Citation Nr: 21070355 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-14 228 DATE: November 23, 2021 ORDER Entitlement to a rating in excess of 20 percent for a service connected left great toe disability is denied. FINDING OF FACT The Veteran's left great toe disability is manifested by no more than moderately severe symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left great toe disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1995 to May 1996 and from October 2003 to June 2004, to include service to Southwest Asia. In a November 2020 decision, the Board granted an initial 20 percent rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court granted a Joint Motion for Remand (JMR) and vacated that portion of the decision that denied a rating in excess of 20 percent for the left great toe. The Veteran contends that he is entitled to a higher rating because he has experienced left great toe pain since his in-service injury in May 1998. Historically, the Veteran's left great toe disability has been evaluated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5284. See 38 C.F.R. § 4.20. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injuries, a 20 percent rating for moderately severe, a 30 percent rating for severe and a 40 percent for actual loss of the foot. Words such as "severe," "moderately severe," and "moderate," are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. "Moderate" is defined as tending toward the mean or average amount of dimension, having average or less than average quality. "Severe" is defined as harsh or of great degree. Merriam-Webster's Collegiate Dictionary (2003). During the pendency of the appeal, on February 7, 2021, VA revised the musculoskeletal ratings. However, there were no amendments made to Diagnostic Code 5284. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). On VA examination in April 2013, the Veteran's left great toe injury was diagnosed as a first toe sprain. The Veteran reported the history of his in-service injury and that he had pain at the left first toe digit. The examiner noted the Veteran did not have Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, or any other foot disability. There was no sign of malunion or nonunion of tarsal or metatarsal bones. The examiner noted the Veteran did not use any assistive devices and the foot disability did not impact him ability to work. Pursuant to a September 2018 Board remand, the Veteran underwent a VA examination in October 2019. The Veteran reported his current symptoms as pain in the left toe and irregular grown of the toenail. The Veteran did not report any flare-ups. He described the functional impairment as difficulty running, walking long distances, and standing for long periods of time. The examiner described the foot disability as "contusion with laceration left great toe." The examiner said the foot disability chronically compromised weight bearing but did not require arch supports, customs orthotic inserts or shoe modifications. There was pain on examination and that pain contributed to functional loss. There was pain on movement, weight-bearing. The examiner said the pain interferes with movement and weight bearing. Flare-ups limited functional ability, but the impact was pain in the toe. The examiner characterized the severity of the left great toe disability as mild. The Veteran's treatment records show he was provided foot care education. See August 2013, April 2014 records. Additionally, several treatment records noted the Veteran did not have toenail fungus. An April 2013 back examination noted normal strength in the Veteran's left great toe extension. He had a podiatry consultation in October 2014 but for itching feet, the left great toe. An August 2017 treatment note said he had joint pain or swelling but this note did not indicate whether this was in reference to his left great toe or other conditions, such as his back or shoulder. Another August 2017 noted shows the left toenail had traumatic changes, causing discomfort. The Board finds that the preponderance of the evidence is against finding that the criteria for an increased, 30 percent rating are met or more closely approximated. The April 2013 VA examiner concluded there was no functional impact. The October 2019 VA examiner noted pain on examination and said the pain interferes with movement and weight-bearing, but characterized the disability as mild. The Veteran described the functional impact as difficulty running, walking long distances and standing for long periods of time. Despite the October 2019 examiner's characterization of the severity as "mild," the Board previously concluded that the functional impact of the left great toe disability is moderately severe; the increase to 20 percent was granted. However, the symptoms and related functional impairment do not more closely approximate the finding of severe foot injury. The VA examinations and treatment records show pain on weight-bearing but the Veteran has not required the use of assistive devices, inserts or shoe modifications. The symptoms and related impact are reasonably contemplated by the currently assigned 20 percent rating. The Board has also considered the Veteran's lay statements that his left great toe disability is worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a left great toe disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.