Citation Nr: 21003862 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-10 302 DATE: January 25, 2021 ORDER The appeal regarding entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome ("right knee disability") has been withdrawn and is dismissed. The appeal regarding entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome ("left knee disability") has been withdrawn and is dismissed. A disability rating in excess of 10 percent for right foot hallux valgus is denied. A disability rating in excess of 10 percent for left foot hallux valgus is denied. REMANDED The appeal regarding entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis and degenerative disc disease with partial lumbarization of vertebral S1 body ("back disability") is remanded. The appeal regarding entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In correspondence received in January 2021, prior to the promulgation of a decision in the appeal, the Veteran’s attorney indicated that the Veteran wished to withdraw his appeal regarding entitlement to higher initial disability ratings for the right and left knee disabilities. 2. Throughout the increased rating period on appeal, the Veteran has been in receipt of the maximum schedular rating authorized under Diagnostic Code 5280 for right and left hallux valgus; his hallux valgus symptoms have been assessed as mild to moderate in severity; and he has not had surgery to correct the condition, nor has any physician indicated that the hallux valgus is of a severity such that it is equivalent to amputation of the great toe. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to an initial disability rating in excess of 10 percent for the right knee disability by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal regarding entitlement to an initial disability rating in excess of 10 percent for the left knee disability by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for a disability rating in excess of 10 percent for right foot hallux valgus have not been met for any part of the increased rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5280. 4. The criteria for a disability rating in excess of 10 percent for left foot hallux valgus have not been met for any part of the increased rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from January 1965 to December 1966. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the case for further development. The development requested with regard to the hallux valgus claims was completed, and those claims are now appropriate for appellate review. However, for the reasons discussed below, the back claim requires additional development prior to appellate review. The issue of entitlement to a TDIU has been raised during the adjudicatory process of the underlying disabilities. As such, it is part and parcel of the claim for benefits for the underlying disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Dismissal 1. The appeal regarding entitlement to an initial disability rating in excess of 10 percent for the right knee disability has been withdrawn and is dismissed. 2. The appeal regarding entitlement to an initial disability rating in excess of 10 percent for the left knee disability has been withdrawn and is dismissed. In correspondence received in January 2021, the Veteran’s attorney indicated that the Veteran wished to withdraw his appeal of entitlement to higher initial disability ratings for his right and left knee disabilities. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn the appeal of entitlement to higher initial disability ratings for his bilateral knee disabilities. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed. Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. 3. A disability rating in excess of 10 percent for right foot hallux valgus is denied. 4. A disability rating in excess of 10 percent for left foot hallux valgus is denied. The October 2016 rating decision on appeal denied compensable disability ratings for the service-connected right and left foot hallux valgus. However, subsequent to the Board’s June 2020 remand, the RO, in a September 2020 rating decision, granted 10 percent disability ratings for the right and left hallux valgus for the entire increased rating period on appeal (effective May 26, 2016, the date the Veteran’s intent to file a claim was received). The Board notes that the September 2020 rating decision stated that the grant of 10 percent ratings for right and left hallux valgus constituted a full grant of the benefits sought on appeal. However, as the Veteran has not indicated that he is satisfied with the 10 percent ratings assigned, nor has he withdrawn his appeal as to the hallux valgus ratings, the issues remain on appeal. In the March 2020 VA Form 9, the Veteran’s attorney argued that compensable ratings were warranted for hallux valgus on the basis that, at the February 2020 foot examination, the Veteran reported that his bunions were spreading and that he lost balance when walking, and that his big toe and the one next to it overlapped. At the outset, the Board also notes that the Veteran is in receipt of a 50 percent rating for bilateral pes planus (flat feet) and 10 percent ratings each for right and left ankle arthritis associated with pes planus. The Veteran’s hallux valgus has been evaluated under DC 5280, which contemplates unilateral hallux valgus. Under this diagnostic code, a maximum 10 percent disability rating is assigned when the condition is operated on with resection of the metatarsal head, or when the condition is severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. The Board notes that words such as “severe” and “moderate” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Prior to the period on appeal, in September 2014, a private treatment record indicates large hallux valgus deformities bilaterally with a deviated hallux. The Veteran reported discomfort with prolonged walking and standing. The clinician discussed injections and surgery for the hallux valgus, but the Veteran’s pain was not severe enough to proceed with those options. Turning to the most relevant evidence of record, April and May 2016 x-ray studies of the feet continued to show bunion deformities at the head of the first metatarsal, with no other acute bony abnormalities. The Veteran was afforded a VA foot examination in July 2016. The Veteran reported constant foot pain, mostly noted in the bilateral plantar feet and heels. He had undergone a steroid injection for his left heel in June 2016, which had not helped minimize his pain. He wore prescribed orthotics which helped minimize his pain. He had difficulty walking and standing for long periods. He complained of his left foot being “loose,” where it gave way while walking. This had resulted into several falls. He had not undergone any further treatment at this time. When asked to describe his foot pain, the Veteran stated it was “hard to walk.” He reported flare-ups of his feet during which time he was unable to stand and walk for long periods. The examiner noted that the symptoms attributable to hallux valgus were mild or moderate in severity, and that the Veteran had not had surgery for the condition. The examiner noted that there was pain on physical examination, but it did not contribute to functional loss as the Veteran was able to ambulate. Contributing factors of disability included pain on movement, pain on weight-bearing, deformity, interference with standing, and lack of endurance. The examiner stated that pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups or when the feet were used repeatedly over a period of time and resulted in inability to stand and walk for long periods. The Veteran reported that orthotics were prescribed for the ongoing foot condition. In terms of impact on ability to perform occupational tasks, the Veteran would be unable to stand and walk for long periods. An April 2016 x-ray study did not show arthritis. In November 2016, the Veteran was noted to ambulate to the clinic with gait deviations and was issued a cane. In February 2020, the Veteran was afforded a VA foot examination specifically to evaluate his pes planus. At that examination, as noted above, he reported that his big toe and the one next to it overlapped, and that he sometimes lost his balance. He used a cane for ambulation constantly because he said his feet were always in pain while walking. He was afforded another VA foot examination in July 2020. He reported bilateral hallux valgus that was symptomatic intermittently with prolonged ambulation. He had not had surgery for the condition but wore shoe inserts. He described his foot pain as “irritation in the feet when I walk.” He denied flare-ups and functional loss or impairment. The examiner stated that the hallux valgus symptoms were mild or moderate in severity. There was pain on physical examination, but it did not contribute to functional loss, as the Veteran was still able to ambulate. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the feet were used repeatedly over a period of time. The examiner noted that the Veteran did not use any assistive devices as a normal mode of locomotion. The examiner stated that the hallux valgus did not affect the Veteran’s ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner noted that pain was not noted in the feet with either active or passive motion, explaining that the Veteran only reported pain with prolonged weight bearing and was asymptomatic on examination. VA podiatry notes from 2017 to 2020 note that the Veteran had painful ankles that occasionally gave out and painful feet, but the diagnoses listed are pes planus and gouty arthritis. Hallux valgus is not evaluated in any of these notes except a notation that the right foot was valgus in stance. Based on the lay and medical evidence of record, the Board finds that the weight of the evidence is against a grant of disability ratings in excess of 10 percent for right and left hallux valgus. The Veteran is already in receipt of the highest rating available for hallux valgus under DC 5280. The symptoms and limitations described by the Veteran and his examining and treating physicians are specifically contemplated in the criteria of the currently assigned 10 percent disability ratings. Indeed, the Veteran has not had surgery (resection of the metatarsal head) for his hallux valgus, nor has any physician indicated that the hallux valgus is equivalent to amputation of the great toe. Moreover, the VA examiners have stated that the hallux valgus symptoms are mild to moderate in severity, not severe, as is required for a 10 percent rating under DC 5280. Thus, disability ratings in excess of 10 percent are not warranted. The Board has considered whether any other diagnostic codes would allow for higher disability ratings. However, the evidence does not demonstrate a diagnosis of, or treatment for, other disorders of the feet, to include bilateral weak foot (DC 5277), acquired claw foot (DC 5278), anterior metatarsalgia (DC 5279), hallux rigidus (DC 5281), hammer toe (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Further, as noted above, the Veteran already has service connection for pes planus, evaluated as 50 percent disabling. The only other diagnostic code that might potentially be applicable and allow for higher ratings for hallux valgus is DC 5284, which contemplates other foot injuries. However, as a matter of law, DC 5284 does not apply to the eight foot conditions specifically listed in § 4.71a, and, thus, rating listed conditions under that diagnostic code would constitute an impermissible rating by analogy here. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). In denying increased disability ratings for the right and left hallux valgus, the Board has considered the Veteran’s statements that his hallux valgus disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he has not been shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s hallux valgus has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated, and such findings are of more probative value in determining the severity of the hallux valgus than are general histories or general descriptions of symptoms of pain or other limitations, such as described by this Veteran. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation such as to enable a finding that the disability picture more nearly approximates disability ratings in excess of 10 percent for the right and left hallux valgus for the any part of the increased rating period on appeal. Despite the Veteran’s contention of debilitating hallux valgus, the 10 percent disability ratings indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his pain and functional limitations, indicating very generally a 20 percent reduction in his ability to function due to his bilateral hallux valgus. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For these reasons, the Board finds that the weight of the evidence is against disability ratings in excess of 10 percent for the service-connected right and left hallux valgus throughout the increased rating period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. The appeal regarding entitlement to an initial disability rating in excess of 10 percent for the back disability is remanded. As noted above, in June 2020, the Board remanded the case for further development, to include affording the Veteran the opportunity to attend a VA examination to assess the current severity of his service-connected back disability, as his last VA back examination had occurred in 2016. He attended a VA back examination in July 2020, and the examination substantially complies with the Board’s remand directives. However, in correspondence received in January 2021, the Veteran’s attorney stated that the Veteran reported that since his last [July 2020] VA examination, he had had a significant increase in the severity of his back disability. Specifically, several months prior, he woke up with unbearable back pain, leaving him bedridden for approximately 2 days. He was unable to get an appointment with his VA physician, so he initially received treatment from a private physician. He had been given an H-Wave device and was consulting with physical therapy for his ongoing back care. The attorney stated that he was attempting to obtain a VA Form 21-4142 from the Veteran to request the private treatment records but wanted the Board to proceed with adjudication based on the VA treatment records. However, the Board notes that the private treatment records are not yet associated with the claim file, and the most recent VA treatment records are from February 2020, long before the recent exacerbation of the back disability. While the Board regrets the delay, a remand is necessary to obtain private and VA treatment records pertaining to treatment for the service-connected back disability since February 2020, and for the Veteran to be afforded another opportunity to attend a VA examination to assess the current severity of his back disability, as he as stated with specificity that it has increased in severity since the July 2020 VA examination. 2. The appeal regarding entitlement to a TDIU is remanded. As noted above, the issue of entitlement to a TDIU has been raised in the course of this appeal. Specifically, in the January 2021 correspondence, the Veteran’s attorney stated that the Veteran was unemployable due to his back disability and that they planned on filing a separate claim of entitlement to a TDIU. The RO should conduct proper development and consideration of the TDIU claim in the first instance, to include providing the Veteran with the appropriate forms necessary for a TDIU claim (e.g., VA Form 21-8940, etc.). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any and all VA treatment records since February 2020. 2. Provide the Veteran with the appropriate release form(s) necessary to request treatment records from any and all private treatment facilities where the Veteran has received treatment for his back disability, particularly in 2020 and 2021, following the recent exacerbation. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his attorney should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 3. Afford the Veteran the opportunity to attend an examination with an appropriate specialist in order to determine the current severity of his service-connected back disability. The examiner should interview and examine the Veteran, conduct all indicated evaluations, studies, and tests deemed necessary, and offer a rationale for any opinion expressed. The claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner should specifically discuss the more recent exacerbation of the back disability, which occurred subsequent to the July 2020 VA back examination. The examiner should conduct all indicated tests and studies, to include range of motion studies. If appropriate, full range of motion testing must be performed where possible. Any joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his back symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN’S GUIDE requires the examiner to estimate the range of motion “per [the] Veteran.” See VA CLINICIAN’S GUIDE at Ch. 11. 4. Provide to the Veteran all required notice and claims forms in response to the claim for TDIU. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.