Citation Nr: 1751724	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-06 056	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUE

Entitlement to a compensable initial evaluation for a dystrophic left hallux nail.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1988 to October 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware.  Although this appeal was certified to the Board by the RO in Philadelphia, Pennsylvania, jurisdiction rests with the RO in Wilmington, Delaware.

In July 2015, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge, the transcript of which is of record.  The matter was previously before the Board in November 2015, when it was remanded for further development.  The matter now returns to the Board for appellate consideration.  


FINDING OF FACT

The most probative evidence of record shows that the Veteran's dystrophic left hallux nail, rated analogously to unilateral hallux valgus, is mild in severity.


CONCLUSION OF LAW

The criteria for a compensable initial rating for the Veteran's dystrophic left hallux nail have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5280, 5284 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  


Legal Criteria- Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016).  In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2016).  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2016). 

 Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2008).  As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal.

The Veteran is service connected for a dystrophic left hallux nail, rated by analogy as noncompensable under Diagnostic Code 5280.  5280 provides that unilateral hallux valgus warrants a 10 percent rating if operated with resection of the metatarsal head or when severe, if equivalent to amputation of the great toe.  As DC 5280 does not provide for ratings in excess of 10 percent, following the analogy guided under DC 5280, for a rating in excess of 10 percent the comparison would be the criteria in DC 5171 (for rating amputation of a great toe).  Under DC 5171, amputation of the great toe without metatarsal involvement warrants a 10 percent rating; with removal of the metatarsal head warrants a 30 percent rating.  38 C.F.R. § 4.71.

Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injuries; a 20 percent rating is assigned for moderately severe injuries, a 30 percent rating is assigned for severe foot injuries and a note states a 40 percent rating is granted for actual loss of use of the foot.  38 C.F.R. § 4.71a, Diagnostic Code 5284 (2014).

The terms "mild," "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.  Use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding a higher rating.  38 C.F.R. §§ 4.2, 4.6.

Analysis

As the Veteran's appeal is from the original rating decision granting service connection, the relevant period on appeal is from January 4, 2010, the date of service connection.  The Veteran contends that his nail is damaged to the point that it is cracked.  He contends that it has been the same for almost 20 years.  The Veteran states that the nail grows into the sides of his toe, and requires trimming.  He does not wear a special shoe, but does not wear boots.  The Veteran also reports pain and discoloration in the nail.  An April 2010 VA examination noted the Veteran as able to stand for an hour, with no limitations on walking.  The Veteran reported pain.  The examiner attributed pain to the Veteran's service-connected tinea pedis, and described the Veteran's toenail injury as mild.  At an August 2014 VA examination, the Veteran reported pain in the left big toenail when standing or walking.  There, the examiner described bilateral foot injuries of moderate severity, when presumably describing a dystrophic nail and tinea pedis together.  The examiner specified that there is no relation between the dystrophic nail and tinea pedis.  September 2015 private treatment records show the Veteran complaining of bilateral big toenail issues, but with some discomfort in the left due to a military injury.  The Veteran reported that he continued to work, wearing occlusive boots all day, five days a week.  The report noted that there was no pain.  A December 2015 VA examination by the same examiner described the Veteran's left toe disability, without consideration of the effects of tinea pedis, as mild in severity.  The Veteran had not had foot surgery and no pain on physical examination.  

To the extent that the Veteran contends that his left toe disability is more severe than reflected by his disability rating, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as pain.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to evaluate his toe disability so as to warrant a higher rating under VA's rating schedule because such an opinion requires medical expertise and knowledge that he has not been shown to possess.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As such, the Board affords greater probative weight to the VA examiner's findings concerning the severity of the Veteran's toe disability.  

The most probative evidence of record does not show that the Veteran's left toe disability is severe, or has resulted in functional impairment equivalent to an amputated left toe. Nor has it required operations with resection of a metatarsal head.  The evidence does not show that, when considering the effect of only the left toe disability, that the Veteran has moderately severe injuries of the foot, as the examiners describe his toe condition as mild.  There is no actual loss of use of the foot.  In light of the above, the preponderance of the evidence is against the claim.  The benefit-of-the-doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to a compensable initial rating for a dystrophic left hallux nail is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs