Citation Nr: 20052996 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 07-06 643A DATE: August 10, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus, for accrued or substitution purposes, is denied. Entitlement to a disability rating of 10 percent for right hallux rigidus with degenerative changes in the first metatarsophalangeal (MTP) joint prior to March 6, 2002 is granted, for substitution purposes, subject to the laws and regulations of monetary payments. Entitlement to a disability rating in excess of 10 percent for right hallux rigidus with degenerative changes in the first MTP joint from March 6, 2002, for accrued or substitution purposes, is denied. Entitlement to a compensable disability rating for arthritis of the left first MTP joint prior to August 3, 2011, for accrued or substitution purposes, is denied. Entitlement to a disability rating in excess of 10 percent for arthritis of the left first MTP joint from August 3, 2011, for accrued or substitution purposes, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) for accrued or substitution purposes is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued or substitution purposes is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus was productive of moderate symptoms manifested by foot pain but has not been productive of pronounced symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achillis on manipulation. 2. Providing the Veteran, the benefit of the doubt, prior to March 6, 2002, the Veteran’s hallux rigidus in the right great toe was characterized as severe. 3. From March 6, 2002, the Veteran’s hallux rigidus in the right great toe was rated as 10 percent disabling, which is the maximum schedular rating permitted for severe unilateral hallux rigidus. 4. Prior to August 3, 2011, the Veteran Veteran’s arthritis of the left first MTP joint did not cause painful motion. 5. From August 3, 2011, the Veteran’s arthritis of the left first MTP joint was rated as 10 percent disabling, which is the maximum schedular rating permitted for hallux valgus or painful motion of a joint due to arthritis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes planus, for accrued or substitution purposes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs)5003, 5276, 2. The criteria for a disability rating of 10 percent for hallux rigidus prior to March 6, 2002, for accrued or substitution purposes, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5281. 3. The criteria for a rating in excess of 10 percent for hallux rigidus from March 6, 2002, for accrued or substitution purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5281. 4. The criteria for a compensable rating for arthritis of the left first MTP joint prior to August 3, 2011, for accrued or substitution purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5280, 5003 5. The criteria for a rating in excess of 10 percent for arthritis of the left first MTP joint from August 3, 2011, for accrued or substitution purposes, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5280, 5003 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1977, including service in the Republic of Vietnam. He also had a period of active duty service from November 1977 to January 1982 from which he received a dishonorable discharge. The Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) previously determined that VA benefits may not be granted for disability arising from that period of service. See December 1984 VA Administrative Decision. The Veteran died in February 2012. His surviving spouse has been properly substituted as the Appellant in this appeal. This matter comes before the Board of Veterans’ Appeals (Board) initially from an April 2002 rating decision, which denied entitlement to service connection for PTSD and denied a rating in excess of 10 percent for bilateral pes planus. A rating decision in April 2002 increased the rating for bilateral pes planus to 30 percent, effective September 18, 2001, which is the date VA received the claim for a higher rating. The Veteran continued to disagree with the assigned rating. In December 2014, the Board, in pertinent part, denied the claim for a rating in excess of 30 percent for bilateral pes planus and remanded the service connection claim for a psychiatric disorder to the agency of original jurisdiction (AOJ) for additional development. The Appellant appealed the Board’s decision regarding a higher rating for bilateral pes planus to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 Order, the Court vacated the part of the Board’s December 2014 decision that denied a rating in excess of 30 percent for bilateral pes planus and remanded the case to the Board for further proceedings consistent with a June 2015 Joint Motion for Partial Remand (Joint Motion). In August 2015, the Board remanded the increased rating claim for bilateral pes planus for further development consistent with the Joint Remand. In a September 2018 rating decision, the AOJ granted service connection for hallux rigidus with degenerative changes; left arthritis of the first MTP joint, effective September 18, 2001 and August 3, 2011, and continued the 30 percent rating assigned for bilateral pes planus. In November 2018 the Board again remanded the claims of entitlement to service connection for an acquired psychiatric disorder to include PTSD and major depression, and entitlement to a rating in excess of 30 percent for bilateral pes planus with degenerative changes in the first metatarsophalangeal (MTP) joints, bilateral and hallux rigidus of the first MTP joint. On remand and in an April 2020 rating decision, the AOJ established separate service connection for hallux rigidus with degenerative changes of the first MTP joint as secondary to bilateral pes planus and assigned a 10 percent rating effective from March 6, 2002, the date the evidence showed the condition worsened; and established separate service connection for arthritis of the left first MTP joint as secondary to service-connected pes planus with a separate 10 percent rating assigned effective from August 3, 2011, the date the evidence showed the Veteran’s condition worsened. Finally, where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board notes that the in May 2002, and in subsequent submissions, the Veteran contended that his foot disability caused him to be unemployed. As the TDIU claim is part in parcel of his increased rating claim, the TDIU claim is part of the Veteran’s and now Appellant’s claim. 1. Increased Ratings for Foot Disorders The Veteran has three separate service-connected foot disorders each of which are claimed to be more severe than they are currently rated. The Veteran’s bilateral pes planus is rated 30 percent during the appellate period. The Veteran’s right foot hallux rigidus with degenerative changes in the first metatarsophalangeal joint is rated noncompensable from September 18, 2001 to March 5, 2002 and 10 percent thereafter. The Veteran’s left foot arthritis of the left metatarsophalangeal joint is rated noncompensable from September 18, 2001 to August 2, 2011 and 10 percent thereafter. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, the rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities but finds nothing which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s pes planus is rated under 38 C.F.R. § 4.71a, DCs 5003-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code (in this case degenerative arthritis under DC 5003) requires use of an additional diagnostic code to identify the basis for the evaluation assigned (in this case pes planus under DC 5276); the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5276, a 30 percent rating is warranted for severe bilateral pes planus; or, for pronounced unilateral pes planus. Severe pes planus is manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. Pronounced pes planus is manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation and the symptoms are not improved by orthopedic shoes or appliances. A 50 percent rating is warranted for pronounced bilateral pes planus. At a March 2002 VA examination, the Veteran reported that he experienced pain along the medical aspects of both feet and the arches. However, the Veteran reported that he did not take medication on a regular basis for treatment of his foot pain. The Veteran did report that he used orthotics on occasion. Upon physical examination, the Veteran was noted to walk with a slightly antalgic gait on the right. There was swelling in both feet and through the MTP joint of the right great toe. Limited range of motion resulting from pain was noted. The Veteran was noted to have moderate pes planus in both feel, but it was noted to be flexible and improved when he went up on his toes. There was no abnormal callus formation or internal rotation in the first ray, and his weight bearing line remained lateral to the great toe ray. X-rays of the feet did not reveal any significant abnormalities other than some degenerative changes at the metatarsophalangeal joint of the right great toe. The examiner diagnosed flexible pes planus, bilateral, and noted it was moderately symptomatic. At a December 2005 VA examination, the Veteran reported that while at rest, he experienced pain, weakness, stiffness, and swelling in his feet. He reported that he experienced pain while walking. Upon physical examination, there was no tenderness, weakness, edema, atrophy, or disturbed circulation in either foot. Pes planus was present, there was a slight degree of valgus present in the right foot. There was no forefoot or midfoot misalignment or tenderness to palpation of the plantar surface, bilaterally. The Achilles tendon revealed good alignment, bilaterally. The Veteran was noted to have limitations with standing for long periods and walking on hard surfaces. The Veteran was also noted to require orthopedic shoes, arch supports, and foot supports; but that the pain was not relieved by the corrective devices. At an October 2009 VA examination, the Veteran did not describe any flare-ups or incapacitating episodes and the examiner noted that the Veteran did not really describe any complaints that could be associated specifically with his pes planus. Upon physical examination the Veteran had mild, asymptomatic pes planus in both feet. He had a mild antalgic gait, but it was noted to be a result of his right great toe arthritis and not his pes planus. There was no abnormal shoe wear noted. The examiner found that there was no pes planus by examination or X-ray in either foot. At an August 2011 VA examination, the Veteran reported experiencing pain along the medial aspect and arches of both feet. The Veteran reported that he used shoe inserts to help manage his pain. He reported that his foot pain worsened upon standing and walking. Upon physical examination there was no swelling, instability, weakness, or abnormal weight bearing in either foot. There was evidence of painful motion in the right foot and tenderness in both feet. Achilles alignment was normal in both feet and there was no evidence of forefoot or midfoot malalignment in either foot. There was no pronation. The examiner diagnosed flexible pes planus, bilateral, that was noted to be moderately symptomatic. The examiner also diagnosed hallux rigidus with degenerative changes of the right great toe. In July 2017, VA obtained an addendum medical opinion. The examiner found the Veteran’s right hallux rigidus with degenerative changes of the right great toe and his arthritis of the left MTP joint was at least as likely as not secondary to his service-connected pes planus. The examiner did not address the severity of the Veteran’s pes planus or hallux valgus with degenerative arthritis in the left MTP. In April 2020, VA obtained another VA medical opinion. The examiner opined that there is absence of any supporting evidence or documentation in the medical literature that hallux rigidus of the right first MTP joint was equivalent to amputation of the great toe. The examiner stated she reviewed the claims file and took into account the Veteran’s career as a mailman until 2005, the Veteran’s symptoms, and the reported functional limitations reported in 2011. The examiner stated that the Veteran claimed mild limitation for bathing, moderate for chores, and severe for shopping due to walking. The examiner noted that the Veteran wore inserts. A review of the record shows that the Veteran received treatment at a VA Medical Center for various disabilities. However, a review of the treatment notes of record fails to show that the Veteran reported symptoms of his feet disabilities that were worse than those reported at his various VA examinations; with the exception of the Veteran’s right great toe disability. VA treatment records demonstrated a right hallux rigids in the right great toe in August 2011 that along with his pes planus caused moderate to severe impairment impact on his daily living. The Veteran also reported pain in his right big toe in February 2002 that caused difficulty with walking. The Board finds that the Veteran was not entitled to a rating in excess of 30 percent for his bilateral pes planus. In this regard, the Board notes that there is no competent and credible evidence of record indicating that the Veteran had pronounced pes planus with symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo-Achilles on manipulation. While the Veteran did have some tenderness, it was not described as extreme and there is no indication from the record that he did not experience some relief through use of orthotics. Further, the VA examiners have indicated that the Veteran’s pes planus was, at worse, moderate in severity. Therefore, the Board finds that a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.71a, DC 5276. As noted, the Veteran was also service-connected separately for hallux valgus and left toe arthritis under DCs 5280 and 5281 and each rated 10 percent respectively. DC 5281 (for hallux rigidus) indicates that hallux rigidus is to be rated as hallux valgus. DC 5280 pertains to hallux valgus. As the Veteran's condition continues to be manifested by both arthritis and hallux rigidus the Board finds that DCs 5003 and 5281, are the most appropriate. However, as explained above, DC 5281 refers the rater to DC 5280 for evaluating the severity of the condition. DC 5280 provides ratings for unilateral hallux valgus. This diagnostic code provides a single, maximum 10 percent rating for severe unilateral hallux valgus that is severe. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is also rated as 10 percent disabling. 38 C.F.R. § 4.71a. The Board notes that the Veteran’s right foot has only been identified as having hallux rigidus. As the Veteran is already in receipt of the maximum 10 percent rating, DC 5280 cannot serve as a basis for a higher rating. Neither can DC 5003, as the functional limitations associated with degenerative arthritis (including pain and limitation of motion) are already contemplated by the criteria for rating hallux valgus. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As there is no evidence the Veteran’s toes were amputated or that the evidence in the record demonstrated that his disabilities were so severe that it was equivalent to an amputation a higher rating for his hallux valgus and hallux rigidus is not warranted. However, the Board finds that a 10 percent disability rating for the Veteran’s right toe prior to March 5, 2002 is warranted. In this regard, the Board notes that the Veteran filed an increased rating claim for pes planus in September 2001, and that the toe ratings were subsequently granted as part of that increased rating claim. VA treatment records note that the Veteran reported to that he had pain in his right toe that caused difficulty walking. Providing the Veteran the benefit of the doubt the Board finds that the Veteran’s hallux rigidus was severe, as it caused difficulty walking, throughout the appellate period and a 10 percent rating is warranted prior to March 6, 2002. Concerning the Veteran’s left toe arthritis, from August 3, 2011, the Veteran’s 10 percent rating was based on painful motion. As the toes are not rated based on limited range of motion, there is no higher rating for the Veteran’s left toe arthritis under DC 5003. Therefore, a separate, or higher rating under DC 5003 may not be awarded. The Board further finds that there is no evidence in the record that the Veteran’s left toe arthritis caused painful motion. The Veteran’s treatment records or VA examinations do not demonstrate any pain in the Veteran’s left MTP joint or in any of the Veteran’s left toes prior to August 3, 2011. Therefore, the Board finds that the prior to August 3, 2011 a compensable disability rating is not warranted. The Board has also considered the other DCs 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 United States Court of Appeals for the Federal Circuit (Federal Circuit) expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under DCs 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 DCs 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 DCs, 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. The Board finds that DCs 5277 (bilateral weak foot), 5278 (clawfoot), 5279 (metatarsalgia), and 5282 (hammertoe), 8283 (malunion of tarsals) are not applicable or would not result in a rating higher than 30 percent. The evidence does not establish that the Veteran has atrophy of the musculature, disturbed circulation, and weakness, dropped forefoot with all toes hammer toes, metatarsalgia, hammertoe, or malunion of the tarsals. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Appellant contends that the Veteran’s acquired psychiatric disability began in service or is otherwise etiologically related to his service. In February 2020, VA obtained an addendum medical opinion. The examiner found that a review of the records indicates that there is no evidence of a psychiatric condition that conformed to the DSM-IV that are related ot the Veteran’s military experiences or had its onset and continued after the military. The examiner also found no evidence of major depression beginning during the military and continuing after his military discharge in 1982 and lasting until he first began to report such symptoms in 2000. The examiner found no evidence of PTSD beginning during military and continuing after his military discharge in 1982 and lasting until he first began to report such symptoms in 2007. The examiner noted that until 2007, the Veteran’s reports and descriptions of symptoms were not consistent with a diagnosis of PTSD. The examiner found no evidence that either condition had etiology during the Veteran’s honorable period of service from November 1968 to November 1977 or is otherwise related to his honorable period of military service. The examiner concluded that any such physiatric diagnosis assigned did not begin during the Veteran’s honorable period of service from 1968 to November 1977 or is otherwise related to his honorable period of service. A June 1975 medical clinic note reads, “Situational anxiety,” and indicates that diazepam (Valium) was prescribed. A March 1977 consultation request for evaluation by the mental health clinic lists the reason for the request as the Veteran “requesting ‘nerve’ medication.” The Veteran’s service treatment records from his dishonorable period of service from November 1977 to January 1982 also document his history of psychiatric problems from his honorable period of service. In early May 1980, while awaiting General Court-Martial proceedings, he presented to the Community Mental Health Activity (CMHA) at Fort Jackson as a self-referral for depression. The record indicates he had been seen previously at the CMHA in Vietnam, Germany, and Thailand. The record also notes that in a May 1987 VA examination. The examiner noted the Veteran complained of difficulty falling asleep and emotional problems in June 1986. In November 1990, the Veteran presented for a psychiatric evaluation at the Houston VAMC after having moved from Oklahoma in September 1987. The psychiatrist’s note states, “There was a follow up for PTSD with poor response to meds. Now here has continue [with] immense feelings of depression, hopelessness, emptiness, frequent nightmares, when he gets some sleep.” The diagnosis was major depression for which Pamelor was prescribed; the psychiatrist provisionally diagnosed PTSD. Finally, a February 1992 psychiatry note references the Veteran’s “participation in the [Vietnam] outreach program from 1982 to 1987 for his PTSD.” During the evaluation, the Veteran reported that he saw a psychiatrist while he was in Vietnam related to his feelings of guilt about “dropping his brother,” which he believed caused his brother to develop mental retardation. The assessment was major depression. Subsequent records document ongoing treatment for recurrent major depression. The Board finds that the February 2020 VA examination is not adequate for adjudication. The Board notes that some of the Veteran’s records were determined to be unavailable. However, the evidence that is available appears to indicate that the Veteran had symptoms of a psychiatric disability prior to 2000, and arguably limited evidence of psychiatric symptoms during his honorable service. The examiner’s opinion that the Veteran’s acquired psychiatric disorder was not etiologically related to his honorable period of service was based on the rationale that there was no evidence of an acquired psychiatric disorder during his honorable service or continuity of symptoms until 2000. As there is evidence that the Veteran was treated for psychiatric disorders prior to 2000, the Board finds the examiner’s rationale is inadequate. A remand is required in order to obtain an adequate medical opinion. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issues of entitlement to a TDIU the issue is inextricably intertwined. These matters are deferred pending resolution of the other matter on remand. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician. The examiner must provide the follow opinions: (a.) Identify each psychiatric disability the Veteran had during the appellate period until his death. (b.) For each identified disability, opine as to whether it is at least as likely as not related to the Veteran’s honorable service (November 1968 to November 1977) i. The examiner must discuss the Veteran’s honorable service and evidence of psychiatric medication and some treatment during honorable service. ii. If the examiner finds that there is no continuity of treatment or symptoms until 2000, then the examiner must discuss the evidence of psychiatric treatment and complaints prior to 2000. iii. The examiner is advised that in forming the requested opinions, he or she may not consider any instances of treatment for or diagnoses of mental health disability arising during, or otherwise related to, the Veteran’s service from November 1977 to January 1982 for which the Veteran received a dishonorable discharge. (c.) The examiner must provide a complete rationale for all opinions provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.