Citation Nr: 21002525 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-39 361 DATE: January 13, 2021 ORDER Entitlement to an initial compensable rating for a toenail condition of the right great toe, to include ingrown toenail, is denied. Entitlement to an initial compensable rating for a toenail condition of the left great toe, to include ingrown toenail, is denied. FINDINGS OF FACT 1. The probative evidence of record demonstrates the Veteran’s right great toenail condition did not manifest as hammertoes of all toes or as a moderate or more severe foot injury. 2. The probative evidence of record demonstrates the Veteran’s left great toenail condition did not manifest as hammertoes of all toes or as a moderate or more severe foot injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for a toenail condition of the right great toe, to include ingrown toenail, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes (DC) 5282, 5284. 2. The criteria for entitlement to an initial compensable rating for a toenail condition of the left great toe, to include ingrown toenail, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5282, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from April 1979 to June 1980. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing has been included with the record. The issues were previously before the Board in March 2019. The Board remanded to obtain outstanding medical treatment records and provide an examination to determine the severity of the Veteran’s service-connected bilateral toenail disabilities. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The Board determines 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, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial compensable rating for the Veteran’s bilateral great toenail conditions, to include ingrown toenail The Veteran contends that his service-connected bilateral great toenail conditions warrant compensable initial disability ratings. The Veteran’s toenail conditions are rated under hyphenated DC 5299-5282. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built up” with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being “99” for an unlisted condition. Id. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. The Rating Schedule does not provide a specific diagnostic code for evaluation of ingrown toenails. Thus, the Veteran’s toenail condition has been evaluated as analogous to a diagnosis of hammer toe and the diagnostic criteria set forth in DC 5282. Under DC 5282, a 10 percent rating is warranted when the evidence shows hammer toe of all toes, unilateral without claw foot. A noncompensable rating is warranted when evidence shows hammer toe of single toes. 38 C.F.R. § 4.71a, DC 5282. Additionally, the Veteran’s toe conditions may potentially be evaluated under DC 5284, for other foot injuries. Under DC 5284, a 10 percent rating is assigned for foot injuries with moderate symptoms; a 20 percent disability rating is assigned for symptomatology which is moderately severe; and a 30 percent disability rating is assigned for symptomatology which is severe. 38 C.F.R. § 4.71, DC 5284. A 40 percent evaluation is assigned for actual loss of use of the foot. Id. The words "moderate," "moderately severe," and "severe" used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities. 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. The Veteran underwent a VA examination for his toenail conditions in October 2014. The Veteran reported a history of ingrown toenails treated with nonsteroidal anti-inflammatory medications. The Veteran rated his foot pain from 2 to 7 out of 10, which increased with exertion and walking. The Veteran reported several monthly flare-ups with increased pain, but denied functional loss during and after flare-ups. The VA examiner provided a diagnosis of bilateral ingrown toenails. The examiner noted the Veteran presented normal foot contours, with no swelling, bony crepitus, or joint line tenderness. On examination, the Veteran presented no pain. The VA examiner reported no functional loss or limitation of motion attributable to the Veteran’s toe condition. The VA examination noted no factors such as pain, weakness, fatigability, or incoordination limited the Veteran’s functional ability during flare-ups or with repeated use over time. The examination noted the Veteran did not require assistive devices as a normal mode of locomotion. Finally, the VA examination noted no occupational impact associated with the Veteran’s bilateral toenail condition. Additionally, the October 2014 VA examiner provided a diagnosis for bilateral sciatica, noting the Veteran’s complaints of burning pain in his feet and toes. The Veteran underwent a VA examination in March 2016. The Veteran reported a history of bilateral ingrown toenail conditions, with its onset of symptoms in 1981. The Veteran reported the condition had stayed the same, but he had not been treated with oral or topical medications in the previous 12 months for any skin condition. The VA examiner provided that the Veteran did not have a diagnosis of a skin condition or bilateral ingrown toenails. The VA examiner noted the established diagnosed ingrown toenail condition had changed and offered no pathology. The examiner reported the Veteran’s toenails appeared normal with slight overgrowth of cuticle tissue, but no ingrown nature and no erythema. The examiner noted the Veteran did not present pain on palpation or movement. The VA examiner reported no functional loss attributable to the Veteran’s bilateral toe condition, but noted limitation in functional ability during flare-ups and with repeated use over time, described as limitations walking in a boot. The Veteran complained of numbness and burning pain, described as constant with worsening pain in the winter when the Veteran wore boots. The VA examiner noted the Veteran’s bilateral toe condition resulted in the constant use of a cane to assist in normal locomotion. However, the examiner noted no functional impairments to abilities to perform occupational tasks, such as standing, walking, lifting, or sitting. The Veteran noted he could walk one block, one flight of stairs and stand for up to an hour. The VA examiner reported the Veteran’s foot condition as mild in severity. The Veteran’s VA medical treatment records note complaints of toe pain. The Veteran’s May 2017 VA primary care treatment record noted the Veteran’s feet as healthy with no ingrown toenails. The Veteran’s primary care physician noted potential neuropathy associated with the Veteran’s toenail symptoms. The Veteran testified before the Board in an August 2018 hearing. The Veteran described the symptoms of his bilateral toenail condition as numbness, discoloration of the great toes, and feelings of discomfort and irritation. The Veteran reported he avoided wearing shoes due to his toenail condition. He noted worsening symptoms when he wore boots. Notably, the Veteran described the area of redness on his toes increased and the nail looked black and decayed during flare-ups. The Veteran answered wearing shoes does not affect the way he walks but noted the toenail area is sensitive. The Veteran stated that he treated his toe condition with topical creams and with soaking his feet, but these provided little help. Pursuant to the Board remand, the RO provided a VA foot examination in December 2019. The Veteran reported numbness and discomfort of the lateral aspect of both great toenail beds unassociated with any particular activity. The Veteran denied functional impairment due to his toe condition. The Veteran denied treatment by a podiatrist. The VA examiner noted the Veteran’s bilateral onychocryptosis as mild in severity. On examination, the Veteran presented no pain or current evidence of paronychial swelling, redness, or granulation tissue. The VA examiner reported no functional loss or limitation of motion attributable to the Veteran’s toe condition. Additionally, the VA examination noted no factors such as pain, weakness, fatigability, or incoordination limited the Veteran’s functional ability during flare-ups or with repeated use over time. Finally, the VA examination noted no occupational impact associated with the Veteran’s bilateral toenail condition. Upon review of the evidence of record, the Board finds that an initial compensable rating is not warranted for the Veteran’s bilateral toenail conditions. The evidence of record does not show at any time during the pendency of the Veteran’s appeal the Veteran’s condition manifested as hammertoes of all toes needed for a compensable rating under DC 5282. 38 C.F.R. § 4.71a. The medical evidence of record consistently provided normal findings for the Veteran’s toes and feet on examination. The Board recognizes the Veteran’s accounts of symptoms attributed to his toenail conditions, to include pain, discoloration, numbness, discomfort, and a limitation on wearing shoes. The Veteran is competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the record shows the Veteran has denied functional impairment due to his toenail conditions and testified that the condition more closely manifests as an irritating numbness and discoloration, than pain affecting his gait. Additionally, the record shows the VA examinations have only categorized the Veteran’s bilateral great toenail condition as mild in severity. Therefore, the Board finds the preponderance of evidence is against a finding that the Veteran’s bilateral great toenail condition manifest as a moderate, or more severe foot injury compensable under DC 5284. See 38 C.F.R. § 4.71. The Board notes that the Veteran has a current separate rating for his bilateral sciatica of the lower extremities, marked by intermittent pain, paresthesias and/or dysesthesias, numbness, and other such symptoms of incomplete paralysis of the sciatic nerve under the criteria of DC 8520. See 38 C.F.R. § 4.124a. The appeal before the Board is in consideration of his specific symptoms related to his bilateral toenail conditions. Thus, evaluation based on symptoms of numbness, burning pain, and decreased sensation of the toes and feet under DC 5284 would represent pyramiding and should be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, as provided above, the Veteran at no time during this period had pes planus, hallux valgus, hallux rigidus, malunion of or non-union of the tarsal or metatarsal toes, claw foot, weak foot, or Morton’s disease. Thus, consideration under the diagnostic criteria for additional foot conditions is not warranted. See 38 C.F.R. § 4.71, DC 5277-5279, 5283. In sum, the evidence of record is against an initial compensable evaluation for the Veteran’s service-connected bilateral great toenail conditions, and the claims are denied. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against ratings in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.