Citation Nr: A21017131 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 200518-84167 DATE: October 22, 2021 ORDER A 10 percent rating for a right great toe disability is granted. An effective date prior to April 15, 2015 for service connection for a right great toe disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs for finding that the Veteran's right great toe disability symptoms are moderate but not moderately severe. 2. The October 2012 rating decision was final, and April 15, 2015 is the earliest date a formal or informal claim to reopen the claim for service connection for a right great toe disability was received. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for a right great toe disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5284. 2. The criteria for an effective date prior to April 15, 2015 for service connection for a right great toe disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the Army from February 1974 to April 1976 and from April 1976 to August 1994. The Veteran appealed these matters to the Board of Veterans Appeals (Board) from January and April 2020 rating decisions by submitting a May 2020 VA Form 10182 (Notice of Disagreement) and electing the Direct Review appeal lane. 1. A compensable rating for a service-connected right great toe disability The Veteran filed a claim for increase in March 2020 and appealed an April 2020 rating decision denying a compensable rating for a right great toe disability. The Veteran's right great toe disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284, for other foot injuries. Under DC 5284, a 10 percent rating is warranted for moderate other foot injuries. To be granted a 20 percent rating, the evidence would need to show that the Veteran's right great to disability is moderately severe in nature. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. A March 2020 VA foot examination notes symptoms of chronic pain in the great toe. The Veteran applies Diclofenac gel to the right great toe four times daily. Flare-ups were described as right foot pain when walking for prolonged periods and throbbing pain the right great toe. Flare-ups were described by the Veteran as being severe, occur daily, and last for approximately one hour. The Veteran reported that he cannot perform as many activities as he could prior. He cannot run, stand, jump or walk for prolonged periods. A "darkened" right great toenail was noted. The severity of this disability was noted to be moderate. This disability was noted to chronically compromise weight bearing and requires arch supports. Pain in the right great toe was noted during flare-ups when the foot is used repeatedly over time. After carefully reviewing the evidence the Board that's the criteria for a higher initial 10 percent rating under DC 5284 for symptoms that are "moderate" in severity have been met. As noted, the March 2020 VA foot examination documents symptoms described by the examiner as being moderate. The Board ascribes significant probative value to the findings of the March 2020 VA examiner of record who assessed the Veteran's right great toe disability as being no worse than moderate in severity after examining the Veteran and performing all the necessary diagnostic testing and studies. Further, the preponderance of the medical evidence does not weight towards finding that the Veteran's right great toe symptoms more closely approximate the criteria for a 20 percent rating under DC 5284. Based on these facts, the Board finds the preponderance of the evidence weighs against the assignment of a rating in excess of 10 percent for a right great toe disability and, to that extent only, the claim is denied. Finally, the Board observes that the Veteran is assigned a 50 percent rating for a service-connected bilateral foot disability rated by analogy under DC 5299-5276 with extreme tenderness of the plantar surfaces being the most predominant symptom. The assignment of a separate 10 percent rating under DC 5284 for a right great toe disability here does not violate anti-pyramiding principles because the Veteran has separate foot diagnoses regarding his right great toe which is an anatomically distinct part of his foot. Therefore, the Board has determined that residual symptoms are separate and distinct manifestations of a right great toe disability that are entitled to a separate rating. See generally Esteban v. Brown, 6 Vet. App. 259 (1994) (finding compensation under different DCs permissible for separate and distinct manifestations relating to same injury); Fanning v. Brown, 4 Vet. App. 225 (1993) (same); see also 38 C.F.R. § 4.14 (2017). 2. An earlier effective date for service connection for a right great toe disability Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Here, the October 2012 rating decision denying service connection for a right great toe disability was final because the Veteran did not submit a timely VA Form 9 (substantive appeal) within sixty days of the issuance of the June 2014 Statement of the Case (SOC) and did not preserve an earlier date of claim. See 38 C.F.R. § 3.400. The Regional Office provided a notice letter in December 2014 that the VA Form 9 was not timely and provided information regarding a notice of disagreement to such determination. Following the final denial and notice regarding the AOJ adjudicating the VA Form 9 as untimely, the Veteran submitted an April 15, 2015 VA Form 21-526EZ (Fully Developed Claim). This date of claim corresponds to the currently assigned effective date for service connection and is the earliest date of receipt of a formal or informal claim following the previous final denial. Accordingly, the currently assigned effective date of April 15, 2015 is the earliest possible effective date available under applicable laws and regulations. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. The claim for an earlier effective date must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.