Citation Nr: 21042299 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-27 564A DATE: July 12, 2021 ORDER A 20 percent disability rating, but no higher, for the service-connected herniated nucleus pulposus with spondylolysis and chronic low back pain (hereinafter referred to as low back disability) for the entire period on appeal, is granted. A 10 percent disability rating, but no higher, for the service-connected right foot hallux valgus (previously rated as residuals status post bunionectomy with implant right first metatarsophalangeal joint) for the entire period on appeal, is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected low back disability more nearly approximated symptoms such as pain, flare ups, and forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; the disability did not more nearly approximate forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire spine, or incapacitating episodes due to IVDS. 2. For the entire period on appeal, the Veteran's service-connected right foot hallux valgus manifested in constant pain, flare ups, and functional limitation. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 20 percent disability rating, but no higher, for the service-connected low back disability for the entire period on appeal have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for the assignment of a 10 percent disability rating, but no higher, for the service-connected right foot hallux valgus for the entire period on appeal have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to July 1969 and from November 1970 to September 1993. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, confirmed and continued a 10 percent disability rating for the service-connected herniated nucleus pulposus and a non-compensable disability rating for the service-connected right foot hallux valgus. The Veteran's Notice of Disagreement (NOD) was received in January 2014. The Statement of the Case was issued in July 2015, and the Veteran's VA Form 9, substantive appeal to the Board was received in August 2015. In October 2018, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board hearing. The transcript is of record. In March 2019, the Board remanded these claims, as well as a claim of service connection for a right hip disability for further development and adjudication. Before the case was returned to the Board on appeal, the RO granted service connection for a right hip disability in a June 2020 rating decision. As such, that issue is no longer in appellate status or before the Board at this time. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38C.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 38C.F.R. §4.71a ; 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 criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38C.F.R. §4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to a disability rating in excess of 10 percent for the service-connected low back disability. The Veteran contends that his service-connected low back disability warrants a disability rating higher than currently assigned. The Veteran's low back disability is rated as 10 percent disabling from October 1, 1993 under 38 C.F.R. § 4.71a, DC 5243. The Veteran has also been granted service connection for bilateral lower extremity radiculopathy associated with his low back disability, with a 10 percent initial disability rating assigned for each limb from July 29, 2020, under DC 8520. Disabilities of the spine are rated pursuant to the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5235 through 5243. 38 C.F.R. § 4.71a. In addition, Intervertebral Disc Syndrome (IVDS) under DC 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Alternatively, the Veteran's low back disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which provides for a 10 percent evaluation where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). The General Rating Formula provides a schedule of ratings for spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of an injury or disease. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Code 5237. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not shown under the relevant rating criteria for the joint involved (Diagnostic Code 5237), then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In this case, the Veteran's limitation of motion of the thoracolumbar spine is compensable under Diagnostic Code 5237 pursuant to the General Rating Formula. Accordingly, the assignment of a 10 percent rating for arthritis under Diagnostic Code 5003 is not applicable in this case. Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021). However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). In this case, there is evidence of disc herniation. Therefore, the Veteran's disability may be rated pursuant to pre-February 7, 2021 regulations, or the revised criteria. However, given that neither the General Rating Formula for Diseases and Injuries of the Spine nor the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes were substantially altered, the February 7, 2021 revisions will not have an effect on the Veteran's disability rating and will yield the same outcome. As such, the Veteran's disability is rated pursuant to the old criteria. A December 2012 VA annual physical report indicates that the Veteran denied any pain. It was separately noted that he did not have back pain. In April 2013, the Veteran underwent a VA examination for his claim. He was diagnosed with herniated nucleus pulposus and spondylosis. The Veteran reported worsening back pain and indicated that he had flare ups. He reported flare ups when he does weed-cutting and indicated that his back just starts pulling. For range of motion, forward flexion was 90 degrees or greater, extension was to 30 degrees or greater, right and left lateral flexion was to 30 degrees or greater each with no objective evidence of painful motion, and right and left lateral rotation was to 30 degrees or greater each. There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions without any additional loss of range of motion. It was noted that excess fatigability, disturbance of locomotion, and interference with sitting, standing and/or weight bearing contributed to functional loss. It was also noted that the Veteran had guarding and/or muscle spasm, which did not result in abnormal gait or spinal contour. Muscle strength testing was normal with no muscle atrophy. The Veteran's reflexes and sensory exams were normal. There was no radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities noted. There were no incapacitating episodes due to IVDS noted in the past 12 months. The Veteran was not noted to use any assistive devices. Arthritis was confirmed with imaging studies. There was no vertebral fracture. The VA examiner noted that the Veteran's disability did not impact his ability to work. A June 2015 VA clarification opinion indicates that the Veteran's file and recent examination results were reviewed. The VA examiner indicated that they cannot report further loss of range of motion due to back flareups without resorting to mere speculation as this would require the Veteran to be examined during a flare up. An August 2015 VA primary care note indicates that the Veteran reported lower back aching pain. Onset was noted to be more than 20 years ago. The Veteran reported pain being worse with cold and interfering with physical activity. The Veteran's back exam revealed no tenderness. It was noted that the Veteran will continue taking medication for pain. A September 2017 VA treatment note indicates that the Veteran complained of worsening low back pain. An accompanying VA back MRI report indicates that the Veteran has moderate to severe degenerative changes in the lumbar spine. The Veteran was referred to neurosurgery. An October 2017 private physical therapy evaluation indicates that the Veteran was seen for aching and tingling pain across his low back. It was noted that the pain extended down to his buttocks when standing. Aggravating factors were listed as standing up straight and sitting for prolonged periods of time. Medication, heat, and laying down were listed as alleviating factors. Upon examination, the Veteran was noted to have 10 percent extension, 75 percent flexion, 50 percent left rotation, 50 percent right rotation, and 50 percent side bending on each side. The Veteran was noted ot have spinal joint stiffness, muscle guarding and tenderness, decreased and painful spinal range of motion. He was recommended to continue physical therapy several times per week. His private physical therapy notes for this time period contain similar findings. A December 2017 private physical therapy note indicates that the Veteran continued to have low back pain with difficulty standing, sitting for prolonged periods of time, and navigating stairs. The Veteran reported the intensity of his back pain having decreased. His extension was noted to be 25 percent, flexion 75 percent, left rotation 50 percent, right rotation 75 percent, and side pending 50 percent each. A December 2017 VA treatment note indicates that the Veteran's back pain somewhat improved but that it still presents and worsens when he moves certain ways. It was noted that he will get shooting pain into his lower extremities when this happens. The Veteran's MRI showing significant DDD was cited. His medications were listed, and it was noted that they helped his symptoms somewhat. He was noted to have sciatic pain in addition to back pain. The Veteran was referred to neurosurgery. A January 2018 private neurosurgery note from Dr. A.B. indicates that the Veteran presented with bilateral sciatica, worse in the right than the left leg. It was noted that the Veteran underwent cortisone injections for back pain and was in physical therapy. It was also noted that he had a recent back MRI done which was reviewed by Dr. A.B. during the visit. Dr. A.B. indicated that the Veteran's MRI revealed grade 1 spondylolisthesis at both L4-5 and L5-S1 and bilateral far lateral foraminal stenosis in the same vertebrae. The assessment indicates that the Veteran has neurogenic claudication and spondylolisthesis at L4-5 and L5-S1. It was noted that no weakness was detected on physical exam and that the Veteran's pain seems to be managed with physical therapy. It was recommended that the Veteran continue epidural injections. No surgery was recommended. A May 2018 VA treatment note indicates that the Veteran complained of moderate back pain. A September 2018 VA treatment note indicates that the Veteran denied back pain. At the October 2018 Board hearing, the Veteran testified that his back has gotten worse since his 2013 VA examination. He testified that he has lower extremity pain and flare ups. He also testified that in the morning, when he tries to straighten his back, the pain shoots down his legs. A March 2019 VA treatment note indicates that the Veteran denied low back pain. In December 2019, the Veteran underwent a VA examination for his claim. He was diagnosed with herniated nucleus pulposus with spondylolysis and chronic low back pain. He reported pain with bending and lifting. It was noted that he did not report flare ups. The Veteran reported being unable ot lift or carry heavy boxes or standing or walking for long periods of time. For range of motion, his forward flexion was to 90 degrees, his extension to 15 degrees, his right lateral flexion to 15 degrees, his left lateral flexion to 25 degrees, his right lateral rotation to 25 degrees, and his left lateral rotation to 10 degrees. The VA examiner noted that range of motion itself does not contribute to functional loss. Pain was noted on range of motion testing and the VA examiner indicated that it did not cause functional loss. The VA examiner also noted that there was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. It was noted that the Veteran was being examined immediately after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. It was noted that the Veteran did not have guarding or muscle spasm. Muscle strength testing was normal with no muscle atrophy. The Veteran's reflex and sensory examinations were normal. The VA examiner indicated that there was no radicular pain or other symptoms of radiculopathy and no ankylosis. There were no other neurologic abnormalities noted. The Veteran was noted to have IVDS with no incapacitating episodes as a result. The Veteran was not noted to use assistive devices. There were no imaging studies cited. There was no pain on passive range of motion testing and no evidence of pain in non-weight bearing. In March 2021, the Veteran underwent a VA examination for peripheral nerves conditions. He was diagnosed with bilateral lower extremity radiculopathy. His symptoms included mild intermittent bilateral lower extremity pain. The Veteran was noted to have antalgic gait due to his herniated nucleus pulposus with spondylosis and chronic back pain. Under nerve involvement, it was noted that the Veteran had incomplete moderate paralysis of the sciatic nerve bilaterally. The Veteran was noted to regularly use a cane due to his low back condition with radiating pain and numbness into legs. It was noted that the Veteran's bilateral lower extremity radiculopathy impacted his ability to work and caused difficulty sitting or standing for long periods of time, and difficulty bending down to pick up object below him. The VA examiner indicated that the Veteran is claiming that his radiculopathy is due to his service-connected low back condition and that the Veteran's exam is notable for mildly diminished lower extremity strength and reflexes. The Veteran's sensation was noted to be intact. The VA examiner concluded that the Veteran's bilateral lower extremity radiculopathy is at least as likely as not proximately due to the Veteran's service-connected low back disability. Based on the above, the Veteran's low back disability more nearly approximated the criteria for the assignment of a 20 percent disability rating under 38 C.F.R. § 4.71a, DC 5243 for the entire period on appeal. The evidence illustrates that the Veteran had persistent back pain despite physical therapy and other treatments, flare ups, and symptoms more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait. While the VA examination reports in this matter do not reflect forward flexion less than 60 degrees or combined range of motion less than 120 degrees, the totality of the evidence illustrates that the Veteran's symptoms were of such severity and frequency as to more nearly approximate the criteria for the assignment of a 20 percent disability rating. For example, the Veteran's physical therapy notes indicate that in October 2017, before treatment, his range of motion was 10 percent for forward flexion, 75 percent for extension and 50 percent for side bending and rotation. While it is unclear whether these readings coincide with the range of motion testing provided in the General Rating Formular for Disease and Injuries of the Spine, it is clear that the Veteran had range of motion limitation beyond what was illustrated during the April 2013 VA examination. In other words, given the Veteran's competent reports of worsening back pain and flare ups, it is reasonable to infer that his range of motion of the thoracolumbar spine more nearly approximates forward flexion greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, particularly during periods of flare-ups. Moreover, muscle guarding was noted during the April 2013 VA examination report. A rating in excess of 20 percent is not warranted at any time during the period on appeal under DC 5243. The record does not reflect either (i) favorable ankylosis of the entire thoracolumbar spine or (ii) forward flexion of the thoracolumbar spine limited to 30 degrees or less. Functional loss with repeated use over time and during flare ups has been considered. Specifically, the Veteran reported that he experiences increased pain and back pulling with certain activities. The VA examination reports in this case indicate that the Veteran's disability interferences with his ability to stand or sit for prolonged periods of time, as well as bending down and using stairs. However, there is no indication that the additional functional loss manifests in forward flexion of the thoracolumbar spine limited to 30 degrees or less. Moreover, there is no evidence of ankylosis. Thus, the criteria for the assignment of a rating in excess of 20 percent under DC 5243 have not been met or approximated at any time during the appeal period. Likewise, the Veteran is not entitled to a rating in excess of 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes as the evidence indicates that the Veteran does not suffer incapacitating episodes of IVDS requiring physician-prescribed bedrest as a result. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Staged ratings are not warranted for the Veteran's low back disability. In this case, the Veteran's symptoms may have waxed and waned during the appeal period, but the overall disability picture remained largely consistent throughout this period on appeal. The medical evidence of record did not show bladder or bowel impairment related to the service-connected low back disability. With respect ot neurological manifestations pursuant to Note (1) of the General Rating Formula, a March 2021 rating decision granted service connection for right and left lower extremity radiculopathy, effective July 29, 2020, based on the March 2021 peripheral nerves examination report, and assigned ratings of 10 percent for each. The Veteran has not indicated dissatisfaction with either the ratings assigned, or the effective date of service connection for these disabilities. Moreover, the evidence does not reflect that the neurologic manifestations are more than mild in degree during this period. In sum, the preponderance of the evidence shows that the Veteran's symptoms are of the severity and frequency contemplated in the criteria for the assignment of a 20 percent disability rating. As such a disability rating of 20 percent, but no higher, for the service-connected low back disability is warranted for the entire period on appeal. 2. Entitlement to a compensable disability rating for the service-connected right foot hallux valgus. The Veteran contends that his service-connected right foot hallux valgus warrants a compensable rating. His right foot hallux valgus is rated as noncompensable from October 1, 1993 under 38 C.F.R. § 4.71a, DC 5284. At the outset, 38 C.F.R. § 4.71a, Diagnostic Code 5284 contemplates disability ratings for other foot injuries. In this case the Veteran's disability has been specifically diagnosed as hallux valgus. Under 38 C.F.R. § 4.71a, Diagnostic Code 5280 contemplates ratings for unilateral hallux valgus. A disability may not be rated by analogy under another code when a condition is specifically listed in the ratings scheduled. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that Diagnostic Code 5284 does not apply to the foot conditions specifically listed in 38 C.F.R. § 4.71a, and that rating listed conditions under Diagnostic Code 5284 constitutes an impermissible rating by analogy). Thus, a rating under Diagnostic Code 5284 is not permitted in this case and the Veteran's right foot hallux valgus is rated under Diagnostic Code 5280. Under DC 5280, hallux valgus unilateral, a 10 percent maximum disability rating is assigned when the condition is operated on with resection of the metatarsal head, or when the condition is severe and equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, DC 5280. In the context of Diagnostic Code 5280, the word "severe" is not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In April 2013, the Veteran underwent a VA examination for his claim. He was diagnosed with hallux valgus with history of right foot surgery. The Veteran's surgery was noted to be implant arthroplasty of the 1st MTP joint. The VA examiner indicated that the surgery did not involve metatarsal osteotomy/ metatarsal head osteotomy or equivalent to metatarsal head resection. He reported worsening pain. The VA examiner noted that the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, or hallux rigidus. The VA examiner noted that the Veteran did not have symptoms due to hallux valgus. It was noted that the Veteran did not have claw foot, malunion or nonunion of tarsal or metatarsal bones, bilateral weak foot, or any other foot injuries. The Veteran was not noted to use any assistive devices. Imaging studies were cited, which were noted to be normal and ruled out arthritis. It was noted that the Veteran had an implant in right 1st MTP joint. The VA examiner concluded that the Veteran's disability did not impact his ability to work. In December 2019, the Veteran underwent a VA examination for his claim. He was diagnosed with bilateral hallux valgus. The Veteran reported pain with weight bearing and indicated that he cannot stand or walk for long periods of time. He was not noted to have Morton's neuroma, or metatarsalgia. He was noted to have bilateral hammer toes. The Veteran's bilateral hallux valgus symptoms were noted to be mild to moderate. History of right foot surgery was noted. The Veteran was not noted to have hallux rigidus, pes cavus/clawfoot, malunion or nonunion of tarsal or metatarsal bones, or any other foot injuries or conditions. There was pain noted on exam bilaterally. The VA examiner indicated that the Veteran had right foot pain on movement, bilateral pain on weight-bearing, and bilateral pain on nonweight-bearing. The VA examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare ups or when with repeated use over a period of time bilaterally. The Veteran was not noted to use any assistive devices. The VA examiner noted that there was no evidence of pain on passive range of motion testing. In February 2021, the Veteran underwent a VA examination for his claim. He was diagnosed with left foot pes planus, left foot plantar fasciitis, left foot hammer toe, left foot hallux valgus and left foot hallux rigidus. Based on the review of the remainder of the examination report, it appears that the VA examiner inadvertently checked off the box stating "left" for these diagnosed disabilities, when the Veteran was actually diagnosed with these foot disabilities bilaterally. He reported his current foot symptoms to be decreased range of motion, aching, shooting pain, and stiffness. For treatment, he was noted to use insoles, Tylenol as needed for pain, and foot rubs with tennis ball or frozen water bottle. The Veteran reported flare ups approximately once per month lasting one to two days. The flare ups were described as increased pain with standing and walking. The pain was noted to be of moderate severity. It was also noted that during a flare up, the Veteran cannot stand for more than 15 minutes. Under functional impairment, it was noted that the Veteran could not stand or walk long distances. With respect to pes planus, the Veteran was noted to have bilateral pain on use with right foot accentuated, bilateral pain on manipulation, and characteristic calluses. He was noted to have decreased longitudinal arch height bilaterally and use arch supports. There was objective evidence of marked deformity and marked pronation bilaterally. The Veteran's weight-bearing line was not noted to be over or medial to the great toe. The Veteran was not noted to have inward bowing or inward displacement and severe spasm of the Achilles' tendon. The Veteran was noted to have bilateral plantar fasciitis without surgical treatment. Under functional loss, the VA examiner indicated that the Veteran had bilateral deformity, instability of station, disturbance of locomotion, interference with standing, pain, and fatigue. The VA examiner noted that the Veteran had deformity of bilateral bunions and hammer toes, with right being worse. The VA examiner concluded that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare ups and after repeated use over time, describing the limitation as the Veteran being unable to stand for long periods or walk long distances. The VA examiner indicated that there was evidence of bilateral pain with passive motion, active motion, weight-bearing, nonweight-bearing, and rest/nonmovement. September 2016 imaging studies were cited, and the results indicated no osseous abnormality, right foot pes planus being worse than left, and right foot greater than left first MTP joint degenerative changes. In April 2021, the Veteran underwent a VA examination for his claim. He was diagnosed with bilateral pes planus, bilateral plantar fasciitis, left foot hallux valgus, right foot hallus rigidus, and arthritis. It was noted that the Veteran has been walking with a cane due to left leg instability and right leg pain and uses inserts for both feet. The Veteran reported dull pain from the outer leg to the toes. Under functional loss, it was noted that the Veteran has dull arch pain and his toes go to sleep at times. The Veteran was noted to have bilateral pain on use, which was accentuated with use. He was also noted to have bilateral pain on manipulation which was also accentuated. There was no indication of swelling on use. The Veteran was noted to have bilateral characteristic callouses. The Veteran's disability was noted to be symptomatic despite use of arch supports. There was no extreme tenderness of plantar surfaces. The Veteran's was noted to have decreased longitudinal arch height on weight-bearing bilaterally. His weight-bearing line was noted to be over or medial to the great toe bilaterally. There was no objective evidence of marked deformity and no marked pronation. He was noted to have left inward bowing of the Achilles' tendon but no marked inward displacement of the Achilles' tendon. The VA examiner indicated that the Veteran's plantar fasciitis did not cause functional loss. The Veteran was not noted to have Morton's neuroma or hammer toes. For left side hallux valgus, the Veteran was noted to have mild or moderate symptoms. For right side hallux rigidus, the Veteran was noted to also have mild or moderate symptoms. There was no pes cavus. Under symptoms, the Veteran was noted to have right foot less movement than normal, right foot swelling, bilateral disturbance of locomotion, bilateral interference with standing, bilateral pain, bilateral fatigue, and bilateral lack of endurance. The VA examiner indicated that pain, fatigability, weakness, lack of coordination significantly limit functional ability during flare ups and/or after repeated use over time, and noted that the Veteran avoids walking more than 30 minutes at a time and uses a cane for support. There was evidence of pain bilaterally on passive motion, bilaterally on active motion, bilaterally with weight-bearing, and on the right side with nonweight-bearing. In April 2021, the VA produced an addendum opinion which indicates a diagnosis of hallux valgus, hallux rigidus, plantar fasciitis, and pes planus of the left foot. The VA examiner indicated that they are unable to provide a definite diagnosis of hammer toes without an in-person examination. Based on a review of the entire record, the Veteran's service-connected right foot hallux valgus more nearly approximates a 10 percent disability rating for the entire period on appeal. As noted above, DC 5280 provides a 10 percent maximum rating for unilateral hallux valgus operated with resection of the metatarsal head, or for unilateral hallux valgus that is severe, equivalent to amputation of the great toe. Here, the Veteran's right foot hallux valgus has been described as manifesting in mild to moderate symptoms with no evidence of resection of the metatarsal head. However, based on the Veteran's reports of constant pain in the right foot as a result of the hallux valgus, a 10 percent disability rating is warranted for the entire period on appeal. In other words, the Veteran's symptoms of constant worsening pain, flare ups, interference with standing and walking for prolonged periods of time more nearly approximate the criteria contemplated by a 10 percent disability rating. Notably, pursuant to Southall-Norman, if an applicable musculoskeletal Diagnostic Code does not contemplate a noncompensable rating, the lowest compensable disability rating will be assigned when subjective pain is noted within the record. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Under DC 5280, 10 percent is listed as the minimum and maximum disability rating. Therefore, a 10 disability rating of 10 percent, but no higher, is warranted for the service-connected right foot hallux valgus for the entire period on appeal under DC 5280. Staged ratings have been considered in this case and are not for application. In this regard, the Veteran's symptoms have stayed largely the same throughout the period on appeal. With respect to the February 7, 2021 revisions of the rating criteria for musculoskeletal disabilities under 38 C.F.R. § 4.71a, an additional diagnostic code, DC 5269 (plantar fasciitis) was added. As no amendments to DC 5280 were made, the revisions are not appliable in this case. Application of other diagnostic codes has been considered and would not warrant a higher rating. Specifically, the evidence does not demonstrate a diagnosis of bilateral weak foot (DC 5277), acquired claw foot (DC 5278), anterior metatarsalgia (DC 5279), or malunion or nonunion or the tarsal or metatarsal bones (DC 5283). The February 2021 VA examination report indicates that the Veteran was diagnosed with right foot hallux rigidus. Hallux rigidus is rated under DC 5281. However, DC 5281 directs the VA to rate the condition as hallux valgus, severe. The Veteran was also noted to have hammer toes. However, the maximum rating under DC 5282 is 10 percent for all toes. In this case, the evidence does not show that the Veteran has the condition on all toes. As such, a 10 percent rating under DC 5282 is not warranted. Finally, DC 5276 provides the rating criteria for flat feet. There is an indication that the Veteran has been diagnosed with flat feet. This disability is not service-connected, and no claim has been filed. As such, DC 5276 is not for application. (Continued on the next page) In sum, as the Veteran's right foot hallux valgus manifested in pain, flare ups, and functional limitation, a 10 percent disability rating is warranted under 38 C.F.R. § 4.71a, DC 5280 for the entire period on appeal. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.