Citation Nr: 21009393 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-09 346 DATE: February 22, 2021 ORDER Entitlement to a 30 percent, but not higher, rating for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD) and status post-surgery of the right second toe, is granted. FINDING OF FACT The Veteran’s right foot disability is reasonably shown to be manifested by amputation of the right great toe with removal of the metatarsal head; loss of use of the foot is not shown. CONCLUSION OF LAW A 30 percent, but no higher, rating is warranted for status post arthroplasty and fusion, hallux valgus, right great toe, with DJD status post-surgery of the right second toe 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5171, 5172, 5276-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1968 to January 1970 and from September 1971 to January 1994. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision which, in part, denied an increased rating for status post arthroplasty and fusion, hallux valgus, right great toe, with DJD and status-post surgery of the right second toe. A January 2019 Board decision denied a rating in excess of 20 percent for the disability. The Veteran timely appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In November 2019, CAVC granted the Parties’ Joint Motion for Partial Remand (JMPR); which in part vacated that portion of the January 2019 Board decision which denied a rating in excess of 20 percent for status post arthroplasty and fusion, hallux valgus, right great toe, with DJD and status post-surgery of the right second toe; and remanded the matter to the Board for action consistent with the JMPR. In May 2020 the Board remanded this matter for an adequate VA examination. In December 2020 the Board separately remanded the issue of entitlement to a total disability rating for based on individual unemployability (TDIU) prior to August 31, 2018. That issue is not for consideration herein. Entitlement to a rating of 30 percent rating for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD) and status post-surgery of the right second toe, is granted. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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. The evidentiary period for appellate consideration is from up to one year prior to June 17, 2015, the date VA received the Veteran’s claim for an increased rating. During the entire period on appeal, the Veteran’s right foot disability has been rated 20 percent under Code (Code) 5284. Code 5284 is used to rate “other foot injuries” and provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. Under Code 5171 a 10 percent rating is for amputation of the great toe without metatarsal involvement, and a 30 percent rating is warranted for amputation with removal of the metatarsal head. Code 5172 provides a 20 percent rating for amputation of toes, other than the great toe, with removal of the metatarsal head. A 0 percent rating is to be assigned for such amputation without metatarsal involvement. On October 2015 VA examination, the Veteran indicated that the only thing that really bothers him is that when he walk, there is pain underneath the ball of his foot due to a missing toe that would have normally taken the pressure off. He noted that it helps when he is able to scrape off the callus. He denied flare-ups of right foot pain. It was noted that he had several right foot surgeries prior to the amputation of the right great toe. The examiner noted that there was a well-healed stump. There was no objective evidence of pain to manipulation or on weight bearing. It was noted that the Veteran has a well healed stump at the right great toe without identifiable scar. The pertinent diagnosis was amputation right great toe at phalangeal joint, with degenerative joint disease (DJD), and status post-surgery of the right second toe, resulting in mild functional limitations. As is noted in the JMPR, the October 2015 VA examiner’s description of the amputation of the right great toe at the phalangeal joint conflicts with VA medical evidence of record from July 1995 showing that the amputation was at the metatarsal-phalangeal joint. The May 2020 Board remand sought a more accurate detailed description of the great toe amputation (as whether there was removal of the metatarsal head is the critical finding as to the distinction between the criteria for a 10 percent and a 30 percent rating under Code 5271) On VA examination took place in December 2020. The examiner diagnosed right hallux valgus since 1980. The examiner also noted surgery on the right second toe in 1994. Medical evidence of record shows that the surgery involved shortening of the right second toe. The Veteran denied flare-ups of this condition. His hallux valgus was described as mild to moderate in severity. The examiner described previous surgeries for his hallux valgus, including a tarsal head/metatarsal head osteotomy in 1980, 1983, and 1986. The description of the osteotomy notes that it was the equivalent to metatarsal head resection. The examiner also noted that the right great toe was amputated at the metatarsal-phalangeal joint in June 1995. The examiner noted that the Veteran did not have any other right foot injuries than those described above. The examiner found no pain of clinical significance and no functional loss. The Board finds that based on the foregoing. the Veteran’s right great toe with postoperative second toe disability reasonably shows amputation of the great toe with removal of the metatarsal head. Such pathology warrants a 30 percent rating under Code 5171. The record shows that the Veteran had amputation of the right great toe in 1995, and that the December 2020 VA examiner found that the Veteran’s prior right foot surgeries were the equivalent of resection of the metatarsal head. While the record shows that the Veteran had a surgery to shorten the right second toe in 1994, the record does not show that the toe was amputated, and the examiner did not find that the Veteran has any foot condition other than noted in the examination report. Further, the Veteran’s reported symptoms on October 2015 VA examination do not show any reported functional limitations specific to his right second toe. Consequently, a separate rating under Code 5172 is not appropriate. A 40 percent rating for the foot disability (with entitlement to special monthly compensation) would be warranted if loss of use of the foot was shown. The disability picture established by examination findings and the Veteran’s own reports of functional impairment does not show or suggest that the Veteran has right foot impairment equivalent to (or even approximating) loss of use of the foot. As noted, he ambulates without assistive devices (albeit with limitations) and has denied flare-ups. Considering the foregoing, a 30 percent, but not higher, rating is warranted for the right great toe and second toe disability is warranted, throughout. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.