Citation Nr: 1828016 Decision Date: 05/09/18 Archive Date: 05/18/18 DOCKET NO. 14-22 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable disability rating for residuals of amputation proximal phalanx, right fifth toe. 2. Entitlement to an initial compensable disability rating for a lumbar spine disability (characterized as mid-back paraspinal muscle strain). REPRESENTATION Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc. ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1975 to May 1986. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that the issue of an initial compensable disability rating for residuals of amputation proximal phalanx, right fifth toe, was not appealed by the Veteran in his June 2014 substantive appeal; however, the issue was certified to the Board in September 2014. Thus, the Board has taken jurisdiction over the matter and included the issue on the title page of this decision. In his substantive appeal, the Veteran requested a videoconference hearing before the Board. Such was scheduled to be held in July 2017; however, the Veteran failed to report to the hearing. As he did not explain his absence or request to reschedule, such hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d) (2017). This appeal was certified to the Board in September 2014. In December 2016, the Veteran's representative submitted a letter to VA indicating that as of the date of that letter, the organization was withdrawing from the case as the Veteran's representative. However, the record fails to show that representation was withdrawn in accordance with 38 C.F.R. § 20.608 (b). Following certification of an appeal to the Board, representation may not be withdrawn without good cause shown on motion and a signed statement certifying that a copy of the motion was sent via first-class mail, postage prepaid, to the Veteran, setting forth the address to which the copy was mailed. 38 C.F.R. § 20. 608 (b)(2) (2016). The Board acknowledges that 38 C.F.R. § 20. 608 (b)(2) also indicates that the motion should be filed with the Office of the Senior Deputy Vice Chairman. The Veteran's representative has not complied with this regulation, in that there was no reason given for the withdrawal and it was not filed with the Office of the Senior Deputy Vice Chairman. In addition, the Veteran has not submitted a power of attorney in favor of another representative. In an April 2018 letter, the Board informed the Veteran's representative of the requirements and provided an opportunity to correct the errors in the December 2016 attempt to withdraw. No reply was provided to that letter. Thus, the Board still recognizes Swords to Plowshares as the Veteran's accredited representative. The issue of an increased disability rating for a lumbar spine disability is addressed in the REMAND portion of the decision below and is being REMANDED to the Agency of Original Jurisdiction for further development. VA will inform the Veteran when further action, on his part, is necessary. FINDING OF FACT For the entire period on appeal, the Veteran's residuals of amputation proximal phalanx, right fifth toe has been manifested by paresthesias and a decrease in sensation over the residual part of the toe; but without removal of the metatarsal head. CONCLUSION OF LAW The criteria for an initial compensable rating for residuals of amputation proximal phalanx, right fifth toe have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5172 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not referred to any deficiencies in either VA's duty to notify or to assist; therefore, the Board may proceed to the merits of his claim. See Scott v. McDonald, 789 F.3d 1375, (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran's residuals of amputation proximal phalanx, right fifth toe (hereinafter, "right toe disability") is rated under Diagnostic Code 5172, governing the amputation of toes, other than great. Under that code, a noncompensable rating is warranted for the amputation of toes, other than the great toe, without metatarsal involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5172. A 20 percent rating is warranted for amputation of one or two toes, other than the great toe, with removal of the metatarsal head. Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right toe disability more nearly approximates the level of disability contemplated by a 20 percent rating. The Veteran was provided with a VA examination in February 2012. The examiner indicated that the Veteran's right fifth toe amputation was of the proximal phalanx of the toe. The examiner did not indicate that the amputation was characterized by removal of the metatarsal head. There was no ulceration at the time of the examination or at any point since the amputation. The Veteran reported experiencing paresthesias in the missing part of the toe, as well as a decrease in sensation over the residual part of the right fifth toe. The examiner found that the Veteran had no motor control over the residual part of the toe, but that there existed no resulting loss of function. No other foot injuries were noted. Overall, the examiner found no functional impairment due to the right toe disability. VA treatment records are silent for any indication that the right fifth toe amputation is manifested by removal of the metatarsal head. Based on the lay and medical evidence of record, the preponderance of the evidence is against a finding that the Veteran's right toe disability more nearly approximates the level of severity contemplated by a 20 percent rating. There is no medical evidence that the amputation involves removal of the metatarsal head. The Board notes that the Veteran has reported experiencing paresthesias and a loss of sensation in the area of his amputation. However, the February 2012 VA examiner specifically took this symptomatology into account, and found that there was no impairment due to the disability. In light of this overall description, as well as the medical evidence of record, the Board finds that the Veteran's overall disability picture, which specifically includes amputation of the proximal phalanx of the right fifth toe, paresthesias and a loss of sensation, does not more nearly approximate the level of severity contemplated by a 20 percent rating, which directly contemplates additional loss of bone and tissue as a result of the service-connected amputation. See 38 C.F.R. § 4.71a, Plate IV. Therefore, an initial compensable rating is not warranted. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The February 2012 VA examination report shows that the Veteran has not been diagnosed with any foot disability other than the right fifth toe amputation; specifically pes planus, weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or nonunion or malunion of the metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate residuals of a foot injury. The words "marked," "severe" and "pronounced" as used in the various Diagnostic Codes are not defined in the rating 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. However, the Board concludes that a higher rating under Diagnostic Code 5284 is not warranted in this case. First, a higher or separate rating under Diagnostic Code 5284 is not warranted as its clear intent is to encompass disabilities not contemplated by the other Diagnostic Codes pertaining to the foot, as evidenced by its title of "Foot injuries, other." In this case, the Veteran is service-connected for a right fifth toe amputation, which clearly is fully and best contemplated within the rating criteria for Diagnostic Code 5172, which directly governs the rating of the amputation of toes other than the great toe. Accordingly, the Veteran' right toe disability may not be rated by analogy under DC 5284, or any other diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (a disability rating under Diagnostic Code 5284 is inappropriate where a veteran has a diagnosed condition specifically listed in § 4.71a). In evaluating the current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Veteran has complained of paresthesias and reduced sensation, which he is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The February 2012 VA examiner noted the Veteran's assertions, but found no functional impairment. 38 C.F.R. §§ 4.40, 4.45. Thus, the Veteran's additional symptomatology was directly considered by the VA examiner in determining the current overall severity of his disability, which the Board finds is accurately reflected by the currently assigned rating. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board acknowledges that the Veteran, in advancing this appeal, believes that his right toe disability has been more severe than the assigned rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Thus, based on the above, the Board finds that there is no basis to assign a compensable rating for the Veteran's right toe disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, staged ratings are not warranted, as the Veteran has had a stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating, for the reasons discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching the conclusion to deny the Veteran's claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply. See 38 U.S.C. § 5107 (b) (2012); Ortiz, supra; Gilbert, supra. ORDER Entitlement to an initial compensable rating for residuals of amputation proximal phalanx, right fifth toe, is denied. REMAND The Veteran underwent a VA examination of his lower back in February 2012. However, subsequent to that examination, a new precedential opinion that directly affects certain aspects of its outcome was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. A review of the February 2012 examination report reveals that it does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Thus, the Board finds that a new examination is necessary. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for the appropriate VA examination to evaluate his service-connected lumbar spine. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs