Citation Nr: 0810707 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-03 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to an increased disability evaluation for the veteran's service-connected residuals, excision, plantar wart, left great toe, currently rated as 20 percent disabling. 2. Entitlement to an effective date earlier than November 9, 1994, for the award of a 10 percent disability evaluation for the veteran's service-connected residuals, excision, plantar wart, left great toe. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from July 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that a remand is appropriate here to address an issue not on appeal. In an August 1996 statement, the veteran expressed disagreement with a June 1996 rating decision that granted the veteran a 10 percent evaluation for his left great toe disorder. The veteran expressed disagreement with the effective date assigned for the increased rating. The veteran reiterated his disagreement in an October 1998 statement. The record contains no Statement of the Case in response to these expressions of disagreement, however. See Manlincon v. West, 12 Vet. App. 238 (1999). As such, the effective date assigned for the increase to 10 percent for the left great toe disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's left great toe disorder is not severely disabling. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent, for service-connected residuals involving a left great toe disorder, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims entitlement to an increased rating for a left great toe disorder. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters from VA dated in April 2004 and March 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the evidence needed to substantiate the claim, and of the elements of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claim. And VA provided notification to the veteran prior to the initial adjudication of his claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). The Board notes a deficiency with VCAA notification, however. Though, in March 2006, VA provided the veteran with general notification on disability evaluations, VA has not provided the veteran with particular notification on disability criteria for his left great toe disorder. See Vazquez-Flores v. Peake, __ Vet. App. __, No. 05-0355 (Jan. 30, 2008). Nevertheless, the Board finds that any presumed prejudice incurred by the veteran as a result of the incomplete notice has been rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. In the veteran's April 2006 personal hearing before the RO, and in his June 2007 hearing before the Board, the veteran, and his representative, demonstrated actual knowledge of the disability criteria under Diagnostic Code 5284, which is at issue here. See Vazquez-Flores, supra. As such, the lack of notice regarding these criteria is harmless error in this matter. The Board finds that VA satisfied VCAA notification requirements here. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before one or more hearings to voice his contentions. VA provided the veteran with medical examinations for his claim. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits of the Claim for Increased Rating In August 1993, the Board service connected the veteran for a plantar wart of the left great toe. In implementing that decision, the RO assigned the veteran a noncompensable rating. Later, in a June 1996 Supplemental Statement of the Case, the RO increased the veteran's disability evaluation to 10 percent. In March 2004, the veteran filed a claim for an increased rating. In the December 2004 rating decision on appeal, the RO granted the veteran's claim, and assigned a 20 percent disability evaluation. The veteran filed a notice of disagreement against that decision, arguing that a higher evaluation was due here for the symptomatology associated with the disorder. In this decision, the Board disagrees with the veteran's contention that a higher rating is due. Under the relevant diagnostic codes in this matter, the evidence does not support a rating in excess of 20 percent at any time during the period of appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). Diagnostic Codes 5276 through 5284 address disorders of the feet and toes. See 38 C.F.R. § 4.71a (2007). Ratings in excess of 20 percent are authorized for flat foot (DC 5276), claw foot (DC 5278), severe malunion or nonunion of tarsal or metatarsal bones (DC 5283), and for a severe foot injury (DC 5284). See 38 C.F.R. § 4.71a. In this matter, the medical evidence of record shows that the veteran has a chronic wart on his great left toe which causes pain and limitation of motion. But the evidence does not support the veteran's claim for an additional increase. The veteran is not service-connected for flat foot, claw foot, or for severe malunion or nonunion of tarsal or metatarsal bones, and the veteran's service-connected disorder is not productive of severe symptomatology. Id. Evidence The medical evidence of record includes private and VA treatment records dated within the 1-year period prior to the veteran's claim for increase. See 38 U.S.C.A. § 5110 (2002); 38 C.F.R. §§ 3.157, 3.400 (2007). The record includes VA compensation examination reports dated in May 2004, August 2004, and May 2006. The relevant VA medical records dated within one year of the veteran's March 2004 claim for increase include a June 2003 x-ray indicating an unremarkable left foot, and a June 2003 treatment record noting the veteran's complaints of pain in his left foot, particularly under his left great toe. The examiner noted adequate range of motion with no edema. And the examiner noted a nucleated lesion on the plantar surface of the left great toe, which was painful to palpation. A January 2004 record noted, moreover, debridement of a lesion on the veteran's plantar aspect of hallux. Private treatment records dated from June 2003 note deeply nucleated hyperkeratosis and porokeratosis, debridement of the veteran's plantar wart, a hammertoe deformity, and the use of a toe guard. These records also note the veteran's complaints of pain, swelling, reduced range of motion in the left ankle, and assessments of gout and degenerative joint disease. The May 2004 VA examination report noted the veteran's claim that his plantar wart is trimmed every two to three months. The veteran stated that his pain increases as the size of the wart increases, and that he experiences pain while walking. The examiner noted some wear on the veteran's shoes indicating abnormal weightbearing. The examiner noted a wart on the veteran's left great toe, which was painful on manipulation. The examiner found that the veteran's painful wart increased stress to the lateral aspect of the foot and ankle, and created some increased pain and decreased endurance. The examiner also noted that the disorder precluded extended walking or standing. But the examiner noted that the veteran reported that he is able to perform normal daily activities, that he does not use an assistive device, and that he does not use shoe inserts. The August 2004 examiner did not examine the veteran. But the examiner noted that he examined the claims file. The examiner opined that the evidence indicated that the veteran did not have arthritis in his left foot or ankle, and that the veteran's mechanical pain on ambulation related to his service-connected plantar toe disorder. Nevertheless, the examiner stated that this pain - attributed to his abnormal ambulation - was not a separate pathology itself. The examiner noted that the veteran did not use assistive devices or shoe inserts, and noted that the veteran did not experience limitations following surgical shaving of the plantar wart. In several VA treatment records dated from June to September 2005, VA treatment personnel note the veteran's pain, note debridement of the wart, state that the plantar wart is related to a contracted hallux deformity, ankle arthritis, and pes planus. And these records note that the veteran used a cane and shoe inserts at that time. The May 2006 VA examiner noted the veteran's use of a cane, and the use of a shoe insert. The examiner noted a 3 mm plantar wart on the plantar side of the toe at about the level of the interphalangeal joint of the left great toe. The examiner noted tenderness and complaints of pain, and noted 0 degrees extension and 45 degrees flexion. The examiner noted no evidence of edema, weakness, or instability, and stated that repetitive motion did not "change anything." And the examiner noted normal x-rays. Nevertheless, in his conclusion, the examiner stated that the veteran's wart caused significant impairment in his foot. An October 2006 VA bone scan report noted evidence suggestive of degenerative changes. And February 2007 VA treatment records indicate that the plantar lesion is secondary to contracted hallux deformity, and that the ankle arthritis is secondary to difficulty walking associated with the plantar lesion. In a January 2007 letter, the veteran's private physician stated that the veteran has a "chronic callus on his left foot secondary to deformity changes from previous injury and arthritis of his foot." The physician stated that the veteran has permanent impairments limiting his activities of daily living. She stated that the veteran's chronic pain, and decreased flexibility and mobility, made it impossible for the veteran to walk longer than 15-30 minutes at a time. She stated that the veteran could not squat, stoop, or climb to any extent. She noted that the veteran used a cane for the past two years, and that he used shoe inserts for relief. In closing her letter, the examiner stated that the veteran was only capable of sedentary to light work. Finally, a February 2007 VA magnetic resonance imaging (MRI) indicated a "completely normal" left foot. Analysis Based on the record, the Board finds that the veteran experiences moderately severe disability as a result of the only service-connected disorder involving his left foot - the residuals involving the plantar wart on his left great toe. See 38 C.F.R. § 4.71a, DC 5284. The record indicates that the veteran may have arthritis in his left foot and ankle, and that he may have gout, flat feet, and hammertoes as well. Moreover, the record indicates that the veteran's plantar wart may be secondary to these disorders, or may have caused these disorders. Nevertheless, the veteran is not service connected for these other disorders. In fact, though the veteran disagreed with a July 2003 decision denying service connection for left foot and left ankle arthritis and swelling, he did not appeal that decision to the Board. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. In finding an increased rating unwarranted here, the Board recognizes that, despite the February 2007 MRI's finding that the veteran's left foot was "completely normal", the record contains substantial evidence indicating that the veteran has significant impairment in the area of his lower left extremity. However, the record demonstrates that this impairment stems not from the veteran's service-connected disorder, but from his non-service-connected disorders. As such, a rating in excess of 20 percent is not warranted in this matter at any time during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284; see also Hart, supra. Parenthetically, the Board notes that, while the RO rated the veteran's toe disorder under DC 5284 in the December 2004 decision on appeal, the RO initially rated the veteran under a different diagnostic code. In October 1993, the RO rated the veteran under DC 7899-7805, which addresses scars. And later, in a June 1996 rating decision, the RO rated the veteran under DC 7899-7819, which addresses benign skin neoplasms. In any event, the Board has reviewed the disability criteria of DCs 7805 and 7819 to determine whether a rating in excess of 20 percent would be authorized under these codes. But the Board finds an increase unwarranted there as well - these codes direct VA to refer to the affected part (the foot), and, based on the evidence of limitation or impairment, rate under the relevant DC addressing that affected part. In addressing DC 5284, the Board has reviewed such limitation, and impairment of function, of the foot. As such, neither DC 7805, nor DC 7819, can form the basis of a disability rating in excess of 20 percent here. The Board has considered whether an additional increase is warranted for functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, which results in additional disability beyond that reflected on range of motion measurements. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). But the Board finds an additional increase under this authority unwarranted. Though the record is clear that the veteran experiences pain in his left toe, an additional increase is not warranted because VA has already granted him compensation for the moderately severe symtomatology he experiences as a result of this service-connected disorder. Moreover, the medical evidence demonstrates clearly that much of the veteran's left foot disability stems not from the service- connected disorder, but from non-service-connected problems. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284. The Board also finds an extraschedular rating unwarranted here. Application of the regular schedular standards is found practicable in this matter. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has closely reviewed and considered the veteran's statements in this matter. While his statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the veteran's claim. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). ORDER Entitlement to an increased disability evaluation in excess of 20 percent for the veteran's service-connected residuals, excision, plantar wart, left great toe, is denied. REMAND As indicated earlier, the Board finds remand appropriate here for the issuance of a Statement of the Case regarding the issue of entitlement to an effective date earlier than November 9, 1994, for the award of a 10 percent disability evaluation for the veteran's service-connected residuals, excision, plantar wart, left great toe. In an August 1996 statement, the veteran filed a notice of disagreement against a June 1996 rating decision that granted the veteran a 10 percent evaluation for his left great toe disorder. The veteran expressed disagreement with the effective date assigned for the increased rating. The veteran reiterated this position in an October 1998 statement. The record contains no Statement of the Case in response to these expressions of disagreement, however. Accordingly, the case is REMANDED for the following action: The RO should issue a Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the veteran's claim of entitlement to an effective date earlier than November 9, 1994, for the award of a 10 percent disability evaluation for the veteran's service-connected residuals, excision, plantar wart, left great toe. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs