Citation Nr: 1337363 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-20 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of comminuted fracture of the great right toe. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the VA Regional Office (RO) in Indianapolis, Indiana. Due to the location of the Veteran's residence, jurisdiction of the appeal is with the RO in Louisville, Kentucky. In April 2008, the Veteran and his wife testified at a hearing conducted before a Decision Review Officer. A transcript of the hearing has been associated with the claims file. The case was remanded in February 2010 to afford the Veteran a rescheduled hearing before a Veterans Law Judge. A hearing was scheduled in January 2012; however, the Veteran but did not appear for the hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). The case was remanded again in April 2012 for clarification regarding representation, to obtain additional treatment records and afford the Veteran a new VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2013, the Veteran submitted three forms regarding representation. He submitted a VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative," in favor of the Disabled American Veterans (DAV). He also submitted a VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," that did not list anyone. It appears that the Veteran confused the different forms appointing an attorney or agent versus a Veterans Service Organization. Regardless, in a form signed and dated the next day after the VA Forms 21-22a and 21-22 were signed, the Veteran indicated that he wished to represent himself. Such form explicitly indicated that it should signed "only" if he wished to represent himself (emphasis in original). Accordingly, the Board concludes that the Veteran is representing himself in this matter. FINDING OF FACT The residuals of comminuted fracture of the great right toe do not result in moderately severe disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of comminuted fracture of the great right toe have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified in letters dated in December 2004, July 2007 and September 2010 regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In addition, the July 2007 and September 2010 letters, as well as a June 2008 letter, notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The June 2008 letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records, Social Security Administration (SSA) records and also secured examinations in furtherance of his claim. The case was remanded, in part, to obtain VA treatment records from a reported July 2010 surgery. However, a July 2010 record indicates that the Veteran was not a candidate for surgery; additionally, a negative response for records was received from the Louisville, Kentucky VA Medical Center in May 2013. Accordingly, the Board concludes that there are no surgery records from July 2010. Pertinent VA examinations were obtained in February 2005, May 2007, October 2009 and February 2013. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Here, as noted in the discussion below, the effects of pain on use, functional loss, and incoordination were taken into account in assessing the range of motion of the Veteran's service-connected joint disability. The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for increased rating claims 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). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's residuals of comminuted fracture of the great right toe is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5284, which evaluates impairment from other foot injuries. Pursuant to DC 5284, a 10 percent evaluation is warranted for moderate disability. 38 C.F.R. § 4.71a, DC 5284 (2013). A 20 percent evaluation is warranted for moderately severe disability. Id. A 30 percent evaluation is warranted for severe disability. Id. The Veteran was afforded a VA examination in February 2005. He reported that he quit working three and a half years earlier because of a hand disability. He reported receiving SSA disability because of his hand condition, chronic hepatitis B and cirrhosis. The Veteran reported soreness and pain in the right great toe after walking four to five steps and after he knelt down on his foot. He also reported pain after driving for 30 minutes. The Veteran reported that his pain was eight to nine out of ten (8-9/10). He reported that there was some loss of motion because it hurt to move his big toe when it was painful, so he tried not to move it. He reported that he had trouble walking and kneeling. There was no other loss of function noted. The Veteran said "I guess" when asked if his big toe felt weak. There had been no stiffness, swelling, heat, redness or fatigability. The Veteran reported that when he was sitting down 30 to 40 minutes without moving the toe, the great toe pain would resolve. He reported that he did not take any medication for pain in his toe. The Veteran reported that he used a cane sometimes and did not use any corrective shoes or crutches. He did not have a toe brace. The Veteran had had no surgery or other injuries. He did not use shoe inserts. The Veteran stated that his big toe condition did not affect his daily activities. Examination revealed that his shoes did not have unusual shoe wear or breakdown. His right great toe metatarsophalangeal (MTP) joint dorsiflexed 25 degrees and plantar flexed 30 degrees. His distal interphalangeal (DIP) joint flexed 35 degrees. There were no complaints with range of motion of the right great toe. There were no complaints of pain, lack of endurance, weakness or fatigability with repetitive motion. After repetitive motion, dorsiflexion was 25 degrees and plantar flexion was 30 degrees. DIP joint plantar flexion was 45 degrees. Those motions were without pain. To compare the range of motion with the left, the left great MTP joint dorsiflexed 30 degrees and plantar flexed 60 degrees; DIP joint plantar flexed 65 degrees. The Veteran had normal strength to the bilateral feet and toes, but he grimaced on resistive plantar flexion of the right great toe. There was no change in strength with repetitive motion. There was no toe instability. The Veteran had grimace to palpation over the ball of the foot at the plantar surface of the MTP join and the dorsal surface of the MTP joint. His right great toe MTP joint was very slightly larger than the left, but there was no increased warmth or redness. There was no soft tissue swelling. The Veteran had normal gait and normal posture of his foot walking and standing. Initially, he walked with a normal position of the toe at the beginning of the examination. However, after his examination before he put his shoe and sock on, he walked back to the seat with his right great toe slightly off the floor and with a limp. He had symmetrical calluses on his feet. There were no skin problems. Pedal pulses were 2+ bilateral and there were no vascular changes. The Veteran had normal postures of foot standing. He complained of pain in his right great toe squatting at 75 degrees flexion of the knees. The Veteran stated that he had pain in the right great toe, walking on his toes, but he was able to perform the motion. He was able to walk on his heels without any complaints. There was no hammertoe, high arch, claw foot, hallux valgus, and forefoot or mild foot malalignment. He had normal Achilles, weight bearing and non-weight bearing. The examiner opined that the Veteran had mild limitation of motion for plantar flexion compared with the left. The Veteran was afforded another VA examination in May 2007. He reported that rest and elevation helped slightly and that he took medication twice daily. The Veteran's reported symptoms included pain, swelling, redness and stiffness located in the great toe metacarpophalangeal (MCP) joint while standing, walking and at rest. There was no heat. The Veteran reported flare-ups occurring weekly or more often lasting for one to two days. Flare-ups were due to a lot of driving, more walking or work. The Veteran reported that he was not able to do much of anything during flare-ups. He reported functional limitations of being able to stand for 30-40 minutes; functional limitations in walking included being able to walk for 300 feet. He reported using a cane and walker, but no inserts or braces. Examination revealed objective evidence of painful motion, swelling and tenderness over the first toe MCP joint. There was no objective evidence of instability or weakness. There was also objective evidence of erythema over the first toe MCP joint. There was no evidence of abnormal weight bearing; no skin or vascular foot abnormality; no evidence of malunion or nonunion of the tarsal or metatarsal bones; and no muscle atrophy. The Veteran was not able to stand on his toes; he was unstable on his feet and leaned on the outside of feet when he tried. The Veteran was walking with a limp and had a cane. MCP joint extension was active 5 degrees with pain and passive 7 degrees with worse pain. Repeat movement caused same pain with no change in the range of motion. MCP joint flexion was active 5 degrees with pain at zero (joint was already hurting after starting the range of motion examination) and passive 10 degrees with worse pain. Repeat movement caused worse pain and the range of motion was the same. X-rays revealed degenerative change at the first MTP joint and the DIP joints. The Veteran's disability had no effect on feeding, toileting and grooming; mild effect on bathing and dressing; moderate effect on recreation and traveling; and severe effect on chores, shopping, exercise and driving. The Veteran reported much foot pain with anything that involved bending. The pain reportedly woke him up at night. The Veteran stated that the effect on daily activities overall was somewhere between moderate and severe. He reported that he had to change his feet when driving. At his April 2008 hearing, the Veteran testified having pain rated as 9/10 or 10/10 sometimes, especially when doing any activities. April 2008 Hearing Transcript (T.) at 2. He testified that he needed to use a cane. Id. Medication only partially relieved pain. Id. The Veteran testified having swelling and that it was hard to walk. Id. at 3. He testified that he had a stroke in December 2006, but that even before the stroke, he still needed to use a cane. Id. The Veteran testified having instability and that he had fallen, even prior to the stroke. Id. at 3-4. The Veteran testified that his symptoms before the stroke did not change after the stroke. Id. at 4. He contended that his residuals were severe. Id. at 5. His wife concurred that the Veteran's toe bothered him prior to his stroke. Id. The Veteran testified that he did not wear special shoes, but replaced his shoes every three to six months. Id. at 6. He testified that he dragged his foot all the time and that he had an unusual shoe wear pattern. Id. at 7. Treatment records dated in June 2008 and July 2008 show that the Veteran reported right great toe pain. He reported that his toe was red and warm to touch. Examination in July 2008 revealed slight valgus deformity at first MTP on the right and minimal redness. There was a bunion. A record dated in June 2009 shows that he complained of increased pain in both feet for two months. He was shown to have a normal station and gait in July 2009. The Veteran had surgery on his right great toe in August 2009. At a VA examination in October 2009, he reported that his current toe symptoms included swelling and redness at rest; pain, weakness, swelling and redness on standing; and pain, weakness, swelling, heat and redness while walking. He was not currently on any treatment for his foot condition. The Veteran reported using a cane; the examiner noted that a walker was used because of his strokes, not his toe. The Veteran reported that he was able to stand and walk more than 30 minutes. Examination showed no painful motion, edema, instability, weakness or tenderness. The Veteran walked with a cane; the examiner opined that he did not appear to need it much. There were no signs of abnormal weight bearing or skin changes. The Veteran had increased erythema, which the examiner opined to be consistent with previous stroke and decreased strength and muscle tone. There were no hammertoes, high arch, claw foot, or hallux valgus. The Veteran had bilateral flatfeet. The examiner opined that the Veteran's condition caused minor problems on his usual occupation and daily activities, considering his two strokes. The examiner reported that residuals included pain on walking, but that he was only two months post-operative. The examiner opined that the Veteran had more problems from his two strokes that have affected the right side. The Veteran had no ankle symptoms reported on examination and normal range of motion of his right ankle. He had a five centimeter surgical scar over the first toe and metatarsal from the August 2009 surgery. The scar was 0.1 centimeters in width. There was no tenderness on examination; no adherence to underlying tissue; no frequent loss of covering of skin over the scar; no elevation or depression on palpation; it was not deep; and there was no induration and inflexibility of skin in the area of the scar. The scar had no inflammation, edema or keloid formation. There was no limitation of motion or other limitation of function caused by the scar. A VA examination in October 2010 to determine if the Veteran had a right leg disorder secondary to his service-connected right great toe disability contained some findings pertinent to the right toe disability. The Veteran reported constant pain at the operative area. Symptoms not identified included swelling, heat, fatigability, weakness and lack of endurance. Symptoms identified included pain, redness and stiffness, all while standing, walking and at rest. The Veteran's symptoms were located at the surgical sight. He also reported entire toe numbness and tingling. The Veteran did not have flare-ups of joint disease. Functional limitations on standing included being able to stand for 15 to 30 minutes before becoming short of breath. He could walk for half a block before getting short of breath. The Veteran used a cane and an entire leg brace. The examiner noted that the Veteran's right leg weakness required use of the brace. Examination of the Veteran's right foot at that time revealed no evidence of swelling, instability, weakness, or abnormal weight bearing. There was evidence of painful motion and tenderness. The Veteran had objective evidence of pain at the MTP joint first toe right foot with passive motion and objective evidence of tenderness at the MPT joint first toe right foot. The examiner noted that there was increased pigmentation surrounding the surgical scar; scar was well-healed. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was no muscle atrophy. The Veteran reported that he limped a lot as a result of his right toe disability and that the effect on daily activities overall was somewhere between moderate and severe. The examiner opined that the Veteran's right leg condition of weakness was likely related to a combination of his cerebrovascular accident history with residual right sided weakness and EMG evidence of chronic radiculopathy and not his right great toe fracture. The Veteran was afforded a VA examination in February 2013. He reported wearing a special leg brace down to his foot because he dragged his leg. The examiner noted that records indicated the reason for the leg brace was not due to his service-connected toe condition. The Veteran reported that he fell down a lot and that he did not take any medication for his toe pain. He reported that pain and aggravation/soreness was his problem. He reported that there was not much movement in his right great toe and that he had trouble bending down. The Veteran stated that he could walk less than a block due to weakness/fatigue, but specified that that was due to his problems from his hepatitis B and liver cancer. The Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones or weakfoot. The examiner opined that the Veteran's foot injury was moderate in severity. The Veteran reported regular use of a brace; the examiner noted that he used his brace for cerebrovascular accident, but that the Veteran stated that it also helped his "joints." The Veteran's condition impacted his ability to work only minimally due to decreased range of motion related to hallux limitus. Examination revealed a non-tender 4.5 centimeter linear, superficial surgical scar on the dorsum of his right great toe. The scar appeared well-healed with no evidence of skin breakdown, bleeding or other anomalies. He had onychomycosis of the nails of both feet, unrelated to his great toe condition. Otherwise, there were no calluses or other skin findings. The examiner noted that they observed the Veteran tugging at his boots, socks and right leg brace to get the boot and sock off and free his foot from the brace. The Veteran needed help from his spouse to finish getting the sock off the right foot; in the process, there was a lot of tugging and wrestling of the foot to get the job done. Although the Veteran was wearing himself out, becoming breathless, there was no observed evidence of pain while he and his wife were tugging on the foot/sock, etc. Congruent with that observation, the examiner used a tape measure on the scar to measure length and width, running their thumb across the joint a few times purposefully, and elicited no objective evidence of pain. The Veteran had flexion and dorsiflexion strength of 5/5. The Veteran had no active flexion and extension; the examiner noted that the Veteran did not move his right great toe actively, more likely than not due to his stroke. He had at least some passive range of motion, leading to the diagnosis of hallux limitus. Following examination, the examiner opined that the Veteran's foot disability was moderate in severity. The rationale was that there was no pain on examination, but he appeared to have at least some limitation of functional use of his great toe and foot from the standpoint of his old injury. The examiner reported that it appeared that his old service-connected toe injury begat degenerative joint disease or the right MTP, which begat hallux limitus. Although the Veteran had surgery for it, it appeared that he presently had hallux limitus. The examiner also opined that the Veteran's use of a long-leg brace had nothing to do with his great toe injury or any sequalae of it. The examiner noted that it was well documented that the Veteran's right-sided muscle weakness was due to his stroke (and to a lesser degree, some old radiculopathy, also unrelated to the toe problem). The examiner opined that so far as the level of the severity of hallux limitus was concerned, it was a mild effect because his required long-leg brace for his stroke residuals had an integrated PFO, which actually would act to protect his great toe from flexing more and causing pain. Nevertheless, the examiner concluded that it appeared that for the purposes of that examination, the lowest level of severity that could be assigned was "moderate" for that condition. The examiner also opined that the Veteran's stroke was the more likely explanation for any incoordination, weakened movement or excess fatigability. The examiner opined that there was no evidence that incoordination, weakness movement and/or excess fatigability related to the service-connected toe condition were playing a role as regards the claimed condition. The examiner also noted that based on the Veteran's records review and examination findings, his right great toe condition had improved since his 2009 surgery. The rationale was that the last podiatry note after surgery noted "discomfort," but had improved. There were no further complaints of the toe condition noted in the records/no return to podiatry for follow-up since 2009. The examination without tenderness, etc. was improved from before the surgery. Based on a review of the evidence, the Board concludes that a rating in excess of 10 percent is not warranted at any time during the pendency of this appeal. The next higher rating of 20 percent is warranted for moderately severe disability. The symptomatology shown on appeal as discussed above has not approximated moderately severe disability. As "moderately severe" is not defined in the rating criteria, the Board finds it particularly instructive as to what warrants 20 percent ratings for unilateral foot disabilities under the rating criteria. A 20 percent rating for unilateral flatfoot under DC 5276 is warranted for severe disability manifested by symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The Veteran has reported pain on use, but it has not been shown to be accentuated; he has also reported swelling on use. However, none of the examinations or treatment records have shown marked deformity or characteristic callosities. Although the February 2005 examination showed calluses, they were symmetric, suggesting that they were not characteristic callosities related to the service-connected right great toe disability. Other examinations failed to show characteristic callosities. Additionally, no medical professional has opined that the Veteran's disability is "severe." Rather, examiners have indicated that it is moderate. Therefore, the Board concludes that the Veteran's right great toe symptoms are not tantamount to the symptoms contemplated for by severe unilateral disability under DC 5276. A 20 percent rating for unilateral claw foot requires symptoms such as all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. 38 C.F.R. § 4.71a, DC 5278. None of the Veteran's treatment records or VA examinations have shown such symptoms. The October 2009 VA examination specifically showed normal range of ankle motion. The February 2013 examiner indicated that the Veteran did not demonstrate pain upon removing his shoe, sock and brace, weighing against a finding of marked tenderness under metatarsal heads. The symptomatology shown during this appeal has not equated to what would warrant a 20 percent disability for unilateral claw foot. In this case, when considering the symptoms discussed above as shown on examinations, documented in treatment records, as well as reported by the Veteran, the Board concludes that such symptoms do not equate to moderately severe disability. VA examiners throughout this appeal have opined that the Veteran's disability is moderate in severity. The evidence shows that the currently assigned 10 percent rating adequately compensates the Veteran for the actual symptomatology shown during this appeal. In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). The evidence reflects reports of pain, swelling, redness and stiffness on use. The VA examinations reports reflect the Veteran's reported symptoms on use and the functional loss they resulted in were taken into account. None of the examinations or treatment records shows that the Veteran had muscle atrophy or other evidence of disuse. The Veteran was shown to have muscle strength of 5/5 in February 2013. The Board acknowledges that the Veteran was unable to actively move his toe in February 2013; however, the examiner indicated that that was more likely than not due to his stroke. In this case, the actual limitation of motion due to such symptoms as pain, without taking into account functional loss due to the stroke, does not equate to moderately severe disability. Accordingly, the criteria for a rating in excess of 10 percent for limitation of motion for the Veteran's service-connected residuals of comminuted fracture of the great right toe have not been met. 38 C.F.R. § 4.71a, DC 5284. The Board has also considered whether a rating in excess of 10 percent is warranted under any of the other diagnostic codes use to rate foot disabilities. Although the Veteran had flatfoot in October 2009, there is no indication that it is due to his in-service fracture. The other examinations fail to show that the Veteran's fracture resulted in weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, hammer toes and malunion or nonunion of tarsal or metatarsal bones. Therefore, ratings under 38 C.F.R. § 4.71a, DCs 5276, 5277, 5278, 5279, 5280, 5281, 5282, 5283 are not warranted. Although the Veteran has been shown to have hallux limitus, there is no diagnostic code for such disorder. Moreover, any symptoms associated with that are compensated for in the assigned 10 percent rating under other DC 5284, which evaluates other foot injuries. Furthermore, the Veteran has been shown to have degenerative arthritis, which is evaluated under DC 2003. A 20 rating under DC 5003 is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003 (2013). Interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints. 38 C.F.R. § 4.45(f) (2013). In this case, none of the examinations or treatment records show occasional incapacitating exacerbations. As such, a rating of 20 percent under DC 5003 is not warranted. The Board has also considered whether a separate rating is warranted for the surgical scar. Amendments were made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), this issue will only be evaluated under the rating criteria in effect prior to October 23, 2008. Id. See also 38 C.F.R. § 4.118. Pursuant to the criteria for rating skin disabilities effective prior to October 23, 2008, scars other than the head, face, or neck, that are deep, or that cause limitation of motion warrant a 10 percent evaluation if they involve area or areas exceeding 6 square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2008). Scars other than the head, face, or neck, that are superficial, and do not cause limitation of motion only warrant a 10 percent evaluation if they involve areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2008). Note (2) which follows shows that a superficial scar is one not associated with underlying soft tissue damage. Id. Superficial scars which are unstable where, for any reason, there is frequent loss of covering of the skin over the scar, only warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7803 (2008). Note (1) which follows shows that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. Scars which are superficial and painful on examination only warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7804 (2008). Other scars that cause limitation of function of affected part are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2008). In this case, the Veteran's scar has not been shown to meet the criteria for a compensable rating under any of the diagnostic codes used to evaluate scars. It is not deep or cause limitation of motion and involves an area exceeding 6 square inches (39 sq. cm.). While superficial and not causing limitation of motion, it does not involve an area of 144 square inches or greater. The scar has not been shown to be unstable or painful on examination. The evidence also fails to show that the scar causes limitation of function. Accordingly, a separate rating for the scar under DCs 7801, 7802, 7803, 7804 and 7805 is not warranted. For these reasons, the Board finds that the criteria for a rating in excess of 10 percent for residuals of comminuted fracture of the great right toe is not warranted. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's right great toe symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's right great toe disability has resulted in interference with employment or activities of daily life which would warrant an increased rating for this disability. Moreover, as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a rating in excess of 10 percent for residuals of comminuted fracture of the great right toe is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs