Citation Nr: 21012569 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-48 101A DATE: March 4, 2021 ORDER An initial 10 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette, prior to December 1, 2012 (excluding the period of a temporary total rating from October 1, 2012 to November 30, 2012), is granted. A 20 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries, prior to September 1, 2013 (excluding the period of a temporary total rating from July 11, 2013 to August 31, 2013), is granted. A 30 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries, from September 1, 2013 (excluding the periods of a temporary total rating from August 14, 2014 to November 30, 2014, and November 4, 2015 to February 1, 2016), is granted. An initial 10 percent rating, and no higher, for right foot surgical scar, prior to July 11, 2013, is granted. A 20 percent rating, and no higher, for right foot surgical scars, from July 11, 2013, is granted. A total disability rating based on individual unemployability (TDIU), prior to April 25, 2018, is denied. FINDINGS OF FACT 1. Prior to December 1, 2012, the Veteran’s right hallux valgus, bunion, fifth toe bunionette, was severe and manifested with pain. 2. Prior to September 1, 2013, the Veteran’s right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries manifested with symptoms that approximate to a moderately severe impairment level, to include hallux deformity and pain; severe impairment has not been shown. 3. From September 1, 2013, the Veteran’s right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries manifested with symptoms that approximate to a severe impairment level, to include deformity and pain; actual loss of use has not been shown during the appeal period. 4. Resolving benefit of the doubt in favor of the Veteran, prior to July 11, 2013, he had two scars associated with the service-connected right foot disability that are painful, but not unstable. 5. Resolving benefit of the doubt in favor of the Veteran, from July 11, 2013, he has three scars associated with the service-connected right foot disability that are painful, but not unstable. 6. Prior to April 25, 2018, the Veteran is not unemployable due to his service-connected disabilities, to include his right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette, prior to December 1, 2012 (excluding the period of a temporary total rating from October 1, 2012 to November 30, 2012), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5280. 2. The criteria for entitlement to a 20 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries, prior to September 1, 2013 (excluding the period of a temporary total rating from July 11, 2013 to August 31, 2013), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5280-5284 3. The criteria for entitlement to a 30 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries, from September 1, 2013 (excluding the periods of a temporary total rating from August 14, 2014 to November 30, 2014, and November 4, 2015 to February 1, 2016), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5280-5284. 4. The criteria for entitlement to an initial 10 percent rating for right foot surgical scars, prior to July 11, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.118, DC 7804. 5. The criteria for entitlement to a 20 percent rating for right foot surgical scars, from July 11, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.118, DC 7804. 6. The criteria for entitlement to a TDIU, prior to April 25, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to January 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and June 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. The Veteran submitted additional evidence after the issuance of a supplemental statement of case along with a waiver of his right to review such evidence by the agency of original jurisdiction (AOJ). Accordingly, the Board may consider the new evidence. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.   38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.   38 C.F.R. § 4.1.  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found ─ a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. § 4.3.   1. Entitlement to an initial compensable rating for right hallux valgus, bunion, fifth toe bunionette and status post-right foot bunion surgeries, prior to December 1, 2012 (excluding the period of a temporary total evaluation from October 1, 2012 to November 30, 2012); in excess of 10 percent, prior to February 1, 2016 (excluding the periods of a temporary total evaluation from July 11, 2013 to August 31, 2013; August 14, 2014 to November 30, 2014; and November 5, 2015 to February 1, 2016); a rating in excess of 20 percent, prior to April 25, 2018; and a rating in excess of 30 percent, thereafter. The Veteran seeks a higher rating for his service-connected right hallux valgus bunion, fifth toe bunionette and status-post right foot bunion surgeries disability (hereinafter “right foot disability”). The Board has characterized the appeal as an initial rating claim, since within a year of notification of the September 2011 rating decision that granted service connection, relevant evidence (e.g. March 2012 VA treatment records) was received. See 38 C.F.R. § 3.156(b). During the period on appeal, the Veteran underwent four surgeries for his right foot disability. A temporary total rating, or a 100 percent rating, was granted for the following periods of convalescence, under 38 C.F.R. § 4.30 from October 1, 2012 to November 30, 2012; July 11, 2013 to August 31, 2013; August 14, 2014 to November 30, 2014; and November 5, 2015 to February 1, 2016. As a result, these periods are not under consideration, as the Veteran was in receipt of a temporary total rating. In the September 2011 rating decision, the RO assigned an initial noncompensable (0 percent) rating, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280, for right hallux valgus, bunion, fifth toe bunionette, effective April 23, 2010. A 10 percent rating was then assigned under DC 5280 for the periods of December 1, 2012 to July 10, 2013; September 1, 2013 to August 13, 2014; and December 1, 2014 to November 4, 2015. Pursuant to DC 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus, operated with resection of the metatarsal head, or where the metatarsal head has not been resected, if the condition is severe, such that it is equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. In an August 2017 rating decision, the RO changed the diagnostic code to 5280-5284, and assigned a 20 percent rating, effective February 1, 2016. (The RO explained that a VA examiner noted the Veteran’s right foot was 3 inches shorter than your left foot, and that this was akin to a moderately severe foot injury as there is deformity, chronic compromising of weightbearing, and a need for custom orthotics, two different sizes of shoes, and regular use of a cane). DC 5280 was thus discontinued as of that date. In a July 2019 rating decision, a higher 30 percent rating was granted under this DC, effective April 25, 2018. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the right foot disability is rated by analogy to DC 5284 for other foot injuries. Diagnostic Code 5284 provides a 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Finally, the Board notes that the rating criteria for the musculoskeletal system was recently updated, effective February 7, 2021. However, the updates are not applicable here, as neither DC 5280 nor DC 5284 were revised. For the reasons stated below, the Board finds that an initial 10 percent rating is warranted under DC 5280, prior to December 1, 2012 (excluding the period of a temporary total evaluation from October 1, 2012 to November 30, 2012); a 20 percent rating is warranted under DC 5280-5284, prior to September 1, 2013 (excluding the period of a temporary total evaluation from July 11, 2013 to August 31, 2013); and a higher 30 rating is warranted under DC 5280-5284, beginning September 1, 2013 (excluding the periods of a temporary total evaluation from August 14, 2014 to November 30, 2014, and November 5, 2015 to February 1, 2016). Turning now to the evidence, the Veteran had a VA examination in May 2011. He reported that his right great and fifth toes became swollen, painful, and tender around 1991. The examiner diagnosed him with right hallux valgus with bunion and a fifth toe bunionette. The objective findings were tenderness of the enlarged metatarsophalangeal (MP) joint of the right great toe with moderate valgus deformity with minimal tenderness of the fifth MP joint. Right foot X-ray reports demonstrated hallux valgus and bunion of the great toe. Based on a positive nexus opinion provided, the RO granted service connection and awarded an initial noncompensable rating for this disability. VA treatment records from 2011 to 2012 reflected that the Veteran requested a surgical solution for painful first joint of the right foot that was getting worse and limiting his activity. X-ray imaging revealed severe hallux valgus with minimal degenerative change of the first metatarsal-phalangeal joint and painful, moderate fifth bunionette. On October 1, 2012, the Veteran had bunion surgery on his great toe and right foot distal fifth toe. A December 2012 X-ray imaging report showed no radiographic complication and that the alignment was maintained. By January 2013, the VA podiatrist found the right foot to be well-healing, but noted the great toe was in mild varus and fifth toe in rectus positions. In February 2013, the VA podiatrist discussed surgery scheduled for July 2013 to remove hardware from the great and fifth toe, perform MP joint fusion of the right great toe, and perform an exostectomy to right midfoot. A June 2013 VA X-ray image showed there was new medial and dorsal subluxation of the first MP joint with varus angulation, where the right great toe was elevated. At a mid-June 2013 VA podiatry visit, the Veteran stated he noticed the right great toe drifted medially over time to the point where he could not wear regular shoes. He also had pain at the top of his foot. In a June 2013 private treatment record, Dr. K. noted that the Veteran’s big toe was now “out of place” and had a hard time wearing shoes as a result. He was there for a second opinion after having bunion corrective surgery in October 2012. Dr. K. provided a diagnosis of hallux varus deformity of the right foot and found that the range of motion of the right first metatarsophalangeal joint is in a varus tracking position but had no crepitus. He had an antalgic gait. X-ray imaging showed varus deformity noted right first metatarsophalangeal joint with the medial sesamoid dislocated medial to the first metatarsal head. On July 11, 2013, the Veteran had the second right foot procedure. The VA operative report reflected hardware was removed from the great and fifth toes of the right foot, the MP joint of the right great toe was fused, and an exostectomy performed on the second toe. At a VA contract examination in July 2013 for his right foot disability, the examiner provided diagnoses of right hallux valgus, bunion, fifth toe bunionette, status-post right foot bunion surgeries (times two). The Veteran had two surgeries on October 1, 2012, and July 11, 2013, and used crutches daily. The examiner found that his right foot was covered by dressing and a half cast, and thus, unable to assess the right foot at this examination. The Veteran had tenderness on top of his right foot. The functioning was not diminished where amputation with prosthesis would equally serve the Veteran. A late August 2013 VA podiatry record showed that the Veteran was well-healing seven weeks after surgery, with mild edema in the right forefoot only. The VA podiatrist found his right great toe was in near anatomic position and noted X-ray imaging revealed the right first metatarsal phalangeal joint bone was healing with hardware intact. His right foot was placed in a boot walker. At a September 2013 VA podiatry visit, the Veteran reported 2 to 4 out of 10 for pain; he continued using his boot walker to ambulate. The VA podiatrist noted he may resume wearing soft-soled shoes, but was not allowed to run, jump, walk or stand for long periods, or lift over 10 pounds. At a September 2013 VA physical therapy visit, the Veteran reported intermittent, sharp, achy pain, with the lateral three toes of his right foot constantly numb or tingling. The effect of his right foot disability prevented full daily activities. His goals were to function and walk normal. His right plantarflexion was noted to be 3+ out of 5. The VA physical therapist noted his first and fifth metatarsal phalangeal joints was tender to palpate, and the base of the right foot was sensitive to pressure over the lateral 3 toes. At the November 2013 VA physical therapy visit, the physical therapist noted the Veteran has progressed in strength and pain since the initial evaluation, even though he was limited functionally due to no great toe extension in his right foot. His progress was also likely impaired due to exaggerated perceived disability. In November 2013, the Veteran submitted a statement asserting that his big toe began to angle out to the left after the initial October 2012 right foot surgery. After the July 2013 surgery to straighten and extend the big toe, as well as to remove hardware from the first surgery, the Veteran asserted that he had excruciating pain of his right foot and could not wear shoes. He could only put limited pressure on his foot and was issued a cane to help with his balance and walking. He believed there was permanent damage to his right foot with numbness and swelling with pain. J.G. also submitted a statement in November 2013. He has assisted the Veteran and contended his foot was in worse condition than before the October 2012 took place. J.G. stated that the Veteran’s big toe stuck out from his foot and that made it impossible to wear a shoe at all. He noted the Veteran was undergoing therapy and his prognosis was questionable. A December 2013 VA prosthetics note indicated that the Veteran had no significant motion at the right first MP joint. An April 2014 VA primary care visit continued to show the Veteran’s complaints of right foot pain. In May 2014, the Veteran underwent another VA contract examination for his foot. The examiner provided diagnosis for status post-surgeries of the right hallux valgus and right bunionette. He reported near constant pain at both sites daily, which was worse when weightbearing and wore special shoes with a metatarsal bridge but used a crutch for balance and support because the pain caused balance problems. The Veteran had severe symptoms with function equivalent to amputation of great toe. There was malposition of surgical hardware of the right first metatarsal. The examiner found the Veteran’s posture was withing normal limits, but his gait favored his right foot, due to pain. In June 2014, the VA podiatrist found the Veteran had hypertrophic malunion for the right first MP joint with recurrent bunionette of the right fifth toe. Surgery options were presented to him at that time. In early August 2014, the Veteran reported at his VA podiatry visit that his right foot never fused completely after the first procedure, and then after his second, there was progressive pain to the right great toe that swelled frequently with severe pain occurring at night. His fifth toe has been bothersome and felt like he walked with a tack underneath. The pain was rated as a 5 out of 10 at that visit. The VA podiatrist found he had minimal range of motion for his right first MP joint. His third surgery took place on August 14, 2014. A September 2014 VA podiatry note indicates he continued to have pain and has been unable to go to work still due to the pain. The Veteran was seen in the emergency department at his local VA medical center in early October 2014, for pain and swelling to his right foot. At a VA primary care visit a few weeks later, the clinician noted he still had a severely deformed right foot with pain, but the swelling was down. A November 2014 X-ray imaging showed stable osteolysis of the first metatarsal head area, sesamoids medially displaced at his first MP joint, hallux varus/extensus, and minimal swelling. An April 2015 VA orthotics note reflected that the Veteran continued to have right foot pain and used his forearm crutch to offload right lower extremity weightbearing. He reported his right fifth toe is non-functional. The June 2015 VA examiner noted that the Veteran’s severe hallux valgus may be challenging to treat surgically and that he had 6 months of pain and suffering with a deformed toe after the initial surgery. He found there was decline in his function of the right foot disability. The Veteran had his fourth surgery on November 5, 2015, for his right toes. In his March 2016 notice of disagreement, the Veteran asserted that he has suffered extreme pain since his first surgery, has consistently used crutches since his first surgery, and lost function of all of his right toes. A June 2016 VA podiatry visit showed the Veteran had full weightbearing (FWB) ambulation in his extra-depth (ED) shoes. He had mild forefoot edema and was seeking firmer ED shoes at that visit. The August 2016 VA contract examination report for pension purposes only provided diagnoses for scars in the right foot and right foot deformity, but the examiner did not provide further details as to the severity of the disability in the report. At an August 2016 VA contract foot examination, the examiner provided diagnoses for right hallux valgus and status-post multiple right foot surgeries with deformity. There were multiple scars seen in his right foot. The Veteran reported the condition was getting worse, and he had numbness, burning, and constant pain in his right foot. The pain was described as constant, throbbing pain every day. He reported flare-ups as burning and numbness, along with pain every day and more at night during bedtime. His functional impairment was described as not being able to walk prolonged distances, had to use a walker to sit down, when needed, placed weight on the left side of his body, and reported loss of use of all his toes. Physical examination showed his right foot was 3 inches shorter than his left foot, with deformity. He wore size 11 for his left foot and size 8 for his right foot. The examiner found his right foot moderately severe, had chronically compromised weightbearing, and required arch supports, custom orthotic inserts, or shoe modifications. The Veteran used a cane to assist with walking. There was pain on movement and weightbearing, and there was deformity of the right foot. The Veteran was unable to tolerate weight well due to pain and weakness after surgeries. The functional impact of his right foot disability was walking, standing, and performing physical activities. In April 2018, the Veteran was afforded another VA contract foot examination. The examiner provided a diagnosis for deformity of right foot due to multiple foot surgeries. The Veteran described the pain as chronic, which increased when wearing shoes or with any pressure. He has not been able to work due to foot pain since his 2012 surgery. The examiner noted that his right foot was 4 shoe sizes smaller than his left foot due to multiple surgeries. The severity of his right foot was found to be severe. He required custom shoes for support and size differences; the foot condition chronically compromised weightbearing. Physical examination showed pain on weightbearing and disturbance of locomotion. No flare-ups were reported. He regularly used crutches as assistive devices. VA treatment records in 2018 note that the Veteran has custom shoes that help him walk better. At the July 2020 hearing before the undersigned, the Veteran testified that he experienced constant, severe pain in his right foot. He had trouble sleeping at night, was unable to use his toes, unable to put a lot of pressure on his right foot and used a cane constantly to move about. See Hearing Transcript, pages 3-4.   Prior to December 1, 2012 (excluding the period of a temporary total rating from October 1, 2012 to November 30, 2012) Based on the evidence above, the Board finds that an initial 10 percent rating, which is the maximum for this rating criteria, is warranted based on the Veteran’s account of experiencing pain, swelling, and tenderness of the right great and fifth toes. This was corroborated by X-ray imaging that revealed objective findings of severe hallux valgus with minimal degenerative change of the first metatarsal-phalangeal joint and painful, moderate fifth bunionette. A 10 percent rating for the hallux valgus may be granted for foot disabilities involving pain. See Southhall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Board finds the Veteran’s account of continuous pain, swelling, and tenderness symptoms probative, as his statements are consistent throughout the period prior to December 1, 2012. He is competent and credible to report any challenges with his pain and tenderness symptoms that he experiences as a result of his right foot hallux valgus and fifth toe bunionette. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When taking his statement in consideration with the X-ray imaging findings, the Board finds that his symptoms more nearly approximates an initial 10 percent rating criteria under DC 5280, pursuant to Southhall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). As a 10 percent rating is the maximum rating under DC 5280, a rating higher than 10 percent under this diagnostic code is not available. Prior to December 1, 2012, the Board finds that there is no other diagnostic code applicable to rating this disability. See Copeland v. McDonald, 27 Vet. App. 333, 336 (2015) (the Court finding that the eight foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284 (other foot injuries)). In sum, the Board finds that a grant of the maximum allowable under DC 5280 of 10 percent contemplates all of the Veteran’s reported symptoms prior to December 1, 2012. Therefore, an initial 10 percent rating, and no higher, for right hallux valgus, bunion, fifth toe bunionette, prior to December 1, 2012, is warranted. Prior to September 1, 2013 (excluding the period of a temporary total rating from July 11, 2013 to August 31, 2013) As noted in the prior section, the Board granted the maximum 10 percent rating for hallux valgus, bunion, fifth toe bunionette, prior to December 1, 2012, and as such, there is no higher rating warranted for the Veteran’s right foot disability on the basis of his diagnosed hallux valgus. However, based on the foregoing, the Board observes that since the October 1, 2012, surgery, the right foot disability manifested with the great toe in mild varus and fifth toe in rectus positions. The June 2013 VA X-ray imaging report reflected new medial and dorsal subluxation of the first MPT joint with varus angulations, causing the right great toe to be elevated. In this regard, distinct, diagnosed foot conditions not explicitly listed in the rating schedule may be rated by analogy under DC 5284. See Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Note, though, that “when a condition is specifically listed in the Schedule, it may not be rated by analogy.” Copeland, 27 Vet. App. at 337. Here, though, the application by analogy of DC 5284 is appropriate as the manifestations for the Veteran’s right foot disability are now related to the results of his October 2012 right foot surgery. Yancy, 27 Vet. App. at 491 (the plain meaning of the word “injury” limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions). As a result, the Board finds that it is more appropriate to rate under DC 5280-5284, due to additional findings (i.e., the great toe in varus angulation and fifth toe in rectus positions) other than mere hallux valgus condition, status post-surgery. The Board points out that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Moreover, where, as here, a rating for a particular disability has been in effect for less than 20 years, it is permissible to switch diagnostic codes to more accurately reflect that nature of the disability. Murray v. Shinseki, 24 Vet. App. 420, 425 (2011). As a result, and resolving doubt in favor of the Veteran, the Board finds that since the initial October 2012 surgery, and prior to September 1, 2013, his right foot disability manifested with moderately severe symptoms that more nearly approximates a 20 percent rating under DC 5280-5284. In reaching this conclusion, the Board finds persuasive the January 2013 VA podiatrist’s and Dr. K’s findings, the multiple X-ray imaging reports that showed varus deformity in his great toe with the sesamoid dislocation, and the Veteran’s competent and credible reports that his right great toe drifting medially over time to the point where he could not wear regular shoes and could only put limited pressure on his foot. He had antalgic gait. In addition, the June 2015 VA examiner noted that he had 6 months of pain and suffering with a deformed toe after the initial surgery. The Board has also considered the statements provided by the Veteran and J.G. He experienced excruciating pain and hallux and fifth toe deformities as a result of his initial October 2012 surgery – these findings indicate a more than average occurrence, or more than moderate symptoms and more nearly approximates moderately severe other foot injuries, or a 20 percent rating. Prior to September 1, 2013, a rating higher than 20 percent is not warranted, because while the Veteran’s right foot symptoms interfered with regular shoe wearing, and he experienced pain, he has not shown the symptoms limit his ability to stand and move about or had severe or frequent flare-ups. As the Veteran’s symptoms have not been shown to be so disabling as to actually or effectively result in more than moderately severe limitation of right foot function, a rating higher than 20 percent is not warranted. The only other diagnostic codes under which a rating higher than 20 percent is available are DCs 5276 (acquired flat foot), 5278 (claw foot (pes cavus)), and 5283 (malunion or nonunion of the tarsal or metatarsal bones). There has been no evidence of these disabilities prior to September 1, 2013. Because the Board assigned a rating of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5280-5284, beginning December 1, 2012, the rating assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5280 is discontinued from that date. Butts, 5 Vet. App. at 538; Murray, 24 Vet. App. at 425. In sum, a 20 percent rating, and no higher, prior to September 1, 2013, for right hallux, bunion, fifth toe bunionette, status post-surgery, is warranted. From September 1, 2013 (excluding the periods of a temporary total rating from August 14, 2014 to November 30, 2014; and November 5, 2015 to February 1, 2016) After review of the evidence of record, the Board finds that a 30 percent rating, and no higher, from September 1, 2013, for the Veteran’s right foot disability is warranted. The above evidence reflects that since September 1, 2013, the Veteran experienced swelling, tenderness, intermittent sharp and achy pain daily. The effect of his right foot disability prevented full daily activities; he was limited functionally. The near constant pain was worse when weightbearing and even though he wore special shoes, he used a crutch for balance and support because the pain caused balance problems. He had a severely deformed right foot, per VA treatment records. He required special custom orthotics. The May 2014 and June 2015 VA and VA contract examination reports provided a diagnosis for deformity of right foot due to multiple foot surgeries, with decline in function. The August 2016 and April 2018 VA contract examiners found his right foot was shorter than his left foot, pain on movement, with constant use of an assistance device. There were flare-ups of burning, numbness, and pain of his right foot every day and at night during bedtime. He testified that his right foot pain interfered with his sleep. Therefore, the Board finds that the symptoms of his right foot disability more closely approximates a 30 percent rating under DC 5280-5284, since September 1, 2013. This contemplates severe other foot injuries. A 30 percent rating is the highest rating available under DC 5280-5284. A higher 40 percent rating may be assigned for actual loss of use of the foot; however, the Veteran’s right foot disability has not manifested in such severity. He is able to ambulate, and his VA contract and VA examinations show that his ability to walk are limited but still present. The Board acknowledges his testimony and that the Veteran sincerely believes that he has loss use of his right foot. And while the Veteran is competent to relate such a statement, the Board finds that the objective findings provided in the VA contract and VA examinations more probative. The Veteran’s right foot disability does not more nearly approximate actual loss of use of the foot, and as such, a higher, 40 percent rating is not warranted. The Board has considered whether separate ratings are available that would afford a higher combined evaluation. 38 C.F.R. § 4.25(b); Esteban v. Brown, 6 Vet. App. 259, 261 (1994); but see 38 C.F.R. § 4.14 (evaluation of the same disability or manifestation under various diagnoses is to be avoided). The Veteran’s symptoms of right foot disability are currently contemplated under DC 5280-5284. The symptomology and functional effects of this disability overlap such that assignment of separate ratings for the individual conditions would violate the rules against pyramiding. 38 C.F.R. § 4.14. Separate ratings for plantar fasciitis (DC 5269, but applicable for consideration only after February 2, 2021), flatfoot (DC 5276), weak foot (DC 5277), pes cavus (DC 5278), metatarsalgia, anterior (DC 5279), hallux rigidus (DC 5281), hammer toe (DC 5282), and malunion or nonunion of the tarsal or metatarsal bones (DC 5283) are not appropriate here because the Veteran has not been diagnosed with these disabilities. In short, from September 1, 2013, a 30 percent rating, and no higher, for the Veteran’s right hallux valgus, bunion, fifth toe bunionette and status-post right foot bunion surgeries, is warranted. 2. Entitlement to an initial compensable rating for right foot surgical scars. In this case, a November 2013 rating decision granted service connection for right foot surgical scar, and assigned a noncompensable rating, effective October 1, 2012, under DC 7805. See 38 C.F.R. § 4.118. When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Scars are evaluated pursuant to Diagnostic Codes (DCs) 7800-7805. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi,341 F.3d 1327(Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018, if more favorable. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 instructs that if one or more scars are both unstable and painful, to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. This code was not affected by the revised criteria. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-04 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. Id. In considering the evidence, the October 2012 VA treatment records show that the Veteran had one incision site on his hallux and one on his fifth toe. At the July 2013 VA contract examination for his foot, the examiner found that the Veteran’s scar was not painful and/or unstable, and the total area of all related scars was not greater than 39 sq. cm. (6 sq. in.). In May 2014, the Veteran was afforded a VA contract scars examination. The examiner found three right foot surgical linear scars, which were neither painful and nor unstable. The first scar was located along the lateral border of the foot, across the fifth MP joint, and it measured 4 cm. by 0.6 cm. The second scar was along the dorsum of the midfoot and measured 3 cm. by 0.1 cm. The third scar was along the medial border of the foot across the great toe and measured 12 cm. by 0.1 cm. The scars did not impact his ability to work. The May 2014 VA contract examiner for his foot noted the total area of all related scars was not greater than 39 sq. cm. (6 sq. in.). In his March 2016 notice of disagreement, the Veteran asserted that he has more than five scars on his right foot, and they are at least 5 or more inches in length and at least one-quarter inch wide, adhere to underlying tissue, and are hypo-or hyper-pigmented in an area exceeding six square inches. The August 2016 VA contract examination report for pension purposes only provided diagnoses for scars in the right foot and right foot deformity, but the examiner did not provide further details. At an August 2016 VA contract foot examination, the examiner found three scars. One measured 9 cm. by 1 cm., one measured 12 cm. by 1 cm., and the third measured 2.5 cm. by 1 cm. The Veteran underwent another VA contract examination for scars in April 2018. The examiner found two linear scars, which measured 5 cm., and the other measured 3 cm. They were neither painful, nor unstable. The examiner noted there was a limitation of function from the scars due to pain with any pressure. VA podiatry records show the Veteran endorsed sensitivity and burning over surgical scars. At the July 2020 hearing before the undersigned, the Veteran testified that his right foot surgical scars burned all the time; he felt it in his shoes, and they caused him to have trouble sleeping at night. See Hearing Transcript, pages 3-4, 9. The Veteran seeks a higher rating for his right foot surgical scar. After reviewing the pertinent evidence of record, the Board finds that the Veteran’s right foot surgical scars warrant an initial 10 percent rating, prior to July 11, 2013, and a 20 percent rating, thereafter, under Diagnostic Code 7804. At the outset, the Board recognizes that the Veteran’s right foot surgical scars was rated based on one or more linear scars under DC 7805. As discussed earlier, the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts, 5 Vet. App. at 538. However, despite the VA examiners’ and VA contract examiners findings that the Veteran’s scars were neither painful nor unstable, the Veteran has consistently reported that the right foot surgical scars are, in fact, painful, to include his testimony before the undersigned. The Veteran is competent to testify to symptoms he observes, such as pain. As such, the Board finds that the symptoms are more analogous to the criteria set forth under DC 7804. Additionally, the Board finds that the probative evidence establishes that prior to July 11, 2013, the Veteran’s second surgery, his right foot had two surgical scars: one on his great toe and one on his fifth toe. This is based on VA treatment records and the October 2012 surgical report. From July 11, 2013, the probative evidence reflects that the Veteran had three ascertainable scars. See May 2014 and August 2016 VA contract foot examinations. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that prior to July 11, 2013, his two right foot surgical scars are painful in nature and warrants and initial 10 percent rating; from July 11, 2013, his three right foot surgical scars are painful in nature and thus warrants a 20 percent rating, under DC 7804. The Board nevertheless notes a higher rating of 30 percent would not be warranted because the Veteran does not have five or more scars that are unstable or painful. Similarly, a separate rating is not warranted under Note 2 of DC 7804, as the scars have not been shown to be both unstable and painful. The Board has considered the Veteran’s March 2016 statement that he has five scars; however, the objective findings has shown that at most, prior to July 11, 2013, two scars resulting from his October 2012 surgical procedure, and as such, only two are associated with his service-connected right foot disability. From July 11, 2013, the probative evidence from the VA contract examinations have shown, at most, three scars have been associated with his right foot disability. While the Veteran is competent to report the number of scars observable by him, he has not shown the knowledge or expertise to report the etiology of those scars. See Jandreau, 492 F.3d at 1377. As such, the Board finds the objective findings provided by the medical record more persuasive. Assignment of additional, separate ratings are not applicable, as the evidence of record clearly does not reveal scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); or superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803). The Veteran is already service-connected for a scar causing disfigurement of the head, face, or neck (Diagnostic Code 7800), but would not warrant an even higher rating under this DC for his right foot surgical scars. Because the Board assigned an initial rating, beginning October 1, 2012, the rating assigned under 38 C.F.R. § 4.118, DC 7805, is discontinued from that date. Butts, 5 Vet. App. at 538; Murray, 24 Vet. App. at 425. Accordingly, for the reasons stated above, and resolving doubt in favor of the Veteran, the evidence supports the assignment of an initial 10 percent rating, prior to July 11, 2013, and 20 percent rating, thereafter, for his right foot surgical scars. 3. Entitlement to a TDIU, prior to April 25, 2018. The Veteran asserts his service-connected right foot disability precludes substantially gainful employment. The United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU is part and parcel of a higher rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, a claim for TDIU was raised by the evidence of record, and therefore has been added to this appeal. The RO awarded a TDIU, effective April 25, 2018, the date the schedular criteria had been met. Accordingly, the Board will examine whether a TDIU is warranted from the beginning of the appeal period up to April 25, 2018. Consideration for a TDIU excludes the periods where the Veteran received a temporary total rating (i.e., from October 1, 2012 to November 30, 2012; July 11, 2013 to August 30, 2013; August 14, 2014 to November 30, 2014; and November 5, 2015 to February 1, 2016). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Based on a careful review of the cumulative evidence of record, the criteria for TDIU, prior to April 25, 2018, have not been met. As noted above, the Board granted higher ratings for his service-connected right foot and right foot surgical scars disabilities. Therefore, the Veteran is now service-connected for: right foot disability (rated 10 percent from April 23, 2010 to October 1, 2012; 20 percent from December 1, 2012 to July 11, 2013; and 30 percent from September 1, 2013); right foot surgical scars (rated 10 percent from October 1, 2012; and 20 percent from July 11, 2013); lumbosacral strain associated with right hallux valgus, bunion, fifth toe bunionette and s/p right foot bunion surgeries x3 (rated 20 percent from February 3, 2016); left knee strain (rated 10 percent from April 23, 2010); bilateral eye trauma (rated 10 percent from April 23, 2010); tinnitus (rated 10 percent from April 23, 2010); left and right ankle strains (rated as noncompensable from April 23, 2010; and 10 percent each from February 3, 2016); and noncompensable ratings for left ear haring loss, left knee surgical scar, and right eyebrow laceration. Prior to February 3, 2016, the Veteran does not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a), even when counting disabilities affecting a single body system (e.g. bilateral lower extremities) as a single disability. During this period, the Board further finds that there is not persuasive evidence of unemployability such that referral to the Director is warranted. For the period starting February 3, 2016, when the Veteran does meet schedular criteria under 38 C.F.R. § 4.16(a), the Board also finds that his right foot disability does not prevent him from obtaining and sustaining gainful employment. On his March 2016 VA Form 21-8940, the Veteran reported he last worked full-time October 2009, as an awning and sign installer. He completed a high school education. He averred that his right foot disability affected full-time employment as of January 31, 2011. At his initial May 2011 VA examination, the examiner noted that the effect of his right foot disability with respect to work was foot pain with prolonged standing and walking. VA treatment records reflected the Veteran’s reports of pain of his right foot and that it limited his activities. He reported he was unemployed. The July 2013 VA contract examiner found that the Veteran’s foot condition impacted his ability to walk, as he used crutches to ambulate. After his surgery, the VA podiatrist noted he may resume wearing soft-soled shoes, but was not allowed to run, jump, walk or stand for long periods, or lift over 10 pounds. At a September 2013 VA physical therapy visit, the Veteran reported intermittent, sharp, achy pain, with the lateral three toes of his right foot constantly numb or tingling. The effect of his right foot disability prevented full daily activities. His goals were to function and walk normal. He reported not working since 2009 but had a goal to return to normal to continue to work in the construction field. The May 2014 VA contract scar examiner found the scars did not impact his ability to work. The May 2014 VA contract examiner for his right foot disability found that the Veteran had pain standing and walking that affected his ability to work, but that it would have no impact on sedentary work. Social Security Administration (SSA) records regarding his claim for disability insurance benefits showed that the Veteran has not engaged in substantial gainful activity since November 2, 2011. At his SSA hearing, he testified that he had no difficulties sitting after prolonged standing and that he would have been unable to stay awake, with difficulty focusing, if he worked a non-physical type of job. The SSA disability determination cited to a medical opinion by Dr. W.H. from May 2013, who found the Veteran could perform work at a non-physical “exertional level,” lift 10 pounds occasionally and frequently, can stand/walk for two hours and sit for six hours in an eight-hour workday, occasionally climb ramps and stairs, and frequently balance, stoop, and crouch. The Veteran submitted a statement in November 2014 that he has not been out of rehabilitation since his first surgery and has not worked since. At an August 2016 VA contract foot examination, the Veteran described his functional impairment as not being able to walk prolonged distances, had to use a walker to sit down, when needed, placed weight on the left side of his body, and reported loss of use of all his toes. The functional impact of his right foot disability was walking, standing, and performing physical activities. In April 2018, the Veteran was afforded another VA contract foot examination. The Veteran described the pain as chronic, which increased when wearing shoes or with any pressure. He has not been able to work due to foot pain since his 2012 surgery. The severity of his right foot was found to be severe. He required custom shoes for support and size differences; the foot condition chronically compromised weightbearing. He regularly used crutches as assistive devices. The functional impact was that he had chronic foot pain increased with pressure. Other VA treatment records reflect that the Veteran continued to have right foot pain and used his forearm crutch to offload right lower extremity weightbearing. He has been fitted with custom orthotic shoes and was later shown to be full weightbearing in those shoes. At the hearing, the Veteran testified that he worked in construction and did awnings and signage. He testified building diecast cars and models as a hobby. He will take his time and spend a month on building a model or a car. See Hearing Transcript, page 17. When asked by the undersigned whether he had skills to work in an office setting, he replied that with his mental conditions and not staying somewhat active, he did not think he could work in that setting; he stated he gets so tired. See Hearing Transcript, pages 16-17. The Board finds that a TDIU is not warranted. The economic component discussed in Ray is met as the Veteran reports, and the evidence reflects, that he has not earned income since at least 2011. The evidence further demonstrates, however, that the Veteran is able to secure and follow a substantially gainful occupation despite his service-connected disabilities when the non-economic component discussed in Ray is considered. The Veteran’s prior experience was in construction. The Board acknowledges this field involves physical labor and that the Veteran’s right foot disability would impact or limit his ability to work in this field. However, the evidence has shown that the Veteran is not precluded from working in less physical or non-physical environments, such as in an office environment, or in working conditions that involve sitting for majority of the day and thus, avoid putting pressure on his right foot. The VA contract and VA examination reports show record has shown that the Veteran’s right foot condition impacted his ability to walk and had pain standing or placing pressure on his foot – the foot condition chronically compromised weightbearing. However, he was still able to ambulate with an assistive device or with custom shoes that would allow him to perform work duties. There is not a reason why the Veteran would not be able to work with appropriate breaks and/or accommodations when he his right foot disability requires rest. The SSA disability determination noted that he was capable of light physical exertion of his bilateral upper extremities, was still able to climb ramps and stairs, and sit for six hours in an eight-hour workday. In addition, the Board is unable to consider his reported mental conditions in this regard, as he is not service-connected for a psychiatric condition. However, the Board notes that he testified he was able to focus and spend a month building diecast cars and models. This indicates he is able to focus and complete a task in a non-physical environment. Based on the Board’s review, the evidentiary record fails to demonstrate that the Veteran was unemployable due to his service-connected disabilities. The Board notes that the evidence does support some impairment in this case. However, the Veteran has the ability to obtain and maintain gainful employment despite the impairments. Thus, the preponderance of the competent and probative evidence is against the claim. In sum, the benefit of the doubt doctrine does not apply. Entitlement to a TDIU is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, Associate 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.