Citation Nr: 21026519 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 09-27 760 DATE: May 3, 2021 ORDER Entitlement to a compensable rating for service-connected hallux valgus of the left foot is denied. Entitlement to a compensable rating for service-connected hallux valgus of the right foot is denied. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected hallux valgus of the bilateral foot, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's hallux valgus of the left foot has not required surgical operation with resection of the metatarsal head and has not been shown to be of such severity as to equate to amputation of the great toe. 2. The Veteran's hallux valgus of the right foot has not required surgical operation with resection of the metatarsal head and has not been shown to be of such severity as to equate to amputation of the great toe. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a left foot hallux valgus have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5280. 2. The criteria for a compensable rating for a right foot hallux valgus have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1974 to April 1976 and December 1977 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in November 2016, the Board determined that the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). The Board remanded the issues on appeal for further evidentiary development. After the November 2016 Board remand order, the Veteran requested a Board hearing. In December 2020, the Veteran testified at a Board hearing. The transcript of the hearing is of record. The Board has re-characterized the claim of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the pendency of the 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. In this case, Diagnostic Code 5280 for hallux valgus was not amended. Under Diagnostic Code 5280, hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5280. 1. Entitlement to a compensable rating for service-connected hallux valgus of the left foot is denied. 2. Entitlement to a compensable rating for service-connected hallux valgus of the right foot is denied. Here, the Veteran filed his claim for entitlement to an increased rating for hallux valgus of the bilateral foot in March 2007. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran's hallux valgus of the bilateral foot. During the appellate period, the Veteran complained of chronic foot pain on movement. However, despite the Veteran's complaints of foot pain, the records do not support a compensable rating. The Veteran was provided VA examinations in August 2007, January 2009, and January 2018. In the August 2007 examination, the Veteran complained that he has intermittent aching pain in both of his feet. The Veteran stated that when the pain occurs, it is five on a pain scale of one to ten, ten being the highest. On examination, the examiner stated that there was active motion in the metatarsophalangeal joints of the both great toes. There was good alignment noted to both great toes. The second toes override the great toes slightly because of the bilateral hallux valgus deformity. Hallux valgus deformities were evident in the right and left with angulation noted as moderate. There were no resections of the metatarsal head. An x-ray scan of the bilateral foot revealed hallux vagus with bunion with minimal osteoarthritic changes of the first metatarsophalangeal. In the January 2009 examination, the Veteran reported having pain, swelling, heat, stiffness, and fatigability. The Veteran stated that he has flare-ups of his bilateral foot one to three times per month that usually lasts less than one day. The Veteran exhibited angulation of 30 degrees and dorsiflexion of 35 degrees at the first metatarsophalangeal joint of the left foot. The Veteran exhibited angulation of 40 degrees and dorsiflexion of 30 degrees at the first metatarsophalangeal joint of the right foot. In the October 2018 examination, the Veteran reported having bilateral foot pain with prolonged standing or walking. On examination, the examiner noted that there was no objective evidence of marked deformity of one or both feet. There was no marked pronation of the bilateral foot. The weight-bearing line did not fall over or medial to the great toe of the bilateral foot. The examiner determined that the Veteran had mild or moderate symptoms due to hallux valgus of the bilateral foot. The Veteran did not have surgery for hallux valgus. The examiner stated that there was no 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. The examiner also noted that there was no other functional loss during flare-ups or when the foot was used repeatedly over a period of time. The examiner determined that there was no functional impairment of an extremity such that effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner noted that an x-ray scan of the Veteran's bilateral foot revealed moderate hallux valgus deformity. There was no evidence of pain on passive range of motion testing and no pain when the joint was used in non-weight bearing. Hallux abductovalgus was noted bilaterally with the first MP joint track bound and non-reducible in the transverse plane, which limits range of motion to the same extent in both passive and active range of motion. This decrease in range of motion does not limit the function of the foot. The examiner concluded that the Veteran's limitation in mobility results from the callosities associated with his non-service-connected bilateral pes planus. In the December 2020 hearing, the Veteran stated that he was given an option to operate on his feet as they were "getting kind of large." The Veteran also claimed that his bunion was overlapping all his toes. Based on the records, the Board finds the Veteran's hallux valgus of the bilateral foot is consistent with a noncompensable rating under Diagnostic Code 5280 as compensable evaluations are only warranted if the metatarsal heads have been operated on with resection, or if the conditions are severe and deemed equivalent to amputation of the great toe. The VA examiners indicated no hallux valgus operations or that the disability was equivalent to amputation of the great toe for either foot. Rather, the VA examiners found only mild or moderate symptoms. Subsequent treatment records do not indicate that the Veteran has undergone a hallux valgus operation or equivalent severity of the disability. Therefore, given the probative evidence above, the Board finds that a compensable disability evaluation for left and right foot hallux valgus is denied. REASONS FOR REMAND 3. Entitlement to service connection for a back disability, to include as secondary to service-connected hallux valgus of the bilateral foot, is remanded. In the December 2020 hearing, the Veteran stated that his back disability manifested in service. In the alternative, the Veteran claimed that his back disability worsened due to his service-connected bilateral foot disability. See April 2020 Form 9. A review of the service treatment records (STRs) shows that in September 1980 the Veteran complained of pain in the thoracic area. See June 2014 STR Medical. The Veteran was diagnosed with possible pulled muscle accident. The Veteran was afforded a VA examination in October 2018 wherein the examiner diagnosed the Veteran with degenerative disc disease of the thoracolumbar spine. The examiner opined that the Veteran's degenerative disc disease of either the lumbar or cervical spine is less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner explained that the service treatment records show a single entry for back pain in September 1980 wherein the Veteran complained of pain at the thoracic spine which was attributed to a pulled muscle. The examiner noted that the Veteran has a current lumbar spine disability and not a thoracic spine disability as was the case in service. There is nothing else in the STRs between then and his separation from service and within one year after service. The examiner further explained that there is no medical evidence of a back condition of any kind in the intervening years until April 1998. Further, it was an additional seven years before the Veteran complained of a back condition and that was associated with a post-service work injury doing construction. In support of his claim, the Veteran submitted an excerpt from a medical literature that found that foot problems, such as bunions, that cause a person to change the way their foot hits the ground can throw off the movement of the ankles, knees, hips and back. See June 2013 VA 646 Statement of Accredited Representative in Appealed Case. As such, ignored foot conditions may actually be the cause of lower back pain. Additionally, this alteration in movement may cause joints and ligaments to wear in ways that they were not meant to, which may lead to severe complications like arthritis. The Board finds that a remand is warranted as the RO did not substantially comply with the November 2016 Board remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2016, the Board requested a medical opinion on aggravation. Although the October 2018 examiner opined as to whether the Veteran's cervical spine disability was at least as likely as not proximately due to the Veteran's service connected hallux valgus of the bilateral foot, the examiner did not opine as to aggravation of the Veteran's low back disability due to the Veteran's service-connected hallux valgus of the bilateral foot. As such, the Board finds that a remand is warranted. 4. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. In the December 2020 hearing, the Veteran stated that when he was stationed in Germany he got into an incident where a fellow serviceman jumped him and beat him. The Veteran attested that he went to the hospital and stayed no more than a day. The Veteran claimed that he had stitches over the bridge of his nose and one above his eye. The Veteran claimed that he was depressed due to this in-service event. Additionally, the Veteran alleged that he was depressed due to his "physical problems." See April 2020 Form 9. The Board notes that in a January 2020 VA treatment record the Veteran was diagnosed with anxiety disorder, depressive disorder, and unspecified trauma related disorder. See April 2020 CAPRI. The Veteran is also currently service connected for bilateral hallux valgus, bilateral hearing loss and tinnitus. As the Veteran has a current diagnosis of a psychiatric disability and is service-connected for bilateral hallux valgus, bilateral hearing loss and tinnitus, the Board finds that the Veteran should be afforded a VA examination to determine whether his service-connected disabilities proximately caused and/or aggravated the Veteran's psychiatric disability. 5. Entitlement to a TDIU is remanded. The Veteran claimed that he is entitled to a TDIU as he cannot secure or follow any substantially gainful occupation due to his service-connected hallux valgus of the bilateral foot, low back disability and chronic obstructive pulmonary disease (COPD). See April 2017 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In the December 2020 hearing, the Veteran's representative stated that the only valid entitlement for TDIU is if service connection for the low back is granted at a high rating. As the Veteran stated that his claim for entitlement to a TDIU hinges on his claim for entitlement to service connection for a low back disability, and as the issue of entitlement to service connection for a low back disability is being remanded, consideration of the Veteran's entitlement to a TDIU, at this juncture, would be premature. Accordingly, the Board will defer TDIU adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain the Veteran's military personnel records. All efforts to obtain the records should be fully documented. 2. Obtain an addendum to the October 2018 VA examination for the low back disability. The examiner must opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's low back disability was (a) caused by or (b) has been aggravated by his service-connected hallux valgus of the bilateral foot. The examiner must address the excerpt from a medical literature that found that foot problems, such as bunions, that cause a person to change the way their foot hits the ground can throw off the movement of the ankles, knees, hips and back. As such, ignored foot conditions may actually be the cause of lower back pain. Additionally, this alteration in movement may cause joints and ligaments to wear in ways that they were not meant to, which may lead to severe complications like arthritis. See June 2013 VA 646 Statement of Accredited Representative in Appealed Case. 3. After the development in #1 has been completed, obtain an opinion for the claim for an acquired psychiatric disability. The examiner should opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disability was (a) caused by or (b) has been aggravated by his service-connected disabilities. The examiner should consider that in a January 2020 VA treatment record the Veteran was diagnosed with anxiety disorder, depressive disorder, and unspecified trauma related disorder. See April 2020 CAPRI. A detailed rationale for the opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.