Citation Nr: 19131306 Decision Date: 04/22/19 Archive Date: 04/22/19 DOCKET NO. 15-06 527A DATE: April 22, 2019 ORDER Entitlement to service connection for a chronic disability manifested by right foot numbness other than the already service-connected right foot and back disabilities is denied. Entitlement to service connection for a chronic disability manifested left foot numbness other than the already service-connected left foot and back disabilities is denied. An initial compensable evaluation for the right foot hallux valgus status post hallux abducto valgus surgery and lapidus procedure with hallux rigidus (right foot hallux valgus) is granted effective June 29, 2010. An initial evaluation in excess of 10 percent for the right foot hallux valgus is denied at all times from June 29, 2010. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran does not have a chronic disability manifested by right and/or left foot numbness other than his already service-connected right foot, left foot, and back disabilities at any time during the pendency of the appeal. 2. At all times from June 29, 2010, the most probative evidence of record shows that the Veteran’s right foot hallux valgus is manifested by painful motion. 3. At all times from June 29, 2010, the Veteran right foot hallux valgus is in receipt of the maximum schedular rating and the most probative evidence of record shows that it should not be rated under another Diagnostic Code. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic disabilities manifested by right and left foot numbness other than the Veteran’s already service-connected right foot, left foot, and back disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 10 percent rating, but no higher, for right foot hallux valgus have been met at all times from June 29, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1. 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1985 to February 1993. Initially, the Board of Veterans’ Appeal (Board) finds, as did the regional office (RO), that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2019, the Board received from the Veteran a waiver of agency of original jurisdiction (AOJ) review of the additional evidence added to the claims file since the RO issued the March 2018 supplemental statement of the case. See 38 C.F.R. § 20.1304(c). The Service Connection Claims The Veteran asserts, in substance, that service connection is warranted for a chronic disability manifested by right and left foot numbness other than his already service-connected right and left foot disabilities (i.e. bilateral hallux valgus, pes planus, and scars) as well as his back disability because he had bilateral foot numbness in-service and since that time. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Initially, the Board finds that the Veteran is competent and credible to report on what he sees and feel including numbness in both feet. See Davidson, supra. However, the service treatment records are negative for complaints, diagnoses, or treatment for a chronic disability manifested by right and/or left foot numbness other than his already service-connected right and left foot disabilities (i.e. bilateral hallux valgus, pes planus, and scars) and/or back disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, and more importantly, the Board finds that the most probative evidence of record is the August 2011 VA examination which was held for the express purpose of obtaining diagnoses and the finding by the examiner that the Veteran does not have a chronic disability manifested by right and/or left foot numbness other than his already service-connected right and left foot disabilities (i.e. bilateral hallux valgus, pes planus, and scars) and/or back disability. See Owens, supra. Further, while the Veteran and his wife are competent to report on the symptoms they observe, the Board finds that they are not competent to diagnose a chronic disability manifested by right and left foot numbness other than the Veteran’s already service-connected right and left foot disabilities (i.e. bilateral hallux valgus, pes planus, and scars) and/or back disability because diagnosing it requires special medical training that they dos not have and therefore they cannot provide the missing diagnosis. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the findings by the August 2011 VA examiner shows that the claimed disability does not result in functional impairment that affects earning capacity. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have a diagnosis of a chronic disability manifested by right and left foot numbness other than his already service-connected right foot, left foot, and back disabilities at any time during the pendency of the appeal and this appeal is denied. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. §§ 3.303. The Increased Rating Claim The Veteran claims, in substance, that he meets the criteria for at least a compensable rating for his right foot hallux valgus at all times since filing his claim on June 29, 2010. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The Veteran’s, right foot hallux valgus is rated as noncompensable from the date of claim (i.e., June 29, 2010) and 10 percent disabling from March 1, 2015, under 38 C.F.R. § 4.71a, Diagnostic Code 5280. In this regard, Diagnostic Code 5280 provides a maximum 10 percent rating for unilateral hallux valgus that is severe, if equivalent to amputation of great toe is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. With the above criteria in mind, the Board finds that at all times during the pendency of the appeal the Veteran has complained, in substance, of right great to pain with motion. See, e.g., Tristate treatment records dated in November 2010 and January 2011; VA examinations dated in, March 2015, June 2017, and October 2018. The Board also finds the Veteran complaints of right great toe pain both competent and credible because it is something he can feel and it is consistent with the nature of his service-connected disability as well as the findings by his examiners. See Davidson, supra. Moreover, the Board finds that the Veteran should not be penalized by the fact that, while his claim has been pending since June 29, 2010, the RO after providing him with his initial VA examination in August 2011 did not afford him another examination until March 2015. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.”); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Thus, taking into account 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holdings in DeLuca, Mitchell, Burton, and Southall-Norman, the Board finds that the Veteran’s right foot hallux valgus symptoms met the criteria for a 10 percent rating at all times from June 29, 2010. 38 C.F.R. § 4.71a; Diagnostic Code 5280; Also see Hart, supra; Fenderson, supra. However, given the above, the Board finds that the Veteran is in receipt of the maximum schedular rating for his right foot hallux valgus at all times from June 29, 2010, under Diagnostic Code 5280. Furthermore, given the nature and location of his disability (i.e., the right great toe) as well as the fact that the currently applied code directly contemplates the Veteran’s disability (i.e., right foot hallux valgus), the Board finds that the most probative evidence of record shows that it is not more appropriately rated under a different diagnostic code. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Therefore, the Board finds that any claim for a rating in excess of 10 percent for the right foot hallux valgus is denied at all times from June 29, 2010. 38 C.F.R. § 4.71a, Diagnostic Code 5280; Hart, supra; Fenderson, supra. In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record. However, while the Veteran is competent and credible to report on what he can see and feel and his wife is competent and credible to report on what she can see, the Board finds more probative the opinions provided by the medical experts at the VA examinations as to the severity of his disabilities than the lay claims. See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). While the Veteran may have issues with his disability, the question is whether it meets a certain level of disability. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the right foot hallux valgus, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND Entitlement to a TDIU is remanded. As to the claim for a TDIU, the Board notes that given the location and etiology of the Veteran’s service-connected musculoskeletal disabilities of the right and left lower extremities as well as his foot scars and back disability that the schedular criteria for a TDIU have been met. See 38 C.F.R. § 4.16a(1) to (a)(5); Owens, supra. However, from the existing record, to include the February 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Board does not have a clear picture of the Veteran’s post-service work history (i.e., since February 1993) and the extent that his many service-connected disabilities interfere with secure and follow a substantially gainful occupation in sedentary as well as non-sedentary employment given his work history. Therefore, the Board finds that a remand is required to obtain from the Veteran a detailed statement as to his employment history, including his duties at these places of employment, from the time he separated from service in February 1993 until he stopped working in July 2013. See 38 C.F.R. § 19.9; see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). In this regard, while this claim is in remand status, the Veteran should also be invited to file with VA any additional evidence he may have that shows how his service-connected disabilities interfered with his ability to obtain and maintain all types of employment. Id. While this issue is in remand status, the AOJ should also obtain and associate with the claims file any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). This matter is REMANDED for the following actions: 1. Associate with the claims file any other outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any other outstanding private treatment records. The Veteran himself should be asked to provide these records to VA. 3. Obtain from the Veteran a detailed statement as to his employment history, to include hit duties at each place of employment, from the time he separated from service in February 1993 until he stopped working in July 2013. Also invite the Veteran to file with VA any additional evidence he may have that shows how his service-connected disabilities interfered with his ability to obtain and maintain all types of employment. The Veteran must be provided a reasonable period of time to reply to this information request. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel