Citation Nr: 20002389 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-08 964 DATE: January 10, 2020 ORDER A disability rating of 10 percent, and not in excess thereof, for degenerative joint disease of the great left toe (left great toe disability), for the rating period prior to February 10, 2016, is granted. A disability in excess of 10 percent for the left great toe disability, for the rating period from February 10, 2016, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left great toe disability more nearly approximated moderate malunion or nonunion of the tarsal or metatarsal bones for the rating period prior to February 10, 2016. 2. For the entire rating period on appeal, the Veteran’s left great toe disability has not more nearly approximated moderately severe malunion or nonunion of the tarsal or metatarsal bones. CONCLUSIONS OF LAW 1. For the rating period prior to February 10, 2016, the criteria for a disability rating of 10 percent, and not in excess thereof, for the left great toe disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.71a, Diagnostic Code (DC) 5283. 2. For the rating period from February 10, 2016, the criteria for a disability rating in excess of 10 percent for the left great toe disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.71a, DC 5283. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from August 2007 to August 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Nashville, Tennessee, RO has jurisdiction of the current appeal. The August 2012 rating decision on appeal granted service connection for the Veteran’s left great toe disability, and assigned a noncompensable (0 percent) disability rating effective August 13, 2011. A March 2016 rating decision granted a higher rating of 10 percent for the left great toe disability from February 10, 2016, thus creating a staged rating for different periods. Although a higher disability rating has been assigned for the left great toe disability, as reflected in the March 2016 rating decision, the issue remains in appellate status as the maximum rating has not been assigned for any period. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In August 2015, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) or additional development. All outstanding VA medical records were associated with the case file, and the Veteran was contacted to identify all private medical records to associate with the case file. Moreover, the Veteran was afforded a VA examination that adequately addressed the severity of his left toe disability. Thus, there has been substantial compliance with the August 2015 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Higher rating for left foot disability The Veteran seeks a higher rating for the service-connected left great toe disability. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate 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); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 The Veteran is in receipt of a noncompensable rating for his left toe disability for the period prior to February 10, 2016, and a 10 percent rating from February 10, 2016 under DC 5003-5283. See 38 C.F.R. § 4.71a. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under DC 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. DC 5283 provides the following rating criteria for malunion or nonunion of the tarsal or metatarsal bones: 10 percent when moderate, 20 percent when moderately severe, and 30 percent, the maximum available, when severe. Id. With actual loss of use of the foot a 40 percent rating is warranted. Id. at Note 1. The rating schedule does not define the terms “moderate,” “moderately severe,” or “severe,” as used in DC 5283 to describe the degree of impairment of tarsal or metatarsal bones. Instead, adjudicators must evaluate all of the evidence and render a decision that is “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “moderate” by medical examiners, 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 an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Upon review of all the lay and medical evidence of record, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for the Veteran’s left great toe disability for the period prior to February 10, 2016. In this regard, the Board finds that the left great toe disability more nearly approximated moderate malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, DC 5283. The Veteran underwent a VA examination of the left great toe in August 2011. He reported that he dropped a large “round” onto his left great toe during service, which caused the toenail to come off. The Veteran indicated that after the toenail grew back, only about half of it is attached, and that he has sharp pain whenever he stubs his toe. Upon examination, it was noted that the Veteran had tenderness of the joints of the left great toe without swelling. In his August 2012 notice of disagreement, the Veteran asserted that since the original injury, the left great toenail became severely ingrown and extremely painful. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 10 percent disability rating for the left great toe disability for the period prior to February 10, 2016, have been met. Because the Board is granting a 10 percent rating for the left great toe disability for the period prior to February 10, 2016, the Veteran is now in receipt of a 10 percent rating for the left great toe disability for the entire rating period on appeal. The Board will now analyze whether an even higher rating than 10 percent is warranted for the left great toe disability at any point during the rating period on appeal. Upon review of all the lay and medical evidence of record, the Board finds that a disability rating in excess of 10 percent for the left great toe disability is not warranted at any point during the rating period on appeal. A higher rating than 10 percent would be warranted for moderately severe malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, DC 5283. The evidence weighs against such manifestations. The August 2011 VA examination report does not show that the left great toe disability more nearly approximates moderately severe malunion or nonunion of the tarsal or metatarsal bones. The Veteran underwent another VA examination in February 2016. He reported that he dropped a projectile on his left great toe, and that the condition was severe enough to lead to a nail removal. The Veteran stated that he still has pain in his left toe, but not as bad as prior to the nail removal. He denied any additional left foot problems. The VA examiner noted that the Veteran had tenderness with moderate palpation to distal left great toe and plantar surface of his toe. The left nail bed is exposed without nail. It was noted that the Veteran had pain and tenderness of the left toe due to the above-mentioned nail removal. The tissue was intact, with no ulcerations, abnormal callous formations, or deformities. Under functional loss and limitation of motion, it was noted that pain contributed to functional loss of the left foot. Contributing factors of the left foot functional impairment were: pain on weighting-bearing, disturbance of locomotion, interference with standing, and lack of endurance. Pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the left foot is used repeatedly over time. Overall, the VA examiner noted that the left toe severity was moderate, and that the left toe condition chronically compromised weight bearing. This evidence weighs against a finding that the left great toe disability more nearly approximated moderately severe malunion or nonunion of the tarsal or metatarsal bones. VA treatment records throughout the relevant rating period do not otherwise show moderately severe malunion or nonunion of the tarsal or metatarsal bones. The Board has also considered whether a disability rating in excess of 10 percent for the left great toe disability is warranted under 38 C.F.R. § 4.71a, DC 5284. DC 5284, for other foot injuries, provides a 10 percent rating for impairment of a moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. After a review of all the evidence of record, the Board finds that, for entire rating period on appeal, the left great toe disability symptoms and functional impairment have not more nearly approximated a moderately severe left foot injury to warrant a 20 percent rating under DC 5284. As discussed above, the February 2016 VA examination report shows symptoms of the left great toe disability includes pain on weighting-bearing, disturbance of locomotion, interference with standing, and lack of endurance that contributes to functional loss, and pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups. The February 2016 VA examiner assessed that the left foot was moderately affected by symptoms of the left great toe disability. Based on the foregoing, the Board finds that the criteria for a disability rating in excess of 10 for the left great toe disability have not been met or more nearly approximated under either DC 5283 or 5284. 38 C.F.R. §§ 4.3, 4.7. Johnny Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.