Citation Nr: 1752889 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-03 674 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to a higher (compensable) initial disability rating for service-connected peripheral neuropathy of the right great toe with recurrent nail onycholysis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD S. Moore, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1980 to June 1984, and from August 1989 to August 2006. The Veteran was recalled to active duty in the Indiana Army National Guard as of September 6, 2013. See September 2013 Service Personnel Record. By way of history, on April 4, 2006 the Veteran filed a claim for service connection for right great toe residual numbness and ingrown toenails, status post two toenail removal surgeries. In a December 2009 decision, the Board of Veterans' Appeals (Board) remanded service connection for a right great toe condition to the Agency of Original Jurisdiction (AOJ) to obtain private treatment records and a new VA examination and opinion for the right great toe condition. As a result of the ordered development, service connection was established for peripheral neuropathy of the right great toe with recurrent nail onycholysis, with a 0 percent initial disability rating assigned from September 1, 2006; therefore, the issue of service connection for peripheral neuropathy of the right great toe is no longer before the Board. This matter now comes before the Board on appeal from the July 2010 rating decision of the Appeals Management Center (AMC), as the Veteran disagreed with the initial disability rating of 0 percent assigned following the grant of service connection for peripheral neuropathy of the right great toe. In Fenderson v. West, 12 Vet. App. 119 (1999), the U.S. Court of Appeals for Veterans Claims (Court) directed that a similar appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. In April 2017, the Veteran testified at a Travel Board Hearing in Indianapolis, Indiana, before the undersigned Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. The Veteran is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). At the April 2017 travel Board hearing, the Veteran limited appeal of the initial disability rating to seeking a 10 percent disability rating for peripheral neuropathy of the right great toe, as he believes the right great toe condition is moderately disabling. The Veteran did not indicate that he is seeking a disability rating in excess of 10 percent, the evidence does not suggest a 30 percent rating is warranted, and the Veteran has not indicated that the 30 percent rating criteria are met or approximated. As such, the instant Board decision granting a 10 percent disability rating for peripheral neuropathy of the right great toe for the entire initial rating period on appeal represents a full grant of benefits concerning this issue. The instant matter is a Veterans Benefit Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDING OF FACT For the entire initial rating period from September 1, 2006, the service-connected peripheral neuropathy of the right great toe with recurrent onycholysis has caused moderate incomplete paralysis of the anterior tibial nerve (deep peroneal). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire initial rating period from September 1, 2006, the criteria for a higher initial disability rating of 10 percent for peripheral neuropathy of the right great toe have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1-4.7, 4.14, 4.21, 4.124, 4.124a, Diagnostic Code 8523 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the appeal for a higher initial rating for the service-connected peripheral neuropathy of the right great toe arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial ratings and effective dates). With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, private treatment records, relevant VA examination reports, the April 2017 Board hearing transcript, and the Veteran's written statements. VA most recently provided a peripheral nerves examination in November 2014. The Board finds that the above-referenced VA examination report is adequate for purposes of rating the peripheral neuropathy of the right great toe disability on appeal. The VA examiner reviewed the VA treatment records, performed physical examination and diagnostic testing, interviewed the Veteran about past and present symptomatology, and reported on the relevant rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Initial Disability Rating for Peripheral Neuropathy of the Right Great Toe 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. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, the Board will evaluate the issue of a higher initial rating from the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from September 1, 2006 to the present time. The Board has considered whether a staged rating is warranted with respect to the issue of higher initial rating for peripheral neuropathy of the right great toe. The Board finds that the severity of the peripheral neuropathy disability has not changed during the course of the appeal so as to warrant staged ratings, as explained below. Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran is in receipt of a 0 percent rating for the service-connected peripheral neuropathy of the right great toe for the entire initial rating period from September 1, 2006 under Diagnostic Code (DC) 8523 for impairment of the anterior tibial nerve (deep peroneal). 38 C.F.R. § 4.124a. Under Diagnostic Code 8523, incomplete paralysis of the anterior tibial nerve warrants 0, 10, or 20 percent ratings if the impairment is mild, moderate, or severe, respectively. A 30 percent rating is warranted for paralysis of the anterior tibial nerve if the paralysis is complete with dorsal flexion of foot lost. 38 C.F.R. § 4.124a, Diagnostic Code 8523. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8623. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. §§ 4.124, 4.124a, Diagnostic Code 8723. On review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from September 1, 2006, the service-connected peripheral neuropathy of the right great toe disability has manifested symptoms and functional impairment that more nearly approximate moderate incomplete paralysis with intermittent pain and numbness in the right great toe. Throughout the appeal process, the Veteran has reported a history of multiple surgical removals of ingrown toenails on the right great toe with residual intermittent numbness and pain in the right great toe, particularly when he is exposed to cold weather. As such, he has reported difficulty engaging in physical activity outdoors and spending any time outdoors during cold weather due to numbness and pain in the right great toe. See February 2010 VA Examination, November 2014 VA examination, April 2017 Travel Board Hearing Transcript. Service treatment records reflects that the Veteran's right great toe disability, to include symptoms of pain, were treated prior to separation from service. A May 1981 service treatment record reflects that the Veteran was diagnosed with an ingrown toenail and was treated for pain and infected sores of the right great toe. A January 1997 service treatment record reflects diagnosis of onychocryptosis on the borders of both great toes, which had been treated with palliative care of the nails with no resolution; therefore, onychoplasty of both great toenails was recommended as a medical necessity. During the April 2006 and May 2006 pre-retirement service examinations, the Veteran reported multiple problems with the feet that stemmed from engaging in multiple parachute jumps, road marches, and participating in pre-Ranger and Ranger school from 1980 to 1983 and 1989 to 1995. With regard to the right big toe, the Veteran reported problems with the toe going numb, as well as burning and sharp pain after very short exposure to cold temperature following multiple toenail removal surgeries. The right great toe pain and numbness was reported to occur once per day for a duration of up to two hours. No etiology for the right great toe numbness was discernable at the time. See May 2006 service treatment record. In a December 2008 lay statement, a friend of the Veteran, who served with the Veteran from 1994 to 1996 and continues to run with Veteran, reported observation of obvious pain and discomfort in the right toe throughout the years. Depending on the temperature outside, the friend reported that right great toe complaints ranged from discomfort to debilitating pain, especially during the cold winter months. A September 2009 private treatment record also reflects that symptoms of right great toe numbness had been present since service, and that there was some atrophy on the lateral surface of the right toe during examination. During a February 2010 VA examination, the Veteran continued to report progressively worsening numbness in the right great toe over the past five to six years, noting that the right great toe would go numb and turn white in cold weather, the toe would turn purple, and the Veteran would experience pain as the toe warmed up. Despite no evidence of painful motion, swelling, instability, weakness, atrophy or abnormal weightbearing, and a normal x-ray and electromyogram (EMG) of the right foot, the VA examiner in February 2010 annotated symptoms of pain, heat, redness, and stiffness in the right great toe, as well as weekly flare ups during cold weather, that caused an estimated 30 percent additional limitation of motion during the flare ups. The VA examiner diagnosed peripheral neuropathy of the right great toe with recurrent nail onycholysis. Further, the right great toe condition was noted to have severe effects on the ability to exercise, play sports, and drive. The November 2014 VA examination reflects consistent reports of numbness, pain, and discoloration in the right great toe when exposed to cold temperature. The Veteran further noted that he wore two pairs of socks during the winter, but continued to have symptoms of pain and numbness. The November 2014 VA examination revealed 5/5 strength in the bilateral lower extremities, no muscle atrophy, and normal sensation to light touch in the right foot and toes. The VA examiner noted signs of absent temperature sense and symptoms of severe intermittent pain (usually dull) and numbness in the right lower extremity. Although the VA examiner assessed the right anterior tibial nerve to be normal, and assessed mild, incomplete paralysis of the posterior tibial nerve, the evidence of consistent symptoms of numbness and pain in the right great toe since service more nearly approximates a disability picture of moderate, incomplete paralysis of the right great toe, which has been rated under Diagnostic Code 8523 for the anterior tibial nerve. In sum, the lay and medical evidence reflects that the Veteran has experienced intermittent pain and numbness in the right great toe with increased flares noted during exposure to cold temperatures during the rating period from September 1, 2006. Since the initial rating period from September 1, 2006, the symptoms have not completely subsided or varied in severity, as the symptoms of numbness, discoloration, and intermittent pain in the right great toe during colder temperatures have been relatively consistent since onset in service. See May 2006 service treatment record, February 2010 and November 2014 VA examinations, and April 2017 Travel Board Hearing. For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire initial rating period from September 1, 2006, the service-connected peripheral neuropathy of the right great toe with recurrent onycholysis more nearly approximated moderate, incomplete paralysis of the anterior tibial nerve. Accordingly, for the entire initial rating period from September 1, 2006, the Board finds a higher initial disability rating of 10 percent for peripheral neuropathy of the right great toe with recurrent onycholysis to be warranted under Diagnostic Code 8523 for the entire initial rating period from September 1, 2006. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.124. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1) (2017). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). With respect to the first prong of Thun, the Board finds the schedular criteria are adequate to rate the Veteran's right great toe peripheral neuropathy, and no referral for extraschedular consideration is required. The schedular rating criteria specifically include numbness, decreased sensation, painful paralysis, and incomplete paralysis as part of the General Formula for Diseases and Injuries of the Peripheral Nerves. The schedular rating criteria, including Diagnostic Code 8523, provide for disability ratings based on the overall severity of complete or incomplete paralysis, neuritis, or neuralgia in the anterior tibial nerve, respectively, and specifically contemplate such symptomatology and functional impairment. In this case, comparing the Veteran's disability level and symptomatology of the nerve disability to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule; therefore, the assigned rating schedule is adequate. 38 C.F.R. § 4.124(a). Absent any exceptional factors associated with the peripheral neuropathy of the right great toe, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged, and the evidence does not suggest, inability to secure or follow substantially gainful employment due to the service-connected disabilities. As previously noted, the Veteran specifically limited the appeal to seeking a 10 percent disability rating for the initial rating period on appeal; therefore, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. See id. at 453-54. ORDER A higher initial disability rating of 10 percent, but not higher, for peripheral neuropathy of the right great toe with recurrent onycholysis from September 1, 2006 is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs