Citation Nr: 0112154 Decision Date: 04/30/01 Archive Date: 05/03/01 DOCKET NO. 00-07 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a higher initial evaluation for residuals of an ingrown toenail, right great toe, currently rated noncompensably disabling. ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from November 1942 to February 1946. The veteran was determined by the RO to be incompetent in October 1999. The appellant (the veteran's spouse) has been authorized to act as his guardian. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO), which granted the veteran service connection for residuals of an ingrown toenail, right great toe and rated this disorder as noncompensably disabling. FINDINGS OF FACT 1. All identified relevant evidence necessary for disposition of the appeal has been obtained. 2. The veteran's right great toe ingrown nail residuals are manifested by proud/flesh granulation and a history of infections without functional loss or significant pain. CONCLUSION OF LAW The criteria for a compensable rating for a right great toe disorder have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.7 and Part 4, Diagnostic Codes 5280, 5281 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records reveal that in 1942 the veteran was treated for an infection caused by an ingrown toenail of the right toe of the right foot. On VA examination in April 1998, the veteran was noted to suffer from Alzheimer's disease with related memory deficit. The veteran's spouse related that in the last 2 years the veteran has had an infection of the right big toe on 3 occasions. The last infection reportedly occurred 2 months earlier and was said to be manifested by localized redness and pus around the medial edge of the right big toenail. Treatment by his wife consisted of soaking the foot and applying Neosporin ointment twice a day. It was noted that the veteran had no complaints of joint disease and did not use crutches, brace, cane, or any corrective shoes. On physical examination the veteran did not show any functional loss in the feet. The toe had full range of motion. It did not show any local redness, swelling, or pain on movement and there was no edema or tenderness. There was a piece of hard skin at the medial edge of the right big toenail. There was no callus or skin break. The veteran's posture was normal on standing, squatting, supination, pronation and rising on toes and heels. An X-ray of the right foot showed narrowing of the interphalangeal joint. The examiner concluded as a diagnostic impression that the veteran had crust formation at the medial edge of the right big toenail with no present evidence of local inflammation. In a statement dated in December 1998 the veteran's daughter noted that the veteran had been recently treated for problems with his toes by VA and also had been treated by a private physician at an adult daycare he attends twice a week. A Blue Shield billing record and a report of treatment at the Riverside Adult Daycare Center shows treatment provided to the veteran by a private podiatrist between August 1998 and October 1998 for debridement of elongated hypertrophic and mycotic toenails, bilateral. The veteran was noted on several occasions to have pain on palpation of his nails, bilateral. On a VA examination in January 1999 the veteran was unable to comment in a coherent fashion due to his Alzheimer's disease. His wife stated that she could no longer comment on pain, weakness and swelling of the right great toe. It was noted that medical records showed that in 1942 or 1943 the veteran had surgery for ingrown toenail of the right great toe and since then he has treated the pain in his toe with warm salt water and an application of antibiotic ointment. It was observed that the veteran does not wear any special shoes and does not require inserts or braces at this time. On physical examination the veteran was found to have evidence of proud/flesh granulation at the medial aspect of his right great toe. There did not appear to be any erythema, swelling, frank drainage, calor or dolor. The examiner noted that with palpation and pressure the veteran remained in a previously noted very quiet state without his eyes being opened. There did not appear to be any cellulitis, joint line pain or inflammation of the joint area. On weight bearing the veteran appeared to have a normal longitudinal arch with mild pronation only on the right foot. There did not appear to be any callosities, fissures, ulcers, or other breakdown in his skin. The skin had normal color, turgor, and elasticity. Digital hair was apparent bilaterally. An X-ray of the right foot was interpreted to reveal no evidence of fracture, dislocation or subluxation. The metatarsal, phalangeal, and interphalangeal joint spaces appeared to be normal and even. VA outpatient treatment records compiled between September 1998 and December 1999 show evaluation and treatment provided to the veteran by a VA podiatrist. The veteran was noted on several occasions to have elongated, dystrophic nails without any evidence of infection and/or open lesions. Analysis On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law rewrites the 38 U.S.C.A. §§ 5100-5107 (duty to assist) provisions to eliminate the well-grounded claim requirement, and requires the Secretary to provide additional assistance in developing all facts pertinent to a claim for benefits under Title 38 of United States Code. Although the RO did not adjudicate the veteran's claim subsequent to the enactment of the VCAA, the claimant was provided VA rating examinations. The RO collected all identified medical records. The veteran was provided notice of the applicable law and regulations. There is no indication in the record that there is any additional evidence that has not been associated with the claims file. The Board finds the veteran is not prejudiced by appellate review at this time without additional RO adjudication after enactment of the VCAA. See Bernard v. Brown, 4 Vet. App. 384 (1993). Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, (Rating Schedule), which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. 38 C.F.R. Part 4. Where a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more clearly approximates the criteria for the higher rating; otherwise a lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt that arises in considering the evidence must be resolved in favor of the veteran. 38 C.F.R. § 4.13. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); see also Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Disabilities will be rated on the basis of functional impairment. Weakness is considered as important as limitation of motion in a part that becomes painful on use must be regarded as seriously disabled. It is the intent of the Rating Schedule to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2000). Pursuant to the above-mentioned Rating Schedule, the severity of the veteran's right great toe disorder is ascertained by application of the criteria set forth in Diagnostic Codes 5280, 5281. Under the provisions of Diagnostic Code 5280 a 10 percent evaluation is warranted for unilateral hallux valgus which has been operated on with resection of the metatarsal head or if the hallux valgus is severe, equivalent to amputation of the great toe. Under Diagnostic Code 5281 severe, unilateral hallux rigidus is rated under the criteria for hallux valgus. Here the evidence shows no hallux rigidus or hallux valgus. In fact, the only symptom noted which is attributable specifically to the right great toe is proud flesh granulation. None of the medical evidence indicates that the veteran has painful motion of the right great toe, functional impairment attributable thereto, or that the right great toe is other than essentially asymptomatic. Examinations of the right great toe in April 1998 and January 1999 were negative for any findings of inflammation, fissures, ulcers or other breakdowns in his skin and the toe had full range of motion. Reports of treatment at the day care center indicate pain on palpation of all nails, meaning that the pain is not a symptom of the service-connected right great toe condition. Accordingly, the criteria for a compensable rating for a right great toe disability are not met and entitlement to a compensable rating, therefore, is denied. Since the veteran's service-connected right toe disorder has been essentially stable since the award of service connection, a staged rating for this disorder as prescribed by the United States Court of Appeals for Veterans Claims in Fenderson v. West, 12 Vet. App. 119 (1999) is not indicated. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the appellant but does not find that the evidence is approximately balanced such as to warrant its application. ORDER A higher initial evaluation for residuals of an ingrown toenail, right great toe is denied. J. E. Day Member, Board of Veterans' Appeals