Citation Nr: 21006610 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-21 965 DATE: February 4, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected left foot bunion is denied. Entitlement to an initial compensable disability rating for service-connected right foot bunion is denied. Entitlement to an initial disability rating of 30 percent prior to November 9, 2015 for service-connected bilateral pes planus is granted. Entitlement to a disability rating in excess of 30 percent from November 9, 2015 to August 9, 2018; and a disability rating in excess of 50 percent as of August 10, 2018 for service-connected bilateral pes planus is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Entitlement to a permanent and total disability rating for purposes of VA non-service-connected pension benefits is granted. FINDINGS OF FACT 1. The Veteran has not had surgery with resection of the metatarsal head for her service-connected left foot bunion disability and it is not productive of severe hallux valgus equivalent to amputation of the great toe. 2. The Veteran has not had surgery with resection of the metatarsal head for her service-connected right foot bunion disability and it is not productive of severe hallux valgus equivalent to amputation of the great toe. 3. Resolving reasonable doubt, prior to November 9, 2015, the Veteran’s bilateral pes planus was productive of a severe disability. 4. Prior to August 10, 2018, the Veteran’s bilateral pes planus was not productive of more than a severe disability. 5. Since August 10, 2018, the Veteran’s bilateral pes planus has been productive of a pronounced disability. 6. The Veteran has been unable to obtain and sustain a substantially gainful occupation due to her service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left foot bunion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280. 2. The criteria for a compensable rating for right foot bunion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280. 3. Prior to November 9, 2015, the criteria for a 30 percent disability rating for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 4. Prior to August 10, 2018, the criteria for a rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 5. From August 10, 2018, the criteria for a rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 6. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. 7. The criteria for a permanent and total disability rating for purposes of entitlement to non-service-connected pension benefits have been met. 38 U.S.C. § 1522; 38 C.F.R. §§ 3.3, 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from March 1992 to April 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)’s rating decisions issued in February 2010 and February 2014, which decisions in relevant part denied entitlement to non-service-connected disability pension and granted service connection for bilateral pes planus and bilateral bunions but denied compensable disability ratings as well as a TDIU. The Veteran testified at a Board video-conference hearing on her appeal in August 2015. However, the Veterans Law Judge who held the hearing has since left the Board. The Veteran was notified of this in a January 2018 letter and offered the opportunity to have another hearing before a different Veterans Law Judge. She was advised that if she did not respond within 30 days, it would be assumed that she did not want another hearing. As she did not respond to the letter, it is assumed that she does not want another hearing. Hence, the Board may proceed to adjudicate this appeal without prejudice to the Veteran. The Board acknowledges that the Veteran’s appeal initially included a claim for an initial rating higher than 30 percent for service-connected generalized anxiety disorder. However, in a May 2018 decision, the Board granted entitlement to a 70 percent disability rating from the date of service connection for the Veteran’s service-connected generalized anxiety disorder with persistent depressive disorder and alcohol use disorder. In addition, in a February 2016 decision, the Board dismissed claims for service connection for right and left ankle disorders, hypertension, and posttraumatic stress disorder on appeal because the Veteran had withdrawn those claims. As final decisions have been rendered as to these issues, the Board no longer has jurisdiction over them and will not address them in this decision. The Board further notes that, in a September 2020 rating decision, the RO granted staged ratings for the Veteran’s bilateral pes planus (30 percent effective November 9, 2015 and 50 percent effective August 10, 2018). Therefore, the Board has recharacterized the issue on appeal to address these staged ratings. Finally, the Board notes that it previously remanded the Veteran’s issues remaining on appeal in its February 2016 and May 2018 decisions for further development. A review of the claims file indicates the RO has substantially complied with the Board’s remand instructions. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating 1. Entitlement to a compensable disability rating for service-connected left and right foot bunions The Veteran contends that she should receive a compensable disability rating for her service-connected bilateral bunions. She testified at her August 2015 Board hearing that her bunions are painful and make it difficult for her to wear close toe shoes. She stated that she was given custom orthotics for her shoes, but they did not help. She reported that her VA physicians have recommended that she have surgery to correct them, but she has not had the surgery yet. See August 2015 hearing transcript p. 6. In addition, her representative argued at the hearing that the Veteran should meet the minimum requirement for a 10 percent rating for hallux valgus due to the recommendation of surgery. Alternatively, he argued that all of the Veteran’s foot disabilities should be considered together and a rating of at least mild symptomatology would be appropriate for general foot issues. Id. at p. 14. The Veteran’s bunions are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus. In other words, each foot with hallux valgus is rated separately. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for severe unilateral hallux valgus, if equivalent to amputation of the great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s bunions. The evidence does not indicate that the Veteran has had surgery on either foot to correct the bunion deformity present, although it was recommended in 2010. Although surgery has been recommended, the Veteran has not actually had any surgery on her feet for the bunions. As the rating criteria specifically say that a 10 percent rating is warranted when hallux valgus is “operated” on and requires “resection of metatarsal head,” the Board cannot find that the recommendation for surgery alone warrants a compensable rating as VA deliberately decided not to compensate pre-surgical hallux valgus unless it was so severe it is consistent with amputation of the great toe. Therefore, a compensable rating based on post-operative hallux valgus with resection of the metatarsal head is not warranted for either of the Veteran’s feet. The Board acknowledges the Veteran’s lay reports of symptoms of pain making it difficulty or unbearable to wear closed-toed shoes and causing limitations in her ability to walk or stand. In addition, some VA examiners have indicated she has had functional loss due to pain (on movement and with and without weight-bearing), weakened movement, excess fatigability, and swelling. However, the examiners did not indicate whether her functional loss were solely due to the Veteran’s bunions versus her bilateral pes planus. The July 2020 VA examiner was asked to separate out the symptoms associated with each foot disability, but other than describing the Veteran’s pain slightly differently, the examiner stated that both disabilities cause the same functional impairment as to walking and standing. Moreover, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that she has pain that flares-up with prolonged standing or walking would not result in symptoms more nearly approximating severe unilateral hallux valgus equivalent to amputation of great toe. The Veteran has undergone multiple VA examinations and all the examiners indicated that her hallux valgus symptoms are of mild to moderate severity. Moreover, they all indicated that her functioning was not so diminished to the point that she would be equally served with amputation and a prosthesis. Finally, X-ray evidence from October 2009 demonstrated that the Veteran had only mild hallux valgus deformity of the great toes. Hence, the Board does not find that the evidence warrants finding that the Veteran’s disability picture in either of her feet are consistent with severe hallux valgus equivalent to amputation of the great toe. The Board has also considered the other Diagnostic Codes pertaining to the foot. 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. Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated by analogy under a different Diagnostic Code. The Board notes that the Veteran has other service-connected foot disabilities, specifically bilateral pes planus, but the evidence of record is against a finding that the disabilities have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. The Veteran is also service connected for bilateral pes planus. The evidence shows she experiences pain and functional loss from both her service-connected bunions and pes planus. However, there is some distinction in the pain that she experiences from her bunions compared to her pes planus. Specifically, she has reported her bunions cause a throbbing pain at the first metatarsal joint which makes it difficult or prevents her from wearing closed-toed shoes. In comparison, she has reported that her pes planus causes pain in the plantar area of her feet. (E.g., see November 2015 VA examination.) However, both disabilities affect the same functioning of the feet (walking and standing for prolonged periods). As the Veteran’s pes planus seems to be the more severe problem, most of her symptoms and functional loss have been related to that disability rather than the bunions as reflected in higher ratings that have been assigned for the pes planus. Furthermore, as there is overlapping symptoms and functional impairment caused by both disabilities, the Board has related the majority of her symptoms to the Veteran’s pes planus as higher evaluations are available for that disability than for hallux valgus. The Board has considered the Veteran’s claim for an increased rating of her service-connected bunions, and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s service-connected left and right foot bunions. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial compensable disability rating prior to November 9, 2015; a disability rating in excess of 30 percent from November 9, 2015 to August 9, 2018; and a disability rating in excess of 50 percent as of August 10, 2018 for service-connected bilateral pes planus The Veteran contends that she is entitled to a higher rating than what has been assigned. As discussed above, her pes planus was initially evaluated as non-compensable, but she has since been assigned a 30 percent rating as of November 9, 2015 and a 50 percent rating as of August 10, 2018 based on VA examination findings. At her August 2015 Board hearing, the Veteran testified that orthotics have not helped her feet as she still has pain in the soles of her feet with spasms and cramping on the bottom of the feet on an almost daily basis for approximately the last three years. She denied swelling. She stated that she cannot stand for long periods of time (one to two hours) or her feet will start cramping. When this happens, she cannot walk and must sit down for approximately 15 minutes. This occurs several times a day. The Veteran’s bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot manifested by such symptoms as weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and/or pain on manipulation and use of the feet. This rating applies no matter whether the symptoms are bilateral or unilateral. A 30 percent rating is warranted for severe bilateral acquired flat foot manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and/or characteristic callosities. A 30 percent rating is also 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. A maximum 50 percent rating is warranted for bilateral 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. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is in favor of awarding a 30 percent disability rating prior to November 9, 2015, but not a 50 percent disability rating, as the objective evidence demonstrates the Veteran had at least most, if not all, of the rating criteria for a 30 percent disability rating present prior to November 9, 2015. The Veteran underwent VA examinations related to her foot disabilities in November 2013, November 2015, August 2018 and July 2020. The Board acknowledges that the first examination done in November 2013 does not demonstrate the symptoms listed for a 30 percent disability rating. It only indicates the Veteran had signs and symptoms of bilateral callouses, use of orthotics and decreased longitudinal arch on weight bearing. However, VA Podiatry notes from October 2009 and May 2010 show the Veteran’s pes planus was characterized as severe with a C-shaped skew foot bilaterally. In May 2010, she was assessed to have severe pes planus with rear foot varus bilaterally. Physical examination noted she had severe rear foot varus with difficulty getting to a neutral position and a fixed reduced medial longitudinal arch bilaterally. The Veteran was prescribed orthotics and ibuprofen for pain. It does not appear that the Veteran has had any permanent improvement in her bilateral pes planus although it seems that she does not seek regular treatment for her foot problems. However, she had reported that her pain from her pes planus was intermittent on the earlier examinations. The November 2015 VA examination showed she had pain accentuated on use and manipulation with indications of swelling on use, decreased longitudinal arch height and characteristic callouses and use of orthotics without relief. Moreover, although not noted on this examination to have marked deformity or marked pronation, it seems unlikely that the C-shaped skew foot deformity noted in the October 2009 VA treatment records had completely resolved. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 30 percent disability rating is warranted prior to November 9, 2015. However, a 50 percent disability rating prior to August 10, 2018 is not warranted because the evidence does not show marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation prior to that date. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to increased pain with prolonged standing and walking. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by her statements would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot. In contrast, the August 2018 VA examination upon which the 50 percent disability rating is based demonstrates objective findings of marked pronation for the first time. The Board has also considered the other Diagnostic Codes pertaining to the foot. 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. Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. However, the Veteran does have other service-connected disabilities with distinct manifestations, i.e., bunions (hallux valgus), the symptoms of which are already evaluated under Diagnostic Code 5280. The Board acknowledges the argument that the Veteran’s foot conditions should be evaluated as a whole under Diagnostic Code 5284, but that would be against the cases just cited. The Board has considered the Veteran’s claim for an increased rating of her service-connected bilateral pes planus, and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In conclusion, the Board finds that a 30 percent disability rating, but no higher, is warranted prior August 10, 2018, and a rating higher than 50 percent is not warranted thereafter. The Board has applied the benefit of the doubt doctrine in making these findings. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU and to a permanent and total disability rating for purposes of VA non-service-connected pension benefits The Veteran contends she is unemployable due to her service-connected bilateral foot disabilities and anxiety disorder. In support of her claim, she has submitted reports of a vocational assessment in August 2015 and December 2020. The vocational expert opined in the August 2015 report that the Veteran is considered to be vocationally disabled and unable to perform any type of substantial gainful occupation since July 2009 due to her service-connected psychiatric disability. In the December 2020 report, the vocational expert reiterated her previous vocational opinion. The Veteran is currently service-connected for generalized anxiety disorder with persistent depressive disorder and alcohol use disorder rated as 70 percent disabling since July 2009. She has additional service-connected disabilities of bilateral pes planus rated 30 percent prior to August 10, 2018 and 50 percent thereafter and bilateral bunions each rated as non-compensable. Therefore, she meets the basic criteria of having either one disability rated at 60 percent or multiple disabilities with one rated at 40 percent with a combined rating of 70 percent or higher. See 38 C.F.R. § 4.16(a). Nevertheless, the evidence must still indicate that the Veteran is unable to obtain and sustain a substantially gainful occupation. Clearly, the vocational expert’s opinions demonstrate that is the case. Moreover, the record indicates that the Veteran has not worked in a substantial position since 2007. It appears from the record that she has tried to work but has been unable to maintain substantial employment. For example, the records indicate she had worked as a cashier for a toy store, in a school administration office and driving for Uber, but those jobs were either temporary work or aggravated her service-connected disabilities. Furthermore, although she has been going to school through vocational rehabilitation since 2010, she has not been able to complete her degree because of poor performance and withdrawal from classes. Although she continues to take classes, she has yet to achieve her educational and vocational goals after more than 10 years. Hence, there is ample evidence to establish that the Veteran is unable to obtain and sustain substantially gainful employment as a result of her service-connected psychiatric disability. For that reason, the Board finds that entitlement to a TDIU is warranted under 38 C.F.R. § 4.16. Furthermore, the Board finds that the Veteran   has a permanent and total disability for purposes of establishing entitlement to VA non-service-connected disability pension benefits as her psychiatric disability has been rated 70 percent for more than 10 years. See 38 C.F.R. § 4.17. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.