Citation Nr: 21016063 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-25 568 DATE: March 19, 2021 ORDER A compensable rating for tailor's bunion of the left foot associated with bilateral pes planus is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected tailor’s bunion of the left foot has been shown to be asymptomatic, and the left foot has not been operated on with resection of metatarsal head or have been severe enough to be equivalent ot the amputation of great toe. CONCLUSION OF LAW The criteria for a compensable rating for tailor’s bunion of the left foot associated with bilateral pes planus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2013 by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. This claim was previously before the Board in November 2018, at which time it was remanded to allow for a VA examination. That examination was conducted in September 2019. Thus, there has been compliance with the Board’s remand instructions and it may continue with appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). 1. Entitlement to a compensable rating for tailor's bunion left foot associated with bilateral pes planus Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran contends that his tailor’s bunion of the left toe warrants a compensable disability rating. His disability is rated under Diagnostic Code 5280. Under that code, 10 percent is the highest rating available. A 10 percent rating is warranted when the hallux valgus is operated with resection of the metatarsal head. A 10 percent rating is also warranted when the hallux valgus is severe, if equivalent to amputation of the great toe. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). The United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 4.59, which addresses the evaluation of musculoskeletal disabilities involving actual painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on a range of motion measurements, specifically applies to Diagnostic Code 5280. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Additionally, § 4.59 “acknowledges that a claimant’s disability may cause painful motion but still not be severe enough to warrant a compensable rating under the assigned DC.” Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Thus, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the diagnostic code for the joint. Id. at 478-79; see also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015). Turning to the evidence of record, in May 2011, a VA examination of the feet noted that there was no evidence of swelling, tenderness, instability, weakness, or abnormal weight bearing. There was objective evidence of painful motion and the Veteran reported tenderness with full flexion of the toes. In March 2011, a VAMC record showed the Veteran reported no pain in his left fifth toe. In April 2012, a VA examination of the Veteran’s feet indicated that he reported foot pain with standing and walking and at rest. In May 2012, a private medical record indicated the Veteran presented with a painful lump in his left foot and pain on the outside of his left foot. Foot radiographs showed no spurring or fracture of the fifth metatarsal base. In September 2012, a private medical examination indicated the Veteran presented with a history of left foot pain. A concurrently performed MRI showed normal findings with midfoot plantar fibroma. It was noted that the injection did not help his foot pain. In November 2014, a private medical record showed the Veteran to have undergone surgery on the fifth toe of his left foot. He was shown to have a post-operative diagnosis of left fifth toe hammertoe. He reported post-surgery that his foot hurt in the surgical area and he was provided a post-operative boot to wear at all times. The Board notes that the Veteran has been granted service connection separately for left fifth hammertoe. In March 2017, underwent a VA examination of the Veteran’s left foot but the examiner did not comment on his tailor’s bunion. However, the examiner noted that the Veteran did not have symptoms due to hallux valgus. The Veteran did report that his toes would lock at night, he used medication for pain, occasionally used a cane for pain, and that his left foot hurt more than his right. Diagnostic testing did not show degenerative or traumatic arthritis. In response to the Board’s remand, in September 2019 the Veteran underwent a VA examination. At that time, the examiner found that the Veteran did not have symptoms due to a hallux valgus condition. The examiner noted that the Veteran only had surgery for resection of metatarsal head for his right foot, not his left. The examiner specifically commented that there was no evidence of a hallux valgus or bunion and that the Veteran was asymptomatic of any hallux valgus or bunion related condition. Based on this evidence, the Board must find that the Veteran’s left foot tailor’s bunion does not warrant a compensable disability rating. Southall-Norman, supra. Under Diagnostic Code 5280, a 10 percent rating is warranted when the hallux valgus is operated with resection of the metatarsal head. A 10 percent rating is also warranted when the hallux valgus is severe, if equivalent to amputation of the great toe. Such manifestations are not shown. Though the Veteran reported pain in the left foot, the Board notes that the Veteran suffers from multiple foot conditions for which service connection is in effect. Additionally, the evidence shows that his tailor’s bunion and his left foot hallux valgus were noted to be asymptomatic throughout the record. The Board has considered 38 C.F.R. § 4.59; however, despite the Veteran’s assertions, the evidence of record does not show that any pain reports were due specifically to the Veteran’s tailor’s bunion. The Board has considered whether separate or increased evaluations are warranted under any other diagnostic codes pertaining to foot disabilities. However, there exist no medical or lay evidence of record showing weak foot, pes cavus, metatarsalgia, hammer toe, malunion/nonunion of the tarsal/metatarsal bones, or scars. Thus, Diagnostic Codes 5277, 5278, 5279, 5282, 5283, and 7804 are not warranted. 38 C.F.R. §§ 4.71a, 4.118. Accordingly, the preponderance of the evidence is against a separate compensable rating for bilateral hallux valgus. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his tailor’s bunion of the left foot. It acknowledges that the Veteran, in advancing this appeal, believes that his disability has been more severe than the assigned rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Finally, the Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s left foot disability, but finds that his symptomatology has been stable throughout the appeal period In sum, the Board finds that a compensable rating for the Veteran’s service-connected left foot tailor’s bunion is not warranted or supported by the evidence of record for the entire period on appeal. Accordingly, as the preponderance of the evidence is against the claim for a compensable rating, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.