Citation Nr: 21062039 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-27 851 DATE: October 6, 2021 ORDER Entitlement to service connection for ingrown toenail of the bilateral great toe is granted. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine (low back disability) is denied. FINDINGS OF FACT 1. After resolving reasonable doubt, the evidence is at least in equipoise that the Veteran has a current diagnosis of ingrown toenail of the bilateral great toe that has persisted since military service. 2. For the entire appeal period, the Veteran's low back disability had a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; and has exhibited no evidence of scoliosis, reversed lordosis, abnormal kyphosis, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for ingrown toenail of the bilateral great toe have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. For the entire appeal period, the criteria for a rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1984 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in March 2019, the Board remanded the issues on appeal for further evidentiary development and adjudication. Based on the March 2019 Board remand order, the Veteran was scheduled for new VA examinations. However, in October 2019, he requested to cancel his VA examination for his ingrown toenails as he was 100 percent disabled. See October 2019 Correspondence. Further, he was scheduled for an examination in October 2019 to evaluate his low back disability, but he failed to report for the examination, and has submitted no good cause for his failure to report. Based on the Veteran's October 2019 statement and his failure to report for the low back disability evaluation, the Board finds that all development has been completed and the issues are once again before the Board. Service Connection Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for ingrown toenail of the bilateral great toe is granted. In his September 2016 notice of disagreement, the Veteran reported that during service he had his ingrown toenails treated but such treatment was not always documented in his service treatment records (STRs). The Veteran stated that since retiring from service, he had both great toenails removed in 2009. Since that time, he learned to live with having ingrown toenails permanently, as both great toes bleed and cause chronic discomfort on a daily basis. In his May 2017 substantive appeal, the Veteran stated that he was a combat medic during service. He stated that the reason he had not had his toenails treated was because he stopped wearing combat boots and having a wedge of his toenail removed, which is painful. The Veteran stated that he has shown his toenails to his provider at least once a year. A review of the STRs shows that in an August 1983 enlistment examination he had normal feet. See October 2015 STR Medical Photocopy. In an August 1985 STR, it was noted that he dropped a steel bar on his right great toe. He was diagnosed with ingrown toenail of the right great toe secondary to trauma. He eventually got his toenail of the right great toe removed. Then, in a September 1985 STR, it was noted that he had an ingrown toenail of the left great toe. However, in a March 1989 periodic examination, he had normal feet. See April 2007 STR. Again, in a May 1993, June 2004, and July 2004 STRs, he was noted to have normal feet with no foot trouble. See December 2007 STR Medical. There was no further treatment or note of ingrown toenail of the bilateral great toe. A review of the post-service treatment records shows that he was afforded a VA examination in July 2007. In the July 2007 VA examination, he stated that his condition persisted for the past 23 years and that it was due to an in-service injury and wearing combat boots. He reported that the pain occurs three times per month and each time lasts for three days. It is relieved by rest and toenail removal. However, the examiner determined that there was no diagnosis as there is no pathology to render a diagnosis. The records are void of any treatments for ingrown toenail. However, in a January 2017 VA treatment record he complained of chronic and painful ingrown toenails of the bilateral great toes. See March 2017 CAPRI. Notably, there were no acute symptoms at the time of the examination. As the Veteran complained of chronic ingrown toenail of the bilateral great toe and as he had an in-service event of ingrown toenail of the bilateral great toe, in March 2019, the Board remanded the issue and ordered that the Veteran be afforded a VA examination. However, in October 2019, the Veteran requested that his VA examination be cancelled as he was 100 percent disabled due to his service-connected disabilities. See October 2019 Correspondence. As such, no VA examination was conducted, and no diagnosis was rendered. Although there is no documented evidence of ingrown great toenails, the Board finds that as a combat medic, the Veteran is competent to diagnosis an ingrown toenail. The Board also observes that the Veteran has stated that he has had ingrown toenails since service, which as a combat medic, he is competent to report. The Board resolves reasonable doubt and grants service connection. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Effective February 7, 2021, Diagnostic Code 5242 was changed to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010). The General Formula was unchanged from the revised version. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. 2. Entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. As an initial matter, the Veteran filed his claim for entitlement to an increased rating for a low back disability in May 2016. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran's low back disability is consistent with no higher than a 20 percent disabling rating. A review of the records shows that he was afforded a VA examination in July 2016. In the July 2016 VA examination, he stated that has middle to lower back pain. He reports that he has flare ups if he overdoes it at the gym or works a lot in the yard. He claimed that his range of motion is decreased at least 50 percent less during flare ups. On examination, the Veteran had a forward flexion to 75 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees with pain noted on forward flexion, extension, right and left lateral flexion. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the back. He was able to perform repetitive use testing with at least three repetitions with additional loss of function or range of motion. Specifically, he had a forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. He was not examined immediately after repetitive use over time or during flare ups and the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups. There was guarding of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. He displayed normal muscle strength, reflexes, and sensation and was found negative on bilateral straight leg raising test. There was no evidence of ankylosis of the spine or intervertebral disc syndrome of the thoracolumbar spine. An x-ray scan of the lumbar spine revealed mild multilevel degenerative changes of the lumbar spine most significant at L5-S1. In a January 2017 VA treatment record, he had impaired range of motion with flexion due to pain. See November 2017 CAPRI. In a March 2017 VA treatment record, he reported that he felt that his back improved since starting physical therapy. In March 2019, the Board remanded the issue and ordered that the Veteran be afforded a new VA examination to determine the current severity of his low back disability. He did not report to the examination. See October 2019 Correspondence. Based on the records, the Board finds that for the entire appeal period the Veteran's low back disability is consistent with a 20 percent disabling rating. The records show that the Veteran was able to forward flex, at worst, 60 degrees; extend, at worst, to 10 degrees; and combined range of motion, at worst, 110 degrees. These findings are consistent with a 20 percent disabling rating. The Veteran is not entitled to the next higher rating of 40 percent disabling rating as there is no evidence that the Veteran's forward flexion of the thoracolumbar spine is 30 degrees or less, or that the Veteran exhibited ankylosis of the thoracolumbar spine. Thus, the Board finds that the Veteran's low back disability did not more nearly approximate the criteria for a rating in excess of 20 percent. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243. As for the Veteran's statement that he is entitled to a higher rating as his range of motion is reduced by half during flare-ups, his full range of motion was 75 degrees and half a 75 degrees is 37.5 degrees. Moreover, on repetitive use, his range of motion was reduced 15 degrees, to 60 degrees. Both are greater than 30 degrees required for a 40 percent rating. While the Veteran has complained of difficulties standing, sitting, walking, and climbing stairs, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board observes that these complaints are a result of the functional loss resulting from the Veteran's service-connected low back disability, which is contemplated by Diagnostic Codes 5242 and 5243 and 38 C.F.R. §§ 4.40, 4.45 and 4.59. Accordingly, as the Veteran's symptomatology does not more nearly approximate the criteria for a higher rating, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.