Citation Nr: 20003173 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-58 215 DATE: January 14, 2020 ORDER Service connection for periodontology disease is denied. An effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity) is denied. An effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity) is denied. An effective date prior to January 1, 2015, for the award of service connection for tinea pedis, bilateral feet (all toes) is denied. An initial 10 percent disability rating for tinea pedis, bilateral feet (all toes) from January 1, 2015, to July 5, 2016, is granted. A disability rating in excess of 30 percent for tinea pedis, bilateral feet (all toes) from July 6, 2016, to March 3, 2019, is denied. A 10 percent disability rating for tinea pedis, bilateral feet (all toes), from March 4, 2019, is granted. An initial compensable disability rating for hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity) is denied. An initial compensable disability rating for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity) is denied. REFERRED Service connection for a dental condition for treatment purposes. FINDINGS OF FACT 1. The Veteran has periodontal disease, which is not a dental condition eligible for VA compensation. 2. The current effective date of January 1, 2015, for the award of service connection for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity); hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity); and tinea pedis, bilateral feet (all toes), is the first day after the Veteran’s separation from service. 3. From January 1, 2015, to July 5, 2016, and since March 4, 2019, the Veteran’s tinea pedis, bilateral feet (all toes) was manifested by symptoms such as itching, burning, and pain. 4. The Veteran’s tinea pedis, bilateral feet (all toes) from July 6, 2016, to March 3, 2019, was not manifested by at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 5. The Veteran’s left and right hallux valgus (claimed as bunion and forefoot valgus deformity) was not manifested by surgery with resection of metatarsal head; a severe disability equivalent to amputation of great toe; or by hammer toes involving all toes, unilateral without claw foot. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental condition for compensation purposes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 2. The criteria for an effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, left foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 3. The criteria for an effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, right foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to January 1, 2015, for the award of service connection for tinea pedis, bilateral feet (all toes) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 5. The criteria for a rating of 10 percent for tinea pedis, bilateral feet (all toes) from January 1, 2015, to July 5, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804, 7806, 7813. 6. The criteria for a disability rating in excess of 30 percent for tinea pedis, bilateral feet (all toes) from July 6, 2016, to March 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804, 7806, 7813. 7. The criteria for a 10 percent rating for tinea pedis, bilateral feet (all toes) from March 4, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804, 7806, 7813. 8. The criteria for an initial 10 percent disability rating for hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282. 9. The criteria for an initial compensable disability rating for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1981, from January 2003 to August 2003, from March 2006 to February 2010, and from January 2013 to December 2014. He had subsequent service in the Reserve. The case is on appeal from a December 2015 rating decision. The earlier effective date issues were not addressed in the September 2017 statement of the case (SOC). However, they were addressed in a July 2019 supplemental statement of the case (SSOC), which was issued after the Veteran filed a VA form 9 in November 2017. As the RO treated the issues as timely appealed, the Board waives any jurisdictional defect. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Service Connection 1. Service connection for periodontology disease In his original claim, the Veteran listed “periodontology” disease and bone loss as the disabilities for which he was seeking service connection. In his November 2016 notice of disagreement (NOD), the Veteran wrote that he was treated and had complaints during service for these conditions. He contended in his November 2017 VA Form 9 that he was in infantry training in the outside elements sometimes without proper personal hygiene time to preserve his teeth. He indicated that the disease progressively worsened over his 34-year military career. In an April 2015 statement, he wrote that this was due to stress from the job and training requirements. The RO adjudicated the case as entitlement to compensation. According to an October 2019 brief from his representative, the Veteran is also seeking service connection for treatment purposes. The Veterans Health Administration (VHA) has not made a threshold determination as to whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. Hence, that issue is not within the Board’s jurisdictional authority to address at this time and is referred herein above for all appropriate development and adjudication. See 38 C.F.R. § 3.381(a). Relatedly, the Veteran has not claimed service connection for several teeth extracted during service. The Veteran’s claim was very specific for periodontal disease. It is within the scope of a non-medical expert to understand that missing teeth and periodontal disease, which is a disease of the gums, are distinct and separate. On this basis, the Veteran specifically claimed periodontal disease and not missing teeth. He did not use broad language which might encompass missing teeth. Hence, the missing teeth are not included within the scope of this appeal. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b). See also 38 C.F.R. § 4.150, Diagnostic Code 9913, Note; Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005). Here, the claim is denied as the Veteran has periodontal disease, which cannot be service-connected. A VA examination was conducted in November 2015. The VA examiner diagnosed periodontal disease with bone loss. The VA examiner explained that periodontal disease comes from poor oral hygiene and neglect and the Veteran neglected his oral hygiene and dentition resulting in severe periodontal disease. The determinative fact here is that the Veteran’s current condition is periodontal disease. As that condition cannot be granted service connection for compensation purposes, the preponderance of the evidence is against the claim, particularly the current disability element of the claim. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a dental condition for compensation purposes is not warranted. Effective Date 2. An effective date prior to January 1, 2015, for the award of service connection for tinea pedis, bilateral feet (all toes) 3. An effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity) 4. An effective date earlier than January 1, 2015, for the award of service connection for hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity) As issues 2-4 are interrelated, the Board will address them together. The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For direct service connection, the effective date will be the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. Id. In this case, the Veteran filed an original claim of service connection in April 2015. This claim was received within one year of his December 2014 separation from service. There is no indication of an earlier claim. The current effective date in January 2015 represents the day following his separation from active service. No earlier effective date can be assigned as a matter of law. See 38 C.F.R. § 3.400(b)(2)(i). Hence, the claim is denied. Increased Rating As generally applicable, 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 (2015). 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. 5. An initial compensable disability rating for tinea pedis, bilateral feet (all toes) from January 1, 2015 to July 5, 2016 6. A disability rating in excess of 30 percent for tinea pedis, bilateral feet (all toes) from July 6, 2016 to March 3, 2019 7. A compensable disability rating for tinea pedis, bilateral feet (all toes) from March 4, 2019 As issues 5-7 are interrelated, the Board will address them together. The Veteran is seeking higher initial ratings for tinea pedis of the bilateral feet (toes). The appeal period now before the Board begins in January 1, 2015, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned staged disability ratings beginning from that date. Specifically, a July 2019 rating decision assigned a staged 30 percent rating retroactively effective from July 6, 2016, based on the RO’s finding that a private medical record showed treatment with systemic therapy from that date. The same rating decision assigned a noncompensable (0 percent) rating retroactively from March 4, 2019. This action did not constitute a procedurally protected disability rating reduction because the RO assigned the staged ratings retroactively. See Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010); Singleton v. Shinseki, 23 Vet. App. 376, 380 (2010) (noting the Secretary’s argument that “the procedural safeguards were forward-contemplating, and were intended to apply only to those disability ratings sought to be reduced in the future.”); see also Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (regarding total (100 percent) ratings). A. Applicable Rating Schedule The Veteran’s disability is listed in the rating schedule under DC 7813 of 38 C.F.R. § 7813, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris). Currently, the ratings are assigned under DC 7813-7806 of 38 C.F.R. § 4.118. The hyphenated code signals that the rating has been assigned determined on the basis of residual conditions under DC 7813 under the basic disease listed in DC 7806. See 38 C.F.R. § 4.27. The rating schedule has been amended during the pendency of this appeal. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, the rating schedule was as follows: 7813 Dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability 7806 Dermatitis or eczema. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period 60 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period 30 At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period 10 Less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Effective August 13, 2018, the rating schedule was as follows: 7813 Dermatophytosis (ringworm: Of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium (onychomycosis); of inguinal area (jock itch), tinea cruris; tinea versicolor). Evaluate under the General Rating Formula for the Skin 7806 Dermatitis or eczema. Evaluate under the General Rating Formula for the Skin General Rating Formula For The Skin For DCs 7806, 7809, 7813-7816, 7820-7822, and 7824: At least one of the following 60 Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period 60 At least one of the following 30 Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period At least one of the following 10 Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or At least 5 percent, but less than 20 percent, of exposed areas affected; or Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period No more than topical therapy required over the past 12-month period and at least one of the following 0 Characteristic lesions involving less than 5 percent of the entire body affected; or Characteristic lesions involving less than 5 percent of exposed areas affected Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to DC 7824 For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). B. Discussion The Board finds that 10 percent ratings are warranted except during the period when a 30 percent rating was in effect. Initially, at no point did the condition involve at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. VA examinations conducted in October 2015 and March 2019 demonstrate that less than 5 percent of the entire body involved. Both examinations show that the condition affected the toes of his feet, which was not an exposed area. Furthermore, at no point did the Veteran take a medication that was, or like, a corticosteroids or other immunosuppressive drugs. How a topical treatment works is a factual question that may, but not necessarily, require a medical opinion for its resolution; the Board may make such a factual finding based on other evidence, such as medical dictionaries. See Burton, 30 Vet. App. at 291-92. Here, the medical records show multiple different medications, which were antifungals. Antifungals are not corticosteroids or other immunosuppressive drugs. See Drugs.com, Topical steroids with anti-infectives, https://www.drugs.com/drug-class/topical-steroids-with-anti-infectives.html (last visited Dec. 26, 2019). Private medical records in September 2014 and October 2014 show treatment with a topical cream called Luzu. This is an antifungal agent, so not a corticosteroid. See RxList.com, Luzu (Luliconazole Cream, 1%), https://www.rxlist.com/luzu-drug.htm#description (last visited December 26, 2019) (“Luliconazole is an antifungal that belongs to the azole class.”). A June 2016 VA medical record shows treatment with Miconazole powder. This too is an antifungal agent. See Drugs.com, Miconazole Nitrate, https://www.drugs.com/monograph/miconazole-nitrate.html (Aug. 1, 2019). Next, a medical record in July 2016 shows a prescription for daily Lamisil tablets for 30 days and oxistat cream. On follow-up in November 2016, the daily Lamisil tablets were continued for 90 days; the oxistate cream was discontinued. A VA primary care provider in March 2017 noted that he was off Lamisil and the condition had resolved. The Board observes that Lamisil tablets would qualify as a systemic therapy, but it is not, or like, a corticosteroid or immunosuppressive drug. It is an antifungal agent. See RxList.com, Lamisil (terbinafine hydrochloride) Tablets, https://www.rxlist.com/lamisil-drug.htm#description (last visited December 26, 2019). The oxistat cream is also an antifungal agent. See RxList.com, Oxistate (Oxiconazole), https://www.rxlist.com/oxistat-drug.htm (last visited Dec. 26, 2019). Most recently, VA medical records beginning from March 2017 show treatment with daily miconazole powder and ketoconazole cream for flare ups. As indicated, the miconazole powder is an antifungal agent. The March 2019 VA examiner clarified that ketoconazole cream is not a corticosteroids or other immunosuppressive medication. This examination was completed after August 13, 2018, and it asked whether the Veteran used “systemic corticosteroids or other immunosuppressive medications,” while also asking for the route of administration, to include whether that medication was topical, or, injection, intranasal, suppository, or “other.” Thus, it is clear that the examiner considered whether the topical medication was a potentially systemic therapy. See Burton, 30 Vet. App. at 293. In short, the Veteran was not treated with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Otherwise, there is no indication of phototherapy, retinoids, biologics, photochemotherapy, or PUVA. Looking to the other potentially applicable diagnostic codes, there has been no indication that the condition was deep and nonlinear or involved underlying soft tissue damage in area of 144 square inches (929 sq. cm.) or greater; or involved other disabling effects. There is, however, evidence consistent with a condition that was painful. At the October 2015 VA examination, he complained of intermittent cracking and itching to the webs of his toes. VA and private medical records throughout this time also reflect complaints of chronic burning and/or itching. According to the March 2019 VA examination, the skin cracked, bled, itched, and was painful. The Board finds that this evidence is analogous to painful scars, which warrants a 10 percent rating under DC 7804. These symptoms overlapped during the time period when the 30 percent rating was in effect under DC 7806. A separate 10 percent rating is not assignable as that code provides that the condition can only be rated alternatively under DC 7804. Hence, multiple ratings are not warranted. Likewise, the condition is rated as a whole under DC 7806, so separate ratings for each foot are not assignable under DC 7813. In conclusion, the Board finds that 10 percent ratings are warranted prior to January 6, 2016, and since March 4, 2019. A rating higher than 30 percent is not warranted from July 6, 2016, to March 4, 2019. 8. An initial compensable disability rating for hammer toes/hallux valgus, right foot (claimed as bunion and forefoot valgus deformity) 9. An initial compensable disability rating for hammer toes/hallux valgus, left foot (claimed as bunion and forefoot valgus deformity) As issues 8-9 are related, the Board will address them together. The Veteran is seeking a higher initial rating for right and left foot disabilities manifested by hammer toe deformity and hallux valgus. The appeal period now before the Board begins in January 2015, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). Each disability has been assigned a noncompensable (zero percent) rating throughout the entire appeal period. He is separately service-connected for (1) Achilles tendonitis with loss of range of motion, right ankle; and (2) plantar fascitis of the bilateral feet. Those disabilities are not on appeal. They will be referred to herein only where needed for context and clarity. The Veteran’s representative argued in an October 2019 brief that the Veteran continued to have pain in his feet, both standing and sitting, so he should be compensated. A. Rating Schedule The Veteran’s foot disabilities have both been assigned a disability rating under Diagnostic Code (DC) 5280-5282 of 38 C.F.R. § 4.71a. The applicable schedular criteria for disabilities of the feet is set forth as follows: The Foot Rating 5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances Bilateral 50 Unilateral 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral 30 Unilateral 20 Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral 10 Mild; symptoms relieved by built-up shoe or arch support 0 5277 Weak foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10 5278 Claw foot (pes cavus), acquired: Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity: Bilateral 50 Unilateral 30 All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads: Bilateral 30 Unilateral 20 Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads: Bilateral 10 Unilateral 10 Slight 0 5279 Metatarsalgia, anterior (Morton’s disease), unilateral, or bilateral 10 5280 Hallux valgus, unilateral: Operated with resection of metatarsal head 10 Severe, if equivalent to amputation of great toe 10 5281 Hallux rigidus, unilateral, severe: Rate as hallux valgus, severe. Note: Not to be combined with claw foot ratings. 5282 Hammer toe: All toes, unilateral without claw foot 10 Single toes 0 5283 Tarsal, or metatarsal bones, malunion of, or nonunion of: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. 5284 Foot injuries, other: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. B. Discussion In this case, a compensable disability rating is not warranted under either foot. Under DC 5280, the evidence shows that the condition did not involve operated with resection of metatarsal head. VA examinations in October 2015 and March 2019 affirmatively show that there has been no surgery. Also under DC 5280, the evidence shows that the condition was not severe and equivalent to amputation of great toe. At an October 2015 VA examination, the Veteran complained of pain in his feet, especially when walking or standing for a long time or running. The examiner found that the condition was medically graded as mild or moderate. The March 2019 VA examiner likewise found that there were functional impairments, but the symptoms were mild or moderate. Neither examiner marked the box for severe symptoms with function equivalent to amputation of great toe. In the context of this examination report, which appears to be the type regularly kept for this purpose, the examiner was asked to check a box next to the severity of the condition. Thus, it must be assumed that a finding of severe findings would have been recorded if present. Because the examiners did not mark these boxes, it is assumed that that severity level was not found by either examiner. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); cf. Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Intervening VA medical records, such as in June 2016, December 2016, and March 2017, indicated a “stable” condition. A March 2017 VA Podiatry consultation reflected that the Veteran denied any significant pain to the bilateral feet at that time. Overall, this evidence shows that the condition was not severe and equivalent to amputation of the great toe. Hence, a compensable rating is not assignable under DC 5280. Under DC 5282, the condition did not involve all toes, unilateral without claw foot. According to the October 2015 and March 2019 VA examinations, the disability involved the 2nd, 3rd, 4th, and little toes bilaterally. Thus, a compensable rating is not assignable under DC 5282. The Veteran contends that a compensable rating is warranted based on painful motion. 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, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Here, the Veteran is already assigned a 10 percent rating under DC 5271 for Achilles tendonitis of the right ankle and a 10 percent rating under DC 5276 for plantar fasciitis, bilateral. Both of those ratings were assigned in the December 2015 rating decision on appeal based on pain on use of the foot. According to a July 2019 VA examiner’s addendum opinion, the Veteran’s reported symptoms of pain and the pain noted during examination with weight bearing, non-weight bearing, and movement were characteristic of pes planus, hammertoes, hallus valgus and plantar fasciitis. The examiner could not state without speculation which condition was predominantly responsible for the symptoms as they all contributed. On the basis of this VA examiner’s opinion, the current 10 percent ratings contemplate painful use of the feet inclusive of the pain from hammertoes and hallux valgus. There are not separate and distinct manifestations of pain. Assigning a separate 10 percent rating for either foot at this point would amount to pyramiding. See Amberman v. Shinseki, 570 F.3d 1377, 1380-81 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259 (1994) Finally, the Veteran’s disabilities are specifically listed in § 4.71a, so rating the listed conditions under DC 5284 would constitute an impermissible rating by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for either disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.