Citation Nr: 21027696 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-24 953 DATE: May 6, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right foot hallux valgus with bunion and callus formation, postoperative, is denied. Entitlement to a disability rating in excess of 10 percent for left foot hallux valgus with bunion and callus formation, postoperative, exclusive of the period of temporary total rating from May 14, 2013 through June 30, 2013, is denied. Entitlement to a separate 10 percent rating for hammer toes, right foot, is granted. Entitlement to a separate 10 percent rating for hammer toes, left foot, is granted. FINDINGS OF FACT 1. The Veteran served on active duty from March 1983 to March 1986. 2. The Veteran is in receipt of the maximum schedular rating for right foot hallux valgus, and there is no indication that he has symptomatology outside that listed in the rating criteria for hallux valgus. 3. The Veteran is in receipt of the maximum schedular rating for left foot hallux valgus, and there is no indication that he has symptomatology outside that listed in the rating criteria for hallux valgus. 4. The Veteran has a hammer toe disability of all toes on the right foot. 5. The Veteran has a hammer toe disability of all toes on the left foot. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right foot hallux valgus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71. 2. Exclusive of the period of temporary total rating from May 14, 2013 to June 30, 2013, the criteria for a rating in excess of 10 percent for left foot hallux valgus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71. 3. The criteria for a separate 10 percent rating for hammer toes, right foot, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71. 4. The criteria for a separate 10 percent rating for hammer toes, left foot, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded this matter for additional development. The case is again before the Board for appellate review. Increased Rating 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 Veteran's right and left foot hallux valgus are each rated at 10 percent under 38 C.F.R. § 4.71a, DC 5280. He was rated 100 percent disabled from May 14, 2013 through June 30, 2013 for left foot hallux valgus for a period of convalescence. As such, this period is not for consideration. Under DC 5280, which rates hallux valgus, a maximum 10 percent rating is warranted for severe impairment, if equivalent to amputation of the great toe, or where there has been an operation with resection of the metatarsal head. In this case, the Veteran has been awarded the maximum rating provided for hallux valgus for each foot. Because VA's rating schedule includes criteria for hallux valgus, it is improper to rate the disability by analogy under any other diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, at 337,338 (2015). Thus, based on the foregoing, the Board finds that the Veteran has been assigned the maximum schedular rating for his right and left foot hallux valgus under DC 5280, and that a rating greater than 10 percent for hallux valgus is not warranted for either foot under any other diagnostic code for any period during the pendency of the claim. Even if it were possible to rate by analogy, the Veteran's right foot and left foot disabilities would remain at 10 percent. Other than the assignment of a temporary 100 percent evaluation for the left foot (from May 14, 2013 through June 30, 2013) based on surgical or other treatment necessitating convalescence, a 10 percent rating is the highest rating that can be assigned for the Veteran's foot disabilities pursuant to the DCs applicable to the evaluation of foot disabilities as described below, in addition to the two diagnostic codes for rating disabilities involving arthritis. See 38 C.F.R. § 4.71a, DCs 5276-5279, 5281, 5283, 5284, 5003 and 5010. In this regard, after review, the Board finds that a higher rating is not warranted for either foot pursuant to other potentially applicable diagnostic codes such as DCs 5276 (flatfoot), 5277 (weak foot), 5278 (claw foot), 5279 (metatarsalgia), 5283 (malunion of tarsal or metatarsal bones), or 5284 (foot injuries). See 38 C.F.R. § 4.71a. To this end, the weight of the competent and credible evidence shows that the Veteran does not have a diagnosis of or symptoms approximating flatfoot, weak foot, claw foot, metatarsalgia, or malunion or nonunion of metatarsal bones. Moreover, there is no evidence that the Veteran's foot disabilities are related to injury and therefore they are not considered a foot injury. Consequently, DC 5284 is not for application. In addition, a separate rating under Diagnostic Codes 5003 or 5010, which pertains to degenerative and traumatic arthritis, would violate the rule against pyramiding, as the Veteran's pain on use of the feet is already compensated under DC 5280, and in any event, a rating greater than 10 percent is not available under DC 5003. See 38 C.F.R. § 4.14. DC 5281 provides that hallux rigidus, unilateral, severe shall be rated as hallux valgus, severe. As such, a separate or higher rating under this DC is not available. DC 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensable. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. Although the January 2013 VA foot examination report reflected that the Veteran did not have a diagnosis of hammer toe whatsoever, a March 2015 VA treatment record noted that the Veteran had hammer toe disability on toes two through five of the right foot and hammer toe disability on toes four and five of the left foot. It was also noted that the Veteran had rigid left second and third toes. Accordingly, there is clear basis for assignment of a separate, 10 percent rating for hammer toes, right foot (based on the diagnosis of hammer toe disability in toes two through five). Additionally, in giving the Veteran the benefit of the doubt, he has hammer toe disability in all toes of the left foot (hammer toe diagnosis in toes four and five as well as rigid second and third toes - which the Board finds approximates hammer toe of all toes under Diagnostic Code 5282). As such, the Board finds that the hammer toe deformity is comparable to affecting all toes to warrant a compensable 10 percent evaluation for the left foot as well. See 38 C.F.R. § 4.71a, Diagnostic Code 5282. Therefore, a separate 10 percent rating pursuant to DC 5282 is awarded for each foot; the claims are granted to this extent. The Board notes that February, June, and July 2014 VA treatment records noted that the Veteran reported numbness in his feet. However, the medical evidence shows that this finding is specific to the Veteran's nonservice-connected diabetes mellitus. As such, this is separate from the Veteran's service-connected right and left foot hallux valgus and hammer toe disabilities and not a symptom associated with the service-connected disabilities. Given the foregoing, the Board finds that schedular ratings higher than 10 percent for the right and left foot disabilities pursuant to DC 5280 for hallux valgus are not warranted. However, separate 10 percent ratings are warranted for hammer toe disability of each foot under DC 5282. Extraschedular Consideration An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected foot disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's foot disabilities with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms and functional impairment he experiences. Specifically, the Veteran primarily reports daily, severe pain in his feet and cramping type sensation in the left foot. As stated above the Veteran is in receipt of the maximum rating under DC 5280, and there is no evidence to indicate that at any time during the appeal period that either his right foot or left foot was diagnosed as any other foot disability that would warrant higher ratings such as flatfoot, claw foot or malunion or nonunion of the tarsal or metatarsal bones, and the there is no indication that the Veteran's foot disabilities are a result of injuries. The currently assigned 10 percent ratings under 38 C.F.R. § 4.71a are specific for such symptomatology. In addition, in this decision the Board has granted a separate 10 percent rating for each foot under DC 5282 for hammer toe disability of all toes of each foot. The Board finds that DCs 5280 and 5282 adequately account for the symptomology related to the Veteran's foot disabilities. There are no other symptoms not accounted for by these two diagnostic codes and as noted above, the Veteran's neuropathy symptoms have been attributed to his nonservice-connected diabetes. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disabilities on appeal. As the currently assigned ratings are based on the overall severity of the disabilities, the assigned ratings inherently contemplate any and all manifestations of the disabilities and the resulting overall level of impairment resulting therefrom. Moreover, the Veteran has not alleged, and the evidence does not show, that he has marked interference with employment or frequent periods of hospitalization due to the disabilities of the feet. In sum, the diagnostic criteria contained in DCs 5280 and 5282 contemplate all of the Veteran's reported symptoms, and referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111, 116 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018). 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). C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.