Citation Nr: 21005840 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-33 121 DATE: February 2, 2021 ORDER Entitlement to a 10 percent rating (except for a period of temporary 100 percent disability from September 14, 2012 to December 31, 2012) for a right foot (hallux valgus) bunion based on symptoms of moderate bilateral pes planus is granted. Entitlement to a compensable rating for a left foot (hallux valgus) bunion is granted. FINDINGS OF FACT 1. From the pendency of this appeal, the Veteran’s right foot hallux valgus disability more closely resembles a bilateral pes planus manifested by moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet, with no evidence of his hallux valgus symptoms shown to be severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. 2. From the pendency of this appeal, the Veteran’s left foot hallux valgus disability more closely resembles a bilateral pes planus manifested by moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet, with no evidence of his hallux valgus symptoms shown to be severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. CONCLUSION OF LAW The criteria for a 10 percent rating, but no more, is warranted for the left foot and right foot hallux valgus disabilities under the criteria for pes planus. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes (DCs) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Factual Background and Legal Criteria The Veteran contends that an increased rating is warranted for his bilateral hallux valgus disabilities. At his March 2017 hearing he testified that his pain level starts at level 4 in the morning, goes up to 7 by the time he leaves his house and is at level 9 by the time he gets to work. He described being given a walking boot after his toe surgery for 6 months and then given shoe inserts. He reported experiencing less movement than normal and had instability when standing on right foot. He indicated that he cannot stand for longer than 5 minutes without sitting down to rest. He was unable to perform parts of his job that require standing for prolonged periods or lifting more than 25 pounds. He also described losing his footing on one occasion. He had pain on movement, disturbance of locomotion, interference with standing, and weightbearing. He reported that his pain level had not improved since his surgery. He contended that his toe was diminished to the point where it had the same function as if it was amputated. By way of history, service connection was granted for bilateral hallux valgus disabilities in September 2008 with initial noncompensable ratings for each foot. He filed his claim for increase in February 2012. Records pertinent to this appeal include February 2011 primary care records showing left foot pain with bunions. He had a history of bunions and shoes were not helping. He was assessed with a bunion and was seeing podiatry. In October 2011 he presented to the clinic for pain in the left foot. He had surgery in his left foot for cyst removal. Neurologically, he had light touch within normal limits with paresthesias of the right foot on palpation on scar formation with distal radiation. He had 5/5 muscle strength and foot deformities of pes planus and bunion left foot. Dermatologically, he had scar formation of the medial foot and post-surgical neuritis of the left foot. Custom molded orthotics (CMOs) were casted. In February 2012 the Veteran was seen in the podiatry clinic for pain in left foot with a history of surgery left foot for cyst removal. On neurological examination, his light touch was within normal limits but again he had paresthesias of the left foot on palpation on the scar formation as shown in October 2011. Muscle power was 5/5 and he had pain on range of motion of the first MTPJ slight with tracking motion. Foot deformities included pes planus and bunion left foot, of the high IM angle left foot. The scar formation of medial foot left was again noted, and he was assessed with post-surgical neuritis left foot and HAV (hallux abductovalgus deformity) left foot. Treatment plans included re-doing orthotics with padding on top. Also discussed was possible surgical bunionectomy and arthroplasty and possible procedures on the foot in September 2012. March 2012 primary care records showed left foot pain with bunions and he had been seeing podiatry. In early September 2012 preparations were being made for the Veteran to undergo bunionectomy surgery for his right foot, with X-ray readings diagnosing the following; HAV, bilateral feet and mallet toe, 2nd digit right foot. He was to have procedure for right foot bunion and hammer toe 2nd, right foot on Friday 9/14/2012. On September 14, 2012 he underwent right foot surgery for the admitting diagnosis of right bunion deformity and 2nd mallet toe, with the discharge diagnosis of surgical procedure: status post Kalish bunionectomy and 2nd proximal interphalangeal joint (PIPJ) arthroplasty right foot. Thereafter he was followed up for post-surgery during his period of convalescence from September 14, 2012 through December 31, 2012. During this period, he was in receipt of a temporary total rating. Treatment records following the end of the temporary total rating period after December 31, 2012 included a January 2013 podiatry follow up 8 weeks status post bunionectomy right foot. He denied pain on presentation. He did have pain on range of motion and walked on the outer side of the foot. Examination disclosed neurological findings of the light touch within normal limits, with paresthesias of the right foot and with slight pain on palpation. Muscle power was 5/5 and there was pain range of motion of the first MTPJ slight with tracking motion of the second digit slight pain. Foot deformities were noted of the right hallux in straightened position compared to pre-operative position. X-rays showed no screw distraction. He was assessed with post-surgical neuritis reduced right foot and HAV right post surgery hammertoe. Treatment plans included continuing with his shoe gear and follow up in 8 weeks. On follow up in March 2013 he was doing better. He also had left foot pain and bunions for which no shoe was helping. Extremities showed no edema and a full range of motion. Neurologically, CN II through XII were intact. He was assessed with bunion had right bunionectomy. In December 2013 he again was noted to be doing better after his September 2012 right bunionectomy and also had left foot pain with bunions and had been seeing podiatry. The report of a December 2013 VA foot disorders examination noted the history of the Veteran’s current foot disorders of right foot bunion (hallux valgus) and left foot bunion (hallux valgus) with right foot bunion surgery done in September 2012. He had a lack of motion and pain in the right great toe. He developed a left foot bunion (hallux valgus) in 1999 and now had pain in the left great toe. He had no other foot disorders such as Morton’s neuroma (Morton’s disease), metatarsalgia, hammertoes, hallux rigidus, pes cavus, malunion of tarsal or metatarsal bones, no other foot injuries, and no bilateral weak foot. Regarding hallux valgus, there were mild or moderate symptoms of the left foot, with no mention of right foot symptoms. His right great toe had hallux valgus angle approximately 0 degrees with no bunion; Left great toe had hallux valgus angle approximately 20 degrees non-weight bearing. No scars were noted. His foot disorder does not result in functional impairment so diminished that amputation with prosthesis would equally serve the Veteran. The functional impact was that he cannot stand for extended periods of time. For the claimed diagnoses of right foot bunion (hallux valgus) and left foot bunion (hallux valgus), the examiner found that there was no hallux valgus right foot; but confirmed a diagnosis of hallux valgus left foot, with imaging studies showing a moderate hallux valgus deformity in the left foot. VA treatment records following this examination include a September 2015 podiatry outpatient record. At that time he returned to the clinic to have possible bunion surgery on his left foot. He had not received the last set of orthotics that were ordered. On examination of his feet his skin was normal color, turgor and texture, nails 1-10 are well groomed. His pedal pulses were palpable, and minimal digital hair growth. Neurologically, he had gross sensation intact. His left foot first metatarsal appeared to be adducted and hallux was abducted. He was assessed with left foot HAVP. A possible March 2016 surgery date for the left foot was discussed. Subsequent records do not disclose that surgery was actually performed on the left foot. Physical examination of the feet also revealed the same findings as September 2015 except that the dorsal distal 1/3 metatarsal POP had neuritis. He was assessed with left foot HAV and right foot neuritis dorsal right first metatarsal. An addendum also from March 2016 noted that CMOs were ordered. An August 2016 primary care note referenced the right bunionectomy performed in September 2012 and noted that the Veteran was doing well. He had left foot pain and had bunions and had been seeing podiatry. He was diagnosed with bunion/foot neuralgia seeing podiatry given lidocaine cream had right bunionectomy in September 2012. In November 2016 he was seen by podiatry note with the same history, findings and assessment as shown in the March 2016 podiatry record. An April 2017 podiatry record noted the Veteran to have right foot postoperative pain and that he recently received a set of orthotics. There was pain post-surgery in his right foot big toe joint that can only possibly be relieved by further surgical intervention and or fusion of big toe joint. Pain was on an ongoing basis. On physical examination, his skin was normal color, turgor and texture, nails 1-10 were well groomed, pedal pulses were palpable, there was minimal digital hair growth, and neurologically gross sensation was intact. He had right foot first metatarsal dorsal distal 1/3 metatarsal POP neuritis. He was assessed with right foot connective tissue adhesions with functional hallux limitus and painful range of motion (ROM) in stance and while in chair. He was instructed on foot care and injection therapy. In August 2018 the Veteran presented to the podiatry clinic for pain in the left foot under the bottom and in bunion left foot. On examination, his neurological findings showed his light touch was within normal limits. His sharp and dull touch were intact bilaterally all unchanged since the last visit. His muscle power was 5/5 Ankle and his foot (toe joints) and ankle ranges of motion were within normal limits. Foot deformities included pes planus in stance with hypermobile first ray leading to first metatarsal cuneiform. Dermatologically his skin and turgor were within normal limits, except for a cicatrix formation left foot and post-operative scar right foot. He was assessed with pes planus with concomitant joint pain left foot. He was instructed on stretching and ordered custom molded orthotics (CMO) again. An October 2018 primary care note indicated that he had requested telework 3 days a week due to his plantar fascitis and foot issues; the treating medical provider was not able to state that is medically necessary. He stated that he had received this statement from podiatry for the last three years and will contact them to obtain letter. A November 2018 podiatry attending note revealed complaints of pain in left foot under the bottom and in bunion left foot. Physical examination disclosed pes planus in stance with hypermobile first ray leading to first Met cuneiform. Again, a cicatrix formation left foot and post-operative scar right foot was noted. He was assessed with pes planus with concomitant joint pain left foot. Plans included reordering accommodative orthotics and instructions on stretching. The July 2019 VA examination diagnosed left foot bunion (hallux valgus) and also diagnosed status post right foot bunionectomy, right hallux valgus, which has been surgically repaired with no residuals. These were noted to be service connected. There was no pain of the foot, no impact of function and no functional loss. There was no answer as to whether he had flatfoot, hammertoe, Morton’s Neuroma, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones. He did have symptoms due to a hallux valgus condition of only mild or moderate symptoms, left side only. The Veteran did not have any foot injuries or conditions other than that already described. There was no response provided for whether foot conditions chronically compromise weight bearing, arch supports, custom orthotic inserts or other orthotic/shoe modifications. The examination report indicated “no” to whether he had foot surgery and no response was provided whether he has any residual signs or symptoms due to arthroscopic or other foot surgery. No pain was noted on physical examination of the right and left foot. Regarding functional loss and limitation of motion, contributing factors of disability, there was disturbance of locomotion and interference with standing. There was no other functional loss during flareups when the foot is used repeatedly over a period of time. No other pertinent physical findings were shown. He was said to have a scar related to his diagnosed service connected disabilities which was answered “yes” as to whether such scar was either painful or unstable; have a total area equal to or greater than 39 square cm (6 square inches); or are located on the head, face or neck. However, a separate examination for Scars/Disfigurement was never completed thus it is not possible to ascertain what the “yes” answer pertained to. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. No degenerative or traumatic arthritis was documented on imaging. His diagnosed disability did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) The examiner addressed Correia criteria with a finding that in regard to both the left and right foot, there was no pain with weight bearing, or non-weight bearing passive range of motion including review of contralateral joints. Regarding Sharp criteria, the examiner commented that “After examination of the veteran, listening to their complete history and current subjective complaints, combined with a review of the available records, I have no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up.” The examiner further was asked to address whether any non-service-connected foot disability was being caused or aggravated by the service-connected foot disorder. However rather than provide such an answer, the examiner revisited whether service connection was warranted for the left and right foot bunion disorders, which is not an issue before the Board. The report of a September 2020 VA examination diagnosed left foot bunion with a diagnosis associated this noted to include flat foot affecting his left side. No disorder was diagnosed for the right side. The Veteran reported the onset of left foot pain in 2002, which was attributed to a bunion on the left foot from a hallux valgus deformity. He had an operation for a cyst in the left bunion of the left foot around 2004. He continued to have symptoms and around 2012 he was said to have had left foot hallux valgus corrective surgery (despite the evidence showing it was on the right foot). The course of the condition since onset was that symptoms stayed the same. He reported having stiffness in the left hallux that is precipitated with prolonged standing. Left foot bunionectomy and hallux valgus corrective surgery was conducted around 2012. A history of right foot hallux valgus corrective surgery in 2008 was reported. His reported symptoms of foot pain were described in his words as “the biggest thing is a stiffness pain in the left big toe.” On examination for pes planus, there was no pain on use of or manipulation of the feet and no swelling on use. No characteristic calluses were shown. No arch supports, built up shoes or orthotics were used. There was no extreme tenderness of plantar surfaces of one or both feet. There was no decreased longitudinal arch height of one or both on weight-bearing. There was no marked pronation of one or both feet, and no evidence of one or both feet having the weight-bearing line fall over or medial to the great toe. There was no lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no “inward” bowing of the Achilles’ tendon, no marked inward displacement and severe spasm of the Achilles’ tendon (rigid hindfoot)on manipulation of one or both feet. Regarding hallux valgus, it was on the left foot only, with mild or moderate symptoms. A history of surgery was noted. The hallux valgus was mild on the left side, but does chronically compromise weight bearing. No arch supports, orthotics or other shoe modifications or other assistive devices were needed. The Veteran had residuals of foot surgery on the left foot with pain, left hallux metatarsal phalangeal (MTP) joint with dorsiflexion. Examination of the right foot disclosed no pain on physical examination. The Veteran denied having significant right foot issues. Regarding the left foot, there was pain but this did not cause functional loss and the Veteran was able to ambulate normally. There were no other foot disorders such as Morton’s neuroma (Morton’s disease), metatarsalgia, hammertoes, hallux rigidus, pes cavus, malunion of tarsal or metatarsal bones, no other foot injuries, and no bilateral weak foot. There was no functional loss for the left lower extremity attributable to claimed condition and no functional loss for the right lower extremity attributable to claimed condition. He had no functional loss due to pain, during flare-ups and/or when the joint is used repeatedly over a period of time) or during flare-ups or when the foot is used repeatedly over a period of time for either foot. Other findings included a left hallux valgus surgical scar 7.0 centimeters (cm.) x 0.2 cm. and right hallux valgus surgical scar 6.5 cm. x 0.2 cm. His functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. No functional impacts were shown. Regarding Correia criteria, examination of the right foot and left foot, no pain was noted during active or passive motion of either foot, or on weight bearing and non-weight bearing of either foot. Vet denies significant right foot issues. For the left foot the Veteran reported pain in his/her medical history and/or pain is noted elsewhere on examination, with the examiner stating a rationale of “dorsiflexion” (left foot). The Veteran’s established diagnosis was left foot bunion with no change in the service-connected diagnosis and no additional diagnosis rendered. There was a worsening of the symptoms but no change to the service-connected diagnosis and no additional diagnoses. Additional diagnoses were noted to be unrelated to the service-connected diagnosis. The service-connected diagnosis had resolved. The additional diagnosis was pes planus which was congenital and present on the 9/26/1996 enlistment exam. It was asymptomatic. The left foot bunion (hallux valgus) diagnosis was corrected to recurrent left foot bunion and halgus valgus deformity status post bunionectomy surgery to accurately reflect clinical intervention and status of the service-connected condition. The report of a September 2020 VA scars examination diagnosed the following: 1. Scar right dorsal hallux, residual hallux corrective surgery and 2. Scar left medial foot, residual hallux corrective surgery. The same surgical history as reported in the September 2020 VA foot examination was given. Current symptoms were that the Veteran reported having stiffness in the left hallux that is precipitated with prolonged standing. Findings included that of a right hallux valgus surgical scar 6.5 cm. x 0.2 cm. The left hallux valgus surgical scar measured 7.0 cm. x 0.2 cm. There had been no change in the condition since onset. There were no current symptoms specific to the scar on examination. His pain was localized to the left 1st MTP joint on dorsiflexion. The scar was not tender to palpation on either foot. The scar of either foot was neither painful nor shown to be unstable with frequent loss of covering of skin over the scar. Having described the evidence, the Board must now outline the relevant law. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s service-connected hallux valgus disabilities of both feet have been rated by the RO under Diagnostic Code (DC) 5280 for hallux valgus. Conditions not specifically listed in the rating schedule may be rated by analogy under the DC for a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. It will be permissible to rate under a closely rated disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. 38 C.F.R. § 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes the Veteran’s bilateral foot disability has been treated by medical records and evaluated in multiple examinations during the appeal period. Those examinations provide additional associated findings and diagnoses including pes planus shown in the records and September 2020 VA examination and evidence of hammer toe in the records, in addition to the service-connected hallux valgus. The Board shall consider the appropriateness of considering separate DCs pertaining to those disabilities, while noting in certain instances assignment of separate ratings would be prohibited where symptoms of pain and pain on use overlap in a way that would violate the rule against pyramiding. 38 C.F.R. § 4.14; 38 C.F.R. § 4.71a, DC 5276, 5280, 5284. With this in mind, the Board shall consider which applicable DC is most advantageous to the Veteran’s situation. Under Diagnostic Code 5280, a 10 percent disabling rating is warranted for unilateral hallux valgus, if severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. This is the maximum rating available under this DC. Consideration of a compensable rating is appropriate under DC 5276 in light of the findings of pes planus in the September 2020 VA examination, as well as the VA treatment records which repeatedly showed evidence of pes planus and the use of orthopedic inserts to alleviate his symptoms. Accordingly, the Board finds the location, symptoms, and functional effects of his service-connected hallux valgus disability appear to be similar to those of pes planus; thus, DC 5276 for pes planus is an appropriate analogous DC. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology). Under 38 C.F.R. § 4.71a , Diagnostic Code 5276, a 10 percent disability rating is assigned for pes planus (flat foot acquired), regardless of whether the condition is unilateral or bilateral, where there is evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet. A 20 percent disability rating for unilateral pes planus or a 30 percent disability rating for bilateral pes planus is assigned where there is a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, characteristic callosities. A 30 percent disability rating for unilateral pes planus or a 50 percent disability rating for bilateral pes planus requires a pronounced condition manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a , Diagnostic Code 5276. Additionally, because there is evidence of hammertoe deformity, the Board shall address the appropriate of consideration of the criteria for hammertoe. Diagnostic Code 5282 provides a 0 percent rating for hammertoes of single toes and a 10 percent rating for all toes, unilateral without claw foot. 38 C.F.R. § 4.71a DC 5282. Additionally, the Board notes DC 5284 addresses foot injuries. Although the Veteran is not service connected for a foot injury in either foot, the Board will likewise consider the appropriateness of a higher rating under this DC for each foot. Diagnostic Code 5284 provides the rating criteria for rating foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. The Board notes that the same rating criteria is used for malunion of or nonunion of tarsal or metatarsal bones under DC 5283. The rating schedule also includes DCs for weak foot (DC 5277), claw foot (DC 5278), hallux rigidus (DC 5281), malunion or nonunion of the tarsal or metatarsal bones (DC 5283). However, the Veteran has not been diagnosed with, or service-connected for, any of these conditions. Moreover, the symptoms of his condition and these other conditions are not closely related. The symptoms of weak foot include muscular atrophy, disturbance of circulation, and weakness. These are not closely similar to the Veteran’s condition; thus, an analogous evaluation under DC 5277 is not appropriate. Claw foot results in marked contraction of the plantar fascia resulting in dropped forefoot, all toes hammer toe, very painful callosities, marked varus deformity. Accordingly, an analogous rating under DC 5278 is also not appropriate. Hallux rigidus is rated pursuant to the criteria for hallux valgus, the symptomology of which overlap with that of DC 5276 for pes planus; DC 5276 would also provide for a higher rating that DCs 5280 or 5281. Accordingly, an analogous rating under DCs 5280 5281 is not appropriate. The symptoms of hammer toe are rated under DC 5282 with a maximum 10 percent rating and thus would not benefit the Veteran. There is also no evidence suggestive of a malunion or nonunion of the tarsal or metatarsal bones, so DC 5283 is not for consideration. Words such as “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Finally, while some of the symptoms listed in the rating criteria are conjunctive - e.g., “pain on manipulation and use accentuated” - the rating criteria themselves are not. In other words, a veteran does not need to demonstrate all of the symptoms under a particular rating to be assigned that evaluation. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (discussing how some DCs, such as DC 7903 for hypothyroidism, are not conjunctive); Dyess v. Derwinski, 1 Vet. App. 448 (1991). Where a disability manifests in some criteria from a lower evaluation and some criteria for a higher evaluation, the Board should address 38 C.F.R. §§ 4.7 and 4.21 and explain which evaluation the disability more nearly approximates. 1. Right foot Based on review of the evidence and with consideration of reasonable doubt, the Board finds that the evidence from the pendency of this appeal supports a 10 percent rating for the right foot bunion as more closely resembling moderate symptoms of pes planus (flat foot acquired), regardless of whether the condition is unilateral or bilateral. Although pes planus was not recorded in the earlier VA examination of December 2013, the podiatry records from as early as October 2011 show a pes planus disability, with the need for custom built orthotics noted. He was noted to continue such orthotics use in podiatry records from February 2012, February 2013, and March 2013, September 2015 and March 2016 although these records did not include specific findings or diagnoses of pes planus, focusing rather on the hallux valgus (bunion) symptoms. More recently the podiatry records from August 2018 and November 2018 disclosed foot deformities included pes planus in stance with hypermobile first ray leading to first metatarsal cuneiform. These records also showed continued use of custom orthotics. Such findings more closely resemble evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet. However, the evidence does not reflect symptoms that more closely resemble a severe unilateral or bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, characteristic callosities. The VA examination of July 2019 provided no answer as to whether he had flatfoot, but suggested that right foot symptoms were no more than mild, with no pain of foot, no impact of function and no functional loss and with no right sided issues with hallux valgus, with symptoms due to a hallux valgus condition of only mild or moderate symptoms limited to the left side only. The only disability shown was some disturbance of locomotion and interference with standing. The VA examination of September 2020 for pes planus also shows no evidence of severe pes planus, with findings of no pain on use of or manipulation of the feet. No swelling on use. No characteristic calluses were shown. No arch supports, built up shoes or orthotics were used. There was no extreme tenderness of plantar surfaces of one or both feet. There was no decreased longitudinal arch height of one or both on weight-bearing. There was no marked pronation of one or both feet, and no evidence of one or both feet having the weight-bearing line fall over or medial to the great toe. There was no lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no “inward” bowing of the Achilles’ tendon, no marked inward displacement and severe spasm of the Achilles’ tendon (rigid hindfoot)on manipulation of one or both feet. Thus, the Board finds that a 10 percent rating is warranted for mild pes planus, either unilateral or bilateral, but the evidence fails to show a rating in excess of 10 percent is not warranted. As for whether a 10 percent rating for a hallux valgus of the right foot is warranted, the evidence does not show his hallux valgus symptoms to be severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. Although his hearing testimony alleged great toe symptoms that he compared to being equivalent to an amputation, with pain and instability, this is not supported by the medical evidence. Again, his hallux valgus symptoms are shown in the VA examinations from 2013, 2019 and 2020 to be resolved post-surgery, and described as asymptomatic. The podiatry records further do not reflect more than mild to moderate hallux valgus symptoms, with some post-surgery symptoms of pain. Thus, a 10 percent rating is not warranted for hallux valgus of the right toe. The Board has also considered whether the Veteran’s disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, under Diagnostic Codes 5277, 5278, 5279, 5281, respectively are either not applicable or would not provide a higher rating. Pes cavus and bilateral weak foot have not been diagnosed. Finally, his symptoms do not amount to even a moderate foot injury of the right foot thus consideration of a compensable rating is not warranted per Diagnostic Code 5284. Moreover, although evidence of hammertoes or “mallet toe” of the second digit right foot was shown in some records from early September 2012 prior to his surgery and in January 2013 post-surgery, this is not shown to be compensable, as a 10 percent rating requires all toes to be hammertoes. None of the other records or VA examination reports from December 2013, July 2019 and September 2020 show evidence of hammertoes of all toes. In sum, the Veteran is entitled to a 10 percent evaluation under the pes planus criteria but there is no basis for a rating in excess of that amount. 2. Left foot As discussed in the above adjudication of the right foot disability which granted a 10 percent rating for pes planus, the Board notes that the 10 percent rating is warranted for unilateral and bilateral pes planus. For reasons discussed at length above when addressing the right foot bunion, the pes planus is not shown to be severe and does not warrant a rating in excess of the 10 percent rating that has been granted. As for whether a 10 percent rating for a hallux valgus of the left foot is warranted, the evidence does not show his hallux valgus symptoms to be severe, equivalent to amputation of the great toe or if operated upon with resection of the metatarsal head. Although his hearing testimony alleged great toe symptoms that he compared to being equivalent to an amputation, with pain and instability, this is not supported by the medical evidence. Again, his hallux valgus symptoms are shown in the VA examinations from December 2013, July 2019 and September 2020 to be no more than mild to moderate, with some pain noted. The podiatry records further do not reflect more than mild to moderate hallux valgus symptoms of pain in his left big toe. Thus, a compensable rating is not warranted for hallux valgus of the left toe. The Board has also considered whether the Veteran’s disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, hammer toe, under Diagnostic Codes 5277, 5278, 5279, 5281, 5282, respectively are either not applicable or would not provide a higher rating. Pes cavus and bilateral weak foot have not been diagnosed. Finally, his symptoms do not amount to even a moderate foot injury of the left foot thus consideration of a compensable rating is not warranted per Diagnostic Code 5284. In sum, there is no basis for a 10 percent rating for the left foot hallux valgus disorder. 3. Additional Considerations Separate Evaluations under other Diagnostic Codes Although surgical scarring of the right foot and left foot was noted on examination and some treatment records, such scarring was not painful, unstable, nor did it have a total area equal to or greater than 39 square cm (6 square inches). The July 2019 VA examination which suggested he may meet one of these criteria, failed to actually examine and measure the scars as was required if he indicated such criteria was met. Thus, that examination lacks probative value regarding the scar. The only examination that specifically addressed his scars was in September 2020 which disclosed a right hallux valgus surgical scar 6.5 cm. x 0.2 cm, a left hallux valgus surgical scar measured 7.0 cm. x 0.2 cm with the scars shown to be asymptomatic and not tender to palpation on either foot. The scar of either foot was neither painful nor shown to be unstable with frequent loss of covering of skin over the scar. The preponderance of the evidence is against a separate compensable rating for scars of the left and right foot and a separate compensable higher rating under 38 C.F.R. § 4.118. Diagnostic Codes 7800 through 7804, is not warranted. The Board additionally notes that the evidence shows neurological manifestations in the right foot and left foot. This is shown in records from October 2011 and February 2012 when he was noted to have paresthesias in the left foot with light touch within normal limits. The January 2013 podiatry follow up 8 weeks status post bunionectomy included neurological findings of the light touch within normal limits, with paresthesias of the right foot, and slight pain on palpation, assessed as post-surgical neuritis reduced right foot and HAV right post surgery hammertoe. The March 2016 podiatry outpatient record, which diagnosed right foot neuritis of the dorsal right first metatarsal, disclosed that neurologically he had gross sensation intact. Neuritis of the right foot was again diagnosed in November 2016 again with intact gross sensation. An August 2018 podiatry follow-up record for pain in the left foot disclosed neurological findings with his light touch within normal limits, while sharp and dull touch were intact bilaterally. Pursuant to Diagnostic Code 8521, a 10 percent disability is warranted for mild incomplete paralysis of the external popliteal nerve; 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve; a 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve; and a 40 percent disability rating is warranted for complete paralysis of the external popliteal nerve, manifested by symptoms of foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened abduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Although some neurological findings were noted in the left and right foot, with diagnoses of neuritis, and some subjective symptoms, the symptoms do not rise to even a mild incomplete paralysis of the external popliteal nerve for the left or right foot. Thus, a separate compensable rating is not warranted for neurological manifestations of the left and right foot. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.