Citation Nr: 21071693 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-27 260 DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 30 percent for bilateral hammer toes, to include on an extraschedular basis, since March 24, 2014, is denied. Entitlement to an extraschedular TDIU, since March 24, 2014, is granted. FINDINGS OF FACT 1. In October 2020 and September 2021, under the provisions of 38 C.F.R. §§ 3.321(b)(1) and 4.16(b), the VA Executive Director of Compensation Service denied entitlement to an extraschedular rating for bilateral hammer toes and to an extraschedular TDIU. 2. The Veteran's bilateral hammer toes have not manifested by marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, or marked varus deformity. 3. The Veteran has had amputation of the right foot second and third toes at the distal joint. He has not had amputation involving the metatarsal, amputation of a great toe, or amputation of three or more toes. 4. The Veteran's bilateral hammer toes have not caused symptoms beyond those contemplated by the rating criteria or by indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. 5. Affording the Veteran the benefit of the doubt, from March 24, 2014, his service-connected bilateral hammer toes have prevented him from engaging in any form of substantially gainful employment that was consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent bilateral hammer toes, to include on an extraschedular basis, since March 24, 2014, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5172, 5173, 5278, 5282. 2. The criteria for entitlement to a TDIU, on an extraschedular basis, since March 24, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 Department of Veterans Affairs (VA) rating decision. This case was previously before the Board in January 2014, September 2016, October 2018, and April 2021. In September 2016, the Board denied entitlement to a rating in excess of 30 percent for bilateral hammer toes, but remanded the issue of entitlement to an extraschedular TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Memorandum Decision, the Court remanded the issue of entitlement to an increased rating for bilateral hammer toes, on the basis that it was inextricably intertwined with the issue of entitlement to a TDIU. In an April 2021 Board decision, the Board denied entitlement to a rating higher than 30 percent, including on an extraschedular basis, for bilateral hammer toes prior to March 24, 2014, and denied a TDIU, including on an extraschedular basis, prior to March 24, 2014. Only the period since March 24, 2014 remains on appeal. Bilateral Hammer Toes The Veteran has requested a rating higher than 30 percent for his bilateral hammer toes, including consideration of an extraschedular rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The rating criteria for musculoskeletal disorders 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. 76453-69 (November 30, 2020)]. The amendments did not substantively alter the relevant rating criteria in this case. The 30 percent rating for the Veteran's bilateral hammer toes was assigned under Diagnostic Codes 5282 and 5278, for hammer toes and pes cavus. 38 C.F.R. § 4.71a, Diagnostic Codes 5278, 5282. The rating has been in effect since April 20, 1974. Under Diagnostic Code 5282, hammer toes of a single digit results in a noncompensable disability rating; and hammer toes of all the toes, unilateral and without claw foot, results in a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5282. Under Diagnostic Code 5278, a 30 percent rating is warranted for bilateral pes cavus manifested by all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. A 50 percent rating is warranted for bilateral pes cavus if manifested by marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. 38 C.F.R. § 4.71a, Diagnostic Codes 5278. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. The intent of the 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. 38 C.F.R. § 4.59. 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. 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; 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). After reviewing all of the evidence of record, the Board does not find that a rating higher than 30 percent is warranted, including on an extraschedular basis. A March 2014 VA examiner diagnosed the Veteran with Morton's neuroma in the right foot, and hammer toes in the right second and third toes and left second, third, and fourth toes. The examiner noted that the Veteran had had multiple surgeries to his feet and that he now had burning pain on the bottom of both feet, and pain with weight bearing. The examiner found no weak foot, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion, or other foot injuries. He noted that the Veteran had had his right second and third distal toes amputated and fused, bilateral degenerative joint disease in multiple joints, as well as bilateral metatarsalgia. He diagnosed the Veteran with bilateral pes planus and mild left-sided hammer toe deformity, fusion of the right second and third toes, and stable osteoarthritic changes of the right second and third metatarsophalangeal joint. He also noted that the Veteran's degenerative arthritis had been accelerated by the surgery done while on active duty. The examiner opined that the Veteran's bilateral hammer toes impacted his ability to work because the Veteran had pain with more prolonged standing; and pain and weakness in both feet, which could limit his functional ability during flare-ups since he would have difficulty walking or standing. The Veteran also attended a VA examination in July 2021. He was found to have degenerative arthritis, flat foot, Moston's neuroma, metatarsalgia, and hammer toes. He had amputation of the right second, third, and fourth digits with ligament release of the third, fourth, and fifth digits. He had hammer toes in the right second and third toes, and the left second, third, and fourth toes. The Veteran reported having severe pain, including a sharp pain when laying in bed that occurs each night. He reported having sharp pain while walking, like sharp needles around the entire foot, and pain that occurred unpredictably, even without activity. He did not report any flare ups. He had pain on use and manipulation of the feet. There was no indication of swelling on use or characteristic calluses. The Veteran did use arch supports. His Morton's neuroma was painful with walking and other activities, although the Veteran stated it was hard to differentiate the source of the pains in his feet. There was no decreased longitudinal arch height with weight bearing, marked pronation, inward bowing of the Achilles tendon, marked inward displacement, severe spasm, or objective evidence of marked deformity. The Veteran had limited range of motion of the toes, and passive range of motion was restricted and extremely painful. He had a stable gait. There was a callus on the distal tip of the third toe that was painful. The Veteran did not have marked contraction of the plantar fascia with dropped forefoot or marked varus deformity The Veteran's VA treatment records also show occasional reports of foot pain and problems with his feet and toes, although they do not show any new treatments or surgeries during this appeal period. In February 2020, the Veteran reported being unable to lie still for an MRI because of severe arthritis pain in his feet. Considering the above-cited evidence of record in light of applicable diagnostic criteria, the Board finds that a rating in excess of 30 percent is not warranted for service-connected bilateral hammer toes since March 24, 2014. Initially, Board notes that the current 30 percent rating assigned is higher than the maximum schedular rating for hammer toes under Diagnostic Code 5282, which only allows for a rating of 10 percent. With respect rating the disability under Diagnostic Code 5278 for pes cavus, although the VA examiners did not diagnose pes cavus, VA treatment records consistently list bilateral pes cavus in the Veteran's active problem lists, and the Board finds that it is appropriate to apply this rating code. Furthermore, the Veteran has been assigned a 30 percent rating since 1975, and it is a protected rating. 38 C.F.R. § 3.951(b). Under Diagnostic Code 5278, the next higher, 50 percent rating for bilateral pes cavus requires evidence of marked contraction of plantar fascia with dropped foot, all toes hammer toes, very painful callosities, and marked varus deformity. In the present case, while the Veteran reported painful calluses on the outside bottom of his right foot, and he was found to have a painful callus at the July 2021 VA examination, the evidence shows that he did not have marked contraction of the plantar fascia with dropped foot, all toes hammer toes, or marked varus deformity. The VA examiners found that the Veteran had hammer toes in the right second and third toes, and the left second, third, and fourth toes, which does not constitute all of his toes. The Veteran has not at any time been found to have marked contraction of the plantar fascia with dropped foot, or marked varus deformity. The Board has considered the Veteran's reports of having severe pain which greatly limits his ability to walk or perform other physical activities. See 38 C.F.R. §§ 4.40, 4.45. While the Veteran has complained of severe pain, under the diagnostic codes at issue, functional loss due to pain is already contemplated in the criteria used to evaluate the disability; hence, pain and tenderness, alone, do not provide an additional basis for any higher rating under the relevant diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5278, 5282; see also DeLuca, 8 Vet. App. at 204-7. The Board acknowledges that the March 2014 VA examiner found that the Veteran could be limited in his functional ability during flare-ups due to pain with walking or standing, but the Veteran is nevertheless able to stand and walk on his feet, and his functional limitations are not shown to be so disabling as to meet the criteria for the next higher rating under Diagnostic Code 5278. As such, a higher disability rating is not warranted on the basis of painful motion and other factors delineated in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. The Board also finds that no other diagnostic code alternatively provides a basis for any higher or additional rating for the Veteran's bilateral hammertoes disability. In the absence of evidence of associated bilateral weak foot, hallux valgus, hallux rigidus, malunion or nonunion of tarsal nor metatarsal bones, or other foot injuries, evaluation of the disability under any of these diagnostic codes is not warranted. The Board acknowledges that the criteria under for "other foot injuries" is vague, but the Veteran's conditions of hammer toes and pes cavus are specifically listed in the Rating Criteria, and it would therefore not be appropriate to apply a different Diagnostic Code in its place. See Yancy v. McDonald, 27 Vet. App. 484, 493 (2016); Suttman v. Brown, 5 Vet. App. 127, 134 (1993). While the Veteran has been assessed with metatarsalgia (Morton's disease) (Diagnostic Code 5279), the highest rating for unilateral or bilateral disability is 10 percent, which is below the Veteran's current rating, and there is no indication that the Veteran has distinct, functional impairment due to that disability that had not already been contemplated in the assigned 30 percent rating. The Veteran is also not service connected for pes planus/flat feet, and there is no indication that pes planus is in any way related to his hammertoes, and a rating under this Diagnostic Code is also not appropriate. Finally, to the extent that the Veteran may experience arthritis in the toes affected by hammertoes, arthritis is rated on the basis of limitation of motion of part affected, and as limitation of motion is a factor for consideration under Diagnostic Code 5278, such limitation is already contemplated in the assigned 30 percent rating. The Board also acknowledges that the Veteran has had amputations of the distal portions of two toes on his right foot, but unfortunately, this does not allow for a separate compensable rating to be assigned. The Veteran has reported that he had his right foot amputation surgery done in 1982, but that it was not helpful for his condition. He has reported that since then, he has been distrustful of surgical intervention and has not had any further surgery done. Amputation of one or two toes, other than the great toe, with removal of the metatarsal head, is assigned a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5172. Amputation of three or four toes, without metatarsal involvement, not including the great toe, allows for a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5173. Where the requirements for a compensable rating are not met, a zero percent evaluation is assigned, even if the Rating Schedule does not provide for a noncompensable evaluation. 38 C.F.R. § 4.31. The preponderance of the medical evidence shows that the Veteran has had two toes on his right foot amputated at the distal joint. A June 2009 X-ray noted amputations of the distal phalanges of the right second and third toes, and the proximal interphalangeal joints of those toes were fused. A July 2009 podiatry evaluation found distal amputations of the right second and third toes. The March 2014 VA examiner wrote that the Veteran had right second and third distal toes amputated. While the July 2021 VA examiner wrote that the Veteran had distal amputation of the right second, third, and fourth digits, the Board finds that this was written in error, as the vast majority of the other medical evidence shows that the Veteran's distal amputations were only of two toes. Because the Veteran has not had amputation involving the metatarsal in any toe, and he has had only 2 amputations of toes which are not the great toe, and which are at the distal joint, he has not met the criteria for a separate compensable rating. The Board also does not find that separate ratings under both Diagnostic Code 5282 and Diagnostic Code 5278 would be appropriate. The rule against pyramiding provides that evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Here, the symptoms of the Veteran's hammer toes and of his pes cavus, which are pain, toe deformity, and limitation of motion in the toes, are entirely overlapping. Hammer toes are, in fact, one of the criteria listed in the rating criteria for pes cavus, indicating that the ratings listed under Diagnostic Code 5278 are intended to apply to more severe hammer toe-related conditions, whereas Diagnostic Code 5282 applies to only hammer toe conditions without additional symptomatology. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. The Board also finds that the Veteran's bilateral hammer toes have not been shown to be so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding on the part of the Agency of Original Jurisdiction (AOJ) or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321(b)(1). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Compensation and Pension Director for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In September 2016, the Board referred the question of entitlement to a TDIU to the Director of Compensation Service. Although the Board did not refer the issue of entitlement to an extraschedular rating for bilateral hammertoes, this was nonetheless addressed by the Executive Director of the Compensation Service in an October 2020 advisory opinion that found that there was no factual demonstration of impairment to earning capacity based on exceptional or unusual factors for bilateral hammer toes, and that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) was not warranted. An extraschedular rating for hammer toes was again denied in a September 2021 Advisory Opinion. Because the issue of entitlement to an extraschedular rating for bilateral hammer toes has already been addressed by the Director of Compensation Service and the AOJ, the Board now has jurisdiction to decide the extraschedular question on the merits. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's bilateral hammer toes at all pertinent points of the appeal. As discussed above, a comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment. The Veteran's symptoms associated with his hammer toes are pain, decreased range of motion in the toes, decreased tolerance for physical activity and standing due to pain and limitation of motion, difficulty sleeping due to pain, and physical deformity, including partial amputation, in the feet. In this regard, all of the Veteran's hammer toes symptomatology is contemplated by the rating criteria, to include those symptoms, such as pain and tenderness, which are not specifically enumerated. The rating schedule also provides for a higher rating based on evidence demonstrating more severe impairment, including if the Veteran ever had to have additional amputations, or if all of his toes became hammer toes. The Board has also considered the Veteran's reports of having difficulty sleeping because of the pain in his feet, but it finds that this is an expected, practical impact of having severe pain, and not a separate disorder or symptom in itself. The Board sympathizes with the Veteran, and acknowledges that his pain his very distracting and challenging, including its effect on his ability to perform physical activities and to sleep. But pain and the effects of pain are symptoms which are contemplated by the rating schedule. The Board therefore finds that the assigned rating is adequate, and referral for extraschedular consideration is not warranted. See Thun, 22 Vet. App. 111. The Board also does not find the fact that the AOJ took it upon itself to obtain an Advisory Opinion from the Director of Compensation Service as a favorable finding binding on the Board that the rating schedule was not, in fact adequate. Even if it were, there is no indication that the Veteran's symptoms are outside the governing norms for disability pictures, such as any evidence of marked interference with employment and frequent periods of hospitalization. See 38 C.F.R. § 3.321(b)(1). The Board therefore finds entitlement to an extraschedular evaluation for bilateral hammer toes is not warranted. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. In this case, however, the Veteran's bilateral hammer toes are appropriately rated as a single disability. The Veteran has not been found to have separate symptomatology caused by separate parts of the foot or toes, and the impact of his hammer toes is the overall impairment on his ability to walk, and the functional impact of the pain he experiences in his feet and toes. The Veteran does not have any other service-connected disabilities other than his bilateral hammer toes. The Board therefore finds that the holding in Johnson does not apply. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of a higher rating since March 24, 2014, including on an extraschedular basis, and the claim is denied. The Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). TDIU The Veteran has also requested entitlement to a TDIU. The Veteran wrote in September 2018 that he stopped working in 2002, due to his bilateral pes planus and toe deformity. For a veteran to prevail on a claim for a total disability evaluation based on individual unemployability, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. Here, the Veteran has not met the schedular criteria. He is service connected for bilateral hammer toes, which are rated as 30 percent disabling. Regardless of whether a veteran meets the schedular rating, entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) where the service-connected disabilities alone cause unemployability. The Board cannot grant a TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the issue for referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In September 2016, the Board referred this question to the Director of Compensation Service. In October 2020, the Executive Director of the Compensation Service found that there was no factual demonstration of impairment to earning capacity based on exceptional or unusual factors for bilateral hammer toes, and the claim was denied. After the Veteran alleged that his condition had worsened and he was afforded a new VA examination, in September 2021, an additional decision was issued by the Executive Director of the Compensation Service which again denied the claim. She wrote that the Veteran had worked for the Department of Defense as an architectural technician for 30 years, and that while he would have some physical impairments due to bilateral foot pain, the cumulative evidence did not support that the condition would have precluded all forms of substantially gainful activity, including in a sedentary environment. Because the Director determined that an extraschedular TDIU was not warranted, the Board now has jurisdiction to decide the extraschedular claim on the merits. Kuppamala, 27 Vet. App. 447. After reviewing all of the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted since March 24, 2014. At a March 2014 VA examination, the examiner found that the Veteran's foot condition would impact his ability to work. He wrote that the Veteran had pain with prolonged standing, and that pain and weakness in both feet could limit functional ability during flare ups, as he would have difficulty walking or standing. The Veteran also attended a VA examination in July 2021. It was found that he would miss more than 5 weeks of work in the last 12 months. The Veteran had distal amputations with fusions of the right, second, and third toes of the right foot. The examiner wrote that the Veteran reported pain in his toes that caused difficulty with prolonged standing, walking, climbing stairs, and squatting, and his foot conditions limited his ability to tolerate any weight-bearing activities, including prolonged standing, walking, climbing stairs, and squatting. The Veteran's VA treatment records also support these findings and show that during this period, he did report severe pain in his feet, and he was found to have severe arthritis and toe deformity in his feet. While the question of employability is ultimately one for the Board, as the fact finder, to decide, the findings of the medical experts provide highly persuasive evidence regarding whether the Veteran's symptoms would cause any significant occupational impairment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The Board may then determine the credibility and weight to be attached to such opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds the July 2021 VA examination report to be highly persuasive, as it provided a detailed review of the Veteran's medical and employment history, discussion of the impact of his foot symptoms on his functionality, and clear explanations for all findings. The Board places great probative weight on this competent examination report concerning the Veteran's capability, and it is consistent with the medical evidence of record. The Board therefore finds that there is adequate evidence of record demonstrating that the Veteran's bilateral foot disorder causes him severe pain and limited mobility, and that he would miss more than 5 weeks of a work a year, which likely would prevent him from being able to maintain full time employment. The Board also finds that because the Veteran stopped working in 2002, and the evidence indicates that his foot disorder has been severe throughout the entire appeal period currently before the Board. An effective date from March 24, 2014 can therefore be assigned. Based on the foregoing, the Board therefore finds that affording the Veteran the benefit of the doubt, his service-connected bilateral hammer toes do prevent him from obtaining and retaining substantially gainful employment consistent with his educational background and work experience, since March 24, 2014. The claim is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.