Citation Nr: 21021654 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-23 010 DATE: April 13, 2021 ORDER Entitlement to a 10 percent rating for deformed right big toe is granted. Entitlement to a 10 percent rating for deformed left big toe is granted. FINDING OF FACT The probative evidence of record reflects that the Veteran experiences flare-ups, functional loss with pain on motion and weight-bearing, and worsened pain with prolonged standing and walking due to his bilateral deformed big toe disability. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for a service-connected deformed right big toe have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. 2. The criteria for a 10 percent rating, but no higher, for a service-connected deformed left big toe have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans’ Affairs (VA) Regional Office (RO). In August 2020, the Board remanded the claim to provide the Veteran an opportunity to submit missing records or identify and authorize VA to obtain missing records. In September 2020, VA requested the Veteran complete a VA Form 21-4142 – Authorization to Disclose Information to the Department of Veterans Affairs. The Veteran did not return the form and the RO issued an October 2020 Supplemental Statement of the Case (SSOC) continuing to deny the claims. In January 2021, the Veteran’s representative argued that VA erred in not requesting a second time that the Veteran complete Form 21-4142, noting the Board’s remand required two requests be made for any authorized records. The Veteran’s representative appears to have misunderstood the Board’s previous instruction, which required two attempts to obtain records from any source for which the Veteran provides authorization for VA to get records and not that the Veteran be asked twice to provide authorization. See 38 C.F.R. § 3.159(c)(1). As the Veteran did not authorize VA to obtain any records, no attempts to obtain records were required. The Veteran’s attorney also points out that the SSOC was issued only 37 days after authorization was requested. In this regard, the Board notes it has now been over 6 months and the Veteran has still not provided authorization for VA to obtain records. As the Veteran’s representative is presumably aware, evidence can be submitted after an SSOC in an appeal under VA’s Legacy appeals system. In fact, the Veteran was notified of his ability to continue to submit evidence by the Board’s November 2020 docketing letter. Additionally, in a January 2021 correspondence, the Veteran’s representative requested that a remand was warranted only if an increased evaluation was not warranted. However, as the Board is awarding increased evaluations for his bilateral big toe disabilities, the Board notes that remand is not warranted. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his bilateral great big toe disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran filed a claim for increased rating that was received by VA in August 2011. The Veteran’s bilateral big toe deformity is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Factual Background and Analysis The Veteran contends that he is entitled to a higher rating because he has achy pain that becomes sharp with walking. Additionally, he contends that during flare-ups, any movement causes pain and he has to stop what he is doing and rest. The Veteran underwent a VA examination in May 2013. The examiner noted the Veteran’s functional impact of his bilateral toe disability was that the disability made it difficult for the Veteran to stand for prolonged periods of time while performing his job as a food service specialist. The Veteran presented for a VA examination in October 2019. The examiner opined that the Veteran’s condition has gotten worse since onset, noting pain in the great toes when walking or standing for prolonged period. The examiner noted that the Veteran had not had surgery to amputate the toe or resect the metatarsal head. However, the examiner did note that there was a progression of the injury upon examination, in that the Veteran had chronic pain and possibly arthritis. The examiner noted that this pain and arthritis negatively effects the Veteran’s work ability as it reduces his functional capacity with walking and climbing. Upon consideration of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral deformed big toes is so severe as to equate to amputation of the great toe. As noted, the Veteran has consistently reported experiencing severe pain in his feet bilaterally that has been attributed to his bilateral deformed big toes. As noted above, the Veteran has reported that achy pain that becomes sharp with walking and that during flare-ups, any movement causes pain as he has to stop what he is doing and rest. Accordingly, the Board finds that this degree of pain and noted functional impairment is commensurate with an amputation of the great toe in both feet. Therefore, a maximum 10 percent rating for bilateral deformed big toes is awarded for both feet for the entirety of the appeal. However, as the Board is awarding the maximum schedular rating available for a disability under Diagnostic Code 5280, a higher rating is not applicable under Diagnostic Code 5280. 38 C.F.R. § 4.71a. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. The examiner noted that the Veteran did have another foot injury or condition of deformed left and right toes. Under Diagnostic Code 5284, a 20 percent rating is warranted for moderately severe other foot injuries. Here, the October 2019 VA examiner noted that the severity of the conditions for the deformed toes was mild and therefore, not entitled to a higher rating under Diagnostic Code 5284. The Board notes that to assign the Veteran a 10 percent rating under Diagnostic Code 5284 for deformities of the left and right toe would be overlapping with the symptomatology of the currently rated left and right toes and would be pyramiding. Therefore, the Board finds another, or higher Diagnostic Code rating is not warranted. (Continued on the next page)   Accordingly, the Board finds that the evidence supports the assignment of a 10 percent rating, but no higher, for the Veteran’s bilateral great big toe disabilities. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.