Citation Nr: 21072615 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-10 005 DATE: December 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hallux valgus is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for asbestos related pleural plaques is remanded. FINDING OF FACT The Veteran's hallux valgus of the left foot is manifested by mild to moderate pain in the great toe, and has been assigned the maximum rating available. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left foot hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.14, 4.71, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1957 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of separate decisions issued October 2016 and December 2016 by Regional Offices (RO) if the Department of Veterans Affairs (VA). The Veteran initially filed a timely and valid notice of disagreement as to the issues listed on the title page, and also for bilateral hearing loss, in August 2017. See August 2017 Notice of Disagreement. The Veteran was issued on statement of the case as to the issues listed on the title page and a separate statement of the case as to bilateral hearing loss. The Veteran returned one VA Form 9 in February 2018, but only perfected appeals as to the hallux valgus and the asbestosis. Thus, the propriety of the Veteran's rating for bilateral hearing loss is no longer in appellate status. The Board acknowledged that the Veteran initially requested a hearing in his February 2018 VA Form 9 and though he was notified of the time and location of this hearing, the Veteran did not attend his hearing. Neither the Veteran nor his agent have offered good cause as to why the Veteran's hearing should be rescheduled, nor is there such evidence otherwise within the claims file to suggest so. Nor has the Veteran requested another hearing. Under these circumstances, the Board concludes that the Veteran has waived his right to a hearing before a Veterans Law Judge. The Board accordingly asserts jurisdiction. In October 2020, the Board remanded both claims on appeal for additional development. On review, the Board finds substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In an August 2021 rating decision, the RO increased the rating of the hallux valgus to 10 percent, effective July 18, 2016, the date of the initial claim, due to painful motion of the joint. As this was not a full grant of the benefit sought, the claim remains on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). This case is advanced on the Board's docket on account of the Veteran's age. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Increased Rating Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability 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 low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different DC or DCs, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hallux valgus is rated 10 from July 18, 2016 under DC 5280, with the application of 38 C.F.R. § 4.59, which permits rating to at least the minimum compensable rating for a particular joint. 38 C.F.R. § 4.59, 4.71a, DC 5280. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). 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, no changes were made to DC 5280. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that a higher rating is warranted for his hallux valgus. Under Diagnostic Code 5280, a 10 percent rating is assignable for severe unilateral hallux valgus, if equivalent to amputation of the great toe, or due to an operation with resection of the metatarsal head. It is noted that the current 10 percent rating is the highest rating available under DC 5280. Turning to the evidence, the Board notes that a December 2016 VA foot conditions examination diagnosed left hallux valgus. The Veteran stated that he now developed an enlargement in the left 1st MCP joint that was painful when it rubbed against shoes, but if he wore accommodating shoes, he was fine; if he wore dress shoes, he was unable to walk or stand without pain. The examiner found the Veteran's hallux valgus was mild or moderate symptoms on the left. The Veteran denied flare-ups or functional loss. Left foot pain was noted to contribute to functional loss. Additional foot injury included left great toe fracture which did not chronically compromise weight bearing or require arch supports, custom orthotic inserts, or shoe modification. The examiner found the Veteran was negative for flat feet, Morton's neuroma, hammer toes, hallux rigidus, and pes cavus. In conjunction with the Board remand, another VA foot conditions examination was provided in June 2021. The examiner diagnosed hallux valgus. Prior treatment included a hospital visit in 2016 resulting in no treatment, and the Veteran stated there had been no treatment or complaint in last five years. Functional issues included difficulty with side-to-side lateral movement (unstable if turning fast), going up and down steps, needing handrails in place due to balance issues, and inability to run, and that his bunion hurt once in a while. The examiner noted the Veteran's hallux valgus symptoms were mild or moderate. No other foot conditions were noted. The Veteran denied flare-ups. Examination revealed pain on the left foot and pain on active motion, and weight-bearing but there was no evidence pain impacted functional ability during flare-ups or repeated use over time. The examiner found the Veteran was negative for flat feet, plantar fasciitis, Morton's neuroma, hammer toes, hallux rigidus, and pes cavus. In a June 2021 addendum, the examiner noted during the most examination the Veteran mentioned sharp pain of the left foot and it was not unusual for bunions to form after foot injuries. The Veteran is assigned the maximum 10 percent disability rating for the left foot under Diagnostic Code 5280 for hallux valgus; thus, no higher schedular rating is available. The Board has also considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5284, which evaluates residuals of other foot injuries. The Board recognizes the December 2016 examiner noted another disability, residuals left great toe fracture, which did not affect the Veteran and the June 2021 examiner attributed the Veteran's bunion as resultant from a foot injury. As such, the Board has attributed the Veteran's left foot symptomatology and functional impairment to the service-connected left foot hallux valgus. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). Thus, a separate rating under DC 5284 is not warranted. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board also considered whether separate ratings are available under other DCs. However, the VA examiners explicitly found that the Veteran does not have flat feet, plantar fasciitis, Morton's neuroma, hammer toes, hallux rigidus, pes cavus, or malunion of the tarsal and metatarsal bones, and treatment records do not reflect such diagnoses; therefore, separate ratings are not warranted under DCs 5269, 5276, 5277, 5278, 5279, 5281, 5282, or 5283 for such disorders. See 38 C.F.R. § 4.71a. The Board has considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show that the symptoms associated with the Veteran's left foot hallux valgus present an exceptional disability picture. Comparison between his symptoms and the criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology during the appeal period. Thus, the Board need not consider whether the disability have caused marked interference with employment during the appeal period. Further, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). Therefore, the Board finds that a rating in excess of 10 percent for left foot hallux valgus is denied. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran does not assert the inability to maintain employment due to his service-connected disabilities. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. REASONS FOR REMAND The Veteran asserts that a higher rating is warranted for his asbestos related pleural plaques. While the Board regrets further delay, another remand is required as the June 2021 VA examination is incomplete. Under the rating criteria for asbestosis under Diagnostic Code 6833, a 10 percent disability rating is assigned for FVC of 75 to 80 percent predicted, or; DLCO of 66 to 80 percent predicted. A 30 percent disability rating is assigned for FVC of 65 to 74 percent predicted, or; DLCO of 56 to 65 percent predicted. A 60 percent disability rating is assigned for FVC of 50 to 64 percent predicted, or DLCO of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent disability rating is assigned for FVC less than 50 percent predicted, or; DLCO less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. Within the June 2021 VA examination, the examiner listed the results of the PFT test from November 2016, which included FVC and DLCO. Upon request from the RO, the June 2021 PFT results were provided but DLCO was not provided therein. Therefore, the RO should attempt to obtain the complete June 2021 PFT results, to include DLCO results. In the event the DLCO results from the June 2021 examination are not available or cannot be obtained, the RO should schedule the Veteran for another VA examination, where PFT testing should be undertaken and results, to include FVC and DLCO results should be documented. The matter is REMANDED for the following actions: 1. The RO should attempt to obtain the complete PFT test results from the June 2021 VA examination, specifically the FVC and DLCO results. 2. In the event both the FVC and DLCO results are not available from the June 2021 VA examination, the RO should schedule the Veteran for another VA examination to determine the current nature and severity of his service-connected asbestosis. The record, including a copy of this Remand, must be made available for review in connection with the examination, and all indicated tests, to include PFTs, should be performed. The examiner should describe all functional impairments related to the Veteran's service-connected asbestosis. A discussion as to the relevance or lack thereof of the size of the Veteran's pleural plaques would also be helpful to the Board. See January 2017 Chest Scans; September 2017, August 2018, and December 2020 CT Chest Scans. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. (Continued on the next page) 3. Thereafter, readjudicate the remanded claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate 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.