Citation Nr: 21076377 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-35 712 DATE: December 23, 2021 ORDER A rating higher than 10 percent for left foot postoperative hallux valgus with traumatic arthritis is denied. A rating higher than 10 percent for painful scars of the left and right great toes, status post-operative bilateral hallux valgus, is denied. A compensable rating for residual linear scars of the dorsal right and left great toes is denied. An initial compensable rating for residual superficial non-linear scars of the dorsal right great toe is denied. An initial compensable rating for residual superficial non-linear scars of the dorsal left great toe is denied. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5280 for his left foot postoperative hallux valgus with traumatic arthritis. 2. The evidence reflects the Veteran had no more than two painful, service-connected scars during the appeal period. 3. The service-connected residual, linear scars, dorsal left and right great toes, have not been manifested by any disabling effects not considered in a rating provided under other diagnostic codes at any time during the appeal period. 4. The service-connected residual, superficial, non-linear scar, dorsal right great toe, is not in an area or areas of 144 square inches (929 sq. cm.) or greater. 5. The service-connected residual, superficial, non-linear scar, dorsal left great toe, is not in an area or areas of 144 square inches (929 sq. cm.) or greater. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left foot postoperative hallux valgus with traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. 2. The criteria for a rating higher than 10 percent for painful scars of the left and right great toes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 3. The criteria for a compensable rating for residual, linear scars, dorsal left and right great toes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 4. The criteria for an initial compensable rating for residual, superficial, non-linear scar, dorsal right great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. 5. The criteria for initial compensable rating for residual, superficial, non-linear scar, dorsal left great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1974 to May 1978. These matters come before the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran's September 2018 testimony before the undersigned Veterans Law Judge is of record. The claims were remanded in November 2019 and July 2020. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. A rating higher than 10 percent for left foot postoperative hallux valgus with traumatic arthritis is denied. Service connection was originally established for bilateral pes planus with traumatic arthritis of the first metatarsal joints in an October 1998 rating decision; A November 2004 rating decision separated the bilateral hallux valgus, assigning 10 percent ratings for postoperative hallux valgus with traumatic arthritis of each foot effective May 30, 2003, under Diagnostic Code 5280. The Veteran filed a claim for special monthly compensation that was treated as a claim for increased rating in November 2012. In the October 2014 rating decision that is the subject of this appeal, the ratings assigned at that time for the bilateral pes planus and the postoperative hallux valgus with traumatic arthritis of each foot were continued. This appeal ensued. The claims involving increased ratings for bilateral pes planus and postoperative hallux valgus with traumatic arthritis of the right foot are no longer on appeal; the Board will only discuss whether a rating higher than 10 percent is warranted for left foot postoperative hallux valgus with traumatic arthritis. The Veteran reports that his left foot disability makes it very difficult to bear weight on that foot and that he has difficulty walking and painful ambulation. He asserts that his left foot has undergone a lot of surgeries in the past couple of years and the nerves are damaged to the point that he cannot stop them from hurting. The Veteran also asserts that his big toe is no bigger than his little toe and because of the deformity, he cannot put weight on it, so he sometimes must drag it to move around. He further reports that even though his left foot has not been amputated yet, he knows that that is the next step since the left foot had had over four surgeries over the years and he did not think any of them helped. The Veteran described the surgical intervention to have resulted in removed bunions, shortened toes, removed joints, implants place and removed, and the big toe being made shorter than all the rest, all to the point that he could not put his own weight on it. In an August 2014 statement, D.W. reported that the Veteran is unable to walk long distances, has problems with instability, and had been told to stay off his feet and limit walking to two hours. The Veteran testified in September 2018 that he had to use a walker because he could not put weight on his left foot anymore and that he was only able to walk about one block before his foot started to hurt, though he mostly stayed at home. He also indicated that he had problems with his balance because of his left foot and that he had fallen. The Board notes at this juncture that the claim was remanded in November 2019 and July 2020 to obtain an opinion that addressed the Veteran's assertion of nerve damage. In a March 2021 rating decision, service connection for peripheral neuropathy of the left lower extremity was granted with a 30 percent rating effective February 8, 2021. Since service connection has been separately established for neurological complaints involving the left foot, the Board will only consider orthopedic manifestations associated with the service-connected left foot postoperative hallux valgus with traumatic arthritis in determining whether an increased rating is warranted. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Diagnostic Code 5280 provides the rating criteria for unilateral hallux valgus. A rating of 10 percent is warranted for severe unilateral hallux valgus if equivalent to amputation of great toe and for operated unilateral hallux valgus with resection of metatarsal head. Since the Veteran is already in receipt of the maximum rating provided under Diagnostic Code 5280 for his left foot, the assignment of a rating higher than 10 percent is not available under this diagnostic criterion. The Board finds that Diagnostic Code 5280 contemplates pain. The Board has also considered whether to apply other diagnostic codes; however, the Court held in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating...may be assigned only where the service-connected condition is 'unlisted.'"). Since hallux valgus is specifically listed in the rating schedule under Diagnostic Code 5280, the Board finds that this is the appropriate diagnostic code to apply. For these reasons, a higher evaluation is not warranted. 2. A rating higher than 10 percent for painful scars of the left and right great toes, status post-operative bilateral hallux valgus, is denied. 3. A compensable rating for residual linear scars of the dorsal right and left great toes is denied. 4. An initial compensable rating for residual superficial non-linear scars of the dorsal right great toe is denied. 5. An initial compensable rating for residual superficial non-linear scars of the dorsal left great toe is denied. Service connection was originally granted for residual hallux valgus surgery scars in an August 2012 rating decision, which assigned a noncompensable evaluation based on one or more linear scars under 38 C.F.R. § 4.118, Diagnostic Code 7805 effective October 14, 2011. In an October 2013 rating decision, service connection for painful scars, left and right feet, was granted with a single evaluation of 10 percent effective August 30, 2012, under Diagnostic Code 7804. The effective date was noted to be the date the evidence first showed that the scars were tender to palpation. The RO specifically reported that review of VA treatment records indicated a painful scar over the left first toe and right first toe and that the scars altered the way the Veteran stood and required special shoes and a walker for ambulation. The October 2014 rating decision that is the subject of this appeal established service connection for residual superficial non-linear scars of the dorsal right great toe and residual superficial non-linear scars of the dorsal left great toe, with separate noncompensable ratings assigned under Diagnostic Code 7802 effective November 19, 2013. The October 2014 rating decision also continued the 10 percent rating assigned for painful scars, left and right great toes, and the noncompensable rating assigned for residual linear scars of the dorsal right and left great toes, which was a recharacterization of the service-connected residuals scars on the left foot toes. In September 2015, the Veteran reported that his scars were painful and that he could not wear shoes because of the pain. He testified in September 2018 that all the scars on his feet are painful and keep him up at night so that he is unable to sleep; that he cannot have anything touch his feet because they are tender; and that his left great toe turns red when rubbed. He indicated that he was unsure whether it was the scars that made walking difficult; he denied seeking treatment specific to the scars on his feet. The rating criteria used to evaluate the skin were amended effective August 13, 2018. Since the amended criteria can only be applied for the period from the effective date of the regulatory change, the Board will consider the rating criteria in effect prior to the August 2018 amendments in addition to the amended criteria. Prior to August 13, 2018, Diagnostic Code 7802 provided a 10 percent rating for scars not of the head, face, or neck that were superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) stipulated that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provided a 10 percent rating for one or two scars that were unstable or painful; a 20 percent rating for three or four scars that were unstable or painful; and a 30 percent rating for five or more scars that were unstable or painful. Note (1) provided that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) stated that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) stated that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Effective August 13, 2018, Diagnostic Code 7802 provides a 10 percent rating for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area of 144 square inches (929 sq. cm.) or greater; Diagnostic Code 7804 and its notes underwent no change. Prior to August 13, 2018, Diagnostic Code 7805 provided the rating criteria for scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804. The criteria indicated that any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 should be evaluated under an appropriate diagnostic code. Effective August 13, 2018, Diagnostic Code 7805 contains language essentially identical to that used in the prior version, except that it does not specifically reference linear scars. The Veteran has undergone several VA examinations during the appeal period. An October 2014 scars/disfigurement disability benefits questionnaire (DBQ) reported on the left dorsal great toe and on the right dorsal great toe. The Veteran reported that he had chronic pain under the scar on the left great toe. The examiner indicated that none of the scars were painful and/or unstable. The scars on both dorsal great toes were reported as linear measuring 2 centimeters in length. None of the non-linear scars were deep and both superficial non- linear scars had an approximate total area of five square centimeters. In the remarks section, the examiner noted that the Veteran has scars of residual foot surgery which are superficial; examination of the scars themselves showed no tenderness, but there was tenderness deep to the left dorsal great foot scar. During an August 2016 scars/disfigurement DBQ, the examiner reported the left great toe scar was painful, and that neither of the great toe scars were unstable. Physical examination revealed that the right great toe scar was linear measuring 6 by 1.5 centimeters; the left great toe scar was linear measuring 7 by 1.5 centimeters. A January 2018 scars/disfigurement DBQ indicated that there were no non-linear scars on the Veteran's feet. None of the scars were unstable. The Veteran's scar on the dorsum of right great toe was 6.8 centimeters and the 6 centimeters on the dorsum left great toe. A February 2020 scars/disfigurement DBQ documents that the Veteran reported continued discomfort in the dorsal left foot adjacent to the scar for the three surgeries he had on the left great toe. The discomfort ran from just proximal to the toenail laterally 45 degrees for 10 centimeters (measured according to Veteran's demonstration) to the distal mid arch. The pain in the dorsal left great toe did not change with position, sitting, standing, or in bed. Physical examination revealed a scar on the dorsal right great toe that was 6 by 0.8 centimeters and a scar on the dorsal left great toe that was 5.5 by 1 centimeters. The scars on the bilateral dorsal great toes were both tender to palpation. The examiner indicated that the scars without underlying tissue damage on the right lower extremity (which included nonservice-connected scars) were in an approximate total area of 5.8 square centimeters; the scars without underlying tissue damage on the left lower extremity were in an approximate total area of 7.2 square centimeters. The examiner also noted dysesthesia (uncomfortable feelings to light touch) to palpation over the scars on the bilateral dorsal great toes, indicating that the sensation of pain extends beyond the scar an additional 4 centimeters to the mid-arch, but specifically indicated that the discomfort extending proximally beyond the scar to the left great toe was due to the effects of pes planus on his arch, not the scar. The Board notes the Veteran is separately compensated for pes planus and symptoms associated with that disability cannot be utilized to assign a higher rating under the scar diagnostic codes. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). During a February 2021 VA peripheral nerves conditions DBQ, scars were noted but none were painful or unstable or in area greater than or equal to 39 square centimeters. The scar on the left big toe measured 7 by 1 centimeter on the right big toe measured 6 by 0.75 centimeters. In this case, the RO has utilized three diagnostic codes to rate the scars on the Veteran's left and right feet. Only one of the diagnostic codes, namely 7802, has been applied to each foot separately; the other two diagnostic codes, 7804 and 7805, have been applied to each foot rated together. The preponderance of the evidence of record does not support the assignment of a rating in excess of 10 percent under Diagnostic Code 7804. The evidence of record during the appeal period has consistently noted no more than two objectively painful, service-connected scars. In this regard, the October 2014 VA examination noted deep pain under the left great toe scar, but no scars themselves were tender or painful. The December 2016 VA examination noted a painful left great toe scar. The January 2018 DBQ did not note painful or tender great toe scars. The February 2020 DBQ noted tenderness in the bilateral great toe scars and the February 2021 peripheral nerve DBQ noted no scars were tender or painful. Thus, at no time has the Veteran had 3 or more tender or painful service-connected scars such that a rating in excess of 10 percent is warranted. Further, at no time have the service connected scars been found to be unstable. Accordingly, a rating higher than 10 percent under Diagnostic Code 7804 is not warranted. The preponderance of the evidence of record does not support the assignment of a compensable rating for the service-connected residual, linear, scars, dorsal left and right great toes, under Diagnostic Code 7805 in the absence of evidence of any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 at any time during the appeal period. Nor does the preponderance of the evidence support the assignment of compensable ratings under Diagnostic Code 7802 for the service-connected residual, superficial, non-linear scar, dorsal right great toe, or the service-connected residual, superficial, non-linear scar, dorsal left great toe, since neither scar is in an area or areas measuring 144 square inches (929 sq. cm.) or greater. Rather, these scars measured 2 centimeters in length during the October 2014 VA examination; the right big toe scar measured 6 by 1.5 centimeters and the left big toe scar measured 7 by 1.5 centimeters during the August 2016 VA examination; the right great toe scar measured 6.8 centimeters and the left great toe scar measured 6 centimeters at the January 2018 VA examination; the right great toe scar measured 6 by 0.8 centimeters and the left great toe scar measured 5.5 by 1 centimeters at the February 2020 VA examination; and the right great toe scar measured 6 by 0.75 centimeters and the left great toe scar measured 7 by 1 centimeter at the February 2021 VA examination. For these reasons, higher evaluations are not warranted for the scars rated under Diagnostic Code 7805 and Diagnostic Code 7802. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.