Citation Nr: 21023021 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-30 863 DATE: April 19, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for postoperative bunionectomy of the right foot with degenerative joint disease (DJD) of the metatarsophalangeal joint (MTP) (hereinafter “right foot bunionectomy”) is denied. Entitlement to a disability rating in excess of 10 percent for postoperative bunionectomy of the left foot with DJD of the MTP (hereinafter “left foot bunionectomy”) is denied. Entitlement to an initial disability rating of 10 percent, but no higher, for bilateral bunionectomy scars is granted. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating available for his right hallux valgus. 2. The Veteran is in receipt of the maximum schedular rating available for his left hallux valgus. 3. The evidence is in equipoise as to whether the Veteran’s two scars from his bilateral bunionectomies are painful. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right foot bunionectomy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5280. 2. The criteria for a disability rating in excess of 10 percent for a left foot bunionectomy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5280. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 10 percent, but no higher, for bilateral bunionectomy scars are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1979 to September 1985. In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. As reflected above, the Board takes jurisdiction of the issue of entitlement to a separate compensable rating for scars as manifestations of the service-connected bilateral bunionectomies because this issue is essentially a component of the issue of entitlement to increased ratings for the Veteran’s bilateral bunionectomies, insofar as the scars were incurred from the bilateral bunionectomy surgeries. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History As detailed below, this case has a complex procedural history. In a June 1986 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for postoperative bunionectomies of the right and left feet and assigned each a zero percent rating, effective September 12, 1985. In a November 2011 rating decision, the RO assigned a single disability rating of 10 percent for the Veteran’s bilateral bunionectomies, effective February 17, 2011. The RO also granted service connection for bilateral bunionectomy scars and assigned a zero percent rating, effective February 17, 2011. In a September 2012 rating decision, the RO denied entitlement to a rating in excess of 10 percent for the Veteran’s bilateral bunionectomies. In an August 2015 rating decision, the RO granted separate ratings of 10 percent, each, for the Veteran’s right and left foot bunionectomies, effective February 17, 2011. In a June 2019 decision, the Board remanded the matter for an updated VA examination. In a December 2020 rating decision, the RO denied entitlement to ratings in excess of 10 percent for the Veteran’s right and left foot bunionectomies. The RO also granted service connection for bilateral pes planus and assigned a 30 percent rating, effective February 17, 2011. To date, the Veteran has not expressed disagreement with the rating assigned for bilateral pes planus. Increased Ratings Claims Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in 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 evaluation is assigned if the disability more closely 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 is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to disability ratings in excess of 10 percent each for right and left foot bunionectomies In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Moreover, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, premature or excess fatigability and incoordination. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the Diagnostic Codes applicable to the affected joint). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In terms of the pertinent rating criteria, DC 5003 addresses disability ratings for degenerative arthritis. DCs 5280 and 5281 address disability ratings for hallux valgus and hallux rigidus, respectively, but no changes were made to the rating criteria under these DCs. Prior to the regulatory change, DC 5003 provided that degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003 (as in effect prior to February 7, 2021). The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). Under DC 5280, unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. See 38 C.F.R. § 4.71a, DC 5280. Under DC 5281, unilateral hallux rigidus that is severe is to be rated as severe hallux valgus. A Note provides that a rating under DC 5281 is not to be combined with claw foot ratings. The words “mild,” “moderate,” “marked,” “severe,” and “pronounced” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here, the Veteran is currently in receipt of separate 10 percent ratings for right and left foot bunionectomies under DC 5280 for the entire period on appeal. He asserts that higher ratings are warranted. On review of the evidence, both lay and medical, the Board finds that the criteria for 10 percent disability ratings under DC 5280 for right and left foot bunionectomies are more nearly approximated. Specifically, the Board finds that the Veteran’s right and left bunionectomies more nearly approximate unilateral hallux valgus that has been operated upon with resection of the metatarsal head. A bunion is an abnormal prominence on the inner aspect of the first metatarsal head, accompanied by bursal formation and resulting in a lateral or valgus displacement of the great toe, also known as hallux valgus. See Dorland’s Illustrated Medical Dictionary, 32nd ed., 2012, at 260. Here, the record reflects that the Veteran underwent bilateral chevron osteotomies in 1983 to correct his bunions. See March 1983 service treatment record (STR); VA examination reports dated April 2011, February 2012, February 2015, and November 2020. According to information available to the public on the internet, a chevron osteotomy involves the creation of a “V” shaped osteotomy of the distal metatarsal, which allows the first metatarsal head to be shifted laterally. Thus, the Board finds that the Veteran’s right and left bunionectomies more nearly approximate unilateral hallux valgus that has been operated upon with resection of metatarsal head, warranting the currently assigned 10 percent ratings under DC 5280. A 10 percent rating is the maximum schedular rating available under DC 5280; therefore, the Veteran has been in receipt of the maximum schedular rating for his right and left foot bunionectomies throughout the entire appeal period. The Board acknowledges the Veteran’s competent reports of bilateral toe pain, stiffness, swelling, and limitation of motion. See March 2011 VA podiatry consultation record; May 2011 Statement in Support of Claim; October 2012 private treatment record; VA examination reports dated April 2011, February 2012, February 2015, and November 2020; August 2015 VA Form 9; January 2019 Board hearing testimony. However, even if the Veteran’s unilateral hallux valgus symptoms were to be considered severe, these symptoms would be contemplated by the currently assigned 10 percent ratings, since 10 percent is the maximum schedular rating under DC 5280 for unilateral hallux valgus that is severe, if equivalent to amputation of great toe. Additionally, the Board acknowledges that the Veteran is also diagnosed with hallux rigidus of both feet. See October 2012 private treatment record; VA examination reports dated February 2015 and November 2020. DC 5281 provides that unilateral hallux rigidus that is severe is to be rated under DC 5280 as severe hallux valgus. To the extent the Veteran’s bilateral hallux rigidus can be considered severe, because the Veteran is already assigned 10 percent ratings for hallux valgus of each foot, the assignment of separate compensable ratings for hallux rigidus would violate the prohibition against pyramiding under 38 C.F.R. § 4.14. Thus, separate ratings under DC 5281 are impermissible. Furthermore, the Board does not find that the Veteran’s right and left foot bunionectomies would be more appropriately rated under a different diagnostic code, as the currently applied code directly contemplates the Veteran’s disabilities. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) (holding that, as a matter of law, DC 5284 does not apply to the eight other foot conditions specifically listed in § 4.71a, and so listed conditions could not be rated by analogy under that DC). As an aside, the Board notes that the Veteran is also in receipt of a 30 percent disability rating for bilateral pes planus under DC 5276. A higher rating is warranted if there is loss of use of a foot, in which case the feet would be separately rated, and the ratings combined. See DC 5167. In this case, the evidence does not show any foot disability equivalent to loss of use of a foot. See VA examination reports dated February 2012, February 2015, and November 2020; see also 38 C.F.R. § 4.63. The Veteran’s ability to stand and walk on the feet, although limited by pain, swelling, and stiffness, reflects more function than would be served by amputation of the feet. See 38 C.F.R. § 4.63. Lastly, higher ratings for degenerative arthritis under DC 5003 (as in effect both prior to and after the regulatory change) are not warranted because the Veteran has not exhibited degenerative arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Here, only one minor joint, the great toe, is involved. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claims for disability ratings in excess of 10 percent for right and left foot bunionectomies. The appeal is therefore denied. 2. Entitlement to a compensable rating for bilateral bunionectomy scars As previously indicated, the Board takes jurisdiction of the issue of entitlement to a compensable rating for scars as manifestations of the service-connected bilateral bunionectomies because this issue is essentially a component of the issue of entitlement to increased ratings for the Veteran’s bilateral bunionectomies, insofar as the scars were incurred from the bilateral bunionectomy surgeries. The Veteran is currently in receipt of a noncompensable rating for bilateral bunionectomy scars under DC 7804 for the entire period on appeal. The Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, DCs 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. As this claim was pending before the Board on August 13, 2018, the Veteran’s claim must be considered under the rating criteria both before and after August 13, 2018. Both versions of DC 7800 address scars and disfigurement of the head, face, or neck. As the Veteran’s residual scars are not on his head, face, or neck, DC 7800 is not applicable. Under the scar regulations in effect prior to August 13, 2018, DC 7801 provided for a 10 percent rating for burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear with an area or areas exceeding 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating for such scars with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.); a 30 percent rating for such scars with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and a 40 percent rating for such scars with an area or areas of at least 144 square inches (929 sq. cm.) or greater. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1). DC 7802 provided for a 10 percent rating for burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear with an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1). DC 7804 provided for a 10 percent disability rating for one or two scars that are unstable or painful, a 20 percent disability rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). DC 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. After August 13, 2018, the title of DC 7801 was changed to clarify that it applied to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The area or areas of damage required for 10, 20, 30, and 40 percent ratings remain unchanged. The title of DC 7802 was changed to clarify that it applied to burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, but the rating criteria remained unchanged. Notes (1) and (2) were changed in DCs 7801 and 7802. Note (1) provides that, for the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk, and the midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body, combine the separate evaluations under §4.25, or alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. No changes were made to the rating criteria under DC 7804. DC 7805 provides that other scars (not otherwise considered under the DCs 7800-7804) are to be rated according to their disabling effects under an appropriate diagnostic code. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that a 10 percent disability rating is warranted under DC 7804 for the Veteran’s bilateral bunionectomy scars. Specifically, the evidence is at least in equipoise as to whether the Veteran’s two scars from his bilateral bunionectomies are painful. In a February 2012 VA scars examination report, the Veteran reported that his scars and his toe joints were painful, and the VA examiner, a medical doctor, determined that the Veteran’s two bunionectomy scars, one on each foot, were both painful. The Board acknowledges that other VA examiners determined that the Veteran’s bunionectomy scars were not painful. See VA examination reports dated April 2011 and November 2020. Nevertheless, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s bilateral bunionectomy scars under DC 7804. There is no evidence that the Veteran’s bilateral bunionectomy scars have been unstable, or that there are more than two scars related to the Veteran’s bilateral bunionectomies. As such, higher ratings under DC 7804 are not available. Higher ratings under DCs 7801, 7802, 7803, and 7805 (both prior to and after the regulatory change in August 13, 2018) are not available since there is no evidence that the Veteran’s bilateral bunionectomy scars are deep, nonlinear, or associated with underlying soft tissue damage. Thus, a disability rating of 10 percent is warranted for the Veteran’s bilateral bunionectomy scars. (Continued on the next page) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.