Citation Nr: 20022402 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 10-26 878 DATE: March 31, 2020 ORDER Entitlement to an initial rating higher than 10 percent for status post bunionectomy first metacarpophalangeal joint of the left foot is denied. Entitlement to an initial compensable rating for status post right base metatarsal fracture fragment excision of the right foot is denied. Entitlement to an initial 30 percent rating prior to May 5, 2010, and a 10 percent rating, but no higher, since May 5, 2010, for allergic rhinitis is granted. FINDINGS OF FACT 1. The Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot is currently rated at 10 percent, which is the maximum schedular rating under the applicable rating criteria, and the rating schedule is adequate to evaluate such a disability. 2. The Veteran’s status post right base metatarsal fracture fragment excision of right foot has manifested with one linear scar that is not painful or unstable. 3. Prior to May 5, 2010, the evidence is in at least relative equipoise as to whether the Veteran’s allergic rhinitis had manifested with a right nasal polyp. 4. Since May 5, 2010, the Veteran’s right nasal polyp was surgically removed, but the evidence is in at least relative equipoise as to whether the Veteran had complete obstruction of his left nasal passage. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 10 percent for status post bunionectomy first metacarpophalangeal joint of the left foot have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.71a, Diagnostic Code 5280 (2019). 2. The criteria for entitlement to an initial compensable rating for status post right base metatarsal fracture fragment excision of right foot have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2019). 3. The criteria for entitlement to a 30 percent rating prior to May 5, 2010, and a 10 percent rating since May 5, 2010, for allergic rhinitis have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2004 to November 2006. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2008 rating decision issued by the Department of Veterans Affairs (VA). See March 2009 Notice of Disagreement (NOD); April 2010 Statement of the Case (SOC); May 2010 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a January 2015 hearing. See January 2015 Hearing Testimony. In March 2015, the Board remanded the claims for further development. March 2015 Board decision. The Agency of Original Jurisdiction (AOJ) substantially complied with the Board’s remand directives and developed the record. A January 2016 rating decision granted an initial rating of 30 percent effective November 23, 3015, for allergic rhinitis based on rhinitis with polyps. However, in February 2020, the AOJ found clear and unmistakable error in the January 2016 rating decision. February 2020 Rating decision. The AOJ then granted an initial rating of 30 percent from April 14, 2009, for rhinitis with polyps and a noncompensable, zero percent, rating from May 5, 2010, the date the polyp was surgically removed. Id. The AOJ denied higher initial ratings for the Veteran’s other claims. See October 2019 Supplemental Statement of the Case (SSOC); February 2020 SSOC. The case is now back before the Board. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Id. at 126-127. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an initial rating higher than 10 percent for status post bunionectomy first metacarpophalangeal joint of the left foot. The Veteran asserts entitlement to an initial rating higher than 10 percent for his status post bunionectomy first metacarpophalangeal joint of the left foot. March 2009 NOD. The Veteran testified to constant aching and sharp pain in his feet. January 2015 Hearing testimony. The Veteran also related to burning pain, weakness, stiffness, swelling, and fatigue due to his foot. July 2008 VA examination. The Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot is currently evaluated under Diagnostic Code 5280 and rated as 10 percent disabling. August 2008 Rating decision. After careful and thorough review of the evidence, the Board finds that the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot does not warrant more than a 10 percent rating. The Board considered the Veteran’s lay statements about his foot pain, swelling, weakness, and fatigue. While Veteran is competent to report his foot symptoms, he is not competent to on its cause nor whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For example, his VA treatment providers diagnosed his complaints of foot pain as due to a separate, nonservice connected, foot condition of pes planus, and not his status post bunionectomy first metacarpophalangeal joint of the left foot. See March 2011 VA treatment evidence. The Board, thus, finds the Veteran’s statements to not be probative in evaluating his status post bunionectomy first metacarpophalangeal joint of the left foot. Moreover, under Diagnostic Code 5280, a 10 percent evaluation is warranted for hallux valgus that is operated with resection of metatarsal head or is severe (defined as equivalent to amputation of great toe). See 38 C.F.R. § 4.71a. As the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot is currently rated at 10 percent, the Board finds that an evaluation higher than 10 percent is not warranted as a matter of law under Diagnostic Code 5280. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The Board also considered whether an extraschedular rating is warranted, but finds that the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot symptoms are encompassed by the schedular criteria. The evidence shows the head of the first metatarsal of the left foot was removed. See July 2008 VA examination imaging. The evidence does not support other manifestations or impairments due to his status post bunionectomy first metacarpophalangeal joint of the left foot. As noted above, the evidence supports that the Veteran’s foot pain symptoms are due to his nonservice connected pes planus. Likewise, a higher or separate rating is not warranted under Diagnostic Code 5284 as the manifestations of the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot are encompassed by the schedular criteria under Diagnostic Code 5280 and the evidence supports that his foot pain and swelling are due to pes planus. See Copland v. McDonald, 27 Vet. App. 333, 337-338 (2015) (Court declined using Diagnostic Code 5284 as a “catch-all” and stated that to hold that Diagnostic Code 5284 applies to the other eight listed foot conditions would essentially render those Diagnostic Codes redundant). The Board also considered Diagnostic Codes 5276 to 5279 and 5281 to 5283, and finds that the rating criteria for those diagnostic codes are not relevant to the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot. For example, there is no evidence that the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot has manifested with flatfoot, foot muscle atrophy, a claw foot, Morton’s disease, hallux rigidus, hammer toe, or malunion or nonunion of bones. The scar from the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot is separated rated as noncompensable. August 2008 Rating decision. The evidence shows that the scar is neither painful nor unstable. July 2008 VA examination; November 2017 VA examination. Lastly, the Board considered the March 2008 statement from D A D, RN, who opined that the Veteran has a history of fractures and surgery on his feet and currently has complaints of feet pain and swelling after long period of standing or walking. The Board finds the statement not probative as it does not state the cause of the Veteran’s feet pain or swelling nor provide findings that would indicate it is due to his status post bunionectomy first metacarpophalangeal joint of the left foot. The Board, thus, finds that the preponderance of the probative evidence is against finding that an initial rating higher than 10 percent is warranted for the Veteran’s status post bunionectomy first metacarpophalangeal joint of the left foot. 2. Entitlement to an initial compensable rating for status post right base metatarsal fracture fragment excision of the right foot. The Veteran asserts entitlement to a compensable rating for his status post right base metatarsal fracture fragment excision of the right foot. March 2009 NOD. The Veteran testified to constant aching and sharp pain with swelling in his right foot. January 2015 Hearing testimony. The Veteran also related to having burning, cramping, weakness, stiffness, and fatigue in his right foot since around 2004. See July 2008 VA examination. The Veteran’s status post right base metatarsal fracture fragment excision of the right foot is currently evaluated under Diagnostic Code 7804 for unstable or painful scar(s) and rated as noncompensable, or zero percent disabling. August 2008 Rating decision. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. The next higher rating of 20 percent is warranted for three or four scars that are unstable or painful. Id. The next higher, and highest, rating of 30 percent is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. After careful and thorough review of the evidence, the Board finds that the Veteran’s status post right base metatarsal fracture fragment excision of the right foot does not warrant a compensable disability rating. The July 2008 VA examiner opined that the Veteran had a scar located on his right lateral foot, which measured about 3 centimeters by 0.2 centimeters with no tenderness, instability, inflammation, or edema. July 2008 VA examination. This is consistent with the more recent November 2017 VA examination, which shows findings of a 4 centimeter by 0.5 centimeter linear scar on the lateral side of the right foot that is neither painful nor unstable. The VA examiners are medical professionals qualified to evaluate the Veteran’s foot condition, had the opportunity to examine the Veteran and review the evidence, and provided a detailed report to support their findings and opinions. The Board finds that the July 2008 and November 2017 VA examiners’ findings and opinions to be probative. The Board considered the Veteran’s lay statements about the pain, swelling, weakness, and fatigue in his right foot. While Veteran is competent to report his foot symptoms, he is not competent to state its cause nor whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan, 451 F.3d at 1337; Jandreau, 492 F.3d at 1376-77. Foot x-rays show moderate pes planovalgus deformity in his bilateral feet. July 2008 VA examination. VA treatment providers diagnosed the Veteran’s complaints of foot pain as due to a separate, nonservice connected foot condition of pes planus, not his status post bunionectomy first metacarpophalangeal joint of the left foot. March 2011 VA treatment evidence. Moreover, the Veteran related to having plantar fasciitis in his right foot for the last four years as well and with the same reported symptoms. July 2008 VA examination. The Board, thus, finds the Veteran’s lay statements to not be probative in evaluating his status post right base metatarsal fracture fragment excision of the right foot. The Board notes that it also considered Diagnostic Codes 5276 to 5284 and finds the rating criteria for those diagnostic codes are not applicable to the Veteran’s disability of status post right base metatarsal fracture fragment excision of the right foot. There is no evidence that the Veteran’s status post right base metatarsal fracture fragment excision of the right foot manifests with flatfoot, atrophy of the musculature, claw foot, Morton’s disease, hallux valgus, hallux rigidus, or hammer toe. The evidence shows no malunion or nonunion in his right foot during the period on appeal. See July 2008 VA examination imaging; April 2009 VA treatment evidence. A higher or separate rating is not warranted under Diagnostic Code 5284 for other foot injuries as the manifestations of the Veteran’s status post right base metatarsal fracture fragment excision of the right foot is encompassed by the schedular criteria under Diagnostic Code 7804 and the evidence supports that his foot symptoms are due to pes planus. See Copland, 27 Vet. App. at 337-338 (2015). Lastly, as discussed above, the Board finds the March 2008 statement from D A D, RN not probative as it provides no discussion as to the cause of the Veteran’s foot pain and swelling. The preponderance of the evidence is, thus, against finding that the Veteran’s status post right base metatarsal fracture fragment excision of the right foot warrants a compensable rating. 3. Entitlement to a 10 percent rating, but no higher, from January 29, 2008, to April 13, 2009, and from May 5, 2010, to November 22, 2015, for allergic rhinitis The Veteran asserts entitlement to a higher initial rating for his allergic rhinitis. March 2009 NOD. The Veteran testified to having breathing problems through the left side of his nose. January 2015 Hearing testimony. The Veteran’s allergic rhinitis is currently evaluated under Diagnostic Code 6522. August 2008 Rating decision. His allergic rhinitis has staged ratings and rated as noncompensable from January 29, 2008, to April 13, 2009, 30 percent disabling from April 14, 2009, to May 4, 2010, and noncompensable since May 5, 2010. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. The next higher, and highest, rating of 30 percent is warranted for allergic rhinitis with polyps. Id. After careful and through review of the evidence, the Board finds that the Veteran’s allergic rhinitis more closely approximates the criteria for a 30 percent rating prior to May 5, 2010. During treatment for a motorcycle accident in April 2009, a CT scan showed a large right nasal polyp causing right nasal airway obstruction. April 2009 VA treatment evidence. The Veteran reported to his treatment providers that he had about a six-year history of right nasal airway obstruction. December 2009 VA treatment evidence. On May 5, 2010, the Veteran underwent surgery to remove the polyp. See October 2010 VA treatment evidence. The Board recognizes that the first imaging evidence of a nasal polyp was not until April 2009, but the Veteran reported to his treatment providers of having right nasal obstruction since around December 2003. In resolving any reasonable doubt in the Veteran favor, the Board finds that the Veteran has had a right nasal polyp since at least his January 29, 2008, claim for entitlement to service connection for allergic rhinitis. As for the period on appeal since the Veteran’s May 5, 2010, nasal surgery, the Board finds that the Veteran’s allergic rhinitis symptoms more closely approximates the criteria for a 10 percent rating. The Veteran was afforded a January 2016 VA examination for his rhinitis. The VA examiner indicated that the Veteran’s rhinitis caused greater than 50 percent obstruction of the nasal passages on both sides and that he had nasal polyps. January 2016 VA examination. However, the VA examiner also noted that imaging of the paranasal sinuses was normal, so it is unclear what the examiner’s finding of obstruction and a polyp were based on. The Board finds the January 2016 VA examiner’s findings and opinions not probative as it is unclear what his findings are based on and they appear to be internally inconsistent with his report. The Veteran was afforded another VA examination for his rhinitis in June 2016. That VA examiner found the Veteran to have rhinitis with no evidence of greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or nasal polyps. June 2016 VA examination. The examiner cited to prior imaging studies showing no recurrent polyp and that an examination of the Veteran showed mild and clear nasal drainage with no polyps, greater than 50 percent obstruction of nasal passages on both sides, or a complete obstruction on one side. Id. The Board finds the June 2016 VA examiner’s findings and opinions probative as they are provided by a medical professional qualified to evaluate the Veteran’s nasal condition, are based on an examination of the Veteran and a review of the evidence, and being supported by a detailed report. The Board considered the Veteran’s testimony that he has trouble breathing through the left side of his nose and finds this to be probative. The Veteran is competent to report his nasal symptoms as they are symptoms he personally experiences and is competent to report. See Buchanan, 451 F.3d at 1337; Jandreau, 492 F.3d at 1376-77. In addition, the medical treatment evidence shows Veteran has continued to complain of some nasal congestion since his nasal polyp surgery. October 2010 VA treatment evidence. A January 2012 CT showed no evidence of a recurrent nasal polyp, but noted a small mucous retention cyst in the left maxillary sinus. A January 2015 CT showed the Veteran to have a 2.8 centimeter retention cyst. January 2015 VA treatment evidence. In November 2017, his treatment providers noted that the Veteran has uncontrolled allergies and a swollen nasal area. November 2017 VA treatment evidence. In September 2019, the Veteran was noted to have mild to moderate mucosal thickening. September 2019 VA treatment evidence. Lastly, the Board notes that the Veteran is currently taking medication for his allergic rhinitis, the ameliorative effects of which are not explicitly contemplated by Diagnostic Code 6522. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); June 2016 VA examination. While the June 2016 VA examiner’s opinion is probative and supports a noncompensable disability rating for the Veteran’s allergic rhinitis, the Veteran’s lay statements and the medical treatment evidence raises as reasonable doubt as to whether the Veteran has complete obstruction of the left side of his nose due to his allergic rhinitis. In resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s allergic rhinitis has manifested with complete obstruction of the left nasal passage. Accordingly, a 10 percent rating for allergic rhinitis since May 5, 2010, is warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.