Citation Nr: 0812183	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  07-19 996	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a rating in excess of 20 percent for residuals 
of a left foot injury with onychomycosis of the great left 
toe.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

J. Hager, Counsel
INTRODUCTION

The veteran had active service from September 1968 to 
September 1972.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2006 rating decision in 
which the RO denied a rating in excess of 20 percent for 
residuals of a left foot injury with onychomycosis of the 
left great toe.  The RO continued the 20 percent rating in a 
January 2007 rating decision.  The veteran filed a notice of 
disagreement (NOD) in February 2007, and the RO issued a 
statement of the case (SOC) in May 2007.  The veteran filed a 
substantive appeal (via a VA Form 9, Appeal to Board of 
Veterans' Appeals) in June 2007.

In October 2007, the Board remanded this matter to the RO 
(via the Appeals Management Center (AMC), in Washington, 
D.C.) for additional development, specifically, to afford the 
veteran the Board hearing he had requested in his substantive 
appeal.  In January 2008, the veteran testified during a 
videoconference hearing before the undersigned Veterans Law 
Judge; a transcript of that hearing is of record.


FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the claim on appeal has been accomplished.

2.  The evidence is at least evenly balanced as to whether 
the residuals of the veteran's left foot injury are severe 
rather than moderately severe.


CONCLUSION OF LAW

Resolving all reasonable doubt in the veteran's favor, the 
criteria for a 30 percent rating for residuals of a left foot 
injury with onychomycosis of the left great toe are met.  38 
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Code 5284 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2007)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA have been codified, as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).

In view of the Board's favorable disposition of the veteran's 
claim, i.e., granting the requested 30 percent rating for 
residuals of a left foot injury with onychomycosis of the 
great left toe, the Board finds that all notification and 
development action needed to fairly adjudicate the claim has 
been accomplished.


II.  Analysis

The veteran sustained a fracture of the left foot during 
service.  The residuals of this left foot injury are rated 
under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 (2007), 
applicable to "other" foot injuries.  Under DC 5284, 
moderate disability warrants a 10 percent rating, moderately 
severe disability warrants a 20 percent rating, and severe 
disability warrants a 30 percent rating.  A note following 
the above criteria indicates that a 40 percent disability 
evaluation will be assigned for actual loss of use of the 
foot.  

The terms "moderate," "moderately severe" and "severe" 
are not defined in the rating schedule; rather than applying 
a mechanical formula, VA must evaluate all the evidence to 
the end that its decisions are "equitable and just."  See 
38 C.F.R. § 4.6 (2007).

Considering the pertinent evidence in light of the above,  
the Board finds that the schedular criteria for a 30 percent 
rating for the veteran's service-connected residuals of a 
left foot injury with onychomycosis are met.

The evidence is at least evenly balanced as to whether the 
residuals of the veteran's left foot injury are severe rather 
than moderately severe.  The May 2006 VA examination report 
indicates that there was tenderness on palpation at the base 
of the left large toe and redness, both of which were 
attributed to the in-service fracture.  In addition, the foot 
was warm and there were calluses on it.  The veteran also 
walked with a limp and was unable to bend his large left toe.  
X-rays showed severe osteoarthritis of the left first 
metatarsophalangeal joint, with loss of joint space, 
subchondral sclerosis and osteophyte formation.  The 
diagnosis was degenerative arthritis of the left first 
metatarsophalangeal joint with chronic pain and ankylosis.

Given the nature of the above residuals of the veteran's left 
foot injury and the significant impairment caused by them, 
the Board finds that, with all reasonable doubt resolved in 
favor of the veteran, these residuals are severe, warranting 
a higher, 30 percent rating.  See 38 U.S.C.A. § 5107(b) (West 
2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. 
Derwinski, 1 Vet. App. 49, 53-56 (1990).

As the veteran's representative indicated during the October 
2007 videoconference hearing that he was seeking a 30 percent 
rating (p. 10), and the Board has granted this request in 
full in this decision, consideration of a higher rating on an 
extra-schedular or any other basis is unnecessary.


ORDER

A 30 percent rating for residuals of a left foot injury with 
onychomycosis of the great left toe is granted, subject to 
the legal authority governing the payment of compensation 
benefits.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs