Citation Nr: 21012866 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 11-02 945 DATE: March 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected left foot hammer toes is denied. FINDING OF FACT Throughout the appellate period the Veteran had left foot hammer toes of his second, third, fourth, and fifth toes. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for left foot hammer toes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5279 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to December 1980. This matter come before the Board of Veterans’ Affairs (Board) from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board remanded this matter in October 2020 for further development. In October 2020, the Board also remanded the Veteran’s claims for entitlement to service connection for left ear hearing loss and entitlement to a total disability rating based on individual unemployability. In December 2020, the AOJ granted service connection for left ear hearing loss and a TDIU effective July 11, 2013. As this action is a full grant of benefits sought on appeal, the only remaining issue before the Board is the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for left foot hammer toes. 1. Hammer Toes The Veteran contends that his service-connected hammer toes are more severe than currently rated. In September 2018, the AOJ restored the Veteran’s 10 percent disability rating effective December 1, 2015. The appeal stems from the Veteran’s notice of disagreement to September 2018 decision to restore the Veteran’s 10 percent rating. Therefore, the appellate period for this claim begins on December 1, 2015. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s hammer toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282. Under Diagnostic Code 5282, a maximum 10 percent rating is warranted for hammer toe of all toes, unilateral, without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. In August 2018, the Veteran underwent a VA foot examination. The examiner diagnosed the Veteran with hammer toes of the left foot. The Veteran reported pain and described the pain as soreness and tenderness. The Veteran reported flare-ups caused soreness and tenderness. The Veteran reported functional impairment of difficulty running, walking, or standing for prolonged periods of time. The examiner found the Veteran did not have any hammer toe on the right foot. The examiner found hammer toes in the second third and fourth toe of the left foot. The examiner found the contributing factors of the disability were pain on movement; pain on weight-bearing; and pain on non-weight bearing of the left foot. The examiner noted there was no functional loss for the lower extremity attributed to the Veteran’s hammer toes. The examiner found pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare ups or when the foot is used repeatedly over a period of time in the left foot. The examiner noted that the functional loss was pain with prolonged walking or standing. The examiner found the Veteran’s hammer toes did not cause functional impairment such that the no effective functions remain other than which would be equally well served by an amputation with prosthesis. The examiner found the Veteran’s hammer toes impacted his ability to perform occupational tasks. The examiner noted the functional impact was foot pain due to prolong walking or jogging. In January 2019, the Veteran underwent another foot examination. The examiner diagnosed the Veteran with hammer toes of the left foot, metatarsalgia of the left foot, hallux valgus of the left foot and left first metatarsal-phalangeal arthritis. During the examination the Veteran reported difficulty walking and ambulating on left foot due to pain. The Veteran reported sharp pain, which was worse when he ambulated. The Veteran did not report flare ups that impacted the function of the foot. The Veteran reported functional impairment of not being able to work because of the pain in his feet and he was not able to stand longer than 15 to 20 minutes without severe pain. The examiner found the Veteran did not have hammer toes on the right foot. The Veteran had hammer toes on the left second toe, third toe, fourth toe, and little toe. The examiner found the Veteran did not have symptoms due to a hallux valgus condition. The examiner noted the Veteran had hallux valgus surgery affecting the left foot. The examiner skipped the claw foot section (indicating no diagnosis of clawfoot). The examiner found the Veteran had mild arthritis in the left foot first MTP. The examiner found the Veteran had functional impacts of less movement than normal; pain on movement; pain on weight bearing; interference with sitting; and lack of endurance in the left foot. The examiner found the Veteran’s claimed conditions did not cause functional loss for the right lower extremity. The examiner found the Veteran had functional loss during a flare-up of unable to stand or walk due to pain. The examiner reported that the Veteran had a significant callous on the MTP join second digit on the left foot that was very tender to palpation and did not appear to be fluctuant. The examiner noted the Veteran had a scar related to the Veteran’s hallux valgus and scars on the second, third, fourth and fifth digits which were less than 1 centimeter. In December 2020, the Veteran underwent another VA foot examination. The examiner diagnosed the Veteran with hammer toes of the left foot, metatarsalgia of the left foot, hallux valgus of the left foot; hallux rigidus and degenerative arthritis. The Veteran reported left foot pain worse with weight bearing. The examiner noted the left foot visibly deformed. The examiner noted that there was no range of motion at interphalangeal joints for the second through fifth toes. The Veteran had limited range of motion of the first MPT joint. The Veteran reported balance issues due to the left foot and gait issues. The Veteran reported pain during the examination. The Veteran described soreness at the anterior ankle, sharp pain at the dorsal aspect of the metatarsal heads and all aspects of the first MTP joint. The Veteran noted painful parasthesia in the left fifth toe and lateral aspect of the left foot. The pain was worse with weigh bearing, walking, and repetitive movement. The Veteran reported it was worse in the evening. The Veteran reported 7 out of 10 of pain. At its best the pain was 5 out of 10, and at worst during flare ups 9 out of 10. With flares lasting two days. The Veteran reported flare-ups. The Veteran described his flares ups as sharp 9 out 10 pain at the dorsal aspect of the metatarsal heads and aspects of first MTP joint join made him unable to bear weight for more than a few steps. The Veteran reported painful paresthesia in the left fifth toe lateral aspect of the left foot since his hammer toe correction surgery. The frequency of the flare-ups was reported 10 days a month on average, which lasted 1 to 2 days. The severity was described as 9 out of 10 and the Veteran was unable to bear weight. The Veteran reported left foot functional impairment. The Veteran stated he could not walk or stand for more than 15 to 20 minutes without pain severity increasing to 9 out of 10. The Veteran reported it took him 1 to 2 days of resting and staying off his feet to recover to baseline. The Veteran also reported balance on the left foot was poor because of limited range of motion caused inability to grip with hammertoes. The Veteran reported falling several times. Loss of flexion and extension in the second through fifth toes caused the foot to slide around in his shoe, leading to skin irritation and worsening pain. The examiner found the Veteran had hammer toes on the left side on the second toe, third toe, fourth toe, and little toe. The examiner noted that the Veteran reported a failed corrective surgery left him in more pain prior to the surgery, plus paresthesia due to accidental nerve damage during surgery. The examiner found the Veteran had mild or moderate hallux rigidus in the left side. The examiner noted that the extremity had limited range of motion at the first MTP joint, with pain on joint movement and tender to palpation on all aspects of the joint. The examiner also found degenerative arthritis of the left first MTP joint and deformity at the base of the left proximal phalanx. The examiner found the Veteran had less movement than normal; pain on movement; pain on weight bearing and non-weight bearing; instability of station; disturbance of locomotion; interference with standing; and lack of endurance due to the Veteran’s left foot hammertoes. The examiner noted that the Veteran had pain, weakness, fatigability, or incoordination that significantly limit the functional ability with flare ups and when used repeatedly over a period of time. The examiner described the functional loss as slow, antalgic gait, poor balance on the left foot due to limited range of motion in hammer toes and inability to stand or walk for 15 to 20 minutes due to pain during a flare up. The examiner further noted the Veteran had hard callous on the dorsal surface of the left second and fifth metatarsal heads. The examiner noted that the Veteran had scars of 1 centimeter on each the second, third, fourth, and fifth left toes. The Veteran had a scare of 3.5 centimeters on the medial aspect of the left first MTP joint. The examiner found the Veteran’s hammer toes did not cause functional impairment such that no effective functions remain other than which would be equally well served by an amputation with prosthesis. Initially, the Board finds that a disability in excess of 10 percent for the Veteran’s hammer toes is not warranted. The Veteran is already service connected for the highest rating under Diagnostic Code 5282. Further Diagnostic Code 5282 restricts the Veteran’s hammer toes to a 10 percent rating unless evidence of clawfoot. Here the evidence does not demonstrate any clawfoot. None of the VA examiners found the Veteran had claw foot of his left foot. Therefore, a disability rating in excess of 10 percent for the Veteran’s hammer toes is not warranted. The Board notes further that in addition to service connection and a disability rating for hammer toes of the left foot, service connection has been established with separate ratings for the following residuals of the Veteran’s left foot bunionectomy: scar (assigned a 10 percent rating pursuant to Diagnostic Code 7804); chronic left foot strain (assigned a 10 percent rating pursuant to Diagnostic Codes 5280-5284); and paresthesias (assigned 10 percent rating pursuant to Diagnostic Code 8521). The ratings for these other residuals of the Veteran’s left foot bunionectomy are not on appeal and before the Board at this time. The issue before the Board becomes whether the Veteran is entitled to additional separate disability ratings related to his hammer toes. The December 2020 examiner found that the Veteran’s hallux rigidus of the first MTP joint; metatarsalgia; hallux valgus; and arthritis of the left foot are progressions of the previous diagnosis. Thus, if each diagnosis has a severity that is compensable, and the symptoms do not overlap each other then they will be awarded a separate disability rating. Concerning the Veteran’s metatarsalgia, under Diagnostic Code 5279, a 10 percent rating is warranted for metatarsalgia, anterior (Morton’s disease), unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. In this case, service connection has already been established for metatarsalgia of the right first toe which is assigned a 10 percent rating, and because the rating schedule provides for a single 10 percent rating whether the condition is unilateral or bilateral, this code would not allow for a separate rating for the left foot apart from the right foot rating regardless of whether one or both feet is affected. See 38 C.F.R. § 4.71a, DC 5279. Concerning the Veteran’s left foot hallux rigidus, under Diagnostic Code 5281, hallux rigidus is rated as severe hallux valgus. Diagnostic Code 5282 provides that severe hallux valgus is rated 10 percent if the equivalent to amputation of the great toe. The evidence in the record does indicates the Veteran’s hallux rigidus is equivalent to amputation of the great toe. Notably, the December 2020 examiner found the Veteran’s hallux rigidus was mild or moderate. As the Veteran’s hallux rigidus is not equivalent to an amputation of a great toe the Board finds a separate rating for left foot hallux rigidus is not warranted. Concerning the Veteran’s hallux valgus and left first toe arthritis under Diagnostic Code 5280, as noted the Veteran has already established service connection and a separate rating for chronic left foot strain under the provisions of Diagnostic Codes 5280-5270. This matter is not on appeal and therefore, another separate rating would not be warranted in connection with this appeal. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. At no time during the appeal period has the Veteran had flatfoot, weak foot, claw foot, and thus, consideration under the relevant Diagnostic Codes is not warranted. See 38 C.F.R. § 4.71, Diagnostic Codes 5276-5278. The Board considered the evidence of functional impact contemplated in DeLuca and Mitchell; however, the Veteran is in receipt of the highest rating for his hammer toes. As such, the Board finds that throughout the appellate period a disability rating in excess of 10 percent for the left foot hammer toes is not warranted. (Continued on the next page)   The Veteran considered the Veteran’s representative argument that a 50 percent disability rating is warranted for the Veteran’s left foot hammer toes, however, as the evidence does not indicate the Veteran has any symptoms associated with any claw foot of the left foot such a rating is not warranted. Notably, the December 2020 VA examiner did not diagnose pes cavus (claw foot) and to the extent that he completed the section on the report for symptoms of acquired pes cavus, the examiner indicated that there was no effect on the toes; no pain and tenderness; no effect of the plantar fascia; and no dorsiflexion and varus deformity due to pes cavus. Thus, the preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.