Citation Nr: 1114455 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 09-35 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating for residuals of removal of an ingrown toenail on the left great toe. 2. Entitlement to a compensable rating for residuals of removal of an ingrown toenail on the right great toe. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1986 to June 1989 and from October 1989 to December 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACTS 1. For the entire appeal period, there has not been severe functional limitation of the left great toe. 2. For the entire appeal period, there has not been severe functional limitation of the right great toe. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of removal of an ingrown toenail on the left great toe have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5280; 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7804, 7805 (2007). 2. The criteria for a compensable rating for residuals of removal of an ingrown toenail on the right great toe have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5280; 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7804, 7805 (2007). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in July 2008. The Veteran was notified of the type of evidence needed to substantiate the claims for increase, namely, evidence to show that the disability has worsened and the effect the disability has on employment. The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit records not in the custody of a Federal agency, such as private medical records, or authorize VA to obtain any non-Federal records on his behalf. As for the content and for the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained VA and private treatment records. The Veteran was afforded a VA examination in August 2008. When VA undertakes to provide a VA examination, it must ensure that the examination was adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination was predicated on a physical examination, including the statements of the Veteran, and the examiner provided findings sufficient to rate each disability under the appropriate rating criteria. For these reasons, the examination was adequate. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSIONS General Rating Principles Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 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. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts In a rating decision in May 2001, the RO granted service connection for residuals of removal of the left and the right great toenails and assigned a noncompensable rating for each disability. In June 2008, the Veteran filed the current claims for increase. On VA examination in August 2008, the Veteran denied any current symptoms. He did stated that he had had half the nail of the left great toe removed in 2004 and that the right great toenail was not bothersome. On physical examination, there was a residual stub of the toenail of the left great toe, measuring about three centimeters, without evidence of an ingrown toenail or inflammation. The right toe nail was not ingrown. There was no scarring about either toenail. And the nail was not tender on palpation. The right foot was normal. The examiner noted that the Veteran worked as a water plant operator. VA treatment records dated during the appeal period contain no pertinent complaint or finding. In September 2009, the Veteran stated that the areas around the toes are very tender and sore and affected the quality of his life, both at work and at play. Rating Criteria In October 2008, Diagnostic Codes 7800 to 7804 were amended, but the amended Diagnostic Codes apply only to claims filed on or after the effective date of the change, that is, October 23, 2008. As the current claim was filed before October 2008, the criteria of the Diagnostic Codes in effect before October 2008 apply. The disabilities are currently rated under the Diagnostic Codes in effect before October 2008. Under the pertinent Diagnostic Code, the disabilities are noncompensable under Diagnostic Code 7805. Under Diagnostic Code 7805, the disability is rated on limitation of function of the affected bodily part. 38 C.F.R. § 4.118, Diagnostic Code 7805. To the extent the removal of the toenail is analogous to a scar, a scar may also be rated under Diagnostic Codes 7801, 7802, 7803, and 7804. Under Diagnostic Code 7801, the criterion for a 10 percent rating is a scar exceeding 6 square inches (39 sq. cm.). Under Diagnostic Code 7802, the criterion for a 10 percent rating is a scar, covering 144 square inches (929 sq. cm.) or more. Under either Diagnostic Code 7803, the criteria for a 10 percent rating are a superficial and unstable scar. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7804, the criteria for a 10 percent rating are a superficial scar that is painful on examination. Analysis On VA examination in August 2008, the toenail of the left great toe, measured about three centimeters. There was no abnormal finding for the toenail of the right great toe. As the findings on the left great toe or right great toe do not more nearly approximate or equate to an area exceeding 39 sq. cm. under Diagnostic Code 7801 or to an area of 929 sq. cm. or more under Diagnostic Code 7802, the criterion for a compensable rating under either Diagnostic Code 7801 or 7802 has not been met. On VA examination in August 2008, there was a residual stub of the toenail of the left great toe without evidence of an ingrown toenail or inflammation. The right toe nail was not in grown. There was no scarring about either toenail. And the left toe nail was not tender on palpation. The right foot was normal. As the findings on the left great toe or right great toe do not more nearly approximate or equate to a superficial and unstable scar or a superficial scar that is painful on examination, the criteria for a compensable rating under either Diagnostic Code 7803 or 7804 have not been met. As for functional limitation of the great toe under Diagnostic Code 7805, the criterion for a 10 percent rating for impairment of the great toe is severe impairment equivalent to amputation of the great toe under Diagnostic Code 5280. Although the Veteran has described areas around the toes that are very tender and sore and affected the quality of his life, both at work and at play, the objective findings of the left great toe and of the right great toe do not approximate or equate to severe impairment, equivalent to amputation of either great toe. Consideration has been given to "staged ratings," but the objective evidence shows the conditions have remained materially unchanged during the appeal period. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt standard of proof does not apply. 38 C.F.R. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009). The Board finds that the rating criteria reasonably describe the Veteran's disabilities. In other words, the Veteran does not have any symptomatology not already contemplated by the schedular rating criteria as the rating criteria provide ratings based on both functional limitation and on manifestations of a scar. As the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are adequate, and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A compensable rating for residuals of removal of an ingrown toenail on the left great toe is denied. A compensable rating for residuals of removal of an ingrown toenail on the right great toe is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs