Citation Nr: 20037562 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 08-29 712A DATE: June 2, 2020 ORDER A rating in excess of 10 percent for surgery, right foot bunionectomy (right foot disability), except for during the periods when the Veteran received temporary total ratings, is denied. FINDINGS OF FACT 1. The symptoms of the Veteran’s right foot disability more nearly approximated severe impairment of hallux valgus, unilateral. 2. The Veteran has been in receipt of the maximum schedular rating under Diagnostic Code (DC) 5280 for hallux valgus. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right foot disability are not met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. § 3.102, 4.71a, DC 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1985 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO, in pertinent part, continued the 10 percent rating for the right foot disability. During the pendency of the appeal, the RO assigned multiple periods of temporary total ratings for convalescence following the Veteran’s surgeries for her right foot disability pursuant to 38 C.F.R. § § 4.30. During each of those periods, the Veteran received a temporary 100 percent evaluation; therefore, there is no issue in controversy for those periods, and they will not be discussed further. In June 2012, March 2016, and October 2017, the Board remanded the issues on appeal for further development. Most recently in October 2017, the Board remanded the appeal to obtain VA and private treatment records and to schedule the Veteran for a VA examination to assess the severity of her service-connected right foot disability. Subsequently, outstanding treatment records were obtained and in August 2018, the Veteran was afforded a VA examination that assessed the current severity of her right foot disability with an addendum opinion in September 2018. The August 2018 examination and the September 2018 VA opinion provides sufficient details to adequately decide the Veteran’s appeal. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran’s right foot disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5280, hallux valgus. DC 5280 provides for a maximum 10 percent schedular rating when the metatarsal head has been resected or when hallux valgus is severe, if equivalent to the amputation of the great toe. In September 1993, the Veteran was granted service connection for “surgery [of the] right foot bunionectomy” and assigned a 10 percent rating, effective March 1993. See rating decision (September 1993). In July 2006, the Veteran filed a claim for an increased rating for her right foot disability. The Veteran has a long-standing history of right foot complains and surgical procedures. Specifically, the Veteran’s right foot surgeries include a right foot bunionectomy in 1992; a partial replacement of the right first metatarsophalangeal (MTP) joint in 2007; a right first metatarsal head cheilectomy and arthrotomy of the first MTP joint in May 2015; and a right first MTP joint arthroplasty in August 2017. See VA examination report (May 2016); private treatment records (August 2017). During the appeal period, the Veteran reported right foot stiffness, dull pain, severe and daily pain, swelling, throbbing pain on weightbearing, shortened right toe, limited and painful range of motion, and flare up symptoms. See VA examination reports (January 2007; June 2007; May 2008; May 2016; August 2018); Disability Benefits Questionnaire (DBQ) (August 2016); the Veteran’s email to her treating physician (February 2017). The Veteran indicated that her right foot pain and flare up symptoms were aggravated by ambulation and walking. See VA examination report (May 2016). The Veteran also reported that her walking and standing were limited due to her right foot disability. See VA examination reports (June 2007; August 2018). She stated that her daily activities were restricted due to her right foot disability. See VA examination report (May 2008). Upon physical examination of the right foot and toe, there was painful range of motion of the right foot, to include right great toe. See VA examination (May 2008; May 2016). There was decreased and painful range of motion in the first right MTP joint. See VA examination reports (January 2007; June 2007; May 2008); VA podiatry medical record (November 2016). There was functional loss and/or functional impairment, in terms of less movement than normal, weakened movement, pain on movement, pain on weight-bearing, disturbance of locomotion, and interference with standing. See VA examination reports (May 2016; August 2018); DBQ (August 2016). There was right foot pain that caused functional loss. See, e.g., VA examination report (August 2018). There was pain on weight bearing and non-weight bearing. See VA examination reports (January 2007; June 2007; May 2008; May 2016). The August 2016 examiner indicated that the Veteran had pain on use, pain on manipulation, swelling, and extreme tenderness of the plantar surfaces of the right foot. In an August 2016 DBQ, the examiner indicated that the Veteran had decreased range of motion, foot dysfunction, and a shortened great toe. Additionally, the August 2016 examiner indicated that the Veteran had decreased longitudinal arch height and marked deformity of the right foot. The examiners indicated that the Veteran required corrective shoe inserts and a cane for ambulation. See VA examination reports (January 2007; June 2007; May 2008; May 2016; August 2018); DBQ (August 2016). The May 2016 VA examiner indicated that the Veteran’s right foot disability manifested by metatarsalgia and severe symptoms due to hallux rigidus. A June 2017 VA medical record reflects that the Veteran had progressive shortening of the right hallux proximal phalanx. The August 2018 examiner indicated that the Veteran’s right total first MTP joint arthroplasty and arthrofibrosis is a progression of her service-connected right foot disability. See VA addendum opinion (September 2018). The examiners and treatment providers diagnosed osteoarthritis of the right first MTP joint, residual hallux limitus; multiple post-surgical changes to the right first MTP; hallux rigidus and a right foot injury with metatarsalgia, and arthrofibrosis. See VA examination reports (January 2007; June 2007; May 2008; May 2016; August 2018); DBQ (August 2016). In this case, the VA examiners and treatment have not differentiated between symptomatology associated with the Veteran’s right foot disability and the nonservice-connected right foot disabilities. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.). Accordingly, the Board will attribute all of the Veteran’s right foot and toe symptoms to the service-connected right foot disability for the purpose of assessing the severity of that disability. A rating in excess of 10 percent under DC 5280 is not warranted, as a 10 percent rating is the maximum schedular rating under DC 5280. The Board has considered whether the Veteran would be entitled to a rating higher than 10 percent or entitled to a separate rating under another DC pertaining to the foot. To this extent, the Veteran’s right foot disability has been diagnosed as hallux rigidus. Pursuant to 38 C.F.R. § 4.71a, DC 5281, hallux rigidus is rated as hallux valgus, severe, under DC 5280. A disability may not be rated by analogy under another code, when a condition is already specifically listed in the rating schedule (hallux valgus, in this case). See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that DC 5284 does not apply to the foot conditions specifically listed in 38 C.F.R. § 4.71a, and that rating listed conditions under DC 5284 constitutes an impermissible rating by analogy). Moreover, the Veteran’s right foot disability has also been diagnosed as right foot injury with metatarsalgia. Pursuant to 38 C.F.R. § 4.71a, DC 5279, metatarsalgia, anterior (Morton’s disease) provides a maximum 10 percent schedular rating. To this extent, DC 5279 does not provide a rating higher than 10 percent for the Veteran’s right foot disability, as the maximum schedular rating is 10 percent. Additionally, a separate 10 percent rating under DC 5279 is not permitted, as it would amount to pyramiding because the manifestations of the Veteran’s metatarsalgia include pain, swelling, stiffness, limitation of motion, and flareups which are the same manifestations as her hallux rigidus. 38 C.F.R. § 4.14. As to other DC pertaining to the foot, rating by analogy under a different DC than DC 5280 is not appropriate, as the Veteran’s disability is specifically listed in the rating schedule. For the foregoing reasons, a rating higher than 10 percent for a right foot disability under DC 5280 is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.