Citation Nr: 21004268 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-38 779 DATE: January 26, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for hallux valgus with bunionectomy and hammertoe of the left foot, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran is in receipt of the maximum schedular rating for hallux valgus with bunionectomy and hammertoe of the left foot, and the evidence of record does not present such an exceptional disability picture as to render the available schedular ratings inadequate. CONCLUSION OF LAW The criteria for an increased disability rating for service-connected hallux valgus with bunionectomy and hammertoe of the left foot, to include as on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1975 to May 1975 and from August 1976 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in St. Paul, Minnesota that declined to increase the Veteran’s disability rating. The Veteran timely appealed. In March 2018, the Veteran testified before the undersigned Veterans Law Judge in a travel board hearing. A copy of the hearing transcript is of record. The Board remanded the matter on appeal in April 2018 for additional development. As the requested development has been completed, it has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 10 percent for hallux valgus with bunionectomy and hammertoe of the left foot, to include on an extraschedular basis, is denied. The Veteran maintains entitlement to a disability rating in excess of 10 percent for hallux valgus with bunionectomy and hammertoe of the left foot, to include as on an extraschedular basis. 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 Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s left foot disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5280 which governs 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. As the Veteran sought an increased disability rating in December 2012, the Board will review all relevant evidence from one year prior to that date. A February 2012 VA treatment record notes that the Veteran had surgery on his left foot during service. He reported increasing pain over the last few years that was aggravated by standing and weightbearing. He requested to be seen by a podiatrist. On physical examination, an examiner noted a scar on his left great toe and that the toe had no active movements. The examiner observed that the Veteran limped a little due to his left foot problem. At a March 2012 VA podiatry consult, the Veteran continued to complain of severe left foot pain with standing and walking. He stated that his left foot felt better when he used supportive shoes, which had been prescribed in the past. Following physical examination, the Veteran was diagnosed with hallux limitus that was painful with forefoot derangement. X-rays showed hallux abductus interphalangeus with degenerative joint disease (DJD) and loose bodies at hallux interphalangeal joint (IPJ). The Veteran was referred for a surgical consultation. At the surgical consultation later that month, the Veteran again reported left great toe pain that had increased over the past seven or eight years. On physical examination of the left foot, the examiner observed that the hallux was abducted, and the Veteran had a mild valgus rotation at the proximal interphalangeal joint (PIPJ). The left great toe then underlapped the left second toe which had a flexion contracture at the PIPJ and extensus at the metatarsophalangeal joint (MTPJ). There was a HT deformity of the left third toe and mild flexion of the PIPJ of 4L. There was a distinct loss of range of motion at the left hallux MTPJ and IPJ with pain on palpation and any motion. He had a significant pes planus, likely contributing to his pathology. The Veteran was diagnosed with left hallux limitus/rigidus, left hallux deformity, left hallux IPJ and MTPJ DJD, left second and fourth digit clawtoe, left third digit hammertoe, overlapping toes on the left second on the hallux. The examiner discussed treatment options with the Veteran, including surgery. At a January 2013 physical examination, the Veteran reported that he rode his bicycle many miles daily as he did not have a car. He reported that he had surgery on his foot in the 1970s and that it had been recommended again but he was unable to take off work for it. The Veteran underwent a VA examination in March 2013. The Veteran reported pain and swelling of the left foot, especially with prolonged walking and standing. He stated that he treated his foot with medication twice a day, elevation, massage, and foot baths. He also wore mostly tennis shoes. He denied any surgery since the 1970s but stated that it had been recommended. The examiner endorsed a review of the claims file prior to providing a clinical evaluation of the Veteran. He did not find Morton’s neuroma, metatarsalgia, hallux rigidus, pes cavus (clawfoot), malunion of or nonunion of the tarsal or metatarsal bones, or any other foot injury. The Veteran displayed hammertoes of the left third toe and had severe symptoms of hallux valgus with function equivalent to amputation of the left great toe. The examiner observed 20 degrees of hallux valgus inward and 10 degrees downward partially below the second metatarsal. The Veteran also had hammertoe of the third metatarsal which he described as congenital. There was tenderness proximal to the great toe metatarsophalangeal joint (MP) with nearly fused MP joint and some tenderness at the lateral great toe MP joint. There were no blisters, redness, drainage, or open skin at the left foot. The Veteran had mild pes planus with weightbearing which he reported was caused over many years of weightbearing—not due to his service-connected hallux valgus or hammertoe. The Veteran denied the use of assistive devices. Imaging studies reflected degenerative arthritis of the left foot. In October 2013, the Veteran reported worsening of left foot pain with weightbearing. There are no additional VA or private treatment records concerning the Veteran’s service-connected left foot 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. The Board acknowledges that the Veteran has been diagnosed with pes planus and clawtoe (clawfoot) of the second and fourth digit of the left foot at the March 2012 surgical consultation. Pes planus is governed by 38 C.F.R. § 4.71a, DC 5276 and clawfoot is governed by 38 C.F.R. § 4.71a, DC 5278. Both DCs allow for disability ratings of up to 50 percent under specific conditions. However, the Veteran is not service-connected for either of these conditions. As such, separate or higher disability ratings may not be awarded under DCs 5276 or 5278. The record reflects that the Veteran has also been diagnosed with hammertoe and that this diagnosis is also service-connected. Pursuant to 38 C.F.R. § 4.71a, DC 5282, governing hammertoes, a Veteran may receive a maximum 10 percent schedular rating. To this extent, DC 5282 does not provide a rating higher than 10 percent for the Veteran’s left foot disability, as the maximum schedular rating is 10 percent. Additionally, a separate 10 percent rating under DC 5282 is not permitted, as it would amount to pyramiding because the manifestations of the Veteran’s hammertoe include pain, swelling, stiffness, and limitation of motion, which are the same manifestations as his hallux valgus. 38 C.F.R. § 4.14. DC 5284 generally governs foot injuries and allows for disability ratings greater than 10 percent. However, the Veteran’s left foot disability has been specifically diagnosed as hallux valgus. 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). Thus, a rating under DC 5284 is not appropriate in this case. Similarly, as to other more specific DCs pertaining to the foot, rating by analogy under a different DC than DC 5280 is not appropriate, as the Veteran’s service-connected disability is specifically listed in the rating schedule. For the foregoing reasons, a schedular rating higher than 10 percent for a left foot disability under DC 5280 is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has also considered whether extraschedular evaluation is warranted. In exceptional ratings cases, an extraschedular evaluation may be provided if (1) the established schedular criteria is inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. See Yancy v. McDonald, 27 Vet. App. 484 (2016). This issue was referred for extraschedular consideration to the Director of Compensation Service (Director), whose September 2020 memorandum recommended denial of an extraschedular rating. While the Board is not bound by the findings of the Director, for the reasons given below, the Board arrives at the same conclusion. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Regarding the first prong of Thun, the evidence in this case does not show such an exceptional disability picture such that the available schedular evaluation for the service-connected disability is inadequate. The symptoms that the Veteran reports, pain and swelling on weightbearing, cause functional loss to the extent that prolonged standing and walking are difficult. When comparing the Veteran’s disability symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the rating assigned and he does not have symptoms associated with the disability that have been unaccounted for by the schedular rating assigned herein. 38 C.F.R. § 4.124a. Specifically, a 10 percent disability rating under DC 5280 compensates for a severe foot disability equivalent to the amputation of the great toe. Accordingly, a comparison of the Veteran’s symptoms and functional impairment resulting from his service-connected disability with the pertinent schedular criteria does not show that his hallux valgus with bunionectomy and hammertoe of the left foot is “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b). The statements or findings of impaired function, such as pain and particularly restrictions as to locomotion, pertain to functional limitations that are contemplated by the governing Diagnostic Code criteria and corresponding regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Additionally, 38 C.F.R. §§ 4.40 and 4.45 provide that musculoskeletal system ratings contemplate functional loss and the factors of disability affecting the joints. The evaluations are all encompassing in that they have specific requirements such as motion yet are broad in that they provide for a level of impairment based on functional loss. The inability to accomplish certain tasks, such as prolonged walking or standing, are not “symptoms” set forth in any portion of the Rating Schedule, yet they are a result of the same symptoms of painful and limited motion. Therefore, it is a result contemplated by the rating criteria as it is based on the same symptomatology. Accordingly, the rating criteria fully considers the impairment caused by the Veteran’s left foot disability. Thus, the first element of Thun has not been met and further consideration of an extraschedular rating is not warranted. In reaching this determination, the Board considered the doctrine of reasonable doubt. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.