Southall-Norman v. McDonald

Crystal D. Southall-Norman (plaintiff) served in the US Marine Corps for seven years. In 2007, during her final year of service, Southall-Norman filed a claim for service-connected disability for both feet based on bunions that caused pain that was exacerbated by physical activity and by wearing heels. The Department of Veterans Affairs (VA) (defendant) examiner reported tenderness in both feet but no pain related to movement and diagnosed bilateral hallux valgus, or bunions. The VA regional office granted Southall-Norman a service connection but found that it was noncompensable under 38 C.F.R. § 4.71a, diagnostic code (DC) 5280, the section relating to hallux valgus. Southall-Norman appealed to the Board of Veterans’ Appeals (the board). Southall-Norman underwent an additional VA examination during which the examiner diagnosed pes planus, or flat feet, but found no additional functional loss. At the board hearing, Southall-Norman testified to experiencing constant foot pain while standing, while walking, and at rest. The board remanded for another VA examination, in which the examiner found pain on weight bearing and determined that the pes planus likely contributed to the service-connected hallux valgus. The VA regional office assigned a 50 percent disability rating under § 4.71a, DC 5276, the section related to disability for flatfoot. The disability was made effective as of 2014. Southall-Norman appealed to the board seeking an earlier effective date. The board found that the record did not support an earlier effective date. Southall-Norman appealed, arguing that § 4.59 required an award of at least minimum compensable disability prior to 2014 and that the board had erred by failing to consider § 4.59 when the record contained evidence of her foot pain when walking and standing and on weight bearing. The VA argued that, under § 4.59, an award of minimum compensable disability was required only if there were limitations in range of motion.