Citation Nr: 1803436 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-23 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased initial disability rating for left great toenail deformity, rated as noncompensably disabling from December 5, 2006, and 10 percent disabling since July 27, 2012. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October1956 to March 1959 and in the United States Army from January 1961 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board remanded appeal in December 2011, October 2013, and October 2017 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The most probative evidence of record indicates that the Veteran's left great toenail deformity causes pain with palpitation to the nail plate but no functional loss. CONCLUSION OF LAW Entitlement to an increased initial disability rating for left great toenail deformity, rated as noncompensably disabling from December 5, 2006, and 10 percent disabling since July 27, 2012, is denied. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.31, 4.71a, DC 5280 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Contentions The Veteran asserts that his left great toenail disability causes constant chronic pain, affects his left great toe and nail bed, makes him walk slowly, and affects his ability to stand for a prolonged period of time. See May 2008 Notice of Disagreement (NOD), February 2012 Veteran's Statement, and September 2015 private treatment record. II. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's service-connected left great toenail deformity is currently assigned a noncompensable rating from December 5, 2006, to July 27, 2012, and a 10 percent rating thereafter under DCs 5299-5280. 38 C.F.R. § 4.27. Since this is an appeal of the initial rating assigned, the appeal period is from December 5, 2006, or the effective date for the award of service connection in this case. Under DC 5280, unilateral hallux valgus is rated at a schedular maximum of 10 percent for either an operation with resection of the metatarsal head, or, when it is severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, DC 5280. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran has a long history of bilateral foot problems, with documentation of a multitude of symptoms and diagnoses. However, the Veteran is service-connected for left great toenail deformity only, as service connection for his other foot ailments, including left great toe arthritis, left hammer toes, left plantar plate tear tendonitis, and a bilateral foot condition, have been repeatedly denied. Thus, the Board will focus its analysis on symptoms and diagnoses related specifically to his service-connected left great toenail disability. VA and private treatment records described the Veteran's left great toe nail as: "not growing properly;" thick, curved, deformed, ingrown, and discolored; dystrophic; partially avulsed from the nail bed; causing pressure and discomfort in the Veteran's shoes when not filed; and with pain with palpitation to the nail plate. See April 2007 private treatment records and November 2006, August 2007, December 2007, May 2008, and April 2010 VA treatment records. Additionally, a January 2008 VA examiner diagnosed a deformity of the great left toenail, and the Veteran reported pain at that time. June 2009 and October 2010 VA examination reports only referenced general left foot conditions and did not indicate specific symptoms attributable to a left great toenail deformity. As noted in the Board's prior remands, July 2012 and May 2016 VA examination reports were deemed inadequate for failure to address which symptomatology was specifically attributable to the Veteran's left great toenail deformity as opposed to his non-service connected foot conditions. The November 2017 examiner reviewed the Veteran's claim file, including pertinent past medical history, and determined that any current toe symptoms noted in the May 2016 VA examination report (metatarsalgia, hammer toes, hallux valgus, and functional loss and limitation of motion due to pain on movement, pain in weight-bearing and non-weight bearing, weakness, excess fatigability, incoordination, swelling, deformity, instability of station, disturbance of locomotion, interference with sitting, interference with standing, and lack of endurance, and use of a cane) could not be assigned to his left great toenail deformity. Further, the examiner stated that there was no functional loss that would be equally served with amputation and replacement with prosthesis and no related metatarsal functional loss. In support of her opinion, the examiner noted the Veteran's in-service toenail injury and subsequent removal of the toenail and concluded that toenail removal does not lead to hammer toes or metatarsal issues. Further, she reasoned that she was unable to establish a nexus between the Veteran's ongoing bilateral foot complaints and the prior ingrown toenail issue and treatment. The Board affords this opinion great probative value, as it is based on review of the Veteran's relevant medical history and provides rationale based on sound medical principles. Here, the most closely analogous diagnostic code, DC 5280, requires operation with resection of the metatarsal head or severe symptomatology equivalent to amputation of the great toe. There has been no operation with resection of the metatarsal head. Moreover, the Board finds the Veteran's left great toe symptomatology as noted above, to include partial avulsion from the nail bed and pain with palpitation to the nail plate, does not equate to severe symptomatology equivalent to amputation of the great toe, for reasons outlined by the November 2017 VA examiner. Thus, a compensable rating under DC 5280 is not warranted. 38 C.F.R. § 4.31. However, the Board will not disturb the favorable findings made by the RO for a portion of the appeal period in this regard. While the Board does not dispute that the Veteran's disability causes pain to palpation to the great toe, the most probative competent medical evidence indicates that the Veteran's great toe joints are not affected by his service-connected disability, and the Veteran is not competent to opine on whether his disability has associated joint involvement. Thus, a minimal compensable rating under 38 C.F.R. § 4.59 is not available. Moreover, to the extent the Veteran asserts that his left great toe nail disability makes him walk slowly and affects his ability to stand for a prolonged period of time, the Board affords more probative value to the November 2017 VA examiner's opinion reflecting no functional impairment, to include any ambulation or standing problems, due to the left toe disability, and emphasizes that the Veteran has a number of other nonservice-connected conditions, including left great toe arthritis, left hammer toes, left plantar plate tear tendonitis, and a bilateral foot condition that result in such symptomatology. The Board has considered the possibility of use of an alternative diagnostic code. However, DC 5281, which rates hallux valgus, or "restricted mobility of the big toe due to stiffness of the metatarsophalangeal joint especially when due to arthritic changes in the joint," is inapplicable for reasons outlined above. See Merriam-Webster Medical Dictionary. Additionally, DC 5282 provides a noncompensable rating for a single hammer toe, as noted there is no metatarsal involvement for application of DC 5283, and the Veteran's foot is not involved, precluding use of DCs 5276, 5277, 5278, and 5284. ORDER Entitlement to an increased initial disability rating for left great toenail deformity, rated as noncompensably disabling from December 5, 2006, and 10 percent disabling since July 27, 2012, is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs