate foot injury affecting his bilateral feet. Furthermore, he opined that neither of the Veteran’s foot disabilities impacted his ability to work. The April 2012 VA examiner further indicated that the Veteran’s bilateral hallux valgus was not secondary to his military service as he did not have any significant trauma to his bilateral great toes while on active duty. In this regard, he observed that hallux valgus deformities were most often genetic or related to long-term ill-fitting footwear. The examiner also observed that, while the Veteran had a pre-existing left great toe condition, which required surgery at age 13, such was not exacerbated beyond the natural progression during his military service. At an April 2016 VA examination, the examiner noted diagnoses of arthritis of the bilateral feet and hammer toes of the left foot, as well as pes planus, metatarsalgia, hallux valgus, and hallux rigidus of the right foot. At such time, the Veteran complained of bilateral forefoot pain, right worse than left. He denied ankle, hindfoot, or midfoot pain as well as numbness or tingling. The examiner noted that the Veteran experienced flare-ups as a result of increased activity, to include walking prolonged distances or standing on hard surfaces. He also had pain when kneeling in which he hyperextends his MTPs. There was no evidence of Morton’s neuroma, hammertoes of any digits other than the right and left second toes and left third toe, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, or weak foot. With respect to the Veteran’s hammertoes, the examiner noted that the diagnosis of lesser toe deformities were more consistent with claw toe rather than hammertoe. There was a characteristic callus on the dorsal surface of the left second interphalangeal joint. The examiner further found that the Veteran had a mild foot injury affecting his bilateral feet manifested by pain, swelling, less movement than normal, disturbance of locomotion, and interference with standing. However, there was no additional functional loss during flare-ups or on repetitive use. Such did not compromise weight bearing, and did not require arch supports, custom orthotic inserts, or shoe modifications. He noted that there was no tenderness within the midfoot and no pain with passive range of motion of the midfoot or stress of the midfoot. The examiner also noted the presence of bilateral tendo Achilles tightness without change in ankle dorsiflexion with knee flexion or extension. Finally, he found that the Veteran’s bilateral foot disability resulted in difficulty with prolonged standing or walking. At his June 2017 Board hearing, the Veteran testified that his bilateral foot disability resulted in consistent throbbing/aching pain. He indicated that he was unable to put any weight onto his right foot approximately five or six times a year, experienced frequent and severe tenderness on the second toe of the right foot, used custom orthotic inserts, occasionally walked with a limp, and had pain in his second toe on his right foot even when walking on soft surfaces. He further reported that his bilateral foot disorder impacted his daily life, to include the maintenance of a rental property he owned, as he was not able to climb up and down ladders or carry any type of heavy objects. At a November 2017 VA examination, the examiner noted that the Veteran had been diagnosed with left hammertoes, bilateral hallux valgus, and arthritis of the bilateral feet as noted on prior examinations. At such time, the Veteran complained of increased pain in both feet, which was aggravated by motion, and flare-ups that limited walking and standing. Upon examination, the Veteran had pain of the bilateral feet resulting in pain on weight bearing, disturbance of locomotion, and interference with standing. In regard to Correia, supra, the examiner noted that there was pain reported during passive range of motion testing and non-weight bearing motion. Additionally, a diagnosis of metatarsalgia was noted. However, there was no evidence of Morton’s neuroma, hammertoes of any digits other than the left second and third toes and right third and fourth toes, hallux valgus, hallux rigidus, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, or foot injuries. The examiner found that the Veteran’s bilateral foot disability resulted in limited prolonged walking and standing. The November 2017 VA examiner also indicated that there was no evidence that the Veteran had hallux rigidus, and opined, as relevant, that it was less likely as not that his pes planus, metatarsalgia, and hallux valgus are related to his military service or caused or aggravated by his service-connected bilateral foot arthritis. In this regard, he noted that the Veteran’s service treatment records reflected that his bilateral feet were normal upon clinical evaluation at the time of his separation examination in October 1973 and there was no evidence of chronicity of such foot disorders. In this regard, he indicated that there was no evidence that he sustained any toe dislocation or significant foot injury during service, to include in October 1972 during a hard landing. Moreover, he noted that the Veteran’s arthritis of the bilateral feet, described as mild degenerative changes, is not a well-recognized cause of bilateral flat feet, hammertoes, hallux valgus, or metatarsalgia. Upon a review of the VA treatment record dated throughout the appeal period, such do not show any additional findings or manifestations related to the Veteran’s bilateral foot disabilities. Rather, such only show treatment for his diabetes, which includes routine diabetic foot care examinations and a prescription for diabetic shoes; however, such are consistent with the aforementioned findings rendered at the three VA examinations conducted during the course of the appeal. The Board notes that, in his October 2018 Informal Hearing Presentation, the Veteran’s representative requested that the Board obtain an opinion from an independent medical expert (IME) as the November 2017 VA examiner’s opinion that the Veteran’s arthritis is not a well-recognized cause of his hallux valgus or metatarsalgia is inadequate. 38 U.S.C. § 7109; 38 C.F.R. § 20.901(d) (when additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more independent medical experts who are not employed by VA). In this regard, he argued that that both arthritis and metatarsalgia cause pain in the ball of the foot and cited to treatise articles in support of such argument. However, the Board finds an opinion from an IME is not necessary. In this regard, the medical questions presented in the instant appeal are not so complex or controversial so as to require such an opinion. Specifically, the mere fact that both a service-connected and nonservice-connected disorder cause pain in the same anatomical location does not suggest that one disorder causes the other. Furthermore, the Veteran’s representative has provided no evidence showing that the VA examiner is not competent or qualified to offer such an opinion. Accordingly, the Board finds that an opinion from an IME is not necessary to decide the claims. 1. Entitlement to an initial rating in excess of 10 percent for left foot arthritis with hammertoe of the second toe. Upon a review of the record, the Board finds that, for the entire appeal period, the Veteran’s left foot arthritis with hammertoe of the second toe is manifested by painful and limited motion, tenderness, swelling, and hammertoes of the second and third toes, resulting in no more than a moderate foot injury. Consequently, an initial rating in excess of 10 percent for such disability under Diagnostic Code 5282-5003 is not warranted. In this regard, the Veteran has already been assigned a minimum compensable rating for his arthritis with painful and limited motion pursuant to Diagnostic Code 5003. Moreover, as such disability results in, at most, two hammertoes, a higher or separate rating under Diagnostic Code 5282 is not warranted. In this regard, a 10 percent rating under such Diagnostic Code requires that all toes of one foot must be hammertoes. Furthermore, the record reflects that such disability results in, at most, a moderate foot injury, which is consistent with a 10 percent rating under Diagnostic Code 5284. However, assigning a separate rating under such Diagnostic Code is tantamount to pyramiding. In this regard, the totality of the Veteran’s manifestations of his left foot disability, to include the resulting functional impairment in difficulty with prolonged standing or walking, are contemplated by his currently assigned rating under Diagnostic Code 5282-5003. Therefore, a higher or separate rating under Diagnostic Code 5284 is not warranted. 38 C.F.R. § 4.14; Esteban, supra. 2. Entitlement to an initial rating in excess of 10 percent for right foot arthritis. Upon a review of the record, the Board finds that, for the entire appeal period, the Veteran’s right foot arthritis is manifested by painful and limited motion, tenderness, swelling, and hammertoes of the second, third, and fourth toes, resulting in no more than a moderate foot injury. Consequently, an initial rating in excess of 10 percent for such disability under Diagnostic Code 5282-5284 is not warranted. In this regard, as the Veteran’s right foot disability results in, at most, three hammertoes, a higher or separate rating under Diagnostic Code 5282 is not warranted. In this regard, a 10 percent rating under such Diagnostic Code requires that all toes of one foot must be hammertoes. Furthermore, the record reflects that such disability results in, at most, a moderate foot injury, which is consistent with the currently assigned 10 percent rating under Diagnostic Code 5284. Furthermore, in light of the Veteran’s diagnosis of right foot arthritis, the Board has also considered whether a higher or separate rating is warranted under Diagnostic Code 5003. However, assigning a separate rating under such Diagnostic Code is tantamount to pyramiding. In this regard, the totality of the Veteran’s manifestations of his right foot disability, to include his painful and limited motion resulting functional impairment in difficulty with prolonged standing or walking, are contemplated by his currently assigned rating under Diagnostic Code 5282-5284. Therefore, a higher or separate rating under Diagnostic Code 5003 is not warranted. 38 C.F.R. § 4.14; Esteban, supra. 3. Other Considerations The Board has also considered whether higher or separate ratings are warranted under any other potentially applicable Diagnostic Code. In this regard, while the evidence shows that the Veteran has pes planus, metatarsalgia, and hallux valgus, the April 2012 and November 2017 VA examiners found that such were not related to his military service or service-connected bilateral foot disabilities. Therefore, higher or separate ratings under Diagnostic Codes 5276, 5279, and 5280, respectively, are not warranted. Moreover, while the Veteran was noted to have hallux rigidus at the April 2016 VA examination, the November 2017 VA examiner specifically found that such was not present. Consequently, a higher or separate rating under Diagnostic Code 5281 is not warranted. Furthermore, at no point pertinent to the appeal period has the Veteran been diagnosed with weak foot, pes cavus (claw foot), or malunion or nonunion of tarsal or metatarsal bones. Therefore, higher or separate ratings under Diagnostic Codes 5277, 5278, and 5283, respectively, are not warranted. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his bilateral foot symptoms are more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected bilateral foot disabilities; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disabilities is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board finds that initial ratings in excess of 10 percent for the Veteran’s bilateral foot disabilities is not warranted. In reaching such determination, the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against his initial rating claims, such is not applicable and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel