Citation Nr: 21069211 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-39 291 DATE: November 17, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for left foot hallux valgus with arthritis is denied. 2. Entitlement to a rating in excess of 10 percent for right foot arthritis is denied. FINDINGS OF FACT 1. The Veteran's left foot hallux valgus with arthritis has been manifested by pain and a need for use of orthotics; symptoms or impairment showing or approximating moderate or moderately severe foot injury are not shown. 2. The Veteran's right foot arthritis has been manifested by pain and a need for use of orthotics; symptoms or impairment showing or approximating moderate or moderately severe foot injury are not shown. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for left foot hallux valgus with arthritis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Diagnostic Codes (Codes) 5280, 5284. 2. A rating in excess of 10 percent for right foot arthritis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Codes 5280, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1972 to September 2002. These matters are before the Board on appeal from a February 2013 Department of Veterans Affairs (VA) rating decision. In September 2019, a hearing was held before the undersigned; a transcript is in the record. In January 2020 and May 2021, the Board remanded these matters for further development. [The Board's previous remands also included a claim of service connection for obstructive sleep apnea. An August 2021 rating decision granted service connection for sleep apnea, resolving that matter.] Increased Ratings 1. Entitlement to a rating in excess of 10 percent for left foot hallux valgus with arthritis is denied. 2. Entitlement to a rating in excess of 10 percent for right foot arthritis is denied. On January 2013 VA examination, the diagnoses were hallux valgus and bilateral foot osteoarthrosis. The Veteran reported pain in both feet mainly localized to the instep and ball of the foot, worse in the mornings. He reported daily intermittent pain that was worse with prolonged sitting (if driving for long periods of time), described as an aching sensation, and sometimes lasting all day. He was noted to have hallux valgus with no symptoms and no history of surgery. He reported using a cane occasionally when he cannot walk due to knee and foot pain. X-rays showed bilateral moderate to severe hallux valgus deformity, and bilateral degenerative changes of the intertarsal joint; on the right side, there was some partial calcification of the achilles tendon and hammer toe of the second, third, and fourth digits. The examiner opined that the bilateral foot disability impacts the Veteran's ability to work, noting that the Veteran reported it affects his ability to get to work because he cannot function when his foot pain is worse. Based on this evidence, a February 2013 rating decision granted service connection for left foot hallux valgus with arthritis and right foot degenerative arthritis, each rated 0 percent, effective February 7, 2012. On September 2014 VA treatment, the Veteran reported chronic plantar foot and ankle pain that was deemed to be likely secondary to flat feet; he reported trying orthotics in the past with improvement and was interested in custom fitting through podiatry. On October 2014 VA podiatry consult, he reported having had foot pain for two years; there was pain on palpation to the central arch of the right foot and the first metatarsal cuneiform plantar area, and the assessment was arch pain. On December 2015 VA treatment, the Veteran reported that he had seen a non-VA podiatrist and was given an injection in his foot; the assessment was left foot bunion and pain in the arches. In an April 2017 statement, the Veteran stated that he had been taking 800-milligram prescribed ibuprofen for foot pain for more than three years. He stated that he experienced swelling and stiffness in his feet monthly, and he had been provided special shoes from VA by a foot specialist to alleviate foot pain, which made walking difficult daily. At the September 2019 Board hearing, the Veteran testified that he needs a cane to get around because in April 2019, the arthritis in his feet rendered him immobile and unable to walk for three days following prolonged driving, and he had to be seen in an emergency room. He testified that sometimes he can barely walk due to foot pain; that he had been taking prescription-strength ibuprofen at least two to three times a day for the past five years, for his foot pain; and that taking the prescribed medication was the extent of his treatment for his bilateral foot disability. Records of the April 2019 emergency room treatment (submitted after the September 2019 hearing) show that the Veteran reported he could barely walk due to bilateral knee [emphasis added] pain following a long car ride; there was no mention of foot pain. On March 2020 VA foot examination, the diagnoses were bilateral hallux valgus deformity and degenerative changes of the intertarsal joints. The Veteran reported he took Motrin for all of his arthritis; the examiner noted that the Veteran reported having no foot pain, flare-ups, or functional loss or impairment due to a foot disability. The examiner opined that the Veteran has mild to moderate symptoms bilaterally due to hallux valgus. There was no report of pain in either foot on physical examination. The examiner opined that the Veteran's bilateral foot disability does not impact his ability to perform any type of occupational task. On August 2021 VA examination, the diagnoses were bilateral hammer toes, hallux valgus, and degenerative arthritis. The Veteran reported he took 800-milligram-strength Motrin twice a day for foot pain. He reported having pain, that is limiting and impacted by weather, when he works and when he walks; he sometimes has to take extra medication when the pain increases, and he always wears orthotic devices. He described the pain as sharp and throbbing. He reported bilateral foot flare-ups that are severe, last all day, and are precipitated by weather, walking, and running. He was noted to have hammer toes of the second, third, and fourth toes of both feet. He was noted to have mild or moderate symptoms due to left foot hallux valgus, with no history of surgery. There was pain on physical examination of both feet that contributed to functional loss; contributing factors of disability included pain, fatigue, and lack of endurance, bilaterally. Hallux valgus was noted to be subject to flare on occasion and limit functional ability. The examiner opined that the Veteran's bilateral foot disability overall affects his ability [to engage] in prolonged walking, jumping, and limited running. The Veteran did not report use of assistive devices. Based on this evidence, an August 2021 rating decision granted the Veteran (increases) in the initial ratings for right foot degenerative arthritis and left foot hallux valgus with arthritis, to 10 percent, each, effective February 7, 2012 (throughout). Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the 38 C.F.R. § 4.14 rule against pyramiding does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups). Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board notes that some revisions to musculoskeletal Codes have been made effective February 7, 2021. The Veteran's left foot disability is rated under Code 5280, and his right foot disability is rated under Code 5284, and neither Code was revised. The Veteran's left foot hallux valgus with arthritis has been rated 10 percent under Code 5280, which provides that a 10 percent rating is warranted for unilateral hallux valgus, operated with resection of the metatarsal head, or severe if equivalent to amputation of the great toe. As this is the maximum (and only) rating available under Code 5280, the Board will consider whether the Veteran warrants higher ratings under any other diagnostic codes for the foot. The Veteran's right foot arthritis has been rated 10 percent under Code 5284, which provides that a 10 percent rating is warranted for other foot injuries that are moderate. Other foot injuries that are moderately severe are rated 20 percent, and if severe are rated 30 percent. A 40 percent rating is warranted with actual loss of use of the foot. The words "slight", "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Considering the above-noted evidence and rating criteria, the Board finds that for the appeal period under consideration, a rating in excess of 10 percent is not warranted for disability of either foot. Notably, 10 percent rating is the maximum rating available under Code 5280 (and is assigned when operated with resection of metatarsal head or severe, if equivalent to amputation of the great toe), a level of severity not shown or exceeded by the findings in this case. There is also no objective evidence that the Veteran's arthritis of either foot, and/or left foot hallux valgus, would be analogous to a moderately severe other foot injury (so as to warrant a higher rating under Code 5284). This is supported by the bilateral foot functioning that remains (the Veteran is still able to walk, albeit with a cane, at times as noted above, and/or orthotic devices, and surgical treatment has not been suggested). The ratings assigned encompass both the greatest level of severity of disability shown at any time by the record, and the limitation estimated by the examiner that would be present on use or with flare-ups. The Board notes the lay statements submitted by the Veteran in support of these claims indicating that he has painful flare-ups when he has greater limitations (but none reported lasting longer than 3 days, so as to warrant considerations of a staged increased rating during a period of flare-up) and his reports of taking prescription-strength (800 mg. Motrin) medication multiple times daily for foot pain, as well as his report of a required emergency room visit for treatment. In that regard, it is noteworthy that in March 2020 he acknowledged that he took Motrin for all of his arthritis pain (not just for arthritis in the feet), and that a review of his reported April 2019 emergency room visit following a prolonged car trip discusses only knee pain, and does not mention the feet or foot pain. Regarding the Veteran's reports of enhanced foot pain precipitated by prolonged walking or running (an activity that would be inconsistent with more than moderate foot injury, but one in which the Veteran by his own reports engages in-leading to the increased symptoms) the symptoms and impairment he describes are consistent with the criteria for the ratings assigned, and do not support that any higher rating is warranted for either foot. The most recent VA examiner opined that the Veteran's foot disabilities impact on his ability to engage in activities requiring prolonged standing, jumping, or running, but did not find greater limitations in other (occupational or daily living) activities that would reflect or suggest a moderate foot injury. The preponderance of the evidence is against these claims, and the appeals in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.