Citation Nr: 1820902 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 14-26 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left foot metarsophalangeal (MTP) joint narrowing, status-post bunionectomy. 2. Entitlement to an initial rating in excess of 10 percent for right foot MTP joint narrowing, status-post bunionectomy. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1993 to December 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2016, the Veteran provided a statement, wherein he indicated he wished to withdraw his previous request for a hearing before the Board. As such, the prior request for a hearing is deemed withdrawn. In October 2016, the Board granted the claim of entitlement to an initial compensable rating for surgical scars, status-post bunionectomies, and assigned a 10 percent rating. The Board determined that the issue of entitlement to TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the ratings and TDIU claims were remanded to the agency of original jurisdiction for further development. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left foot MTP joint narrowing, status-post bunionectomy, has been manifested by pain and hammer toes. 2. Throughout the appeal period, the Veteran's right foot MTP joint narrowing, status-post bunionectomy, has been manifested by pain and hammer toes. 3. The Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left foot MTP joint narrowing, status-post bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280, 5282 (2017). 2. The criteria for an initial rating in excess of 10 percent for right foot MTP joint narrowing, status-post bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280, 5282 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating The Veteran claims entitlement to ratings in excess of 10 percent for his left and right foot disabilities due to pain and loss of muscle control. See November 2013 Notice of Disagreement. 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; 38 C.F.R. § 4.1. 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. 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 Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran is seeking higher disability ratings for his left and right foot MTP joint narrowing, status-post bunionectomy disabilities, each currently assigned a 10 percent initial rating under 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017). Under Diagnostic Code 5280 a 10 percent evaluation is warranted for unilateral hallux valgus when such is severe, equivalent to amputation of the great toe, or when an operation to resection the metatarsal head has been performed. See 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2015). Hallux valgus is angulation of the great toe away from the midline of the body (toward the other toes) and can be caused by bunions. Verdon v. Brown, 8 Vet. App. 529, 530 (1996); Weggenmann v. Brown, 5 Vet. App. 281, 283 (1993). The major findings in hallux valgus (bunion) are pain or discomfort in the first metatarsophalangeal joint (the joint at the base of the great toe) or under the ball of the foot, deformity at that joint, and sometimes redness and swelling. 68 Fed. Reg. 7020 (February 11, 2003). Service treatment records document reports of and treatment for Chevron bunionectomies of both feet and pain. In October 1995 the Veteran underwent a procedure to remove surgical hardware. Post-service October 2011 private x-rays of the feet show degenerative spurs involving first MTP joints, but no fractures or dislocations. For the left foot, a diagnosis of status-post bunionectomy, otherwise unremarkable examination, was provided. For the right foot, a diagnosis of resection of medical distal MTP, otherwise unremarkable examination, was provided. There was evidence of pain with weight-bearing and with range of motion. In October 2011 private treatment records, a physician opined that the Veteran could lift and carry 20 pounds occasionally, 10 pounds frequently, stand for 2 hours and sit for 6 hours in an 8-hour workday. The examiner also opined that the Veteran would have postural limitations based on ankle, hip, foot, and toe disabilities. The Veteran was afforded a VA examination in May 2013. A diagnosis of bilateral status-post bunionectomy with MTP narrowing and scars was provided. There was no evidence of Morton's disease, hammer toe, hallux valgus, hallux rigidus, pes cavus (claw foot), malunion or nonunion, foot injuries, or bilateral weak foot. Scars were noted. As for functional impact, the examiner opined that the Veteran's foot conditions cause limitations with walking. No other limitations were found. The Veteran was afforded a VA examination in April 2017. A review of the claims file was noted and in-person examination conducted. A diagnosis of bilateral pes planus with MTP joint narrowing, status-post bunionectomies, was provided. The Veteran complained of bilateral foot pain on use, but no flare-ups, tenderness, or swelling. There was evidence of decreased longitudinal arch height of the left and right foot on weight-bearing. Hammer toe affected both left and right foot. It was noted that the Veteran previously had A March 1995 bilateral Chevron bunionectomy for hallux valgus, but there were no current symptoms due to hallux valgus, recurrence of bunions, or failed bunionectomies. The examiner referenced x-rays showing narrowing of first MTPs likely the result of bunionectomies, as there is no evidence of tenderness. As for range of motion, the Veteran reported that his first MTPs were stiff and that his feet hurt with prolonged standing and walking. The examiner could not provide an opinion about additional functional loss due to pain on use without resorting to speculation. The examiner acknowledged the Veteran's subjective complaints of functional limitation, however, the examiner found no significant functional impairment. Notably, the examiner described the Veteran's bilateral foot condition as mild pes planus that is neither chronic nor disabling. Scars were noted. As for functional impact, the Veteran reported that he was recently laid off from two management jobs due to foot pain, but he is currently working part-time, 5 hours per week, at a corner store. The examiner opined that the Veteran could perform a job that did not require prolonged standing, walking, or climbing. The examiner emphasized that the limitations provided were based solely on the Veteran's subjective complaints as there is no objective evidence of a significant disability resulting from the his bunionectomies. Based on the above, the Veteran's left and right foot MTP joint narrowing, status-post bunionectomy have been manifested by pain and hammer toes. Notably, the Veteran is currently in receipt of the highest rating under Diagnostic Code 5280 for hallux valgus, 10 percent. As such, the Board has considered whether an alternative diagnostic code would afford the Veteran higher ratings for his foot disabilities. The claims file contains evidence of hammer toes, however, the maximum rating available under Diagnostic Code 5282 is also 10 percent, which the Veteran is already in receipt of for his disabilities. See April 2017 VA Examination Report. Diagnostic Code 5276 provides rating criteria for acquired flatfoot. A 10 percent rating is assigned to flatfoot with moderate symptoms, such as weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, and pain on manipulation and use. A 20 percent rating is assigned to unilateral flatfoot with severe symptoms, such as objective evidence of marked deformity, pain on manipulation and use of accentuated, or indication of swelling on use, characteristic callosities. A 30 percent rating is assigned to bilateral flatfoot with severe symptoms. Here, the applicability of Diagnostic Code 5276 does not provide the Veteran with a rating in excess of 10 percent. Notably, on April 2017 examination, the examiner described symptoms associated with bilateral pes planus as mild. Although the Veteran complained of pain on use, there was no evidence of severe symptoms such as marked deformity, swelling, or characteristic callosities. See also May 2013 VA Examination Report. As such, the Veteran's symptoms are mild to moderate and akin to the 10 percent rating criteria under Diagnostic Code 5276. Thus, this diagnostic code does not afford the Veteran higher ratings for his foot disabilities. Diagnostic Code 5284 provides a 20 percent rating for moderately severe foot injuries; however, there is no evidence of such injury. Notably, the Veteran's foot disabilities have been described as mild. See April 2017 VA Examination Report. Further, a higher rating is not warranted under Diagnostic Codes 5278 and 5283 as there is no evidence of claw foot, malunion, or nonunion. See May 2013 VA Examination Report. As for scars, as indicated in the introduction, the Veteran is already in receipt of a separate disability rating for scars related to his bunionectomy. See October 2016 Board Decision. As appeal of the rating assigned to this disability was decided in a prior Board decision, it is not currently before the Board and further discussion is unwarranted. For the foregoing reasons, the preponderance of the evidence is against assignment of initial ratings in excess of 10 percent for the Veteran's left and right foot MTP joint narrowing, status-post bunionectomy disabilities, and the appeal as to higher ratings must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. III. TDIU The Veteran contends that he is unable to work due to his left and right foot MTP join narrowing, status-post bunionectomy, disabilities. See November 2013 Notice of Disagreement. He claims that as a result of his bilateral foot manifestations he "gave up trying to find work," because he kept losing jobs. Id. A "schedular" TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). The Veteran has three service-connected disabilities: left foot MTP joint narrowing, status-post bunionectomy, rated 10 percent disabling; right foot MTP joint narrowing, status-post bunionectomy, rated 10 percent disabling; and surgical scars status-post bunionectomy, rated 10 percent disabling. His combined evaluation is 30 percent, as of August 13, 2012. Thus, he does not meet the percentage requirements of 4.16(a). 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16(b). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In determining the severity of impairment, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. As discussed above, on April 2017 examination, the Veteran reported that he was recently laid off from two management jobs due to foot pain but that he is currently working part-time, 5 hours per week, at a corner store. The claims file contains an unfavorable SSA determination based on diagnosis of status-post left ankle fracture, a non-service connected disability. The Veteran contends that he is unable to work due to his left and right foot MTP joint narrowing, status-post bunionectomy, disabilities. See November 2013 Notice of Disagreement In October 2016, the Veteran was sent a VA Form 21-8940 application for increased compensation because on unemployability. To date, he has not completed and returned the form. An incomplete VA Form 28-1900 application for vocational rehabilitation, dated March 2017, is also associated with the claims file. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected left and right foot MTP joint narrowing, status-post bunionectomy disabilities do not render him unable to secure and follow a substantially gainful occupation. The most probative evidence of record, the April 2017 VA Examination Report, does not demonstrate that the Veteran's service-connected disabilities would preclude him from being able to engage in substantially gainful employment. Similarly, the record does not show that his scar residuals (evaluated as 10 percent) acting alone or in conjunction with his foot disabilities render him unable to secure or follow a substantially gainful occupation. There are no contradictory opinions of record. Notably, the October 2011 private physician opinion is consistent with the April 2017 VA examiner's opinion, however, it considered both service and nonservice-connected disabilities. However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner"). The Board's decision rests on all of the relevant and probative evidence. In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected foot disabilities. However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with each of his service-connected disabilities. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned. The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. Entitlement to TDIU is thus not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. ORDER Entitlement to an initial rating in excess of 10 percent for left foot MTP joint narrowing, status-post bunionectomy, is denied. Entitlement to an initial rating in excess of 10 percent for right foot MTP joint narrowing, status-post bunionectomy, is denied. Entitlement to a TDIU is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs