Citation Nr: 1333296 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-23 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased initial disability rating for left great toenail deformity, rated as non-compensably disabling from December 5, 2006, and 10 percent disabling since July 27, 2012 (the "toenail disability"). 2. Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss. 3. Entitlement to an increased initial disability rating for a headache disability, rated as non-compensably disabling from March 19, 2003, and 30 percent disabling since June 23, 2009. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to March 1959 and from January 1961 to March 1964. In March 2007, the Board granted service connection for hearing loss and for a headache disability as secondary to service-connected TMJ. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and February 2008 decisions rendered by the Reno, Nevada Regional Office (RO) of the Department of Veterans Affairs (VA). In the June 2007 decision, the RO, in pertinent part, implemented the Board's grant of service connection for bilateral hearing loss and for a headache disability, and assigned initial 20 percent and 0 percent evaluations, respectively. In the February 2008 decision, the RO granted service connection for deformity of the left great toe nail and assigned an initial 0 percent rating. The Veteran appealed the initial disability evaluation assigned. During the pendency of the appeals, the RO assigned higher staged rating for the headache and left great toe nail disabilities. The Board has re-characterized the issues, as shown on the title page above, to reflect the assignment of staged ratings. In December 2011, the Board addressed several issues then on appeal. In pertinent part, the Board assigned an effective date of March 19, 2003, for the grant of service connection for headaches. The Board remanded the claims for higher initial ratings for hearing loss, headaches, and a left great toe nail disability. In March 2013, the Veteran claimed service connection for a right shoulder disability as secondary to the service-connected left great toe nail disability. In July 2013, he submitted records showing treatment for diabetic peripheral neuropathy. He did not indicate if he was claiming service connection for this disability. These issues are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action, if needed. The Board, herein, infers a claim for TDIU. That issue as well as the issue of an increased rating for left great toenail deformity are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On VA examination in November 2003, bilateral hearing loss was manifested by level V hearing acuity in each ear. 2. On VA examination in April 2006, bilateral hearing loss was manifested by level IV hearing acuity in the right ear and level VI hearing acuity in the left ear. 3. On VA examinations in July 2009 and July 2012, bilateral hearing loss was manifested by Level II hearing acuity in each ear. 4. For the period prior to June 23, 2008, service-connected headaches were dull and intermittent, and did not result in characteristic prostrating attacks averaging one in two months over the previous several months. 5. For the period from June 23, 2008 until July 27, 2012, headaches resulted in characteristic prostrating attacks occurring on an average once a month over the previous several months. 6. Affording the Veteran the benefit of the doubt, since July 27, 2012, headaches have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation for bilateral hearing in excess of 20 percent have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100 (2013). 2. For the period prior to June 23, 2008, the criteria for an initial compensable disability rating for service-connected headache disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124a, Diagnostic Code 8100 (2013). 3. For the period from June 23, 2008 until June 23, 2009, the criteria for a 30 percent rating, but not greater, for service-connected headache disability have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124a, Diagnostic Code 8100 (2013). 4. For the period from June 23, 2009 until July 27, 2012, the criteria for a disability rating in excess of 30 percent for service-connected headache disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124a, Diagnostic Code 8100 (2013). 5. Since July 27, 2012, the criteria for a 50 percent rating for service-connected headache disability have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. A. Hearing Loss The Veteran contends that an initial disability rating in excess of 20 percent is warranted for service-connected bilateral hearing loss. In particular, he describes difficulty hearing when background noises are present and states that he has to face people to understand them. He states that he wears hearing aids in both ears but does not wear them at work. (See July 2004 RO Hearing Transcript.) He also reports difficulty hearing cars when he is driving and problems hearing his wife when he is in the house. (See July 2012 VA examination report.) Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing loss disability establish eleven auditory acuity levels designated from I to XI. Tables VI and VII as set forth in the regulations are used to calculate the rating to be assigned. 38 C.F.R. § 4.85 (2013). In instances where, because of language difficulties, the Chief of the Audiology Clinic or other examiner certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c) (2013). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2013). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2013). Here, the Veteran underwent an initial hearing loss examination in November 2003. Pure tone thresholds, in decibels, were as follows: HERTZ Avg 1000 2000 3000 4000 RIGHT 35 20 25 45 50 LEFT 39 20 30 50 55 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 60 percent in the left ear. The examiner noted that speech discrimination scores were not consistent with pure tone thresholds and described the reliability of the results "fair." Here, the Veteran has a puretone threshold average of 35 in the right ear and 39 in the left ear. This is calculated by adding the puretone thresholds at 1000, 2000, 3000, and 4000 hertz and then dividing by four. The Roman numeral designation for the right ear is V and the left ear is V. The application of the Rating Schedule warrants a 20 percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Tables VI and VII. These results do not provide a basis for assigning a rating greater than that assigned by the RO. There is also no basis for applying the special provisions of 4.86. A private audiogram dated in February 2005 revealed pure tone thresholds, in decibels, as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 10 25 50 LEFT 20 35 60 Speech audiometry revealed speech recognition ability of 64 percent "unaided" in the right ear and of 56 percent "unaided" in the left ear. While these results are similar to the November 2003 VA examination results; they may not be used for rating purposes. First, they do not include pure tone thresholds at 3,000 hertz. Secondly, they do not indicate whether speech discrimination scores were conducted using Maryland CNC testing protocols. An April 2006 VA audiogram, however, does include pure tone thresholds at 3,000 hertz as well as speech discrimination using Maryland CNC. Pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 54 45 50 55 65 LEFT 76 60 70 85 90 Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 76 percent in the left ear. The Roman numeral designation for the right ear is IV. Because the Veteran has an exceptional pattern of hearing impairment in the left ear, the ear is designated a Roman numeral VI under Table VIa. See 38 C.F.R. § 4.86 (2013). Nevertheless, the application of the Rating Schedule warrants a 20 percent evaluation under Diagnostic Code 6100. These results do not provide a basis for assigning a rating greater than that assigned by the RO. He underwent another VA audiologic examination in July 2009. At such time, pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 45 35 35 50 60 LEFT 48.75 35 40 55 65 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 90 percent in the left ear. The examiner stated that word recognition scores were "very good" in the right ear and "excellent" in the left ear. The Roman numeral designation for the right ear is II and the left ear is II. These results would not even allow for a compensable evaluation, let alone a rating in excess of 20 percent. There is also no basis for applying the special provisions of 4.86. Finally, during a VA examination in July 2012. At such time, pure tone thresholds, in decibels, were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 45 30 35 55 60 LEFT 49 30 35 60 70 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 90 percent in the left ear. The Roman numeral designation for the right ear is II and the left ear is II. Again, these results would only allow for a non-compensable rating and do not provide a basis for assigning a rating greater than that assigned by the RO, providing evidence against this claim. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing cars on the road or his spouse when in his house, is not competent to report that his hearing acuity is of sufficient severity to warrant a 30 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment) which he has not been shown to have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Even after considering the Veteran's contentions as to the effects of the disability on his daily life, the Board finds that the criteria for an initial rating in excess of 20 percent are not met. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Finally, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Here, however, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the hearing loss disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran has not described any unusual features associated with his hearing loss disability. The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. B. Headache Disability In the March 2007 decision, the Board found that the Veteran's service-connected TMJ disability resulted in a headache disability. The RO has assigned a non-compensable rating, effective March 19, 2003, and a 30 percent rating since June 23, 2009. The disability is currently rated under DC 8100 as analogous to migraine headaches. Under this diagnostic code, a 0 percent rating is assigned for headaches with less frequent attacks. A 10 percent evaluation is assigned for headaches with characteristic prostrating attacks averaging one in two months over the previous several months. A 30 percent evaluation is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the previous several months. A 50 percent evaluation is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (In which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Eleventh Edition (2003), p. 999, "prostration" is defined as "complete physical or mental exhaustion." For the period prior to June 23, 2009, in order for the Veteran to receive the next higher disability rating of 10 percent for his headaches under Diagnostic Code 8100, the disability picture must more closely approximate headaches with prostrating attacks averaging one in two months over the previous several months. However, review of the competent evidence of record fails to depict such a disability picture. Here, in March 2003 the Veteran was initially prescribed gabapentin for treatment for a headache that had been ongoing for 8 days. The headache was described as a "dull ache" to both temples. A July 2003 VA record again described the headache as causing a "dull ache" that radiated from the jaw and usually occurred after eating. A January 2004 VA record again described the headaches as radiating from the jaw and resulting in a dull ache. The headaches were better when he rested the jaw or when relaxing. A May 2005 VA record described the headaches as "intermittent." Similarly, a March 2007 VA record described headaches as occurring "on and off." A July 2007 VA record also described the headaches as "dull, but abrupt at times." During treatment in November 2007, the Veteran described the headaches as a "5" on a scale from 1-10. He took Topamax at night to prevent headaches. In a March 2008 neurologic consultation, the Veteran reported having headaches "about twice a week." The Board finds that for the period prior to June 23, 2008, the Veteran's TMJ-related headaches did not result in characteristic prostrating attacks averaging one in two months over the previous several months. During this period, while the record shows treatment for a headache disorder, headaches were consistently described as dull and intermittent. While numerous treatments were prescribed for the headache disorder, neither the Veteran nor VA or private treatment providers describe headaches that are prostrating in nature. Accordingly, for this period a compensable evaluation is not warranted. However, on June 23, 2009, the Veteran underwent a VA examination and at such time the examiner described weekly headaches. The examiner noted that "most attacks are prostrating." Headaches resulted in severe functional impairment when conducting chores, shopping, exercising, and traveling. The examiner reported that the prostrating headaches occurred regularly during the past twelve months. Given the findings of prostrating headaches, the Board finds that the evidence supports a 30 percent rating since June 23, 2008, one year prior to the VA examination report. A higher rating of 50 percent, however, is not warranted as the evidence fails to show that the headaches are completely prostrating with prolonged attacks productive of severe economic inadaptability. Rather, during this period headaches were still intermittent and some but not all were prostrating. However, by time of the following examination on July 27, 2012, there is evidence to suggest that TMJ-related headaches were completely prostrating with prolonged attacks. In this regard, the same examiner who conducted the June 2009 examination stated that the headaches disability had "worsened" since the last examination, were no longer intermittent, and required a higher dosage of medication for control. The examiner noted that headaches occurred twice a day, lasted the entire day, and resulted in nausea, vomiting, sensitivity to light, sensitivity to sound, change in vision, and sensory changes. The examiner found that he had prostrating attacks of headache pain, on average, more than once per month. He also indicated that the Veteran was unable to work as a result of his service-connected headache, hearing loss, and left foot disabilities. Given this evidence of a worsening disability picture, and after affording the Veteran the benefit of the doubt, the Board finds that since July 27, 2012, the disability approximate the criteria for a 50 percent rating under Diagnostic Code 8100. Accordingly, the benefit sought on appeal is granted. In this regard, it is important to note that this finding is based on the credibility of the Veteran's statements. Finally, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Here, however, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected headaches disability is inadequate. A comparison between the level of severity and symptomatology of the headaches disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran has not described any unusual features associated with his headaches disability. The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. II. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. In this case, the claims for higher initial ratings arise from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Rather, if the disagreement is not resolved, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a Statement of the Case (SOC) concerning the downstream issue. Here, the RO provided this necessary SOC in July 2008, wherein the applicable statutes and regulations concerning the issue on appeal were cited and the reasons and bases for not assigning a higher initial rating were discussed. A February 2009 letter generally advised the Veteran as to how VA assigns disability ratings and effective dates. He was also encouraged to submit any evidence related to the disabilities on appeal. The Veteran was afforded a VA authorized examinations in November 2003, April 2006, July 2009 and July 2012 to address service-connected hearing loss. He underwent examination in June 2009 and July 2012 to address the service-connected headache disability. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations were adequate because it was performed by a medical professional, and was based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. The Board finds that the rating examination reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). In addition, the audiological examiner described the effects of the hearing loss disability on the Veteran's ordinary activities of daily life. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Moreover, the examination report addresses the Board's concerns raised in its December 2011 remand directive. Hence, the Board finds that there has been substantial compliance with its remand and additional development is not required. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not asserted that the disabilities have worsened since the most recent examination. Accordingly, the Board finds that a remand for an additional VA examination is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA and private treatment records, VA examinations, and the Veteran's statements and testimony. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims, and to respond to VA notices. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. ORDER An initial disability rating in excess of 20 percent for bilateral hearing loss is denied. For the period prior to June 23, 2008, an initial compensable disability rating for service-connected headache disability is denied. For the period from June 23, 2008 until June 23, 2009, a 30 percent rating, but not greater, for service-connected headache disability, is granted, subject to the law and regulation governing the payment of monetary benefits. For the period from June 23, 2009 until July 27, 2012, is disability rating in excess of 30 percent for service-connected headache disability is denied. Since July 27, 2012, a 50 percent rating for service-connected headache disability is granted, subject to the law and regulation governing the payment of monetary benefits. REMAND During the July 2012 VA headache examination, the examiner stated that the Veteran "quit work because of his hearing, left foot, and headache conditions, and he has not worked since 2005 because of thes (sic) conditions." The Board finds that this statement is sufficient to infer a claim for a higher rating based upon TDIU. It is unclear from the statement whether the examiner is providing an opinion as to the effect of the service-connected disabilities on the Veteran's ability to work or is simply reporting a history as provided by the Veteran. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a higher rating based upon TDIU and afforded a general medical examination to determine whether it is at least as likely as not (fifty percent or greater) that his service connected disabilities alone, including TMJ, headaches, bilateral hearing loss, scar to the right ring finger, tinnitus, deformity of the left great toe nail, hemorrhoid, and periodontitis with traumatic loss of teeth number 8 and 9, without reference to any non-service connected disabilities, prevent him from maintaining substantially gainful employment. In addition, the Board finds that a clarifying medical opinion is required prior to adjudication of the claim for an increased rating for left great toe nail deformity. Here, there are questions regarding the severity of the left great toe nail deformity alone as distinguished from other co-existing but non-service-connected left great toe conditions. Here, by way of history, in December 2006, the Veteran claimed entitlement to service connection for a left great toe nail disability. He reported an ingrown toe nail that was removed during service. He submitted VA and private medical records showing treatment for a current left great toe nail condition. For instance, upon entering VA treatment for the condition in October 2006, a VA podiatrist stated that the Veteran had hallux dystrophy which had been self-palliated. The plan was for "simple debridement of the nail without break." A private record dated in April 2007 noted that the Veteran had a "very thick, discolored, deformed left Hallux nail." He was advised that the condition could be painful if not treated on a regular basis. Indeed, a December 2007 record noted that the toe nail condition was painful when palpated. In the February 2008 decision, the RO granted service connection for a "deformity of the left great toe nail", and assigned an initial non-compensable disability evaluation. In granting the claim, the RO found that the Veteran's service treatment records showed treatment for an in-grown left great toe nail, but no evidence of trauma to the left foot/toe in service. A statement of the case specifically stated that service connection was not warranted for gout in the toe. The Veteran disagreed with the initial disability evaluation, stating that the left great toe nail condition caused him "chronic pain". (See May 2008 Notice of Disagreement.) The Veteran's left great toe nail deformity disability is rated pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5299-5280. It is rated by analogy to a disability manifested by hallux valgus. "Hallux valgus" is angulation of the great toe away from the midline of the body (toward the other toes) and can be caused by bunions. Verdon v. Brown, 8 Vet. App. 529, 530 (1996) and Weggenmann v. Brown, 5 Vet. App. 281, 283 (1993). The major findings in hallux valgus (bunion) are pain or discomfort in the first metatarsophalangeal joint (the joint at the base of the great toe) or under the ball of the foot, deformity at that joint, and sometimes redness and swelling. 68 Fed. Reg. 7020 (February 11, 2003). Under 38 C.F.R. § 4.71a, Diagnostic Code 5280, unilateral hallux valgus warrants a 10 percent evaluation if it is severe and equivalent to amputation of the great toe, or if it has been subject to surgical treatment with resection of the metatarsal head. The 10 percent rating is the maximum evaluation available under DC 5280. Critically, under the so-called "amputation rule," the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Amputation of the great toe is rated under the criteria of DC 5171, under which a rating of 10 percent is awarded for amputation without metatarsal removal. A maximum 30 percent rating is awarded for amputation with removal of the metatarsal head. At present, the Board is unable to rate the disability because medical examiners have not distinguished which left great toe symptoms are attributable to the service-connected disability and which are not. For instance, during a VA examination in January 2008, the examiner noted that a left foot and a left toe condition resulted in pain while standing and walking, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance. There were flare-ups several times a year which resulted in 100 percent loss of motion. Several diagnoses were rendered including calcaneal spurs of the foot, gout of the left great toe, and deformity of the left great toe nail. An additional left great toe diagnosis was rendered in May 2008 when seen for treatment of a neuroma on the left big toe. An x-ray revealed degenerative changes of the MTP joint. Similarly, a VA examination in June 2009 noted pain, swelling, heat, redness, stiffness, weakness, and lack of endurance mainly in the left big toe. Again, the examiner did not describe which left great toe conditions was the result of the service-connected left great toe nail deformity Finally, a VA examiner in July 2012 listed diagnoses of metatarsalgia, hammer toes, hallux valgus, hallux rigidus, a tear of the plantar plate, and deformity of the left great toe nail. The examiner opined that the Veteran's foot condition had such diminished functioning that amputation with prosthesis would equally serve the Veteran. Unfortunately, the examiner did not describe whether the service-connected disability resulted in the loss of function in the toe or whether such was attributable to non-service-connected conditions. Moreover, to the extent that loss of functioning is attributable to the service-connected disability, the examiner did not indicate if the Veteran would be better served by amputation and replacement with a prosthesis with metatarsal removal or not. Beyond the above, it is important for the Veteran to understand that his credibility with the VA is a key issue in this case (and the basis for the grant above). He should always try to provide to examiners an accurate history of his symptoms. Indications of exaggerations will not simply impact this evaluation, but all evaluations of his disabilities. This matter requires medical findings that cannot be made by the Board in the first instance. As such, these matters are REMANDED for the following action: 1. Provide the Veteran with VCAA notice explaining how to substantiate a claim for TDIU and obtain updated VA treatment records (if any - not required unless indicated). 2. Schedule the Veteran for a VA examination. The claims folder and a copy of this Remand should be provided to the examiner. The examiner should indicate review of the items in the examination report. The examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's service-connected disabilities including TMJ, headaches, bilateral hearing loss, scar to the right ring finger, tinnitus, deformity of the left great toe nail, hemorrhoid, and (if needed) periodontitis with traumatic loss of teeth number 8 and 9, alone, without reference to any non-service connected disabilities, prevent him from maintaining substantially gainful employment. All findings should be described in detail and all necessary diagnostic testing performed. Indications of embellishments, if any, should be noted for the record. A rationale for all opinions should be provided. 3. The RO/AMC should schedule the Veteran for a VA foot examination to assess the current nature and severity of service-connected left great toe nail deformity disability. The claims folder must be made available and reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. The examiner must describe all toe symptoms that are attributable to the in-grown toe nail disability and distinguish those symptoms that are unrelated to the service-connected disability (if not possible, this should be indicated). Indications of embellishments, if any, should be noted for the record. If the service-connected left great toe nail deformity disability results in functional loss by which the Veteran would be equally served by amputation and replacement with a prosthesis, the examiner must state whether the loss of function includes metatarsal involvement. 4. After the development requested, the RO/AMC should review the examination reports to ensure that they are in complete compliance with the directives of this Remand. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. Prior to readjudication, the RO/AMC must consider any additional evidence submitted since its last Supplement Statement of the Case. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs