Citation Nr: 21077416 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-21 229 DATE: December 29, 2021 ORDER A 30 percent rating for the residuals of a left foot bunionectomy to include flat foot, hammer toes, and hallux valgus is granted. REFERRED The issue of left leg pain due to the left foot bunionectomy was raised in the March 2021 Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) to provide an application for compensation. FINDING OF FACT The residuals of a left foot bunionectomy to include flat foot, hammer toes, and hallux valgus, when rating under the Diagnostic Code most favorable to the Veteran, manifests as a severe foot injury. CONCLUSION OF LAW The criteria for an evaluation of 30 percent for the residuals of a left foot bunionectomy to include flat foot, hammer toes, and hallux valgus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. An evaluation in excess of 20 percent for the residuals of a left foot bunionectomy to include flat foot, hammer toes, and hallux valgus. The Veteran claims entitlement to a disability rating in excess of 20 percent for residuals of a left foot bunionectomy. At a March 2021 Board hearing, she testified that she is developing mallet toe and now has radiating pain up her left leg. The Veteran's left foot disability is residuals of a left foot bunionectomy. The RO evaluated her disability by analogy under Diagnostic Code 5280-5284. Diagnostic Code 5280 allows for a maximum 10 percent rating for hallux valgus, unilateral, operated with resection of metatarsal head, or for severe hallux valgus, if equivalent to amputation of great toe. 38 C.F.R. § 4.73, Diagnostic Code 5280. This is the highest rating available under this diagnostic code. Because the Veteran has an evaluation higher than the maximum, the AOJ used Diagnostic Code 5284 to additionally assign the evaluation. Diagnostic Code 5284 states that a moderate foot injury warrants a 10 percent rating, a moderately severe foot injury warrants a 20 percent rating, and a severe foot injury warrants a maximum 30 percent rating. However, a note states that actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5284. Initially, the Board considers the appropriate Diagnostic Code or Codes. 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 Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes 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 Diagnostic Codes 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. On this record, August 2017 VA treatment records show an August 2017 VA examination showed a diagnosis of residual of foot injury. The Veteran reported that her left foot has never been "right" since the in-service surgery on her bunion. When her foot pain flare, she uses a scooter to avoid ambulation. The Veteran cannot walk or stand for prolonged periods of time. The examiner found symptoms due to hallux valgus were mild or moderate. Flat foot and hammer toes were not reported. The Veteran had pain on physical examination, altered gait, swelling, disturbance of locomotion, excess fatiguability, pain on weight-bearing. cannot walk or stand for prolonged periods, about 15 minutes. The September 2017 VA examination showed diagnoses of flat foot, hammer toes, and hallux valgus. The examiner found the flat foot and hammer toes were directly related to the service-connected diagnosis. The Veteran described her symptoms as constant pain with flares. The flat foot examination revealed pain accentuated on use, but no pain with manipulation of the foot. Orthotics were not used. There was no extreme tenderness of planar surfaces. There was decreased longitudinal arch height on weight-bearing. A marked deformity was not present. Marked pronation was not present. The weight-bearing line did not fall over or medial to the great toe. There was no inward bowing of the Achilles' tendon. There was no marked inward displacement and severe spasm of the Achilles' tendon (rigid hindfoot) on manipulation. Hammer toes were noted as affecting the great, second and third toes. Hallux valgus examination showed mild or moderate symptoms, post-surgery equivalent to metatarsal head resection. In the October 2017 notice of disagreement, the Veteran reported that she now has a lot of swelling. She noted she is in pain daily. April 2018 podiatry note reports that the Veteran had orthotics dispensed in December. She stated orthotics are very helpful, but her toes on the left still sit up when she walks. In the April 2018 VA Form 9, the Veteran reported that the surgery on her hallux valgus in service "messed it up even worse," so that the big toe would no longer touch the ground. In the Board hearing, the Veteran testified that her big toe was starting to "mallet." The Veteran's representative asserted that under the amputation rule, the Veteran might be better off just having an amputation. The Veteran agreed that she could take the toes off now, especially the big toe. Pursuant to the May 2021 Board remand, the Veteran was afforded the June 2021 VA examination. The Veteran was diagnosed with flat foot, hammer toes, hallux valgus, degenerative arthritis, and status post left foot bunionectomy with residuals of left foot pain with flare-ups and limited range of motion. The Veteran reported that the big toe rubs on all her shoes and orthotics help some. She reported that the hammer toes hurt and shoot pain up top of her foot towards her ankle. Her pain level was about a six out of ten. Location of left foot pain is the ball of first metatarsal and dorsum upper foot and over hammer toes. The Veteran reported flare-ups. She reported pain and swelling left foot with prolonged walking, standing and prolonged weight bearing of the left foot. The flat foot evaluation showed the Veteran has pain accentuated on use and pain on manipulation of the feet. The pain is accentuated on manipulation. She had pain during passive range of motion testing of the first metatarsophalangeal joint. When she was standing, she was able to rest the great toe on the surface she was standing on. There was no indication of swelling on use. She had characteristic calluses. Arch supports do not relieve her symptoms. She does not have extreme tenderness of plantar surfaces. She has decreased longitudinal arch height. She does not have marked deformity (i.e pronation, abduction) or marked pronation. The weight-bearing line was over or medial to the great toe. However, the examiner attributed the alteration of the weight-bearing line to the hallux valgus deformity. She does not have inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. With respect to the hallux valgus evaluation, again the Veteran was found to have mild or moderate symptoms, and surgery equivalent to metatarsal head resection was noted. With respect to the evaluation of hammer toes, it was noted the Veteran has hammer toes of the second and third toe. Regarding range of motion, the examiner stated that she had "range of motion actively and passively extension, flexion and movement back and forth of left great toe." The examiner stated that normal range of motion for the first metatarsal is 70 degrees of extension and 45 degrees of flexion. For the second through fifth toes, normal flexion of the metatarsophalangeal joints is 40 degrees of extension and 40 degrees of flexion. Normal range of motion for the proximal interphalangeal joint is 0 degrees of extension and 35 degrees of flexion. Normal range of motion of the distal interphalangeal joints is 30 degrees of extension and 60 degrees of flexion. The examiner stated that the Veteran's active and passive ranges of motion were the same. Her extension was 20 degrees and flexion was 15 degrees. Her other toes had normal active and passive range of motion. The examiner concluded that the Veteran would have pain and lack of endurance of her left first metatarsophalangeal with flare ups and repetitive use over time, and that her ranges of motion would "remain unchanged." The examiner found the Veteran has a limping gait result of left foot pain with lack of endurance and swelling of the left foot with prolonged walking and standing during flare ups of left foot pain and with repeated use over time and with prolonged weight bearing. The examiner found that the Veteran would not be equally well served with amputation and prosthesis. The Board finds that this was an adequate medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner obtained a history and considered the Veteran's reported symptoms and statements. The examiner described the disability in sufficient detail to enable a fully informed rating. Therefore, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Diagnostic Codes 5276 for flat feet, 5280 for hallux valgus, 5282 for hammer toes, and 5284 for other foot injuries are all implicated by the Veteran's disabilities. Diagnostic Codes 5280 and 5284 are discussed above. Diagnostic Code 5276 provides a noncompensable rating for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Finally, under Diagnostic Code 5282, single hammer toes warrant a noncompensable rating. All hammer toes, unilateral without claw foot, warrant a 10 percent rating. Because the hammertoes, flat feet, and hallux valgus disabilities are specifically listed in the Rating Schedule, VA is to rate based on the specifically-listed Diagnostic Code. In that regard, hammer toes would warrant a noncompensable rating because the Veteran does not have hammer toes of all toes. She has only two hammer toes. Her hallux valgus of the great toe would then separately be rated as 10 percent, for either resection of metatarsal head, or equivalent to amputation of great toe. The great toe could not also be counted as a hammer toe, otherwise it would impermissibly be counted twice. As for flat feet, the 2017 VA examination would prevent more than a 10 percent evaluation under DC 5276, as will be discussed more fully below, although the 2021 VA examination then could potentially allow for a 20 percent evaluation under DC 5276. Under foregoing scenario, the Veteran would not also be awarded a separate evaluation under DC 5284 for other foot injuries because all of her disabilities would be considered by DCs 5276, 5280, and 5282. In this scenario, the Veteran would be eligible only for a 20 percent rating until June 8, 2021, the date of the VA examination showing a worsening. Under this scenario, the Board would not separately rate the arthritis that was diagnosed in the June 2021 VA examination. Were the Board to consider the degenerative arthritis under Diagnostic Code 5003, the Board would be instructed to rate on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Here, limitation of motion is essentially contemplated in the rating of the three named diagnoses. Further discussion is warranted of the reasons why a higher evaluation than 10 percent for unilateral flat foot under DC 5276 would not be warranted based on the 2017 examination. DC 5276 is less favorable to the Veteran. Under the 2017 examination, there was only one criterion present under the 20 percent evaluation, namely pain accentuated on use. DC 5276 is not conjunctive; every symptom is not needed to have the 20 percent rating. Dyess v. Derwinski, 1 Vet. App. 448 (1991). The rating schedule describes severe flat foot by 4 criteria, including objective evidence of a marked deformity, swelling on use, and calluses which the Veteran did not have. Because the Veteran had only one of the four symptoms under DC 5276, it is more accurate to rate the disability at 10 percent disabling. Although not all 4 criteria are required, having only one out of 4 is not sufficient to reasonably state that her disability picture is more closely approximated by the 20 percent criteria. Moreover, a 30 percent rating under DC 5276 would not be warranted beginning June 8, 2021. The June 2021 VA examination showed the Veteran did not have marked pronation, extreme tenderness of plantar surfaces of the left foot, marked inward displacement, or severe spasm of the tendo achillis. Although arch supports did not relieve her symptoms, the Board interprets the criterion ", not improved by orthopedic shoes or appliances" to refer to the symptoms listed in the criteria for pronounced flat foot. Even if this is an incorrect interpretation, the Board finds the Veteran's symptoms do not more nearly approximate pronounced flat foot. Her only symptom at the 30 percent criteria would be the lack of relief from orthopedic shoes or appliances. Her other symptoms were contemplated in lower evaluations. Although DC 5276 is not conjunctive, the absence of any of the symptoms of pronounced flat foot supports a finding that the 30 percent criteria are not met. Alternatively, if lack of relief from orthopedic shoes or appliances is considered an independent criterion and not referring specifically to the symptoms listed in the rest of the 30 percent criteria, having only one of 5 total symptoms supports a finding that her disability is severe, but not pronounced. Thus, her symptoms do not more nearly approximate that of the 30 percent criteria. As an alternative to rating the Veteran's foot disability under the three separate Diagnostic Codes DCs (5276, 5280, and 5282), the Board considers an evaluation under the currently assigned Diagnostic Code 5284. In that case, the Board can award a 30 percent evaluation from the beginning of the appeal period, August 2017. In regard to the appropriate evaluation under DC 5284, according to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. The Board finds that the preponderance of the evidence is in favor of a 30 percent rating for severe foot injuries. Because of the pain and the numerous disabilities combined, the Board finds the Veteran's foot is severely disabled. Such an evaluation includes all three disabilities (hallux valgus, flat foot, and hammer toes). The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatiguability, less movement than normal, etc. The 30 percent rating is applicable for the entire appeal period, which began in August 2017. The Board finds that there is no actual loss of use of the foot, which would warrant a 40 percent evaluation under DC 5284. The June 2021 VA examiner stated that the Veteran's functioning is not so diminished that amputation with prosthesis would equally serve her. This statement is supported by the information in the examination report. The Veteran's foot still has functioning. She is able to walk, stand, and bear weight on the foot, even though this is reduced in duration due to pain. She reported flare ups of left foot pain with swelling and reduced range of motion, but the examiner stated that her ranges of motion would not change during flare ups. There is no evidence of foot drop and she has limited degrees of range of motion. She does not use any assistive device when walking, although she walks with a limping gait. This evidence is against actual loss of use of the foot. At her hearing, the Veteran testified that she thought she could be better served by an amputation. She stated that her pain was so severe that she could "take toes off right now, the big toe." The Board notes that the Veteran's representative cited the amputation rule for the proposition that if the Veteran were equally or better served by amputation, then the rating for amputation applies. The amputation rule does not stand for the proposition as the Veteran reported. The amputation rule is set for in 38 C.F.R. § 4.68 and provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Here, amputation of all toes without metatarsal loss under DC 5170 warrants a 30 percent rating, as does DC 5171 for amputation of the great toe with removal of the metatarsal head. Thus, the Veteran's rating hereunder does not violate the amputation rule. Additionally, even though DC 5170 is not used to rate her disability, the Veteran is still being granted a 30 percent rating, which is also the maximum rating for amputation of all toes without metatarsal loss or amputation of the great toe with removal of the metatarsal head. DCs 5172 and 5173 do not offer ratings higher than 20 percent, so they are unfavorable to her. In conclusion, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 30 percent rating for severe foot injuries under DC 5284. Lastly, a TDIU is not raised as part of this increased rating claim although a VA examiner stated that she could not do manual labor. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). An August 2013 consult report stated that she was employed and that she worked for a trucking company and that she "does clerical work." At March 2016 and March 2017 pain management consults, her job was described as "sedentary." The September 2017 VA examiner stated that the Veteran would be unable to do manual labor, stand or walk for long distances, and have difficulty climbing stairs. In her April 2018 VA Form 9, she stated, "I have to have a sit down job." The June 2021 examiner stated that the Veteran would have difficulty with prolonged standing and pain with prolonged weight bearing. She reported that after work, she would elevate her foot, and that while "at work" she would use a box to elevate her work. She was employed, and described her work as "a desk job" with only "short walks." Her VA treatment records do not show that she is, or has been, unemployed during the appeal period. Her job has been described as "do[ing] all of licensing" for a truck company. There is no medical or lay evidence indicating that her job provides marginal employment, meaning that she earns below the poverty threshold for one person as determined by the Bureau of the Census. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.