Citation Nr: 21032853 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-13 711 DATE: May 28, 2021 ORDER Entitlement to service connection for anxiety disorder has been withdrawn. Entitlement to a 10 percent disability rating for left fifth toe disability is granted. Entitlement to an effective date prior to December 10, 2013 for left fifth toe disability is denied. REMANDED Entitlement to service connection for a right hip condition as secondary to left fifth toe disability is remanded. Entitlement to service connection paresthesia of left toes as secondary to left fifth toe disability is remanded. Entitlement to service connection for warts on the right foot, to include as secondary to left fifth toe disability is remanded. FINDINGS OF FACT 1. At the Board hearing in January 2021, the Veteran made an informed decision to withdraw the claim of service connection for anxiety disorder. 2. The record shows that the Veteran's left toe disability has included surgical resection of the metatarsal head for unilateral hallux valgus. 3. The Veteran's claim of service connection for left fifth toe disability was first received on December 10, 2013. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for anxiety disorder by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to a 10 percent disability rating for left fifth toe disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5280. 3. The criteria for entitlement to an effective date prior to December 10, 2013 for left fifth toe disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from August 1993 to April 1995. At the Board hearing in January 2021, the Veteran wanted to present evidence regarding his claim of service connection for left ankle disability but was advised that this issue had not been perfected. In reviewing the file, the Board notes that the Veteran filed a separate VA Form 9 Substantive Appeal for each of the disabilities addressed herein. If the Veteran believes that a VA Form 9 was submitted with respect to the left ankle claim, he is advised to provide evidence of that. Otherwise, he is advised to submit a claim to reopen if he wishes to pursue this issue. Entitlement to service connection for anxiety disorder Under applicable criteria, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his or her authorized representative. Id. In the present case, at the Board hearing in January 2021, which has been reduced to writing, the Veteran and his representative indicated that the Veteran wished to withdraw his claim with respect to entitlement to service connection for anxiety disorder. The Board reviewed with the Veteran and his representative the impact of his withdrawal of the claim, particularly with respect to the effective date should the Veteran refile the claim and the Veteran affirmed his understanding. There remain no allegations of errors of fact or law for appellate consideration with respect to these claims. Under these circumstances, these issues are no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. Entitlement to a compensable disability rating for left fifth toe disability The Veteran has been granted service connection for a disability affecting the fifth toe on his left foot, described as a bunion or a hyperkeratotic lesion. The record clearly shows that this disability included surgical treatment in November 2015 and the Veteran was granted a temporary total disability rating for his surgical convalescence period. The surgical procedure is shown in the record as removal of the proximal phalanx of the left fifth toe. The Veteran's left fifth toe disability is rated analogously under Diagnostic Codes 5282 and 5280, because there is no diagnostic code which specifically addresses the condition. Diagnostic Code 5282 provides a 0 percent (noncompensable) rating for hammer toe affecting a single toe and a 10 percent rating for hammer toe affecting all toes on one foot without claw foot. 38 C.F.R. § 4.71a. Hammer toe is a deformity or abnormal bend of one or more toes on the foot which can result in painful sores and calluses. Diagnostic Code 5280 provides for a 10 percent disability rating for unilateral hallux valgus after operation with resection of the metatarsal head. 38 C.F.R. § 4.71a. Hallux valgus is the term applied to a bunion impacting the great toe. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) and Weggenmann v. Brown, 5 Vet. App. 281, 283 (1993). As noted, the Veteran's left fifth toe disability is rated analogously because there is not a specific diagnostic code which addresses the exact condition. Under 38 C.F.R. § 4.20, analogous ratings are assigned based on the functions affected, the anatomical location, and the symptomatology, all of which should be closely related or analogous. In this case, Diagnostic Code 5280 is already applied to the Veteran's disability by analogy and treatment of the Veteran's left fifth toe disability has included surgical resection of the end of that toe without relief of pain. Therefore, the Board finds that the Veteran is entitled to the full impact of that analogous rating and that a compensable, 10 percent disability rating should be assigned to the Veteran's left fifth toe. The Board notes that this is the highest disability rating possible utilizing this diagnostic code and that for any higher disability rating to be assigned, a greater level of functional impairment analogous to another diagnostic code would need to be demonstrated. Because the claim is granted and no higher disability rating is possible at this time, the Board finds that a remand for additional examination is not warranted, notwithstanding the Veteran's testimony at hearing that his disability has subjectively worsened since the last VA examination. Entitlement to an effective date prior to December 10, 2013 for left fifth toe disability The Veteran filed a claim of service connection for left fifth toe disability that was received on December 10, 2013. In a rating decision issued in December 2015, the claim was granted, and an effective date of December 10, 2013 was assigned. In the Notice of Disagreement filed in January 2016, the Veteran appealed the assigned effective date. At the Board hearing in January 2021, the Veteran and his representative were asked about the basis for the earlier effective date claim. They indicated that they did not know of any basis for an earlier date and that the claim may have been pursued in error. The Veterans Law Judge indicated that a decision on the issue would be rendered in the interests of fairness to the Veteran. Except as otherwise provided, the effective date of a grant of service connection or of a specific disability rating is based on the date of claim. See generally, 38 C.F.R. § 3.400. Where the claim of service connection is filed more than one year after the date of service separation, the earliest effective date which may be assigned by law is the date the claim was received by VA. 38 C.F.R. § 3.400 (b)(2). In this instance, the Veteran's claim of service connection for left fifth toe disability was received in December 2013, more than 15 years after the date of the Veteran's separation from service. The effective date assigned was the date that the claim was received by VA. This assigned date is appropriate under the law and no basis for an earlier effective date has been shown. Therefore, the claim for earlier effective date must be denied. 38 C.F.R. § 3.400. REASONS FOR REMAND Entitlement to service connection for a right hip disorder as secondary to left fifth toe disability The Veteran asserts that he has been experiencing pain in his right hip since the surgery on his left fifth toe in November 2015 and that this problem did not exist before. He testified at the January 2021 Board hearing that he believed the problem is the result of overcompensation and a change in his gait due to the surgery. The VA treatment records show a report of right thigh pain dating back to June 2016, possibly related to wearing orthotics after surgery. (See Medical Treatment Record, 06/17/2016.) No VA examination has been provided in relation to this claim. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this instance, the low threshold standard of McLendon has been met and the claim must be remanded for a VA examination. Entitlement to service connection paresthesia of left toes as secondary to left fifth toe disability The record shows that the Veteran underwent surgery on his left fifth toe in November 2015. Since that time, he has consistently reported tingling or paresthesia of his second, third, and fourth toe which has never resolved. He seeks service connection for this disability. VA treatment providers have attributed the Veteran's symptoms to his surgery for his left fifth toe. (See CAPRI, 02/17/2017.) He has not been afforded a VA examination in relation to this claim. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this instance, the low threshold standard of McLendon has been met and the claim must be remanded for a VA examination. Entitlement to service connection for warts on the right foot, to include as secondary to left fifth toe disability The Veteran seeks service connection for warts on his right foot, which he asserts were caused by the orthotics prescribed for his foot disabilities. The Veteran was provided with a VA examination in August 2016 which resulted in an opinion that the calluses and hyperkeratotic lesions were not caused or aggravated by the left fifth toe disability. However, while the examiner noted the Veteran's report of a wart on the right foot due to the orthotics, the examination and opinion did not address warts. As such, the examination was inadequate, and a new examination and opinion must be provided on remand. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate VA examination to address the nature and etiology of any disability of the right hip or right thigh. Specifically, the examiner should address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has a diagnosable disability, to include malalignment, strained muscles, dislocation, or other disability, which was caused or aggravated by his left fifth toe disability, to include as due to a change in gait or weight-bearing resulting from the disability and/or from surgery to address the disability. In answering this question, the examiner should consider the medical evidence of record and the lay history and symptomatology described by the Veteran. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation The examiner should cite any relevant evidence in the claims file and to any medical literature or research which informed the opinions offered. The examiner should provide a statement of the reasons or rationale for the opinions offered. 2. Provide the Veteran with an appropriate VA examination to address the nature and etiology of any nerve damage, pain, or paresthesias in the Veteran's left foot and toes. Specifically, the examiner should provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has a diagnosed disability, to include nerve damage, capsulitis, or other disability which was caused or aggravated by the left fifth toe disability and/or any surgical procedure involving the left fifth toe. In providing this opinion, the examiner should address the medical treatment records and statements from treating providers as well as the history and reports of symptomatology provided by the Veteran. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation 3. The examiner should provide citations to any relevant evidence in the claims file and to any medical literature or research which informed the opinions offered. The examiner should provide a statement of the reasons or rationale for the opinions offered. 4. Provide the Veteran with an appropriate VA examination to address the nature and etiology of any warts or similar skin issues on his right foot. Specifically, the examiner should address whether it is at least as likely as not (probability 50 percent or greater) that any wart or similar skin issue on the right foot was caused or aggravated by the prescription orthotics provided in part to address the service-connected left fifth toe disability. The examiner should consider the medical evidence of record and the lay history and symptomatology provided by the Veteran. The examiner should provide citations to any relevant evidence in the claims file and to any medical literature or research which informed the opinions offered. The examiner should provide a statement of the reasons or rationale for the opinions offered. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.