Citation Nr: 1314282 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 08-05 131 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ingrown toenails other than on the 1st toe of the left foot, including as due to residuals of frostbite. 2. Entitlement to a compensable evaluation for residuals of a left first ingrown toenail. 3. Entitlement to a rating in excess of 30 percent for psychophysiologic reaction of the respiratory system with bronchial asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1946 to November 1949 and from May 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision, by the VA RO in San Juan, the Commonwealth of Puerto Rico. In his substantive appeal (VA Form 9), received in February 2008, the Veteran requested a hearing before a Decision Review Officer at the RO. In March 2008, the RO sent the Veteran notice that a hearing was scheduled for April 2, 2008. In a report of contact (VA Form 119), dated in March 2008, the Veteran requested that the hearing be rescheduled. Later in April 2008, the RO sent the Veteran notice that the hearing had been rescheduled for April 30, 2008. However, in a statement dated April 30, 2008, the Veteran requested that the hearing be rescheduled because he was unable to talk because of laryngitis. In September 2008, the Veteran's service representative indicated that the Veteran requested a VA examination in lieu of a personal hearing. Under these circumstances, and because the examination was later conducted, the Board considers the request for a hearing to be withdrawn by the Veteran. See 38 C.F.R. § 20.704(d). In October 2012, the Board remanded the case for additional development of the issues reflected on the cover page of this decision and a claim of service connection for maxillary sinusitis. The claim of service connection for maxillary sinusitis was later granted by a March 2013 decision by the Appeals Management Center (AMC). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002).) FINDINGS OF FACT 1. By a September 2003 rating decision, the RO denied the Veteran's claim of entitlement to service connection for left ingrown toenails other than the 1st toe, due to residuals of frostbite. The Veteran did not perfect an appeal after receiving a November 2005 statement of the case. 2. The evidence received since the prior final denial does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for ingrown toenails on the left foot other than the 1st toe. 3. The Veteran's left first ingrown toenail is manifested by tenderness near the lateral sides of the great toe mainly upon manipulation. 4. The Veteran's psychophysiologic reaction of the respiratory system with bronchial asthma is manifested by complaints of shortness of breath and wheezing; there has been no showing of monthly visits to a physician for care of exacerbation, or intermittent (at least three times per year) courses of systemic corticosteroids; nor does pulmonary function testing (PFT) reflect findings of forced expiratory volume in one second (FEV-1) of 40- to 55-percent predicted or FEV-1/forced vital capacity (FVC) of 40 to 55 percent. CONCLUSIONS OF LAW 1. The September 2003 rating decision denying service connection for ingrown toenails on the left foot other than the 1st toe is final; new and material evidence sufficient to reopen the claim has not been submitted. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). 2. The criteria for a 10 percent disability rating for residuals of a left first ingrown toenail have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.20, 4.31, 4.71a, 4.118, Diagnostic Codes 7804, 7805 (2012). 3. The criteria for a rating in excess of 30 percent for psychophysiologic reaction of the respiratory system with bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a new and material evidence claim, the notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, VA satisfied its duty to notify by means of a letters dated in December 2005 and November 2006 from the RO to the Veteran that were issued prior to the RO decision in May 2007. Additional letters were issued in September 2008, November 2012, December 2012, and February 2013. Those letters informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letters also explained the criteria for new and material evidence and set forth the basis of the prior final denial, as required under Kent. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the prosecution of his claims. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a fair disposition of this appeal. Further, a review of the Virtual VA paperless claims processing system reveals that the Veteran's VA treatment records have been associated with his paperless claims file. The Veteran has been afforded VA examinations where required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issues. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Laws and Regulations When a claimant fails to appeal an RO decision denying a claim for benefits, that decision becomes final and can no longer be challenged except on the basis of clear and unmistakable error. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded). However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). III. Background The service treatment records (STRs) for the Veteran's first period of active duty, including the December 1946 enlistment examination, as well as the October 1949 discharge examination, are completely silent for any disabilities involving the feet. The STRs for the second period of service indicates that the Veteran was seen in July 1951 for treatment of an ingrown toenail of the left great toe. In January 1952, that ingrown toenail was surgically removed and dressed. When seen in February 1952, it was noted that the Veteran had had an ingrown toenail on the left foot that was previously removed; the toe was clean and healed. On the occasion of his separation examination in December 1952, the Veteran reported being treated for an ingrown toenail one year earlier. Clinical evaluation of the feet was normal. Of record is a VA hospital summary indicating that the Veteran was admitted to a hospital in February 1954 for treatment of asthma. It was noted that he observed a tendency to wheeze when he had had a short cold 5 years earlier while in the military service. He was diagnosed with asthma that was treated and improved. By a rating action in April 1954, the RO granted service connection for asthma; a 10 percent disability rating was assigned, effective February 26, 1954. Service connection was also granted for removal of ingrown toenail, left; a 0 percent disability rating was assigned, effective February 26, 1954. VA medical records dated from February 1971 through February 1974 show that the Veteran received ongoing clinical attention for bronchial asthma. During a VA examination in February 1974, it was noted that the Veteran had a long history of asthma but no mention of a nervous disorder. At the interview, he was wheezing and had a little difficulty talking; he showed good personal hygiene, had good gait and posture, and remained quiet and cooperative. The Veteran reported that he had difficulty sleeping if he had asthma; otherwise, he slept well. He denied any nightmares. His affect was somewhat apathetic and his behavior was appropriate. He was oriented and his memory for the past and present was good. He showed poor insight and good judgment. The diagnosis was psychophysiologic reaction of the respiratory system (asthma). A rating action in April 1974 recharacterized the Veteran's service-connected condition to psychophysiologic reaction of the respiratory system with bronchial asthma, and increased the rating from 10 percent to 30 percent, effective January 2, 1974. That rating action also granted service connection for removal of an ingrown toenail; a 0 percent rating was assigned, effective February 26, 1954. VA progress notes dated from 1974 through 1999 show that the Veteran received ongoing clinical evaluation and treatment for his bronchial asthma. A VA examination report dated in March 1995 reflects a diagnosis of bronchial asthma. These records do not reflect any complaints of or clinical findings pertaining to ingrown toenail other than on the 1st toe of the left foot. In a statement in support of claim (VA Form 21-4138), dated in May 2003, the Veteran indicated that he was seeking to establish service connection for ingrown toenails as a result of military service. By a rating action in September 2003, the RO denied service connection for ingrown toenails on the left foot due to residuals of frostbite based on a finding that while the Veteran was treated for an ingrown toenail in service, there was no evidence of any chronic disability. A notice of disagreement (NOD) to that determination was received in October 2003, and a statement of the case (SOC) was issued in November 2005; however, no substantive appeal was thereafter received from the Veteran. Consequently, that determination became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). Received in October 2003 was a medical statement from Dr. Luis A. Esquerdo, dated in September 2003, indicating that he has been treating the Veteran for a bilateral foot disorder since January 2001; he stated that, at that time, the Veteran had pain on the hallux with severe dystrophy of the nail. It was noted that past medical history was unremarkable with the exception of a history of trauma to the area by a surgical procedure performed on the bilateral hallux in 1952 when the Veteran was serving in the Armed Forces. The Veteran stated that he has taken care of the nails by himself for the most part prior to his visit. Dr. Esquerdo noted that the Veteran was found to have a subungual exotosis on the hallux. Dr. Esquerdo also stated that the exostosis could account for pain on the nails and the toes on ambulation; secondly the dystrophy of the nails could cause pain as well. The reason for this could be directly related to a surgical procedure and the nail matrix disturbance aggravated by a fungal infection. The Veteran's claim for an increased rating for his psychophysiological reaction of the respiratory system with bronchial asthma was received in March 2005. Submitted in support of the claim were VA progress notes dated in March and May 2005. When seen in March 2005, the Veteran stated that he felt worse using his medications as indicated. On examination, the lungs were clear to auscultation. The examiner noted that the Veteran was tolerating his current medications well, but he referred to poor response to current therapy and increase in Asthma episodes. The Veteran indicated that he tried Advair with a private physician with excellent response and better compliance. In July 2005, the Veteran was afforded a VA examination for evaluation of his respiratory disorder. At that time, the Veteran indicated that his last visit to the emergency room due to asthma exacerbation was in 2004; he was treated with antibiotics and his condition resolved. The Veteran claimed that his asthma condition had worsened in the last few years because the asthma attacks were more frequent and more severe than years ago. He also reported that the cold exposure and temperature changes produced asthma exacerbations. He reported that his last bronchitis episode was in May 2005, at which time he was treated with oral antibiotics and it resolved. The Veteran indicated that he is on continuous medication use for asthma in order to control the severity of the attacks; however, he continues to experience recurrent asthma exacerbations. He complained of productive cough with white phlegm; he denied hemoptysis and anorexia. The Veteran also reported that asthma attacks occur three or four times per week and are controlled with the medications most of the time. The Veteran indicated that he was not currently working. On examination, his chest was symmetric to expansion. There were bilateral end-expiratory wheezes in all lung fields with decreased breath sounds, generalized. The extremities had no edema and no cyanosis. There was no cor pulmonale, RVH or pulmonary hypertension. No weight changes was reported. The Veteran's PFT revealed that FEV-1 was 83 percent predicted pre-bronchodilator, and the FEV-1/FVC was 102 percent predicted pre-bronchodilator. The diagnosis was moderate, persistent asthma. Of record is the report of a VA cold injury protocol examination conducted in December 2006. The Veteran indicated that he sustained cold exposure injury to his feet while using the military boots in service. It was noted that the Veteran has had debridement and cleansing of the feet, and he has been prescribed orthopedic shoes with fair pain control. He denied history of other cold injury. The Veteran reported tingling sensation in both feet. He also reported fungal infection of both feet. Following examination of the feet, the examiner reported diagnoses of frostbite of the feet, and demyelinating peripheral neuropathy by EMG at least as likely as not secondary to frostbite of the feet. Following a VA examination for mental disorders in January 2007, the examiner stated that the current mental condition, dementia, is not caused by or the result of the service-connected psychological reaction of the respiratory system. The Veteran was afforded a VA examination for evaluation of skin disease in January 2007. He reported a history of ingrown toenails; and he complained of pain in the toes when he walks or wears closed shoes. The Veteran reported using Clotrimazole cream twice a day. The Veteran reported itching, burning, and pain. On examination, it was noted that there was subungual hyperkeratosis on the first and third toenails of the right foot, and on the first and second toenails on the left foot. The pertinent diagnoses were tinea unguium and ingrown toenails by history. The examiner stated that the skin condition does not affect the Veteran's ability to perform his normal daily activities, except when wearing closed shoes for prolonged periods of time. Received in May 2007 were VA progress notes dated from February 2006 to May 2007 which show that the Veteran received ongoing clinical evaluation and treatment for his bronchial asthma. Received in September 2008 were VA progress notes dated from December 2007 to August 2008, reflecting ongoing treatment for bronchial asthma. The Veteran was afforded a VA examination in November 2008. The Veteran claimed that his asthma has been worsening in the last couple of years; he reported having 3 to 4 asthma attacks per week, which are controlled with current treatment. He had no history of hospitalization or emergency room visits due to the asthma exacerbations, bronchitis or pneumonia. The Veteran stated that, despite current treatment, his asthma attacks persist. He reported using respiratory therapy and inhaler daily; he was not using any steroids. The Veteran reported coughing several times a day. He also reported occasional dyspnea and frequent chest pain. There was no history of respiratory failure. On examination, the examiner noted rhonchi and wheezing. Chest expansion was slightly limited. There was no deformity or scarring of the chest wall. The examiner noted that the Veteran refused to undergo PFT because he stated that the last time he tried to do the test, he developed a severe asthma attack requiring treatment. The diagnosis was asthma. Received in August 2009 were VA progress notes dated from April 2008 to July 2009 reflecting ongoing treatment for bronchial asthma. Received in June 2011 were VA progress notes dated from January 2011 to June 2011 reflecting ongoing treatment for bronchial asthma. Among these records is the report of a chest x-ray, taken in April 2011, which revealed no acute cardiopulmonary abnormality. The Veteran was afforded a VA examination for his service-connected respiratory disability in January 2012. At that time, it was noted that his condition had continued more or less the same since his last examination in November 2008, with no acute attacks or severe exacerbations and no need for hospitalization. He stated that his symptoms continue to get worse with wheezing and shortness of breath. It was noted that his condition does not require the use of oral or parenteral corticosteroid medications. He used an inhaler, but does not require the use of a bronchodilator or antibiotics or oxygen therapy. He reported physician visits less frequently than monthly. He had not had any episodes of respiratory failure. During the course of that examination no specific diagnostic testing was conducted, to include a Pulmonary Function Test (PFT); it was noted that the Veteran left the examination prior to the PFT being completed. The Veteran was afforded a VA examination for evaluation of his foot disorders in February 2013 The Veteran reported ingrown nail of the great toes during the winter of 1952; he needed nail excision of both nails, although the Veteran indicates that just the left nail excision was documented. It was noted that he has moderate discomfort but looked well. The Veteran reported receiving podiatric attention from Dr. Esquerdo for nail cutting. He denied severe pain but needs wide shoes to avoid pressure over the nails. The examiner noted that the Veteran does not have metatarsalgia, hammertoes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or any other foot injuries. The examiner noted that the Veteran had moderate erythema in both great toes with severe onychomycosis bilateral nails. He also had moderate tenderness upon palpation of bilateral lateral nail borders and nail beds. There was no evidence of suppuration or open wounds. It was noted that the Veteran uses a walker and orthopedic shoes with wide toe box. The pertinent diagnosis was left ingrown toenail first diagnosed in 1952. The examiner stated that the Veteran's foot condition does not impact his ability to work. Examination of the feet revealed moderate erythema in both great toes with severe onycomicosis, bilateral nails (all). There was moderate tenderness upon palpation of bilateral lateral great toe nail borders and nail bed. There was no evidence of suppuration or open wounds. The examiner indicated that the symptoms and findings were bilateral. The Veteran alleged the excision of ingrown nails was bilateral. The Veteran was also afforded a respiratory examination. He stated that he continues to have asthma attacks. The Veteran also reported shortness of breath, wheezes, running nose, nasal congestion and post-nasal drip almost every day. The last exacerbation was the previous week. He stated that using medication at home as prescribed with good response. It was noted that the Veteran did not require the use of oral or parenteral corticosteroid medications. It was noted that the Veteran's condition did require the use of inhaled medications--inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The Veteran's condition did not require the use of antibiotics. The pertinent diagnosis was asthma. It was noted that the Veteran had not had asthma attacks with episodes of respiratory failure in the past 12 months. No significant acute cardiopulmonary abnormalities were present on a chest x-ray. A pulmonary function test (PFT), which revealed FEV-1 of 60 percent of predicted and FEV-1/FVC of 96 percent, was reported to be normal. The pertinent diagnosis was asthma. The examiner stated that the respiratory condition impacted the Veteran's ability to work. IV. Claim to Reopen The Veteran's claim for service connection for left ingrown toenails other than the 1st toe was previously denied. In September 2003, the RO denied service connection based on a finding that while the Veteran was treated for an ingrown toenail in service, there was no evidence of any chronic disability. The Veteran did not perfect an appeal after receiving a November 2005 statement of the case. Consequently, that determination became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). Since that determination, the Veteran has sought to reopen the claim. As noted above, a claim may be reopened upon the receipt of new and material evidence. 38 U.S.C.A. § 5108. The evidence received subsequent to September 2003 consists of VA medical records as well as a private medical statement, which show that the Veteran continued to receive treatment for chronic foot pain, including the left foot. Among the evidence received after September 2003 was a medical statement from Dr. Luis A. Esquerdo, dated in September 2003, indicating that he has been treating the Veteran for a bilateral foot disorder since January 2001; he stated that, at that time, the Veteran had pain on the hallux with severe dystrophy of the nail. However, with the exception of the Veteran's own statements, none of the evidence suggests that the Veteran currently has a chronic disorder of ingrown toenails other than the 1st toe of the left foot that is related to his military service. The fact that there were residuals of a left foot ingrown toenail for which he continues to receive treatment after service had previously been established. Evidence that confirms a known fact is cumulative. In sum, the evidence added to the record since the September 2003 denial of service connection for ingrown toenails other than the 1st toe of the left foot is not new and material. The evidence does not relate to an unestablished fact necessary to substantiate the claim. Stated differently, at the time of the prior decision, there was a lay assertion of a nexus to service and proof of post-service disability. Since then, nothing has changed with regard to proof of a relationship to service. The Veteran's assertion that he has ingrown toenails other than the left 1st toe related to service is the same as his prior claim, and additional medical evidence does not tend to prove a point that had not already been shown. Accordingly, the Board finds that new and material evidence has not been received, and the Veteran's claim of entitlement to service connection for ingrown toenails other than the 1st toe of the left foot is not reopened. 38 C.F.R. § 3.156(a) (2012). In view of the foregoing, the Board finds that, while some of the evidence received since the last prior denial of service connection was not previously submitted to agency decision makers, none of this additional evidence relates to an unestablished fact necessary to substantiate the claim. Further, the additional evidence is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. As stated above, none of the additional evidence received since the prior final denial addresses the claim in a manner not already shown. Accordingly, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a). Inasmuch as new and material evidence adequate to reopen the previously denied claim has not been received, the Board does not have jurisdiction to consider the claim or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). The Veteran's appeal is, therefore, denied. V. Higher Evaluations Disability evaluations are determined by the application of a schedule of ratings that is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38 C.F.R. § 4.1 (2012) requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 (2012) require that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. A. Left first Toenail The Veteran is currently assigned a noncompensable evaluation for his status post removal of left great toenail pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 pertains to scars, evaluated under the disabling functional effects. 38 C.F.R. § 4.118, Diagnostic Code 7805. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DC's 7801-7805. DC 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters (sq. cm.)) are rated 10 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10 percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. DC 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. DC 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Board notes that during the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran filed his claim for an increased rating for the toe disability in October 2006. A May 2007 rating decision denied the claim for a compensable evaluation for the residual scar on the left ingrown toenail. The Veteran then submitted a notice of disagreement in July 2007. All of these actions occurred prior to the amendment to the rating criteria, and he has not requested a review under the new criteria. As such, the Veteran's claim on appeal will be reviewed under the criteria in effect prior to October 23, 2008. Also relevant is 38 C.F.R. § 4.71a, DC 5284 pertaining to foot injuries. Under DC 5284 a 10 percent disability rating is provided for a moderate foot injury, a 20 percent disability rating for a moderately severe foot injury, and a 30 percent disability rating for a severe foot injury. A 40 percent disability rating is warranted for actual loss of use of the foot. The words "slight", "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, when evaluating joint disabilities based on limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Based upon the evidence of record, the Board finds the Veteran's left great toe disorder is more properly rated as 10 percent disabling under DC 7804, for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804. The January 2007 VA examination report noted that the Veteran's left great toe was painful with walking and wearing shoes. The February 2013 VA examination reported moderate tenderness upon palpation of the nail border and nail bed. As for the possibility of any even higher rating, the Board notes that there has been no evidence in the records of any symptoms related to the nail removal that would warrant a higher rating. The condition is considered superficial, only involving the left great toenail and bed. It involves zero percent of exposed body area and less than one percent of the total body surface. The condition has not been treated with any medications, topical or systemic; and, has never required immunosuppressive drugs. While the Veteran reportedly used a walker, the examiner noted that the Veteran's foot condition did not impact his ability to work. The left great ingrown toe condition is superficial and stable with no evidence that the condition in any way causes scarring or contracture that in turn causes impairment of motion of the left great toe. In essence, there is no evidence of record that indicates that the Veteran's left great ingrown toenail condition is a foot injury manifested by symptoms not contemplated by the rating under DC 7804. Thus, the Board concludes that the Veteran's left great ingrown toenail, is not of such a degree that DC 5284 (foot injury) may serve as a basis for a compensable disability rating. 38 C.F.R. § 4.71a, DC 5284. The VA General Counsel noted in a precedent opinion dated August 14, 1998, that DC 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 9-98. However, in this case, the Veteran's foot injury, by the clinical evidence of record, does not involve limitation of motion. Thus, further consideration of 38 C.F.R. §§ 4.40 and 4.45 is not required. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion. As such, a 10 percent disability rating, and no higher, for the Veteran's left great toe disability is warranted. B. Psychophysiologic reaction of the respiratory system with bronchial asthma The Veteran is currently rated 30 percent disabled for his service-connected disability. Diagnostic Code (DC) 6602 provides the rating criteria for bronchial asthma. Under 38 C.F.R. § 4.97, Diagnostic Code 6602, concerning bronchial asthma, a 30 percent evaluation is assigned in cases of FEV-1 of 56- to 70-percent of predicted value; FEV-1/FVC of 56 to 70 percent; daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. A 60 percent evaluation is in order in cases of FEV-1 of 40- to 55-percent of predicted value; FEV-1/FVC of 40 to 55 percent; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is warranted for FEV-1 of less than 40-percent of predicted value; FEV-1/FVC less than 40 percent; more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. In light of the clinical findings above, the Board finds that a rating in excess of 30 percent for bronchial asthma is not warranted. As noted above, a higher rating of 60 percent based on PFT findings requires FEV-1 or FEV-1/FVC of no more than 55 percent. At worst, FEV-1 was 66 percent during the February 2013 examination. All other PFT findings reflected better function. Moreover, there is no indication that the Veteran has been treated with steroids. Finally, the Veteran reported that he sought treatment by a physician several times per year for exacerbations of his condition. However, the higher 60 percent rating contemplates such visits on at least a monthly basis. That level of frequency has not been demonstrated. In sum, the evidence does not show that the Veteran's bronchial asthma results in symptoms that result in an overall level of disability consistent with a higher rating. The Board has considered the Veteran's use of daily bronchodilators and anti-inflammatories, as well as his reports of shortness of breath and wheezing. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In deciding this claim, the Board has considered the Veteran's reports respiratory difficulty. He is competent to report statements such a shortness of breath or wheezing because they are observable symptoms, and do not require medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of respiratory disability according to the appropriate rating criteria. Such competent evidence concerning the nature and extent of the Veteran's service-connected asthma has been provided by VA medical professionals who have examined him during the current claim. The medical findings directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be competent and probative evidence of record, and thus, are accorded greater weight than any of the Veteran's subjective notions that he meets the criteria for a higher rating. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the competent medical evidence does not establish that the Veteran's disability picture meets the criteria necessary for a rating in excess of 30 percent for psychophysiologic reaction of the respiratory system with bronchial asthma. The increased rating claim is therefore denied. With regard to the effects of the psychological component of the Veteran's service-connected disability, the provisions of 38 C.F.R. § 4.126(d) (2012) require that, when a single disability has been diagnosed both as a physical condition and a mental disorder, the rating agency shall evaluate it using a diagnostic code that represents the dominant aspect of the condition. The Board has done so by analyzing the disability in the context of the criteria for asthma. The record does not reflect that the Veteran experiences psychiatric symptoms that cause any impairment. (To be awarded a rating higher than 30 percent, psychiatric symptoms would have to result in occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130 (2012). Symptoms typical of such a level of impairment would be flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Id. There has been no contention or evidence reflecting such a level of disability due to psychological disease.) Finally, the Board finds that there is no showing that the Veteran's service-connected respiratory disorder or left first toe disability has reflected so exceptional or so unusual a disability picture as to warrant the assignment of a higher evaluation on an extra-schedular basis. In this regard, the Board notes that neither disability was not shown to markedly interfere with employment (i.e., beyond that contemplated in the pertinent rating criteria ), to cause frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. Hence, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b) (1) are not met. 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). ORDER The application to reopen a claim of service connection for ingrown toenails other than on the 1st toe of the left foot is denied. A 10 percent disability rating for residuals of a left first ingrown toenail is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent for psychophysiologic reaction of the respiratory system with bronchial asthma is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs