Citation Nr: A25035264 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210708-171780 DATE: April 16, 2025 ORDER Entitlement to a rating in excess of 10 percent for a right foot hallux valgus disability is denied. Entitlement to service connection for glaucoma to include as secondary to -connected disabilities is denied. FINDINGS OF FACT 1. Throughout the relevant period, the Veteran is receiving the highest schedular ratings for his right foot hallux valgus. 2. The Veteran's glaucoma is not secondary to service-connected hypertension, and is not otherwise related to an in-service injury or disease. 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, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5280. 2. The criteria for service connection for glaucoma due to service-connected hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 8, 2021 Supplement Statement of the Case (SSOC) rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran opted his claim into the new AMA system of appeals by filing a VA Form 10182 and appealing his claim to the Board of Veterans' Appeals (Board). See 38 C.F.R. § 3.2400 (c)(2) (stating that a claimant with a legacy appeal may elect to opt-in to the AMA system by filing an AMA review option, including a Board appeal, within 60 days after issuance of a SOC or supplemental statement of the case (SSOC)). On his VA Form 10182, the Veteran selected the Evidence Submission docket. Based upon this selection, the Board may consider the evidence of record as of June 8, 2021-the date of the SSOC (i.e., the decision on appeal)-and evidence submitted with or within 90 days of VA's receipt of the VA Form 10182 on June 8, 2021. See 38 C.F.R. § 20.303. Increased Rating 1. Entitlement to a rating in excess of 10 percent for a right foot disability The Veteran contends is seeking a higher rating for his right foot disability, specifically hallux valgus due to increased pain and fatigue. Initially, the Board notes that the Veteran is also service-connected for right lower extremity radiculopathy associated with a service-connected lumbar spine disability that is currently being adjudicated by the Board under docket number 210609-166032. This issue is currently assigned to a different Veterans Law Judge, and therefore this Board decision will not consider any neurological symptoms, that will be discussed in the separate claim noted above. The Veteran's right foot hallux valgus is rated 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. 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 has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). Unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. An August 2007 VA podiatrist medical record shows that the Veteran reported experiencing right foot drop and was assessed with decreased muscle strength on dorsiflexion and eversion against resistance. No pain on palpation was assessed. A June 2010 statement from a private podiatrist noted that the Veteran reported he did not experience much pain in the foot but it remained rotated inward which caused instability and tripping when walking. Muscle strength was noted to be normal. The right foot was noted to be inverted during stance, causing supination of the subtalar joint, and inversion of the forefoot. A June 2010 statement from a private physician noted that the Veteran had a right foot drop with weakness due to spinal stenosis. A July 2019 private opinion shows that the right ankle instability was due to right foot disability and long-term abnormal gait problems. Additionally, the private examiner noted that the lower back disability and right lower extremity radiculopathy were the cause of the foot drop. A February 2021 VA foot condition Disability Benefits Questionnaire (DBQ) shows that the Veteran was diagnosed with right foot valgus deformity. Aching pain and tenderness were reported. Flare-ups of the right foot occurred daily. The right foot flare-ups were moderately severe. The right foot flare-ups lasted several hours to all day. The right foot flare-ups were noted to be precipitated by prolonged walking and standing. The right foot flare-ups were alleviated by rest. The Veteran reported difficulty with prolonged walking and standing. The VA examiner determined that the right foot valgus deformity was assessed as moderate. Chronically compromised weight bearing was assessed. The VA examiner noted that the foot condition did not require arch supports, custom orthotics, or shoe modifications. Pain on examination was noted. The VA examiner also noted that factors of the right foot disability were interference with standing and pain. Functional ability was limited to include during a flare-up and repeated use over time noted as foot tenderness and pain with prolonged walking. Pain on active motion and weight bearing were assessed. The regular use of a cane was also noted and assessed. The functional impact of the condition were foot tenderness and pain with prolong walking more than 15 minutes. The VA examiner also reported that there was objective evidence of pain on active range of motion testing of the right foot. There was no evidence of pain on passive range of motion testing of the right foot. There was objective evidence of pain on weight bearing testing of the right foot. There was no evidence of pain on non-weight bearing testing of the right foot. A May 2021 VA foot conditions DBQ shows that the Veteran was diagnosed with hallux valgus of the right foot. The Veteran was also diagnosed with gout affecting the bilateral feet, which has already been determined to be service connected. The Veteran reported that he experienced pain that was self-rated as a 7 out of 10 regarding severity. He also reported more pain on days of cloudy and rainy weather. The Veteran self-reported that he had difficulty walking and could not stay on his feet for long periods of time. He reported difficulty moving the foot and on occasion had to pick it up or it would drag. For current treatment, the Veteran would take medication for pain and also wore soft shoes. Flare ups were reported to occur when weather changed or when he stood on his feet for prolonged periods of time. On cold days flare-ups would occur every other day, and 1 to 3 times per week in warmer weather. Flare-ups were alleviated with staying off of his feet and sometimes with the use of medication. The Veteran reported weakness of the right foot with foot drag. During flare-ups, his standing period was shorter and he would need to walk with a cane or he might fall. The VA examiner noted that the symptoms of the hallux valgus was mild or moderate symptoms. Surgery had not been conducted to treat the condition. Regarding gout, the VA examiner noted that flare-ups were reported on occasion and the last one was in 2020 but was not observed on the current examination. Severity was assessed as moderate, with no compromised weight bearing or need to wear arch supports with orthotics was required to treat the condition. Contributing factors of the right foot disability were noted as weakened movement, interference with standing, pain, and fatigue. Functional loss during and not during a flare up would occur. Pain occurred on active and weight-bearing. Subjective symptoms of limping with pain were reported when walking for short periods of time. Constant use of a cane was noted due to foot and back pain. Regarding occupational impairment, the Veteran was noted to be retired from construction and stocking shelves. The Veteran would be unable to stand or walk for long periods of time. The maximum rating under Diagnostic Code 5280 for a single foot manifested by hallux valgus is 10 percent, and therefore, a higher rating is therefore not possible under this diagnostic code. As Diagnostic Code 5280 specifically contemplates hallux valgus, evaluation under the general category of Diagnostic Code 5284 for other foot injuries or evaluating his condition under any other diagnostic code is prohibited. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (holding that when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy). Additionally, as noted above the Veteran is service-connected for neurological symptoms of the right lower extremity that is currently appealed to the Board under a different docket number and awaiting adjudication. The evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. Finally, the record, including the Veteran's lay contentions, does not establish a disability picture so severe as to not be contemplated by the rating criteria for the Diagnostic Code assigned, or to result in hospitalization or other extraordinary circumstances such that referral for extraschedular rating is required. 38 C.F.R. § 3.321. The Board acknowledges the Veteran's reports of symptoms and additional symptoms listed by the Veteran throughout the appeal period. However, those symptoms are already contemplated in the rating criteria. As such, to allow additional disability compensation for those symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. As the Veteran is in receipt of the highest schedular ratings for his right foot hallux valgus, a rating in excess of 10 percent is not warranted, and the claim for a ratings in excess of 10 percent for right foot hallux valgus is denied. As the evidence of record persuasively weighs against a rating in excess of the maximum 10 percent rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Service Connection 2. Entitlement to service connection for glaucoma to include as secondary to service-connected disabilities The Veteran contends that his diagnosed glaucoma is secondary to his service connection hypertension. The Veteran has only put forth a secondary service-connected theory of entitlement to service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to, or the result of, or is aggravated beyond by a service-connected disability, specifically hypertension. The Board concludes that, while the Veteran has a current diagnosis of glaucoma, the probative evidence of record persuasively weighs against finding that the Veteran's glaucoma is proximately due to, or the result of, or aggravated by, his service-connected hypertension. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. An August 2010 VA examination report shows that the examiner considered the Veteran's contention that his glaucoma was secondary to his high blood pressure which in theory seemed plausible. However, the VA examiner reported that in the Veteran's case, it appeared that elevated ocular pressures developed after trauma to each eye. After a motor vehicle accident, the Veteran had trauma to the right eye and developed ocular hypertension in the right eye and after a cement chip hit his left eye, ocular pressures increased in the left. In 1997, it was noted that the Veteran had elevated pressures in the right eyer and normal pressure in the left eye. Therefore, the VA examiner determined that glaucoma was not caused by or the result of military service or hypertension. An April 2021 VA examination shows that the VA examiner reviewed the Veteran's claims file and noted normal inservice blood pressure readings. The VA examiner determined that it was less likely than not that the Veteran's glaucoma was caused or aggravated by the service-connected hypertension. The VA examiner remarked that after post service injuries to include a motor vehicle accident and cement chip into his left eye showed increased ocular pressures. Regarding secondary-service connection, the Board finds that the persuasive and probative evidence is against service connection on a secondary basis. The August 2010 and April 2021 VA examiner's opined that it was less likely than not that the Veteran's glaucoma was caused and/or aggravated by service-connected hypertension. The VA examiner noted that ocular pressure was elevated due to post-service motor vehicle accident and an incident when a cement chip went into his left eye. Accordingly, service connection on a secondary basis is denied. Although the Veteran believes his glaucoma was caused and aggravated by service-connected hypertension, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction and causal relationships between different disorders and medical knowledge. Therefore, it is outside the competence of the Veteran in this case to provide an etiological opinion because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, the Veteran's statements in this regard are not competent and lack weight. The Board gives more probative weight to the medical opinions on file that shows no causal relationship between his glaucoma and hypertension. The VA examiners conducted an in-person examination of the Veteran, reviewed the Veteran's relevant medial history, and considered relevant pieces of information, such as the Veteran's post-service treatment record, the Veteran's statements regarding the glaucoma onset and his treatment, and diagnostic testing. Furthermore, the VA opinions showed consideration of relevant factors, to include the Veteran's post-service injuries and provided a rationale for the conclusions reached. For these reasons, the Board places finds the above medical opinions to be persuasive and worth of weight. As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable and service connection for glaucoma, to include as secondary to service-connected disability, is denied. Lynch v. McDonough, 21 4th 776, 781-82 (Fed. Cir. 2021). Michael Lane Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin 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.