Citation Nr: 21029951 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-06 472A DATE: May 17, 2021 ORDER Entitlement to a separate compensable disability rating for ingrown right first toenail status post nail removal is denied. FINDING OF FACT The Veteran's ingrown right first toenail status post nail removal has not resulted in unstable or painful scarring, scarring resulting in disabling effects, or other objective evidence of residuals separate from that which is already contemplated by the Veteran's current disability ratings. CONCLUSION OF LAW The criteria for a separate compensable disability rating for ingrown right first toenail status post nail removal have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, DCs 7804-05 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1972 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) from a September 2011 rating decision wherein the Agency of Original Jurisdiction (AOJ), in relevant part, granted service connection for right degenerative joint disease (DJD) of the right foot first metatarsophalangeal (MTP) joint (rated under Diagnostic Code (DC) 5284 as 10 percent disabling from September 2, 1992 and as noncompensable from December 8, 1994), first toe onychomycosis with bilateral tinea pedis (rated under DC 7813-7806 as noncompensable from September 29, 2009), and ingrown right toenail status post nail removal (rated under DC 7820 as noncompensable from September 29, 2009). After an October 2012 rating decision that continued the noncompensable disability rating for right first toe onychomycoses with tinea pedis bilateral feet, the Veteran initiated an appeal. In a January 2013 statement of the case (SOC), the RO combined the two noncompensable ratings into one disability concerning ingrown right first toenail, status post nail removal, with onychomycosis of the right great toenail and tinea pedis of the bilateral feet. In December 2018, the Board denied a compensable disability rating for this combined foot disability. Thereafter, the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion For Remand (JMR) for development regarding whether the treatment of the Veteran's service-connected foot disability involved systemic therapy. Accordingly, in June 2020, the Board remanded the matter for relevant development. Most recently, in December 2020, the Board bifurcated the issue on appeal to encompass two, separate claims. The Board first denied an initial compensable disability rating for right first toe onychomycosis with bilateral tinea pedis; however, the Board also remanded the issue of whether a separate 10 percent rating is assignable for an ingrown right first toenail status post nail removal. Specifically, the Board directed development, including a VA examination of the Veteran's right first toe in order to determine whether any pain associated with the nail is separate and distinct from the service-connected joint pain. As discussed further below, the Board finds that there has been substantial compliance with the December 2020 Board remand directives, and the matter is properly returned to the Board for adjudication. Entitlement to a separate compensable disability rating for ingrown right first toenail status post nail removal. As noted above, in December 2020, the Board remanded the issue of entitlement to a separate compensable disability rating for an ingrown right first toenail status post nail removal in order to obtain a VA examination, after which the RO was directed to "[c]onsider whether the Veteran is entitled to a separate 10 percent rating for his ingrown right first toenail, status post nail removal, including based on painful scarring." Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against entitlement to a separate compensable disability rating for ingrown right first toenail status post nail removal. Following the December 2020 Board remand, the Veteran was afforded a VA foot conditions examination in February 2021. At that time, the VA examiner documented relevant diagnoses including bilateral pes planus, bilateral hallux valgus, and DJD of the right foot first MTP. Following an examination with respect to these diagnoses, the examiner noted that the Veteran does not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to any conditions listed in the diagnosis section above. Similarly, the examiner noted that the Veteran does not have any scars or other disfigurement (of the skin) related to any conditions or to the treatment of any conditions listed in the diagnosis section. Finally, the examiner remarked that for the claimed residuals of the right first toenail removal and right toe pain, to include residuals of the right first toenail removal, there was no diagnosis warranted, as the claimed "joint pain" was part of the service-connected right foot DJD of the first MTP. The examiner noted that the Veteran's right first toenail extraction was performed one time during active service in 1978, with no effect on range of motion of the right joint even three years after discharge based on a 1995 evaluation, and that it required subsequent extractions on an as-needed basis. When asked to opine whether any pain associated with the nail is separate and distinct from the joint pain, the examiner stated that "any recurring incurvated toenail growth pain is distinctly different from the actual joint of the [first] MTP," and the examiner noted that the "incurvated toenail affects the skin" while the first MTP DJD and hallux valgus contribute to pain on the underside and lateral side of the foot, with no effect on the skin, which is a different pathogenesis. When asked to identify all other residuals of the right toenail removal, the examiner stated that there were "no residuals" given that there was no objective evidence of residuals. In March 2021, the Veteran was afforded a VA scars examination. Following a physical examination, the VA examiner noted that the Veteran did not have any scars on the extremities. Specifically, concerning the Veteran's ingrown right first toenail status post nail removal, the examiner noted that there was no visible scar, only a disfigured right big toenail due to onychomycosis, which would be better evaluated by a skin examination. Given the above, the Board finds that the preponderance of the evidence of record is against a separate compensable disability rating for ingrown right first toenail status post nail removal. In order to warrant a separate disability rating for "painful scarring," as suggested by the Board in its December 2020 remand, the Veteran's ingrown right first toenail status post nail removal would need to result in a scar that is unstable or painful, see 38 C.F.R. § 4.118, DC 7804, or a scar with disabling effects not provided for by DCs 7800-04, see id., DC 7805. However, the most probative evidence of record shows that the Veteran's ingrown right first toenail status post nail removal has not resulted in an unstable painful scar or limitation of motion or function separate from that which his already service connected. As such, DCs 7804-05 do not provide a basis to grant a compensable rating for the service-connected ingrown right first toenail status post nail removal. Significantly, the February 2021 VA examiner concluded that there was no objective evidence of residuals of the right toenail removal, and the March 2021 opinion also noted that there was no visible scar, only disfigurement related to the separately service-connected right toenail onychomycosis. The Board affords these expert medical opinions evidence high probative value, given that the examiners thoroughly reviewed the Veteran's medical history, including the directives of the prior Board remand, physically examined the Veteran, and supported the opinions with a reasoned rationale. To the extent that the Veteran asserts that his ingrown right first toenail status post nail removal warrants a separate compensable disability rating, the Board acknowledges that he is competent as a layperson to report observable symptoms; however, he is not competent as a layperson to opine as to the internal cause of his toenail pain, especially in the context of several intertwined service-connected disabilities, as this requires medical expertise. As such, the Veteran's lay statements are of limited probative value in the context of his appeal. Board has accorded more probative value to the medical opinions on this subject matter. In sum, the Board has carefully reviewed the evidence of record and considered whether the Veteran's ingrown right first toenail status post nail removal is entitled to a separate disability rating, including based on painful scarring; however, as the preponderance of evidence weighs against the claim, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.