Citation Nr: 21041059 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 18-33 068 DATE: July 8, 2021 ORDER A disability rating in excess of 10 percent for right foot hallux vulgus is denied. A disability rating in excess of 10 percent for left foot hallux vulgus is denied. A separate 10 percent disability rating for bilateral metatarsalgia with Morton's neuroma of the right foot is granted. FINDINGS OF FACT 1. The Veteran's right foot hallux valgus is rated as 10 percent disabling, which is the maximum schedular rating permitted for unilateral hallux valgus. 2. The Veteran's left foot hallux valgus is rated as 10 percent disabling, which is the maximum schedular rating permitted for unilateral hallux valgus. 3. The Veteran has a diagnosis of bilateral metatarsalgia and Morton's neuroma of the right foot. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected right foot hallux valgus have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.72, Diagnostic Codes 5280, 5283. 2. The criteria for a rating in excess of 10 percent for service-connected left foot hallux valgus have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.72, Diagnostic Codes 5280, 5283. 3. The criteria for a separate 10 percent disability rating for bilateral metatarsalgia with Morton's neuroma of the right foot have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.72, Diagnostic Code 5279. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before a Veterans Law Judge who is no longer at the Board. In January 2021 he was provided the opportunity to have an additional hearing before a sitting Veterans Law Judge but did not request an additional hearing. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). While the Veteran's service-connected foot disabilities are rated under the section of the rating schedule used to rate musculoskeletal disabilities, the criteria for rating such disabilities does not rely upon ranges of motion. Generally, all disabilities, including those arising from a single disease entity, are rated separately with the resulting ratings being combined. 38 C.F.R. § 4.25 (2002). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2002). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service-connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). A discussion of the development of the issues on appeal is in order. Service connection had been established for hallux valgus of both the right and left foot effective from August 2013. Each foot was rated at a 10 percent disability rating under Diagnostic Code 5280. In September 2015, the Veteran filed a VA Form 21-526EZ, which was a claim for service connection and listed bilateral hammertoe and bilateral metatarsalgia as the two disabilities being claimed. A November 2015 RO rating decision implicitly granted service connection for both disabilities by adding them to the Veteran's service-connected hallux valgus disabilities and listing the issues as being "evaluation of right foot hallux valgus, hammer toes (2nd, 3rd, & 4th), & metatarsalgia" and "evaluation of right foot hallux valgus, hammer toes (2nd, 3rd, & 4th), & metatarsalgia." The rating decision continued the disability rating of each foot disability at a 10 percent rating. Later in November 2015, the Veteran filed his Notice of Disagreement (NOD) on which he indicated that the specific issue of disagreement was left foot and right foot anterior metatarsalgia. In the narrative section he indicated that he was seeking a separate 10 percent disability rating for his metatarsalgia. In June 2018, the RO issued a statement of the case (SOC) and indicated two issues on appeal being: 1. Evaluation of right foot hallux valgus and metatarsalgia currently evaluated as 10 percent disabling. 2. Evaluation of left foot hallux valgus and metatarsalgia currently evaluated as 10 percent disabling. The narrative discussion in the SOC acknowledged the Veteran's assertions that separate disability ratings for metatarsalgia were warranted. At the same time the RO also issued a rating decision which granted separate, yet noncompensable (0%) disability ratings for the Veteran's hammer toes of the right and left foot. During the September 2020 Board hearing, testimony focused on the Veteran's assertion that separate disability ratings for metatarsalgia were warranted apart from his ratings for hallux valgus. Accordingly, the Board finds that the issue of entitlement to a separate disability rating is under appeal and will be discussed below. 1. Increased ratings for right foot and left hallux vulgus, each rated at 10 percent. The Veteran's hallux valgus is evaluated 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. VA examination reports dated July 2018 and November 2019, as well as a VA Foot Disability Questionnaire (DBQ) completed by a private examiner and submitted by the Veteran in July 2018 all indicate that the Veteran has bilateral hallux valgus which is mild to moderate, but for which he has had surgery for. Accordingly, the Veteran is properly assigned the maximum, 10 percent, disability rating for hallux valgus of the right foot and the maximum, 10 percent disability rating for hallux valgus of the left foot. At the September 2020 hearing, the Veteran's representative referenced that disability ratings in excess of the maximum 10 percent rating for hallux valgus could be assigned under Diagnostic Code 5283 which contemplates malunion or nonunion of the tarsal, or metatarsal bones. Disability ratings are assignable are moderate at 10 percent; moderately severe at 20 percent; and severe at 30 percent. With actual loss of use of the foot, a 40 percent is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5283. However, a review of all the evidence of record including all of the VA Compensation and Pension examinations and the DBQ submitted by the Veteran, shows that the Veteran does not have malunion or nonunion of the tarsal, or metatarsal bones, making rating the Veteran's hallux valgus disability under this Diagnostic Code unwarranted. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds that the preponderance of the evidence is against the assignment of a disability ratings in excess of the presently assigned 10 percent ratings for the Veteran's right and left foot hallux valgus. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and functional loss, the Board notes that the Veteran's hallux valgus disabilities are rated at the maximum disability ratings for the specific disability. Accordingly, a disability rating in excess of 10 percent for right foot hallux vulgus is denied, and a disability rating in excess of 10 percent for left foot hallux vulgus is denied. 2. Separate disability rating for metatarsalgia. The Veteran's main assertion is that he warrants a disability rating for metatarsalgia separate from those assigned for his service-connected hallux valgus. Anterior metatarsalgia (Morton's disease) is assigned a 10 percent disability rating whether unilateral, or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. The VA Compensation and Pension examination reports dated September 2015, June 2018 and November 2019 all indicate that the Veteran has bilateral metatarsalgia, but that he does not have a Morton's neuroma. The July 2018 DBQ submitted by a private podiatrist, along with narrative examination records dated at the same time indicate that the Veteran has a diagnosis of bilateral metatarsalgia, and a Morton's neuroma of the right foot. During the September 2020 hearing the Veteran testified as to the difference in symptoms caused by his hallux valgus as compared to his metatarsalgia. Specifically, he described his metatarsalgia as being pain in the ball of his foot and feeling like walking on a pebble, as opposed to aching on the outside of his big toes caused by his hallux valgus. The RO has continued to deny entitlement to a separate disability rating for the Veteran's metatarsalgia for two reasons. First is that it is impermissible pyramiding. Second, that the Compensation and Pension examinations did not show the presence of a Morton's neuroma, which the RO indicated was required for a rating under Diagnostic Code 5279. All of the examination reports covering the appeal period indicated diagnoses of bilateral metatarsalgia and the June 2018 DBQ and supporting records also indicate the presence of a Morton's neuroma of the right foot. The Veteran's description of the differing symptoms, along with the supports that pyramiding is not happening in the present instance. The evidence therefore supports that a separate 10 percent disability rating for bilateral metatarsalgia with Morton's neuroma of the right foot is warranted. The Veteran's assertion that he warrants two separate 10 percent disability ratings for his metatarsalgia is not supported as the rating schedule provides for a single 10 percent disability rating to be assigned whether the disability is bilateral or unilateral. See 38 C.F.R. § 4.71a, Diagnostic Code 5279. A separate, single 10 percent disability rating for bilateral metatarsalgia with Morton's neuroma of the right foot is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.