Citation Nr: 1806490 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-03 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for left foot hammer toe. 2. Entitlement to an initial compensable rating for right foot hammer toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1968 until November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Cleveland, Ohio. In October 2017 the Veteran testified at before the undersigned via videoconference; a transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's left hammer toe affects the second toe, third toe, fourth toe, and little toe; which more closely approximates hammer toe affecting all toes. 2. The Veteran's right hammer toe affects the second toe, third toe, fourth toe, and little toe; which more closely approximates hammer toe affecting all toes. CONCLUSIONS OF LAW 1. The criteria for a 10 percent initial disability rating, and no higher, for the service-connected left foot hammer toe are met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5282 (2017). 2. The criteria for a 10 percent initial disability rating, and no higher, for the service-connected right foot hammer toe are met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5282 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Rating Disabilities in General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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 Veteran's hammer of the left and right foot is currently rated as noncompensable. Under DC 5282 for hammer toe, the minimum noncompensable rating is warranted for hammer toe of individual toes without claw foot. The maximum 10 percent rating is warranted for hammer toe of all toes, unilateral and without claw foot. 38 C.F.R. § 4.71a, DC 5282 (2017). Important to note, the Veteran is specifically seeking a 10 percent disability rating for hammer toe of each foot. (See June 2012 Notice of Disagreement and Hearing transcript page 8). As such, the Board will limit its discussion on whether the Veteran is entitled to a compensable rating for his service-connected hammer toe of the left and right foot. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran was afforded VA examinations in October 211 and February 2016 to assess the Veteran's hammer toe disability. Both examination reports reflect the Veteran with hammer toe affecting the second toe, third toe, fourth toe, and little toe of both left and right foot. Based on the clinical evidence reflecting the Veteran with hammer toe affecting the second toe, third toe, fourth toe, and little toe of both left and right foot; the Board finds the Veteran's hammer toe more closely approximates hammer toe affecting all toes. As such, the Board finds that a 10 percent rating disability (the maximum under the diagnostic code) is warranted for left foot hammer toe and right foot hammer toe, each. Total rating for compensation purposes based on individual unemployability (TDIU) Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record does not indicate that the Veteran has been unable to maintain substantial gainful employment specifically due to his left and right foot hammer toe disability. Thus, the issue of entitlement to TDIU has not been reasonably raised by the record. ORDER Entitlement to an initial disability rating of 10 percent, and no higher, for left foot hammer toe is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an initial disability rating of 10 percent, and no higher, for right foot hammer toe is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs