12-28 964
12-28 964
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty Jan 2002–Aug 2006; service-connected hallux valgus (bunion) of both feet was granted effective Aug 13, 2006 with 0% ratings in Jan 2008.
- Veteran appealed the noncompensable ratings; hearings and multiple Board remands occurred (2014–2017) for additional development.
- Temporary 100% evaluations were assigned for surgical convalescence: left foot Feb 16–Jun 30, 2016; right foot Oct 11, 2016–Jan 31, 2017; those periods are not on appeal.
- Pre‑surgery medical records (2009–2015) document bilateral painful hallux valgus with pain on movement and worsened symptoms on ambulation.
- Diagnostic Code 5280 provides a maximum 10% schedular rating for hallux valgus (unless metatarsal head resection or equivalent to amputation of the great toe).
- Board applied 38 C.F.R. § 4.59 (painful motion) to assign minimum compensable ratings where appropriate and concluded the 10% cap under DC 5280 had been reached for the relevant periods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Higher initial rating for left hallux valgus prior to Feb 16, 2016 | Left foot causes painful motion warranting at least 10% | Rating should follow DC 5280; no resection or equivalent amputation so 10% is maximum | Granted 10% from Aug 13, 2006–Feb 15, 2016; no higher rating on/after Jul 1, 2016 |
| Higher initial rating for right hallux valgus prior to Oct 11, 2016 | Right foot causes painful motion warranting at least 10% | Same: DC 5280 applies and caps at 10% absent resection/amputation equivalence | Granted 10% from Aug 13, 2006–Oct 10, 2016; no higher rating on/after Feb 1, 2017 |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA notice/duty-to-notify discussed)
- Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion entitles to at least minimum compensable rating under §4.59)
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (consideration of functional loss for joint motion ratings)
- Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must produce functional loss to be considered under §§4.40/4.45)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings and consideration of evidence across periods)
- Copeland v. McDonald, 27 Vet. App. 333 (2015) (listed conditions must be rated under their specific diagnostic code, not by analogy)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt standard)