Citation Nr: 21025985 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-24 026 DATE: April 29, 2021 ORDER A rating in excess of 10 percent for left hallux valgus status/post bunionectomy with degenerative joint disease (DJD) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1992 to July 2000. 2. The left foot disability is currently assigned the highest rating available for hallux valgus. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left hallux valgus status/post bunionectomy with DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code (DC) 5280 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2020, a rating of 10 percent was assigned, effective July 12, 2000, the original date of service connection; however, the determination by the Agency of Original Jurisdiction (AOJ) that a higher rating was warranted for a period prior to the claim on appeal does not bring the earlier period within the Board’s jurisdiction. Rather, for the Board to have jurisdiction to consider whether a higher rating was warranted for the earlier period, the Veteran is required to file a separate appeal of the June 2020 rating decision. Therefore, for the purposes of this decision, the Board has jurisdiction to consider only the period relevant to the March 16, 2012 claim, which began one year prior, on March 16, 2011, as defined by VA regulations. 38 C.F.R. § 3.400(o). The appeal was previously before the Board in August 2020 at which time it was remanded for issuance of a supplemental statement of the case (SSOC). The SSOC was completed in March 2021, and the appeal now returns to the Board for appellate review. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The left foot disability is rated under DC 5280, for unilateral hallux valgus. A 10 percent rating is the maximum schedular rating assignable under that diagnostic code. The 10 percent rating contemplates unilateral hallux valgus that has been operated with resection of the metatarsal head, or severe hallux valgus if equivalent to amputation of the great toe. Effective February 19, 2021, amendments to the regulations for rating musculoskeletal disabilities took effect; however, as it pertains to the foot, the only change effected was the addition of DC 5269 for plantar fasciitis to the rating schedule. The criteria for rating hallux valgus were unchanged. The Veterans Claims Court held in Copeland v. McDonald, 27 Vet. App. 333, 337 (2015), that as a matter of law, rating a disability contemplated by a specific diagnostic code under another diagnostic code would constitute rating by analogy, which is not permitted when there is “a DC that is specifically labeled with the name of a particular condition.” The diagnosis of left hallux valgus has been consistent throughout the appeal period, as have the Veteran’s symptoms of the disability. There have been no findings of other symptoms or manifestations to warrant recharacterizing the disability and assigning a rating under a different diagnostic code. Further, the evidence does not support a finding that referral for assignment of a higher evaluation on an extra-schedular basis is warranted as DC 5280 contemplates the manifestations of, and functional impairment due to, the service-connected disability, to include complaints of pain and resultant functional impairment comparable to amputation of the great toe. The record does not reflect findings of flat foot, weak foot, claw foot, unilateral hallux rigidus, or malunion/nonunion of the tarsal or metatarsal bones to support consideration of an extra-schedular evaluation based on the criteria under DCs 5276, 5277, 5278, 5281, or 5283. In addition, a finding of plantar fasciitis has not been rendered to warrant consideration of DC 5269 for the period since February 19, 2021. In addition to hallux valgus, the August 2012 VA examiner found metatarsalgia and hammertoe of the left little toe. A 10 percent rating is the maximum schedular rating available for each of these disorders under DCs 5279 and 5282, respectively. The evidence also does not establish that these disabilities are associated with the service-connected left hallux valgus. Moreover, the November 2019 VA examiner rendered no findings of a left foot disorder other than hallux valgus. Therefore, consideration of an extra-schedular evaluation based on the criteria under DCs 5279 and 5282 is not warranted. Under DC 5284 for rating other foot injury, a 20 percent evaluation is warranted for moderately severe foot injury. Both the August 2012 and November 2019 VA examiners found the Veteran’s hallux valgus to be mild to moderate in connection with a resection of the metatarsal head. Neither examination, nor treatment notes, reflect a more severe disability. Further, the 10 percent rating assigned under the provisions of DC 5280 contemplates both hallux valgus operated with resection of the metatarsal head and severe hallux valgus if equivalent to amputation of the great toe. In addition, the August 2012 and November 2019 VA examiners found the hallux valgus to produce mild to moderate symptoms and not equivalent to a disability better served by amputation with prosthesis. As such, the evidence does not show clinical manifestations productive of functional impairment more consistent with the diagnostic code criteria contemplated under any other diagnostic code so as to warrant referral for consideration of an extra-schedular rating. The Board has also considered the Veteran’s lay statements that his disability is worse. At the August 2012 VA examiner, he reported pain with movement of the toe and in November 2019, he described tenderness with prolonged walking. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s left foot disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.