Citation Nr: 20007628 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 15-35 652A DATE: January 29, 2020 ORDER Entitlement to a 20 percent rating, but no higher, for hammer toe with corns, left foot, previously rated as bunions and corns, effective December 20, 2011, is granted. Entitlement to a 20 percent rating, but no higher, for hammer toe with corns, right foot, previously rated as bunions and corns, effective December 20, 2011, is granted. Entitlement to an effective date of October 25, 2011 for a noncompensable rating for hallux valgus, left foot, is granted. Entitlement to an effective date of October 25, 2011 for a noncompensable rating for hallux valgus, right foot, is granted. FINDINGS OF FACT 1. Granting the Veteran the benefit of reasonable doubt, his bilateral hammer toe with corns has been manifested by moderately severe symptoms since December 19, 2011. 2. The Veteran has had bilateral hallux valgus not operated with resection of the metatarsal head or so severe as to be equivalent to amputation of the great toe, since October 25, 2011, the date of his claim. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent rating, but no higher, for hammer toe with corns, left foot, previously rated as bunions and corns, effective December 19, 2011 have 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 5282-5284. 2. The criteria for a rating of 20 percent rating, but no higher, for hammer toe with corns, right foot, previously rated as bunions and corns, effective December 19, 2011 have 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 5282-5284. 3. The criteria for effective date of October 25, 2011 for a noncompensable rating for hallux valgus, left foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5280. 4. The criteria for effective date of October 25, 2011 for a noncompensable rating for hallux valgus, right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to July 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and October 2014 rating decisions. The Veteran testified before the undersigned during a November 2019 hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When 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(b); 38 C.F.R. § 4.3. 1. Left foot hammer toe with corns, previously rated as bunions and corns 2. Right foot hammer toe with corns, previously rated as bunions and corns The Veteran contends that he is entitled to a higher rating prior to October 22, 2014, the current effective date of his 20 percent rating for bilateral hammer toe with corns, because the severity of the condition was largely unchanged between the date his claim was submitted to the VA, October 25, 2011, and the date of the October 2014 VA examination that gave rise to the current rating. The Veteran has not asserted a belief that his disability warrants a higher rating for this period or that his condition has increased in severity since his most recent October 2014 VA examination. The Veteran’s bilateral hammer toe with corns is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282-5284. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates the Veteran’s condition is rated on the basis of corns and calluses related to hammer toe using the criteria for other foot injuries in Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rated as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. The Veteran’s current 20 percent rating was granted in an October 2014 rating decision, which assigned an effective date of October 22, 2014, the date of a VA examination addressing the Veteran’s foot condition. The October 2014 VA examiner noted bilateral hammertoe in the second through fourth toes with callosities forming beneath the fifth metatarsal head. These callosities were recurring and, at the time of the examination, had been recently trimmed. As a result, the Veteran was relatively free from pain at the time of the examination, though he reported callosities would become excruciating over the course of weeks between trimmings. The examiner indicated these callosities formed along the edges of deformities resulting from the Veteran’s hammer toes and hallux valgus on both feet. Use of a cane for mobility was noted. Based on these reports, the examiner indicated the Veteran suffers from a moderately severe disability on both feet. An earlier December 2011 VA examination diagnosed bilateral hammer toes and hallux valgus, discussed further below. The examiner noted regular use of orthotics and the presence of bunions on both feet, but the report does not indicate use of a cane. In describing the history of the disability, the examiner stated the Veteran had chronic foot pain since the mid-1990s that had recently reached the point of requiring him to see a podiatrist every few weeks. At the time, the examiner indicated these issues did not affect occupational functioning. Prior to the period on appeal, another VA examination in November 2007 noted these same issues, but opined they would cause mild interference to sports, exercise, and recreation activities, as well as prolonged walking or standing. VA treatment records from the period between the Veteran’s claim for an increased rating in October 2011 and the October 2014 VA examination show that he was seen regularly for treatment of his feet. From January 2012 to July 2014, the Veteran regularly received callus reduction, debridement, and nail reduction treatments on his feet, regularly reporting severely painful callus formations. The effects of his foot disabilities required use of a cane, noted as early as October 2012, and the calluses appeared to require more frequent treatments over time. From these reports, it is clear the Veteran already suffered from callus formations that were causing him pain at the time of his October 2011 claim for an increased rating. These records also show that these calluses were increasing in severity and frequency, requiring greater treatment as time progressed. It is not clear when the functional impact of this pain reached the point of being moderately severe to support a 20 percent rating under Diagnostic Code 5284, although the record shows that the December 19, 2011 VA examination was the last assessment of record to show the Veteran did not experience moderately severe functional impairment as the result of his bilateral calluses related to hammer toe. After the December 19, 2011examination, records from 2012 show the need for regular debridement of foot calluses, altered gait due to foot pain relating to bunions and calluses, and the need for a cane to assist ambulation. Granting the Veteran the benefit of reasonable doubt, the Board finds a rating of 20 percent is warranted since December 20, 2011. 3. Left foot hallux valgus 4. Right foot hallux valgus The Veteran contends that he is entitled to an earlier effective date for the assignment of a separate noncompensable rating bilateral hallux valgus as part of his service-connected foot disability. The Veteran’s left and right foot hallux valgus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. VA examinations from January 2007, December 2011, and October 2014 all note diagnoses of bilateral hallux valgus. The examiners indicated symptoms were mild or moderate. None of these reports indicate resection of the metatarsal head, nor do any of them describe resulting functional impairment of hallux valgus so severe as to be the equivalent of amputation of the great toe. Likewise, treatment records for the Veteran’s feet from throughout the period on appeal note the diagnosis of hallux valgus since before the current claim, but there is no indication in the record of either resection of the metatarsal head or severe impairment attributable to hallux valgus equivalent to amputation of the great toe. As noted above, most of the pain noted during this period has been attributed to bunions and calluses related to hammer toe. The Board finds that the evidence supports an effective date of October 25, 2011, the date he submitted the claim for an increased rating that gave rise to the decision on appeal, for the noncompensable rating for left foot and right foot hallux valgus. The Board also finds there is no basis for a compensable rating for hallux valgus of either foot during the period on appeal. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code, though the Veteran does have other service-connected disabilities with distinct manifestations, specifically bilateral hammer toes with corns, as previously discussed. In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for hallux valgus at any time during the period on appeal; however, the evidence supports finding the Veteran is entitled to an effective date of October 25, 2011 for his noncompensable rating for hallux valgus. In denying an increased 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. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, Associate 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.