Citation Nr: A20007317 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190405-23334 DATE: April 30, 2020 ORDER Entitlement to service connection for generalized anxiety disorder, as a symptom of the Veteran’s service-connected major depressive disorder, is granted. Entitlement to a rating in excess of 30 percent for pes planus with calluses associated with degenerative joint disease, bilateral feet is denied. Entitlement to a rating in excess of 10 percent for left hallux valgus, status post bunionectomy, is denied. Entitlement to a rating in excess of 10 percent for right hallux valgus, status post bunionectomy, is denied. Entitlement to a compensable rating for hammer toe, right second toe, is denied. Entitlement to a compensable rating for degenerative joint disease, bilateral feet, is denied. Entitlement to a compensable rating for scars, bilateral feet, residuals of bunionectomy associated with left hallux valgus, status post bunionectomy, is denied. FINDINGS OF FACT 1. The Veteran’s anxiety is a symptom of his service-connected major depressive disorder associated with service-connected disabilities. 2. During the appeal period, the Veteran’s bilateral pes planus was shown to be manifested by objective evidence of marked deformity and pain on manipulation and use accentuated, but not by marked pronation, or marked inward displacement and severe spasm of the achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 3. The Veteran’s left foot hallux valgus was manifested by operation with resection of metatarsal head. 4. The Veteran’s right foot hallux valgus was manifested by operation with resection of metatarsal head. 5. The Veteran does not have hammer toe affecting all toes, unilateral without claw foot. 6. During the appeal period, the Veteran’s degenerative joint disease, bilateral feet, was manifested by pain, for which he is compensated. 7. The Veteran’s scars, bilateral feet, residuals of bunionectomy associated with left hallux valgus, status post bunionectomy were not shown to be painful or unstable and were of an area less than 6 square inches. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a rating in excess of 30 percent for pes planus with calluses associated with degenerative joint disease, bilateral feet, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5276. 3. The criteria for a rating in excess of 10 percent for left foot hallux valgus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5280. 4. The criteria for a rating in excess of 10 percent for right foot hallux valgus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5280. 5. The criteria for a compensable rating for hammer toe, right second toe, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5282. 6. The criteria for a compensable rating for degenerative joint disease, bilateral feet, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5003. 7. The criteria for a compensable rating for scars, bilateral feet, residuals of bunionectomy associated with left hallux valgus, status post bunionectomy, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to June 1985 and from September 1985 to September 1989. The Veteran selected the Supplemental Claim lane when he opted into the Rapid Appeals Modernization Program (RAMP) in March 2018. Accordingly, the May 2018 rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran filed a RAMP selection form in September 2018, electing a Supplemental Claim lane. As an aside, the Board notes that the Veteran did not include the issue of service connection for rheumatoid arthritis in the September 2018 RAMP selection form; the issue had been denied in the May 2018 RAMP rating decision; accordingly, it is not on appeal. A supplemental claim RAMP rating decision was issued in January 2019. In March 2019, the Veteran requested a direct review of the evidence. As explained in the March 2019 RAMP selection form, “direct review” means that the Board’s decision must be based upon the evidence of record at the time of the RAMP rating decision, with no evidence submission or hearing request. As such, the Board may only consider, and has only considered, the evidence of record at the time of the January 2019 RAMP decision. Regarding the claim of service connection for anxiety, the Board notes that the Agency of Original Jurisdiction (AOJ) presumed the receipt of new and relevant evidence and readjudicated the claim in the January 2019 RAMP rating decision. Service Connection The Veteran seeks service connection for an anxiety condition. See April 2015 Fully Developed Claim. After a review of the pertinent medical evidence during the relevant appeal period, the Board finds that the Veteran’s anxiety is a symptom of his already service-connected major depressive disorder secondary to service-connected conditions, and that his service-connected major depressive disorder should be classified as such, i.e., major depressive disorder with anxiety, associated with right hallux valgus, post bunionectomy. In this regard, in a July 2017 Mental Disorders Disability Benefits Questionnaire (DBQ), Dr. C.M. noted that the Veteran had anxiety symptoms due to his chronic pain. In an August 2018 VA Mental Disorders examination report, anxiety was noted as a symptom of the Veteran’s diagnosed major depressive disorder, and the major depressive disorder was noted as being related to the Veteran’s service-connected foot pain and resulting limitations. The August 2018 rating decision granting service connection for major depressive disorder noted that anxiety was included as part of the Veteran’s rating. A January 2019 VA treatment note assessed the Veteran with generalized anxiety disorder. Accordingly, upon consideration of all information and lay and medical evidence in this matter, the Board finds that anxiety should be recognized as part of the already service-connected major depressive disorder, and as such, service connection is granted for anxiety. Increased Rating Claims 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. 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). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged" ratings.” Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. Because the Veteran has multiple claims regarding his various foot disabilities, the Board will summarize all the relevant evidence together, before addressing the ratings for each individual disability. In connection with his claim, the Veteran underwent a foot conditions examination in May 2014. Noted diagnoses were right hammertoe, right hallux valgus, and bilateral degenerative arthritis of the feet. The Veteran noted prior surgeries on both feet for bunions, hammer toe, and hallux valgus. He said he experienced constant pain, worst in the morning. He described the pain as sharp and moving through his calves. He reported flare-ups manifested by swelling on the top of the feet four to five times per week. Regarding pes planus, the Veteran had pain on use of both feet, swelling on use of both feet, and characteristic calluses. He reported the use of arch supports and built up shoes. There was no extreme tenderness of plantar surfaces on one or both feet, nor was there evidence of decreased longitudinal arch height of one or both feet on weight-bearing. There was no marked deformity of either foot, no marked pronation of either foot, and the weight-bearing line did not fall over. There was no other lower extremity deformity, no inward bowing of the achilles tendon, and no marked inward displacement and severe spasm of the Achilles’ tendon on manipulation of either foot. Right-sided second toe hammer toe was noted. The examiner noted mild or moderate symptoms of right-sided hallux valgus. No other foot injuries were noted. Degenerative arthritis was shown by imaging studies from February 2014. A July 2014 private treatment note shows that the Veteran sought treatment for pain in both feet. The provider noted pes planus and a history of plantar fasciitis. A February 2016 private treatment note shows that the Veteran had bilateral plantar fasciitis symptoms and residual hallux valgus with internal pins noted radiographically on the first MPJ and on the hallux. The Veteran underwent another foot conditions examination in March 2016. The examiner noted diagnoses of pes planus and plantar fasciitis. The Veteran reported increased pain when waking up and upon prolonged sitting. He reported flare-ups manifested by difficulty bearing weight. Regarding pes planus, there was evidence of pain on use of both feet, with pain accentuated on use; pain on manipulation of both feet, with pain accentuated on manipulation; and characteristic callouses of both feet. There was no indication of swelling on use. There was extreme tenderness of the plantar surfaces of both feet, without relief by orthopedic shoes or appliances. There was decreased longitudinal arch height of both feet, without evidence of marked deformity or marked pronation. For both feet, the weight-bearing line fell over or medial to the great toe. There was no evidence of inward bowing of the Achilles’ tendon or marked inward displacement or severe spasm. No other foot conditions were noted. Pain was noted on the examination. The examiner described the pes planus as mild to moderate in severity. An April 2016 private treatment note shows that the Veteran picked up orthotics, which the provider noted were a “medical necessity for his condition.” In a June 2017 note, the Veteran complained of pain that was worsening in both feet, consisting of throbbing and aching pain upon arising in the morning. He said the pain in his right big toe was worse. The provider dispensed a second night splint so he would have one for each foot. He was also given a prescription for medication and advised to return to determine whether steroid injections would be needed. The Veteran underwent another VA foot conditions examination in December 2017. The examiner noted diagnoses of bilateral pes planus, bilateral hammer toes, bilateral hallux valgus, and bilateral degenerative arthritis. The Veteran said he took medication and used custom orthotics which provided some relief. He said his pain was sharp, constant, and aggravated with weightbearing activities. He said he had flare-ups three times per week resulting in foot pain withstanding more than 15 minutes of walking more than a quarter of a mile. His pes planus symptoms included: pain on use of both feet, pain on manipulation of both feet; extreme tenderness of plantar surfaces on both feet; decreased longitudinal arch height of both feet on weight-bearing; and objective evidence of marked deformity of both feet. Symptoms did not include: swelling on use; characteristic callouses; marked pronation of either foot; lower extremity deformity other than pes planus causing alteration of the weight-bearing line; inward bowing of the Achilles tendon; or marked inward displacement and severe spasm of the Achilles tendon. It was noted that hammer toe affected the second toe, third toe, fourth toe, and little toe on each foot. Hallux valgus symptoms were described as mild or moderate. 1. Entitlement to a rating in excess of 30 percent for pes planus with calluses associated with degenerative joint disease, bilateral feet. The Veteran’s bilateral pes planus disability has been assigned a 30 percent rating throughout the appeal period, pursuant to Diagnostic Code 5276. Under that Code, a 30 percent evaluation is assigned for severe bilateral pes planus; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The maximum 50 percent rating is assigned when there is evidence of pronounce; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the achilles tendon on manipulation, not improved by orthopedic shoes or appliances. The Board finds that the evidence does not support that a rating in excess of 30 percent is warranted for the Veteran’s pes planus. The evidence shows that, at worst, his pes planus is manifested by pain on manipulation and use accentuated, pain on manipulation of both feet, and characteristic callouses. The Board notes that the March 2016 VA examiner noted extreme tenderness of plantar surfaces of the feet, which is listed under the criteria for a 50 percent rating, but overall finds that the Veteran’s pes planus does not meet the requirements for a 50 percent rating. In this regard, no examination showed marked pronation or marked inward displacement and severe spasm of the achilles tendon on manipulation. Aside from the March 2016 notation of extreme tenderness of the plantar surfaces of the feet, neither the May 2014 nor the December 2017 VA examiners noted that symptom. Treatment records do not show marked pronation, marked inward displacement, or severe spasm of the achilles tendon on manipulation. Accordingly, a rating in excess of 30 percent for pes planus is not warranted. 2. Entitlement to a rating in excess of 10 percent for left hallux valgus. 3. Entitlement to a rating in excess of 10 percent for right hallux valgus. The Veteran’s hallux valgus is rated under Diagnostic Code 5280; each foot is assigned a 10 percent rating. Under that Code, hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Hallux valgus that has been operated upon with resection of the metatarsal head is also rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5280. There is no higher rating available under this Diagnostic Code. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for left foot hallux valgus or in excess of 10 percent for right foot hallux valgus. The AOJ’s grant of a 10 percent rating was based on being operated upon with resection of the metatarsal head. See March 2012 rating decision. There is no basis for a higher rating as 10 percent represents the highest rating available under Diagnostic Code 5280 pertaining to hallux valgus. No other Diagnostic Codes may be considered in assessing the rating assigned to the Veteran’s hallux valgus. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Accordingly, a rating in excess of 10 percent for left foot hallux valgus is denied. A rating in excess of 10 percent for right foot hallux valgus is denied. 4. Entitlement to a compensable rating for right second hammer toe. The Veteran’s right second hammer toe disability is rated under Diagnostic Code 5282. Under that Code, a noncompensable rating is warranted where hammer toe affects single toes. A maximum, 10 percent rating is warranted where there is hammer toe of all toes, unilateral without claw foot. Here, the Veteran’s hammer toe did not involve all toes, unilateral without claw foot. According to the December 2017 VA examination, hammer toe affected the Veteran’s right second, third, fourth, and little toe. Therefore, because the hammer toe does not involve all toes, a compensable rating is not assignable under Diagnostic Code 5282. 5. Entitlement to a compensable rating for degenerative joint disease, bilateral feet. The Veteran’s bilateral foot degenerative joint disease is rated as noncompensable pursuant to Diagnostic Code 5003, for degenerative arthritis. Diagnostic Code 5003 directs that degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Board notes that there are no diagnostic codes specific to range of motion of the feet. In this regard, Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. To the extent the Veteran is in receipt of a 30 percent rating for pes planus, two 10 percent ratings for hallux valgus, and a noncompensable rating for hammer toe, the Board finds that to assign a separate compensable rating under Diagnostic Code 5003 for degenerative joint disease based on painful motion would violate the rule against pyramiding pursuant to 38 C.F.R. § 4.14. In this regard, the Veteran’s pes planus rating considers the presence of pain on manipulation and use. Accordingly, the preponderance of the evidence is against the assignment of a compensable rating for degenerative joint disease of the bilateral feet. 6. Entitlement to a compensable rating for scars, bilateral feet, residuals of bunionectomy associated with left hallux valgus, status post bunionectomy. The Veteran’s noncompensable rating for his service-connected foot scars has been in effect since April 7, 2011. He has not asserted, during the course of the appeal, that his scars have worsened or indicated why he is entitled to an increased rating. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the old version of the diagnostic codes only (old code); however, for the period beginning August 13, 2018 the Board will consider both the old and amended version (amended code) of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Diagnostic Code 7800 (both old code and amended code) pertains to scars of the head, face, or neck, and is inapplicable in this case, as the scar to be rated is on the foot. Diagnostic Code 7801 provides for a 10 percent rating for a scar that is not of the head, face, or neck, that is deep and nonlinear (old code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the old code, a “deep scar” is defined as one associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7802 provides for a 10 percent rating for a scar not of the head, face, or neck, that is superficial and nonlinear (old code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. No higher ratings are available under either version of this code. Under the old code, a “superficial scar” is defined as one not associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7800 to 7804. The Veteran’s foot scars are rated as noncompensable under Diagnostic Code 7805. Turning to the relevant evidence, the December 2017 VA scar conditions examination noted the presence of scars on both feet that were neither painful nor unstable. On the right foot, there were two linear scars, (1) measuring 6 centimeters and (2) measuring 4 centimeters. Scar (1) was tender to palpation. On the left big toe, there was one linear scar measuring 7 centimeters. None of the scars were deep or superficial non-linear. As the Veteran’s scars are not unstable or painful, have a total area of less than 6 square inches, and there is no indication in the record that there is any underlying soft tissue damage, a higher rating under Diagnostic Codes 7801, 7802, and 7804, both prior to and from August 13, 2018 is not warranted. With respect to Diagnostic Code 7805, there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04, based on the findings of the December 2017 scar examination. The Veteran is competent to report observable symptoms, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case, as noted, neither the Veteran nor his representative has asserted, and medical records do not show, that the Veteran’s scars are manifest by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his bilateral foot scars. In denying such a 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. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.