HALLUX VALGUS

M. DONOHUE · 2026 · Case ID: A26024078

MIXED

Summary

The veteran, who served from May 2014 to May 2015, appeals the reduction of their disability rating for a right foot fracture status post-surgical repair (hallux valgus). The Agency of Original Jurisdiction (AOJ) reduced the rating from 20 percent to 10 percent in January 2021, which also lowered the veteran's overall combined disability rating. The Board found this reduction improper because the 20 percent rating had been in effect for more than five years, triggering stabilization requirements under 38 C.F.R. § 3.344. The Board reviewed VA examinations from January 2016, June 2018, and December 2020. While examiners described the disability as mild to moderate with limitations in ambulation, pain, and range of motion, the Board found the evidence did not establish improvement sufficient to warrant the reduction. The Board restored the 20 percent rating, finding the reduction void ab initio. The issue of entitlement to a rating in excess of 20 percent for the same condition was remanded. This remand is necessary because the Board cannot determine the severity of the disability without medication, as the VA examiner did not clarify whether the veteran took medication before the exam or if it ameliorated symptoms. The examiner also did not fully complete the report, leaving some findings unclear. The Board requires a new examination to assess the disability's severity without medication, or a detailed explanation if that is not feasible.

Rationale

Restoration of 20 percent rating granted.; Reduction from 20 percent to 10 percent was improper.; Stabilization of rating requirements under 38 C.F.R. § 3.344 applied.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5280

Docket No.

210312-146062

Full Decision Text

Citation Nr: A26024078
Decision Date: 03/17/26 Archive Date: 03/17/26

DOCKET NO. 210312-146062
DATE: March 17, 2026

ORDER

Restoration of the 20 percent rating for right foot fracture status post-surgical repair (hallux valgus), effective April 1, 2021, is granted.

REMANDED

The issue of entitlement to a rating in excess of 20 percent for right foot fracture status post-surgical repair (hallux valgus) is remanded.

FINDINGS OF FACT

1. In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the rating assigned for the Veteran's service-connected right foot disorder from 20 percent to 10 percent disabling, effective April 1, 2021; the 20 percent rating had been in effect for five or more years at the time of the reduction, and such reduction reduced the Veteran's overall combined rating.

2. The rating for the Veteran's service-connected right foot disorder was reduced without observation of all regulatory requirements.

CONCLUSION OF LAW

The reduction in the disability rating for right foot fracture status post-surgical repair (hallux valgus), from 20 percent to 10 percent was not proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Codes 5280, 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service from May 2014 to May 2015.

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the hearing docket. On February 18, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the January 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or her representative, within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision.

However, regarding the remanded claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

Restoration of the 20 percent rating for right foot fracture status post-surgical repair (hallux valgus), effective April 1, 2021, is granted.

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; see also Greyzck v. West, 12 Vet. App. 288, 292 (1999). Certain due process procedures described in 38 C.F.R. § 3.105(e) must be followed where a reduction in rating of a service-connected disability or employability status is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made.

In this case, the reduction effectuated by the January 2021 rating decision resulted in a reduction or discontinuance of compensation payments being made. Specifically, the Veteran had a 50 percent combined compensation rating prior to the reduction, and her compensation benefits were reduced to a 40 percent combined compensation rating due to the reduction. Accordingly, VA was obligated to follow the procedures described under 38 C.F.R. § 3.105(e) prior to reducing the Veteran's rating for the service-connected right foot disorder under 38 C.F.R. § 3.105(e). See also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a veteran with 60-day notice before issuing a rating decision reducing a disability rating if the decision does not reduce the overall compensation paid to the veteran). The Board observes that these procedures were adhered to. Here, the Veteran was notified of the proposed reduction in July 2018 and reduced in a January 2021 rating decision with an effective date of April 2021. Having found that there was no procedural error in the reduction of the disability rating, the Board must now consider whether the reduction was factually appropriate.

Here, the Veteran was granted service connection for her right foot disability in a May 2016 rating decision. A 20 percent disability rating was assigned effective December 16, 2015. In May 2018, she filed an increased rating claim for such and was afforded a VA examination. In a June 2018 rating decision, the AOJ proposed to reduce her right foot rating to zero percent. In January 2021, the Veteran underwent another VA examination for her right foot disability, and a January 2021 rating decision reduced the Veteran's right foot disability rating from 20 percent to 10 percent disabling, effective April 1, 2021, under Diagnostic Code 5280.

At the time of the Veteran's rating reduction, her previous 20 percent rating for her service-connected right foot disorder had been in effect for more than five years but less than 20 years. Therefore, the rating could not be reduced without compliance with the provisions of 38 C.F.R. § 3.344 (a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992).

The stabilization of ratings regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a).

Turning to the evidence of record, prior to the grant of service connection, the Veteran was afforded a VA examination in January 2016. Here, she reported pain that she described as "moderately severe." She denied having flare-ups of foot pain, but it was noted that the condition "chronically compromise[d] weight bearing." It was also noted that she had undergone surgery and experienced residual pain, swelling, and a limited range of motion. There was less movement than normal, weakened movement, pain on movement, pain on weight bearing and non weight-bearing, and swelling. The examiner stated that her disability impacted her weight bearing, walking, and standing. The examiner described the Veteran's disability as "mild or moderate."

In an examination conducted two years later, the Veteran reported that her foot condition has remained the same. She described pain with ambulation. Notwithstanding her complaints, the examiner described the severity of the Veteran's foot disability as "mild" and reported that it does not compromise her weight bearing. It was noted that the Veteran had decreased productivity in relation to interference with her ability to ambulate. However, the examiner did not completely fill out the report, and it is unclear whether she continued to experience swelling in her foot or a decreased range of motion. Furthermore, the report contains some contradictory information as it states on page 6 that
her weight bearing, walking, and standing. The examiner described the Veteran's disability as "mild or moderate."

In an examination conducted two years later, the Veteran reported that her foot condition has remained the same. She described pain with ambulation. Notwithstanding her complaints, the examiner described the severity of the Veteran's foot disability as "mild" and reported that it does not compromise her weight bearing. It was noted that the Veteran had decreased productivity in relation to interference with her ability to ambulate. However, the examiner did not completely fill out the report, and it is unclear whether she continued to experience swelling in her foot or a decreased range of motion. Furthermore, the report contains some contradictory information as it states on page 6 that the Veteran does not experience symptoms due to a hallux valgus condition, but also notes that she underwent surgical resection of the metatarsal head and has been awarded service connection for hallux valgus.

Finally, the December 2020 examination noted that the Veteran has a diminished range of motion in her toe, has pain with weight bearing and non weight-bearing, and the disability has "progressed/worsened" since onset. She reported that she cannot stand or walk for more than 30 minutes. The examiner checked boxes in the report indicating that the Veteran's disability was "mild to moderate" in severity. It was also noted that she experiences disturbances of locomotion and an altered gait.

After reviewing the evidence of record, the Board finds that the evidence does not establish that the Veteran's disability ahs improved to the point that she is now better able to function under the ordinary conditions of life and work. Instead, the Veteran's symptoms have remained consistent. For example, the January 2016 and December 2020 VA examiners both described the Veteran's foot disability as mild to moderate. Both examination reports document that she has difficulty ambulating, a diminished range of motion, and pain on weight-bearing and non weight-bearing. Further, where the January 2016 examiner stated that the disability negatively impacts her ability to stand and walk, the 2020 examiner indicated that the Veteran cannot stand for extended periods and now has an altered gait.

In sum, the Board finds that there has not been an improvement in the Veteran's foot disability and restores the 20 percent rating for the Veteran's service-connected right foot disorder. Thus, the reduced rating from 20 percent to 10 percent was improper and is void ab initio. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.16(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, the 20 percent disability rating is restored.

REASONS FOR REMAND

Entitlement to a rating in excess of 20 percent for right foot fracture status post-surgical repair (hallux valgus) is remanded.

The evidence shows that the Veteran's right foot disability is treated with medication, over-the-counter (OTC) medications. See January 2021 VA examination.

In evaluating the severity of the Veteran's right foot disability, the Board must discount the beneficial effects of medication, as the relevant rating criteria do not specifically contemplate the use of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); Ingram v. Collins, 38 Vet. App. 130 (2025).

The clinician who performed the VA examination did not indicate if the Veteran had taken her medication prior to the examination. Additionally, the Veteran has not stated that her OTC medications do not work. As a result, the Board is unable to establish the Veteran's level of functioning caused by her right foot disability without the use of medication. Indeed, because the evidence of record, particularly the VA examination of record, does not adequately establish or describe the Veteran's right foot disability without the ameliorative effects of medication, this is a pre-decisional duty to assist error that must be corrected on remand.

The matter is REMANDED for the following action:

Schedule the Veteran for a VA examination to determine the current severity of the service-connected right foot disability. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

The examiner should state what the severity of the Veteran's right foot disability might be absent the ameliorative effects of any medication taken.

If this is not feasible, the clinician MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the clinician cannot provide an opinion without resorting to mere speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and
following action:

The examiner should state what the severity of the Veteran's right foot disability might be absent the ameliorative effects of any medication taken.

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.Z., 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.

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