Citation Nr: 20032833 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 18-38 371 DATE: May 11, 2020 ORDER A rating in excess of 10 percent for a left foot hallux valgus, outside of his convalescent period, is denied. FINDING OF FACTS Outside of his post-surgical convalescent period, the Veteran has been in receipt of the maximum schedular rating available for the hallux valgus in his left foot. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hallux valgus of the left foot, outside of the convalescent period, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans served on active duty from October 1977 to October 1980. This matter is on appeal from an August 2017 rating decision. He is currently seeking a rating in excess of 10 percent for the service-connected hallux valgus of his left foot. Historically, the Veteran filed for a non-initial rating increase claim in June 2017. In an August 2017 rating decision, the Veteran was granted a rating increase to 10 percent, effective September 11, 2016. In response, he filed a timely Notice of Disagreement, asserting a higher rating. Then, in an April 2018 rating decision, the Veteran was assigned a temporary 100 percent rating from June 27, 2017 to September 30, 2017 due to surgery and convalescence. A rating of 10 percent was resumed from October 1, 2017 thereafter. The Board will discuss whether a rating in excess of 10 percent is warranted for the periods prior to and after his convalescence period. The Veteran is currently rated under Diagnostic 5280 for his left hallux valgus. Diagnostic Code 5280 provides ratings for unilateral hallux valgus. 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. See 38 C.F.R. § 4.71a, DC 5280. That is, 10 percent is the highest schedular rating assignable for hallux valgus, regardless of severity. Here, the Veteran is receipt of a 10 percent rating for his left hallux valgus. A 10 percent rating is the maximum schedular rating available under DC 5280. Therefore, the Veteran has been in receipt of the maximum schedular rating for his left hallux valgus throughout the entire appeal period (excluding the period in which he was in receipt of a temporary 100 percent rating). In Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court interpreted the regulations governing conditions of the feet and found that the eight-foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under DC 5284 (other foot injuries), because “to hold that DC 5284 applies to the other eight listed foot conditions would essentially render those (other) DCs redundant.” Id. at 337-38. In light of Copeland, the Board finds that the only DC under which the Veteran’s left hallux valgus with bunions may permissibly be evaluated is DC 5280. A rating in excess of 10 percent from September 11, 2016 to June 26, 2017 In a June 2017 letter from his private physician, the Veteran had been in persistent pain due to the degenerative changes at the 1st MTP and deviation of the left hallus abutting the second left toe. He was scheduled for an arthrodesis of the 1st MTP left foot, and osteotomy 2nd metatarsal left foot, and fusion of the PIPJ 2nd toe of the left foot. The Veteran was afforded an evaluation in August 2017. There, he reported that during flare-ups, it is difficult for him to walk. His hallux valgus was considered so severe, that it was functionally equivalent to the amputation of his great toe. He also reported pain on movement, pain on weight-bearing as well as non-weight bearing. However, there were no other symptoms or condition such as pes planus, Morton’s neuroma, hammer toe, hallux rigidus, acquired pes cavus (claw foot), or malunion or nonunion of tarsal or metatarsal bones. No other foot injuries were documented. Based on the August 2017 physical evaluation, RO assigned a 10 percent rating for his service-connected left foot hallux valgus, effective September 11, 2016. During this time period, the Board finds that the evidence of record failed to show that a rating in excess of 10 percent is warranted. As he has been assigned the maximum rating under Diagnostic Code 5280, the Board has also considered whether a higher rating is warranted under a different diagnostic code. However, given that the August 2017 examination revealed no other foot condition. Thus, it would not be appropriate for the Veteran’s left hallux valgus be rated under a different diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015). The Board acknowledges the Veteran’s competent reports of severe foot pain causing difficulty for him to walk, especially during flare ups. The August 2017 evaluation specifically noted pain on movement, weight-bearing, and non-weightbearing. Ultimately, the examiner found that the Veteran’s symptoms is functionally equivalent to amputation of the great toe. Nonetheless, the above-mentioned symptoms are contemplated by the Veteran’s current disability rating under DC 5280, which assigns a 10 percent rating for severe hallux valgus, is equivalent to amputation of the great toe. Accordingly, a rating in excess of 10 percent if not warranted prior to June 26, 2017. A rating in excess of 10 percent from October 1, 2017 The Veteran contends that his service-connected left hallux valgus did not improve after his surgery and convalescence period. In a February 2018 letter, the Veteran asserted that the fusion in his toe “had not healed correctly.” Because of this, he experiences continuous pain and requires supportive/corrective shoes. Based on the Veteran’s May 2018 Disability Benefits Questionnaire, the Veteran’ s hallux valgus was considered mild or moderate, post-surgery. He demonstrated pain on weight-bearing, swelling, and deformity. Overall, the physician found that the Veteran’s left foot condition equated to a moderate level of severity. Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran’s left foot hallux valgus is not warranted for the period from October 2017. The objective medical evidence shows that the Veteran’s condition is at most at a moderate level, with the resection of the metatarsal head. This is the maximum schedular rating for his hallux valgus. The Board notes that the Veteran developed pes planus, hammer toe of the 2nd metatarsal, and hallux rigidus in the left foot, in addition to his hallux valgus. The Veteran has already been granted a separate noncompensable rating for his hammer toe. As previously discussed, when a condition is specifically listed in the rating schedule, it may not be rated by analogy. Copeland, Vet. App. 333. In this case, the other diagnostic codes applicable to the foot do not need to be considered because the Veteran’s service-connected hallux valgus is specifically listed by the schedule. Thus, the only Diagnostic Code applicable for this issue is Diagnostic Code 5280. The Board also considered whether higher ratings are warranted for the appeal period based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, the Veteran’s symptoms and functional impairment are encompassed in the 10 percent rating criteria under DC 5280 and have been considered as symptoms when evaluating the severity of a hallux valgus. Accordingly, a rating in excess of 10 percent for bilateral hallux valgus must be denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.