93 Decision Citation: BVA 93-19860 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 93-04 987 ) DATE ) ) ) THE ISSUE Entitlement to an increased evaluation for residuals of an injury of the right great toe, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counse INTRODUCTION The veteran had active service from February 1943 to January 1946. In a rating decision in June 1992, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denied a rating in excess of 10 percent for service-connected residuals of an injury of the right great toe. The veteran submitted a notice of disagreement in September 1992, and a statement of the case was issued in November 1992. The veteran submitted a substantive appeal in December 1992. The supplemental statement of the case was issued in January 1993. The case was received and docketed at the Board of Veterans' Appeals (Board) in March 1993. The veteran is represented by the Disabled American Veterans, and that service organization submitted written argument to the Board in May 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a painful right foot and is unable to walk as the result of his service-connected right great toe disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), considered all of the evidence and material of record in the veteran's claims fi determined that only those items listed in the "Certified List" attached to this reference herein are relevant evidence in the consideration of the veteran's cla the relevant evidence in this matter, and for the following reasons and bases, i that the preponderance of the evidence is against the claim for a higher rating for residuals of an injury of the right great toe. FINDING OF FACT Residuals of an injury, including a fracture, of the right great toe include traumatic arthritis of joints of that toe, absence of the toenail, and complaints of pain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of an injury of the right great toe are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.20, and Part 4, Codes 5003, 5010, 5279, 5280, 5281, 5284 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background In service in 1945 the veteran fractured his right great toe. He dropped a large packing case on the toe, which almost completely tore off the toenail and caused a chip fracture of the tip of the last phalanx. Treatment included removal of the toenail and bandaging without splinting. The 1946 service separation examination noted the history of the injury, although the feet were found to be clinically normal. A rating decision in 1954 granted service connection for residuals of the injury of the right great toe and assigned a noncompensable evaluation. VA medical records from 1979 show treatment for various problems of both feet, including a traumatic deformity of the nail of the right great toe. At an August 1979 VA examination the veteran complained of pain in the right great toe, and recurrent loss and growth of the nail of that toe. Examination showed abnormalities not only of the right great toe, but also of other toes and both feet. X-rays showed arthritic changes and valgus deformities of all toes, mostly the big toes, of both feet. Clinical examination showed deformity and thickening of the right great toenail and the toenails of the 5th toe of each foot. The feet had a normal range of motion. Diagnoses included residuals of a fracture of the right great toe with traumatic deformity of the right great toenail; onychomycosis (a fungal infection) of the right great toe and both 5th toes; a corn of the left 5th toe; and degenerative joint disease of all toes. A rating decision in 1979 granted a 10 percent rating for residuals of an injury, including traumatic arthritis, of the right great toe. That rating has continued since then. VA medical records show that podiatric surgery was performed in March 1980 for permanent removal of the right great toenail, with good results. A VA examination was performed in July 1981. X-rays showed evidence of an old fracture of the tuft of the right great toe, as well as arthritic changes of various toes of both feet. Clinical examination showed minimal deformity and minimal tenderness on motion of the right great toe. Diagnoses included traumatic arthritis following fracture of the right great toe, and avulsion of the right great toenail. VA treatment records show removal of a corn from the right foot in June 1983. The file contains numerous VA medical records from 1988-1992 which refer to non-service-connected ailments and which show no specific treatment for the service-connected right great toe disability. These note that in 1987 the veteran suffered a cerebrovascular accident (stroke) which resulted in left hemiparesis (including paralysis of the left leg) and inability to walk any significant distance (the veteran has a left leg brace and uses a wheelchair). These records show treatment of such other ailments as arthritis of multiple joints and diabetes mellitus. A May 1992 outpatient record notes residuals of the prior stroke, with a nonfunctioning left lower extremity and inability to tolerate more than one or two steps at a time. A June 1992 record describes left leg paralysis and arthritis of both ankles, and the treatment plan included special molded shoes. B. Legal Analysis The record shows that the veteran's claim for a higher rating for residuals of an injury of the right great toe is well grounded, meaning it is not inherently implausible. 38 U.S.C.A. § 5107(a). The VA has a duty to assist a veteran in developing facts pertinent to a well-grounded claim. Id. We find that the RO has obtained all relevant evidence for equitable disposition of the claim and that there is no further duty to assist the veteran. 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 va Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. Part 4, Codes 5003, 5010. The rating schedule provides for a maximum 10 percent rating for metatarsalgia (foot pain) (Code 5279); hallux (great toe) valgus which is severe and equivalent to amputation of the great toe, or which has required an operation with surgical removal of the metatarsal head (Code 5280); or hallux rigidus (Code 5281). Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent evaluation requires moderately severe residuals. 38 C.F.R. Part 4, Code 5284. In reviewing the claim for an increased rating for the right great toe disability, we have considered the entire medical history. Schafrath v Derwinski, 1 Vet.App. 589 (1991). During World War II service the veteran sustained localized trauma to the right great toe, including a fracture of the tip of the distal phalanx and damage to the toenail. Arthritis in the joints of that toe, noted years after service, apparently has been attributed to the service trauma, even though the veteran has non-service-connected arthritis in other toes of both feet and in both ankles. Years after service the veteran underwent surgery for permanent removal of the nail of the right great toe, and this apparently was due to the old service injury. However, the medical records from recent years show no specific treatment, and no significant functional impairment, related to the service-connected right great toe disability. The veteran says he cannot walk because of the condition, but the medical records clearly show this problem is due to non-service-connected residuals of a stroke. Even if the veteran has pain affecting limitation of motion of the right great toe, due to traumatic arthritis, this supports no more than the current 10 percent rating which the RO has assigned under Codes 5003, 5010. The 10 percent rating is also the maximum assignable for analogous conditions (See 38 C.F.R. § 4.20) of metatarsalgia (Co 5279), hallux valgus (Code 5280), or hallux rigidus (Code 5281). A higher ratin if the disability were rated as a foot injury under Code 5284; but it is clear f residuals of the right great toe injury are no more than moderate in degree, whi 10 percent rating. ORDER An increased evaluation for residuals of an injury of the right great toe is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 STEPHEN A. JONES J. F. GOUGH L. W. TOBIN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.