Citation Nr: 21069446 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-00 344 DATE: November 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left toe bunion, characterized as a bunion of the left first metatarsophalangeal (MTP) joint with left foot pain, is denied. FINDING OF FACT Throughout the entire period on appeal, the rating for the Veteran's left toe bunion contemplates severe symptoms including tenderness to palpation, swelling, callouses on the plantar aspect of the left great toe and pain on weight-bearing, lack of endurance, and an inability to wear closed shoes for prolonged periods of time. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bunion of the left first MTP joint with left foot pain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from August 1974 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in July 2018. This matter was previously before the Board in February 2019, at which time, the issue was remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. Increased Rating Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left toe bunion is currently rated under 38 C.F.R. § 4.71a, Diagnostic 5280. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus with severe symptoms, if equivalent to amputation of great toe or when there has been an operation with resection of metatarsal head. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. The Veteran essentially contends that a higher rating is in order for his left foot bunion as it causes foot pain, and he is unable to wear closed shoes for long periods of time due to his left foot bunion. See also December 2018 Form 9 Substantive Appeal. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). However, where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Based on the totality of the evidence of record, the Board finds that the Veteran's left toe bunion with left foot pain is appropriately rated under Diagnostic Code 5280 which specifically contemplates bunions and any associated severe symptomatology that would be equivalent to amputation of the great toe. Specifically, the Board finds that a higher disability rating is not warranted in this case as the current rating contemplates the competent and credible medical and lay evidence of record reflective of functional loss with pain on motion, pain on weight-bearing in the big toe, and worsened pain with prolonged standing and walking due to the left foot bunion disability. The Veteran submitted an examination from a private examiner in January 2018. The private examiner noted that the Veteran had pain and dysfunction which was enhanced with walking, going up and down stairs, and on all weight bearing. The examiner noted that the Veteran had to stop and rest often before he could walk any further. The examiner noted that physical examination by palpation was poorly tolerated due to pain and inflammation of the bunion. The Veteran was afforded a VA examination in July 2018. The examiner noted that the Veteran reported pain to the first MTP on the left foot and reported that he experienced flare-ups of increased pain to first metacarpophalangeal on his left foot when wearing shoes. The examiner noted that the Veteran also had pain on weightbearing, swelling, and interference with standing due to his left toe bunion; and the Veteran was unable to wear "closed-in" shoes for prolonged periods of time. The examiner noted that the Veteran's left toe bunion required the use of arch supports, custom orthotic inserts or shoe modification. The July 2018 VA examiner did not specifically indicate that the Veteran had a hallux valgus condition but did indicate that the Veteran was not seeing a podiatrist and had no had surgery for hallux valgus. Also, the examiner characterized the Veteran's left toe bunion as a bulging bump on the outside of the metacarpophalangeal (MCP) with tenderness and a callus to the plantar aspect of left great toe under the section for other types of foot conditions and injuries. See also January 2018 private examination. As noted above, the maximum assignable rating under Diagnostic Code 5280 which specifically contemplates the Veteran's bunion condition of the left foot is in effect. The Board has considered whether separate or increased evaluations are warranted under any other diagnostic codes pertaining to foot disabilities. 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 a diagnostic code 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 a diagnostic code 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 diagnostic codes, 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. However, there exist no medical or lay evidence of record showing weak foot, pes cavus, metatarsalgia, malunion/nonunion of the tarsal/metatarsal bones, or scars etiologically related to the Veteran's left bunion condition. Thus, Diagnostic Codes 5277, 5278, 5279, 5283, and 7804 are not for application. 38 C.F.R. §§ 4.71a, 4.118. In addition, a separate rating under the current or revised versions of Diagnostic Codes 5003 or 5010, which pertains to degenerative and traumatic arthritis, would violate the rule against pyramiding, as the Veteran's pain on use of the feet is already compensated under Diagnostic Code 5280, and in any event, a rating greater than 10 percent is not available under Diagnostic Code 5003. See 38 C.F.R. § 4.14; see also Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). The Board notes that the July 2018 VA examiner also indicated that the Veteran had bilateral pes planus. Thus, the Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5276, which provides ratings for pes planus. The July 2018 VA examiner opined that the Veteran's bilateral pes planus was an incidental finding and was not related to service-connected disability. There is no contrary opinion of record. As noted, the Board acknowledges the statements of the Veteran that he had constant pain in his left foot due to his left toe bunion. However, throughout the period on appeal, the Veteran has not asserted, and the evidence does not demonstrate, that the Veteran's bilateral pes planus was related to service or his left toe bunion. Thus, the Board finds that Diagnostic Code 5276 does not apply. 38 C.F.R. § 4.71a. As the Veteran's diagnosed left bunion disability is explicitly listed in the rating schedule, Diagnostic Code 5284 (applicable to other foot injuries) is also not for application. Dorland's Illustrated Medical Dictionary, 32nd Edition, defines a bunion as "abnormal prominence of the inner aspect of the of the first metatarsal head, accompanied by bursal formation and resulting in a lateral or valgus displacement of the of the great toe." Similarly, hallux valgus is defined as "angulation of the great toe away from the midline of the body toward the other toes; the great toe may ride under or over the other toes." As a hallux valgus is essentially a bunion, a rating under Diagnostic Code 5284 is not warranted. Furthermore, application of DC 5284 is not appropriate here as the Veteran's left foot bunion is not shown to be the result of an injury or trauma. And, there is no evidence that the left foot bunion is productive of symptoms of an unlisted service-connected left foot disability that exhibits distinct manifestations or symptoms similar to an analogous diagnostic code not contemplated under Diagnostic Code 5280. See Scott, supra; Yancy, 27 Vet. App. at 491 (the plain meaning of the word "injury" limits the application of Diagnostic Code 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions); see also November 1987 service treatment record, July 2004 VA examination; November 2004 rating decision. As the Veteran's service-connected left foot bunion has been awarded the maximum schedular rating available for hallux valgus, a higher rating is not applicable as the current rating contemplates severe symptoms due to a hallux valgus condition, even with consideration of any pain on repetitive or prolonged use or with weightbearing. 38 C.F.R. § 4.71a, Diagnostic Code 5280; see e.g., DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Based on the foregoing, the Board finds that a rating in excess of 10 percent for bunion, left first MTP joint is not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a final matter, the Board notes that during the course of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). However, under the version of the Schedule for Rating Disabilities in effect from August 13, 2018, Diagnostic Code 5280 remained the same. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.