Citation Nr: 1825645 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-31 054A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) as secondary to service-connected bilateral foot disability. 2. Entitlement to service connection for bilateral hip degenerative joint disease (DJD) as secondary to service-connected bilateral foot disability. 3. Entitlement to service connection for a bilateral leg condition as secondary to service-connected bilateral foot disability. 4. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, including as secondary to service-connected disability. 5. Entitlement to a separate rating for a right foot disorder other than hallux valgus. 6. Entitlement to a separate rating for a left foot disorder other than hallux valgus. 7. Entitlement to a disability rating in excess of 10 percent for service-connected hallux valgus of the right foot. 8. Entitlement to a disability rating in excess of 10 percent for service-connected hallux valgus of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.W. ATTORNEY FOR THE BOARD A. Santiago, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 and October 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. At the hearing, the Veteran requested that the record be held open for 90 days to allow for the submission of additional evidence. Subsequently, the Veteran submitted medical records and waived initial RO consideration of this evidence. See 38 C.F.R. § 20.1304(c). The bilateral hallux valgus increased rating issues are decided below, and the remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. The Veteran's hallux valgus of the right foot has been assigned the maximum available disability rating. 2. The Veteran's hallux valgus of the left foot has been assigned the maximum available disability rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected hallux valgus of the right foot have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.22, 4.71a, Diagnostic Code (DC) 5280 (2017). 2. The criteria for a disability rating in excess of 10 percent for service-connected hallux valgus of the left foot have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.22, 4.71a, DC 5280 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). History of Foot Ratings By way of background, in an April 1971 decision, the Board granted service connection for a foot disorder based on service aggravation of a pre-existing disability. The disability granted was characterized broadly as "foot disorder." In a June 1971 rating decision, the RO implemented this Board decision. The RO assigned a 10 percent rating for a foot disorder, but described it more specifically as "bilateral talipes equinovarus deformity, hallux valgus, metatarsus adductus, stress fractures, and talonavicular arthritis." After the Veteran appealed for a higher initial rating, in a December 1972 decision, the Board granted separate 10 percent ratings for each foot. The RO implemented this Board decision in a December 1972 rating decision. In assigning the separate 10 percent ratings, the foot disorder was then labeled as "hallux valgus" of the right and left foot. Since that time, the Veteran's bilateral foot disorder has been characterized solely as hallux valgus of each foot. As hallux valgus is clearly within the scope of the Veteran's service-connected foot disorder, the Board will address those two ratings on appeal below. However, as noted previously, the June 1971 rating decision implementing the April 1971 Board decision that granted service connection for a foot disorder characterized the service-connected bilateral foot disorder as including more than solely hallux valgus, i.e., bilateral talipes equinovarus deformity, hallux valgus, metatarsus adductus, stress fractures, and talonavicular arthritis. Therefore, as further discussed in the remand section, because of the multiple conditions for which service connection has been granted, there remains a potential for foot disorder ratings separate from the hallux valgus. See, e.g., Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). See also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (separate ratings may be assigned under various DCs so long as none of the symptomatology is duplicative or overlapping of the other condition). As such, the Board has added the issues of entitlement to separate ratings for right and left foot disorder other than hallux valgus. Hallux Valgus Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where, as here, the case involves service aggravation of a pre-existing disability, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. 38 C.F.R. § 4.22. As discussed above, the Veteran's service-connected bilateral foot disorder has been rated as 10 percent disabling for each foot under DC 5280 for unilateral hallux valgus. Under DC 5280, a 10 percent rating is available for severe hallux valgus if equivalent to amputation of great toe or for hallux valgus, operated with resection of metatarsal head. 38 C.F.R. § 4.71a. There is no higher schedular rating available under DC 5280. The most recent VA examination in February 2011 shows that the Veteran continues to have hallux valgus affecting both the right and left foot. He is receiving the maximum schedular rating for these two foot disorders. No deduction has been made for this specific foot disorder under 38 C.F.R. § 4.22. Accordingly, a rating in excess of 10 percent is not warranted for hallux valgus of either foot. Although the Board is remanding multiple claims for additional development, remand is not necessary for the issues denied below, as there is no reasonable possibility that further assistance would substantiate these increased rating claims. See 38 C.F.R. § 3.159(d). ORDER A disability rating in excess of 10 percent for hallux valgus of the right foot is denied. A disability rating in excess of 10 percent for hallux valgus of the left foot is denied. REMAND Regarding the Veteran's service-connected bilateral foot disorder, as discussed above, service connection was granted for bilateral talipes equinovarus deformity, metatarsus adductus, stress fractures, and talonavicular arthritis and not solely hallux valgus. The Board finds that the Veteran should be afforded a new VA examination, as requested by the Veteran's representative at the August 2017 Board hearing, with an opinion as to whether any of these foot disorders are equivalent to the specific foot disabilities listed in the Rating Schedule. Specifically, the examiner should opine as to whether talipes equinovarus deformity, metatarsus adductus, stress fractures, and talonavicular arthritis are equivalent to acquired flatfoot, bilateral weak foot, acquired claw foot, metatarsalgia, hallux rigidus, hammer toes, malunion or nonunion of the tarsal or metatarsal bones, or other foot injures, under DCs 5276, 5277, 5278, 5279, 5281, 5282, 5283, and 5284, respectively. See 38 C.F.R. § 4.71. On his September 2010 claim form and at the August 2017 Board hearing, the Veteran indicated that he was claiming a back condition, bilateral hip condition, and bilateral leg condition as secondary to his service-connected foot disability. While the Veteran was afforded a February 2011 VA examination addressing this secondary service connection theory, the opinion was limited to hallux valgus. Therefore, the Board finds that an additional opinion is necessary to address whether the Veteran has a back condition, bilateral hip condition, and/or bilateral leg condition that is secondary to any service-connected foot disorder, to include any foot disorder addressed in the VA examination requested above. Turning to the psychiatric disorder claim, the Veteran indicated at the August 2017 Board hearing that he was waiting to see a psychiatrist. Further, on the additional medical evidence that he submitted after the hearing (received on August 10, 2017), the Veteran highlighted that a private physician noted (in a May 12, 2012, record) that he has depression that is probably related to becoming disabled 14 years ago. As such, the Board finds that the record reasonably raises the theory that the Veteran has a psychiatric disorder as secondary to his service-connected disability. Therefore, the Veteran should be afforded a new VA examination that considers any recent psychiatric treatment and offers a secondary service connection opinion. Additionally, the May 12, 2012, private treatment record suggests that the Veteran receives Social Security Administration (SSA) benefits for disability. However, SSA records do not appear to be currently associated with the claims file, and thus, such records should be requested on remand because they could be relevant to the Veteran's claims. Furthermore, at the Board hearing, the Veteran's sister, D.W., testified that medical records from Dr. Parker could be relevant to the Veteran's claim, but because it does not appear that records from Dr. Parker are currently associated with the claims file, they should be requested on remand. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Ongoing VA medical records should also be requested. Accordingly, these issues are REMANDED for the following actions: 1. Request updated VA treatment records. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all providers, who treated the Veteran for his service-connected disabilities. After securing any necessary releases, request relevant records identified which are not duplicates of those contained in the claims file, specifically including records from Dr. Parker and any new psychiatric treatment records. If any requested records are unavailable, then the file should be annotated as such, and the Veteran should be so notified. 3. Request all documents pertaining to the application of disability benefits from SSA, including the records relied upon in determining whether benefits were warranted. 4. Thereafter, schedule the Veteran for a VA foot examination by an examiner with sufficient expertise to determine the nature of the Veteran's service-connected foot disorder. The examiner should opine as to whether talipes equinovarus deformity, metatarsus adductus, stress fractures, and talonavicular arthritis are equivalent to acquired flatfoot, bilateral weak foot, acquired claw foot, metatarsalgia, hallux rigidus, hammer toes, malunion or nonunion of the tarsal or metatarsal bones, or other foot injures, under DCs 5276, 5277, 5278, 5279, 5281, 5282, 5283, and 5284, respectively. The severity of any current talipes equinovarus deformity, metatarsus adductus, stress fractures, and talonavicular arthritis should also be assessed. A complete rationale or explanation should be provided for any opinion reached. 5. Also, schedule the Veteran for a VA examination(s) by an examiner(s) with sufficient expertise to provide an opinion regarding the Veteran's contentions as to a back condition, hip condition, and leg condition. The examiner(s) should opine as to whether the Veteran has a current back condition (to include lumbar DDD), bilateral hip condition (to include DJD), and a bilateral leg condition that is caused or aggravated by the Veteran's service-connection foot disorder. Aggravation is an increase in severity beyond a temporary flare-up or natural progress of the disease. A complete rationale or explanation should be provided for any opinion reached. 6. Additionally, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his psychiatric disorder with an opinion on whether such disability at least as likely as not (50 percent or greater probability) had its onset during, or is etiologically related to, the Veteran's military service; and to include consideration of the Veteran's contention that his depression is related to his service-connected disabilities. A complete rationale or explanation should be provided for any opinion reached. 7. Finally, readjudicate the claims remaining on appeal. If the benefits sought are not granted in full, then furnish the Veteran and his representative with a supplemental statement of the case and give them an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs