Citation Nr: 0003556 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-04 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hallux valgus of the right foot, to include the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 (1999). 2. Entitlement to a rating in excess of 10 percent for hallux valgus of the left foot, to include the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 (1999). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from October 1977 to October 1980. This appeal arises from a September 1992 rating decision from the Providence, Rhode Island Regional Office (RO) that granted service connection for hallux valgus of the right foot with an evaluation of 10 percent and granted service connection for hallux valgus of the left foot with an evaluation of 10 percent. On May 7, 1997, a hearing was held at the RO before Iris S. Sherman, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). This case was remanded in July 1997 for further development. The case was thereafter returned to the Board. It was noted in the previous Remand that the veteran was awarded service connection for hallux valgus of the right foot and of the left foot by rating action of September 1992 and that temporary total ratings were awarded the veteran subsequently based on foot disabilities. Inquiry was made of the RO to determine the full extent of the veteran's service connected disability. By rating action of June 1999 the RO determined that the grant of temporary total ratings benefits in rating decisions dated in January 1994, June 1994, November 1994, June 1995, and July 1995, were clearly and unmistakably in error under 38 C.F.R. § 3.105(a) as none of the surgeries performed were related to the service connected hallux valgus. The Board notes that the appellant has described a right fifth metatarsal disability and a flat foot disability as secondary to the service connected hallux valgus of the right foot. The RO has not developed these issues. The issues are not inextricably intertwined with the current appeal. As no action has been taken, they are referred to the RO for the appropriate action. FINDINGS OF FACT 1. The claims for an increased rating for hallux valgus on the right and left are plausible, and all relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. Hallux valgus of the right foot is rated at the maximum schedular rating provided by regulation. 3. Hallux valgus of the left foot is rated at the maximum schedular rating provided by regulation. 4. The veteran has tender scars of each foot related to the service connected hallux valgus. 5. The veteran's service connected hallux valgus of the right foot or hallux valgus of the left foot does not markedly interfere with the veteran's employment or result in frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 10 percent for hallux valgus of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5280 (1999). 2. The criteria for the assignment of a rating in excess of 10 percent for hallux valgus of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5280 (1999). 3. Separate 10 percent ratings based on the presence of a tender scar of each great toe under Diagnostic Code 7804 are warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7804 (1999). 4. The criteria for referral of the veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for an extra-schedular evaluation have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that he had treatment for bilateral hallux valgus, including surgery on the right foot. By rating action of May 1981, service connection for hallux valgus of the right foot was granted with an evaluation of 10 percent assigned, and service connection for hallux valgus of the left foot was granted with an evaluation of 10 percent assigned. In June 1992, the veteran filed a claim for an increased rating for his service connected disability. A VA record from July 1992 shows that the veteran had an Austin bunionectomy of the left foot for left foot hallux valgus. On a VA examination later in July 1992, the right foot revealed a well healed 8 cm. scar on the medial dorsal great toe, a 5 cm. scar on the dorsum of the great toe, and a well healed 3 cm. scar between the great toe and 2nd toe that were not tender or fixed. The right foot was pulled laterally when the veteran walked or dorsiflexed the foot. The right toe was occasionally swollen, erythematous, and tender and painful at times. The examination of the left foot showed that the veteran was wearing a heavy reinforced case dressing for plantar support and no examination was possible. The x- rays of the right foot showed a well healed osteotomy through the neck of the great toe that was transfixed with one wire pin. The impression included status post osteotomy of the right great toe for hallux valgus manifest by complaints of swelling, redness, tenderness, pain, and being pulled to the outside when walking; and status post surgery of a hallux valgus on the left foot, still recovering. It was noted that the veteran had some problem with the surgery performed on the right foot. By rating action of September 1992, service connection for hallux valgus of the right foot and service connection for hallux valgus of the left foot was granted. The current appeal to the Board arises from this action. A VA outpatient record from November 1992 shows that the veteran was seen with complaints of painful bunion deformity of the right foot with lateral deviation of the right hallux progressively worsening in the last five years. On examination, lateral deviation of hallux was noted at the level of the interphalangeal joint of the right foot. A prominent medial first metatarsal head of the right foot was noted. Pain was elicited with palpation of the medial first metatarsal head of the right great toe. No crepitus was noted on range of motion. The veteran had an osteotomy/bunionectomy of the right foot. The diagnoses included painful bunion, hallux abductovalgus, right foot. A VA outpatient record from February 1992 shows that the veteran complained of pain status post surgery of the right foot. The range of motion of the first metatarsophalangeal joint of the right foot was within normal limits. On a VA examination in February 1993, the veteran complained of pain when walking or during inclement weather. He complained that his toes would swell if the legs were not elevated. On examination, the right foot revealed a well healed 6 cm. scar on the dorsum of the great toe that was not tender or fixed. There was a well healed 15 cm. scar on the dorsum of the great toe that was slightly tender but not fixed. A screw head could be felt at the base of the great toe. The range of motion of the great toe was to 15 degrees of plantar flexion and to 0 degrees dorsal flexion; strength was poor. On examination, the left foot revealed a well healed 7 cm scar on the dorsum of the great toe; this was also tender but not fixed. The range of motion of the toe was plantar flexion to 20 degrees, and dorsiflexion to 0 degrees; strength was poor. The x-rays showed a post operative osteotomy of the proximal phalanx of the great toe and the first metatarsal bone with screw fixation of the right foot and hallux valgus with a pin through the first metatarsal bone of the left foot. The impression was hallux valgus bilateral manifested by complaints of pain and limitation of motion; status post osteotomy proximal phalanx, right great toe manifested by complaints of tender screw head, some limitation of motion, and limping; and hallux valgus of the left foot with a pin fixation in 1992. The discussion noted that the veteran still had some difficulty with his hallux valgus and postoperative surgery which might be expected to continue to some degree in the future. He still had pain and limping on the right foot and the presence of the screw head loosening caused tenderness. A VA treatment record from March 1993 shows that the veteran complained of a painful screw of the right first metatarsal. The hardware was removed. A VA outpatient record from April 1993 shows that the veteran was seen 4 weeks status post hardware removal of the first metatarsal right foot. The veteran was still non weight bearing on crutches. The x-rays showed evidence of continued healing of the osteotomy site of the first metatarsal. The assessment was approximately four weeks status post hardware removal first metatarsal of the right foot without complications. A notation from a VA physician from April 1993 indicated that the veteran underwent removal of hardware of the first metatarsal of the right foot in March 1993. A VA outpatient record from May 1993 shows that the veteran was seen for cast removal. He was six weeks status post hardware removal first metatarsal of the right foot without complications. On a VA examination in February 1994, the veteran's right foot was in a cast due to surgery of the right fifth metatarsal. On a VA physical therapy record from June 1994, it was noted in part that the toes of the right foot had minimal flexion and abduction. The veteran had scars of the right foot. On a VA examination in July 1994, the veteran reported chronic pain and swelling of the right foot, and he had been using a cane. He had no complaints related to the left foot. On examination, the right foot had multiple surgical scars over the first metatarsal and fifth metatarsal. The first metatarsophalangeal was supple and in good alignment. The range of motion was to approximately 30 degrees with a stable joint. He had a significant amount of scar tenderness and pain with pressure on the plantar surface of the metatarsal head. The x-rays of the first metatarsal showed a healed proximal osteotomy site. There were two screws present in the proximal phalangeal osteotomy that appeared healed. There was evidence of osteoarthritis of the first metatarsophalangeal joint. The impression was status post two hallux valgus surgeries. Currently x-rays and clinical evidence suggested that it was healed, however, he did have some early arthritic changes in the first metatarsophalangeal joint. He had scar tenderness. The veteran additionally had malunion and nonunion of the right fifth metatarsal. VA physical therapy notes from July 1994 and August 1994 show that the veteran had complaints to include right foot pain. On a VA examination in April 1997, it was noted that the veteran had a disability of the right fifth metatarsal. The veteran complained that he could not walk more than 50 yards, he could do roofing, his feet hurt when they were cold, and they only felt good when they were elevated. On examination, the feet looked normal. However, when examined closely, left and right bunionectomy scars were visible. There was a lateral scar that was 6 cm. long. None of the scars was surgically or cosmetically significant. Beneath the scar on the lateral side of the right foot, three screw heads could be felt. He had calluses of the medial plantar surface of both big toes. The veteran was leaning heavily on his cane when he came in to the examination; however, later, he did not seem to use it at all. His gait was slow but normal. He descended stairs normally. He carried his approximately 30 pound son down one and a half flights of stairs, and then put the child down and descended the last half flight haltingly. He refused to get up on his toes and said it would be impossible for him to do so. Later in the examination, he was able to get on his toes and did so 10 times. He could not do more due to complaints of pain. He could not tolerate any weights. At one point, he ran after his child. The discussion noted that it was a difficult problem in deciding how much general disability the veteran had. He did have some disability and some pain without question but was exaggerating these elements although it was hard to tell how much. The x-rays were taken, and there two screws in the proximal phalanx of the left first toe. There was a slight deformity of the first right toe. There was very mild valgus deformity of the distal interphalangeal joints of the first toe. The veteran's right great toe was not shortened. He had a mild left hallux valgus. The diagnoses included status post bilateral bunionectomy and four other operations, mainly for repair of a fracture of the right fifth metatarsal involving plating and screwing. He had excess callous formation as indicated, and he had scars as indicated above, none of which were significant functionally or cosmetically. At the Board hearing in May 1997, the veteran testified that he had pain of both feet on weight bearing. There was swelling, and he had red and black and blue discolorations, at times. He propped up his feet which decreased the pain. He could not walk long distances. He had pain when climbing stairs. His ambulation was slow and deliberate. He used a cane and crutches, at times. The veteran stated that he used to be a plumber and was now unemployed due to his foot disabilities. The veteran stated that he additionally had pain in his feet due to the weather. Social Security records were associated with the file in February 1998 and reflect that the veteran was disabled. The primary diagnosis was personality disorder and the secondary diagnosis was affective disorders. The medical records accompanying the decision included copies of VA treatment records previously addressed. Additionally, there was a psychological evaluation from January 1994 that noted, in part, that the veteran's gait was hampered by a cast. The veteran described surgeries of his feet including of his great toes. The diagnoses included, in part, orthopedic difficulties. An April 1998 report from William F. Garrahan, M.D., shows that the veteran was seen with complaints regarding a knee. It was noted in part that the veteran had surgeries of both feet, including for hallux valgus. On a VA examination in August 1998, it was noted that the veteran had multiple foot surgeries. The veteran reported pain of the right foot and swelling mostly in the area of the previous reduction of the right fifth metatarsal fracture. It limited his ability to ambulate. He stated that shoes caused increased pressure to the area of the dorsal aspect of the right first toe. He had pain in the area of the dorsal first metatarsocuneiform joint of the left foot, which was secondary to a bump in the area. On examination, there was a well healed scar noted on the dorsal aspect of the first metatarsophalangeal joint in a linear fashion that was 5.5 cm in length. There was a similar scar noted over the area of the dorsal first metatarsophalangeal joint of the left foot, approximately 5 cm in length. The first metatarsophalangeal joint range of motion was to approximately 80 degrees of dorsiflexion and to 45 degrees of plantar flexion. No crepitus was noted with the range of motion nor was any pain elicited. Hallux abductovalgus was noted bilaterally, more so on the right than the left and this was correctable with manipulation. Hallux abductovalgus angle was to approximately 20 degrees on the right and to approximately 15 degrees on the left. There was hyperkeratotic tissue noted on the plantar medial aspect of the left hallux consistent with a pinch callus. There was a flexion contracture of the right hallux at the level of the interphalangeal joint. There were no signs of erythema or edema noted in this area. There was approximately a 1 centimeter wide dorsal exostosis in the area of the dorsal first metatarsocuneiform joint on the left foot. No erythema or edema was noted in this area. No pain was elicited with direct palpation of the area. The veteran could raise up on the toes, although not fully. The x-rays showed two screws in the area of the proximal phalanx of the right hallux. There was a large amount of bone removed on the medial aspect of the first metatarsal of the right foot. The dorsal contraction of the right hallux in the area of the interphalangeal joint was noted. The impression included that the veteran had undergone multiple procedures in regards to his feet, particularly in regards to a right hallux abductovalgus deformity in which case a large amount of the medial eminence was resected which made any further correction of this area very difficult. Under the circumstances, he had an adequate result. He was experiencing pain and swelling at times with prolonged weightbearing, especially in the area of the previous open reduction internal fixation of the fifth metatarsal. The previous bunionectomy, which was performed on the left appeared to be successful with alignment in a good position and more than acceptable. The area of the dorsal first metatarsocuneiform joint exostosis on the left appeared to be secondary to the veteran's foot type and would have probably developed over time due to the cavus attitude of that foot. In a June 1999 letter to the RO, the VA physician who treated the veteran's foot disabilities noted that the veteran achieved an acceptable correction of his bilateral hallux abductovalgus condition through surgery. There appeared to be little, if any, residual deformity. The veteran had a low threshold of pain. Clinically, there was no reason why he could not hold meaningful employment. While the veteran claimed the physician wrote a letter concerning the veteran's industrial adaptability, the physician noted that he had no such letter in his personal files nor was there such a letter in the veteran's chart. He concluded that such a letter did not exist. However, he added that if such a letter did exist, it would have very likely been written within a short time after one of the veteran's surgeries. Finally, he concluded that if such a letter were written, it would have been addressed to the Regional Office or a third party as he never gave a letter to a patient for his own generalized use. A VA outpatient record from July 1999 shows that the veteran was requesting documentation of his flatfoot condition. He had significant depression of the medial arch bilaterally with calcaneal eversion. This was usually a predecessor to hallux abductovalgus deformity which the veteran had been bothered by in the past. The midtarsal joint was unlocked into the propulsive phase of gait which would lead to increased pressure on the hallux in order to ambulate. This would cause lateral deviation of the hallux with resultant medial displacement of the medial metatarsal head leading to hallux abductovalgus formation. The increase in the flatfoot deformity usually led to increase in the hallux abductovalgus deformity. II. Analysis In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims held that there is a distinction between an original rating and a claim for an increased rating. The Court also held that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("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."), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. As this case involves a rating assigned in connection with a grant of service connection, the Board will follow the mandates of the Fenderson case in adjudicating this claim. Moreover, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2. Also, 38 C.F.R. § 4.10 provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 594. In DeLuca v. Brown, the Court held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's service connected hallux valgus of the right foot and service connected hallux valgus of the left foot is evaluated as 10 percent for each foot under Diagnostic Code (DC) 5280 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. Under Diagnostic Code 5280, a 10 percent rating may be assigned for hallux valgus, unilateral: operated with resection of metatarsal head or a 10 rating may be assigned for hallux valgus, unilateral: severe, if equivalent to amputation of great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (1999). A 10 percent disability rating is the maximum allowable under this Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (1999). Therefore, a higher schedular rating under Diagnostic Code 5280 is not assignable. Consideration has been given to rating the veteran under Diagnostic Code 5284, which pertains to other foot injuries. However, the regulations provide as follows: When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. [Emphasis added]. 38 C.F.R. § 4.40 (1999). In this case, the veteran's disability is specifically listed in the rating schedule. Thus, it is not appropriate to rate under a closely related disease or injury. In addition, rating the veteran under Other foot injuries, Diagnostic Code 5284, would be inappropriate because a foot injury contemplates injury to the foot, a larger anatomical area that that contemplated by the rating for hallux valgus which contemplates the big toe only. The undersigned notes that in the case of Esteban v. Brown, 6 Vet. App. 259 (1994), it was held that an appellant might be entitled to separate ratings for residuals of an injury, to include painful scars, if the assignment of the additional rating would not violate the rule against pyramiding. The rule against pyramiding provides that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). The critical element in determining whether separate conditions referable to the same disability may be assigned separate ratings is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. There is evidence that the veteran has scars attributable to his service connected bilateral hallux valgus. These scars have been described as tender on occasion. The Board finds that the evidence is at least in equipoise that a separate 10 percent rating for each toe is warranted from the inception of the grant of service connection. While the veteran's disability produces complaints of functional disability, the Board notes that a 10 percent evaluation also is applicable with severe hallux valgus which is equivalent to amputation of the great toe. It would be a violation of the 38 C.F.R. § 4.14 prohibition against pyramiding to compensate painful motion of the great toe when a compensable rating has already been provided for disability equivalent to amputation of the great toe. Based on this evidence, the Board finds that an increased rating based on functional loss due to the veteran's service-connected disorders is not warranted. Consideration has also been given to whether an extraschedular rating is in order. The regulations provide as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). The veteran has indicated that he was unable to work due to his foot disabilities. In a June 1999 rating decision and a June 1999 Supplemental Statement of the Case, the RO addressed the issue of entitlement to an extraschedular evaluation for service connected bilateral hallux valgus. The RO determined that the veteran's history and symptoms failed to meet the "exceptional or unusual disability picture" threshold. The Board finds no reason for upsetting the RO's determination. There is no evidence that the veteran's service-connected disability requires him to undergo frequent periods of hospitalizations. Social Security Administration records and VA outpatient and hospitalization records show treatment for psychological disabilities, substance abuse, and a right fifth metatarsal fracture. Consequently, the Board finds that an "exceptional or unusual disability picture" does not exist. ORDER Entitlement to a rating in excess of 10 percent for hallux valgus of the right foot and to an extraschedular rating under 38 C.F.R. § 3.321 (1999) is denied. Entitlement to a rating in excess of 10 percent for hallux valgus of the left foot and to an extraschedular rating under 38 C.F.R. § 3.321 (1999) is denied. Entitlement to a 10 percent rating for each of the great toes attributable to tender scar resulting from service connected hallux valgus is granted, subject to the applicable criteria governing the payment of monetary benefits. Iris S. Sherman Member, Board of Veterans' Appeals