Citation Nr: 22012290 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-18 665 DATE: March 3, 2022 ORDER Entitlement to a compensable rating for left toe fractures from August 14, 2015 to August 30, 2017 is denied. Entitlement to a rating in excess of 10 percent for left toe fractures from August 30, 2017 onward is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. Prior to August 30, 2017, the Veteran's left foot toe fractures are not manifested by moderate symptoms. 2. From August 30, 2017 onward, the Veteran's left toe fractures are not manifested by moderately severe symptoms. 3. The evidence persuasively weighs against finding that TBI began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. Prior to August 30, 2017, the criteria for a compensable rating for left foot toe fractures have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. 2. From August 30, 2017 onward, the criteria for a rating in excess of 10 percent for left toe fractures have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284. 3. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1966 to October 1970 and from September 1972 to April 1988. On the March 2017 substantive appeal, the Veteran requested a Board hearing. In a November 2021 correspondence, the Veteran through his representative, withdrew his request for a Board hearing. Thus, the prior hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). 1. Entitlement to a compensable rating for left toe fractures from August 14, 2015 to August 30, 2017 is denied. 2. Entitlement to a rating in excess of 10 percent for left toe fractures from August 30, 2017 onward is denied. The Veteran asserts that his left foot toe fractures are more severe than currently evaluated. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). With respect to disabilities of the feet, 38 C.F.R. § 4.71a, Diagnostic Code 5284 applies to other foot injuries. A 10 percent rating is assigned for moderate disability to the foot; a 20 percent rating is assigned for moderately severe disability to the foot; and a 30 percent rating is assigned for severe disability to the foot. A 40 percent rating is assigned for actual loss of use of the foot. The words "moderate," "moderately severe," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. On the October 2015 VA foot examination, the Veteran stated that he experiences an occasional "twinge of pain" at night two or three times a week involving the bases of toes two and three in the left foot. He stated that in the morning the distal aspect of his foot and the toes are pale in comparison to the right. He stated that in cold weather his distal left foot turns white and becomes numb. On examination, the October 2015 VA examiner observed the Veteran's left second and third toes to show a subtle decreased range of motion (stiffness) when compared to the toes on the right. In an April 2016 VA treatment record, the Veteran complained of discomfort in the left foot in the second and third toes that is more numbness and tingling than pain. In an August 2016 private treatment record, the Veteran reported he continues to have toe pain in the left foot. In a November 2016 private treatment record, the Veteran stated that on occasion he experiences a sensation of a lump or a pebble underneath the foot when he walks and pain that radiates into the second and third toes. He stated he has occasional numbness and tingling. On examination, the medical provider observed the Veteran to have no obvious deformities of the foot. The medical provider stated they observed no callosities on the plantar aspect of the foot. The medical provider stated that the Veteran is tender to palpation between the second and third toes which causes pain radiating into the second and third toes. With imaging, the medical provider observed the Veteran to have healed fractures of the second, third, and fourth toes. The examiner found the imaging to be unremarkable. On the December 2016 notice of disagreement (NOD), the Veteran stated that he experiences residuals with his left foot and toes. He stated he has cramps, numbness, and tingling in the toes. He stated he has a lump under toes three and four that is very uncomfortable and painful with standing or walking. He stated he can feel the lump when sitting with no weight bearing. On the August 30, 2017 VA foot examination, the examiner stated the Veteran has a diagnosis of left toes two, three, and four that is resolved without residuals. The examiner indicated that other diagnoses associated with the left foot are metatarsalgia and claw foot. The Veteran stated that he experiences increased discomfort in the ball of the foot over the past few years. He described the sensation of a "lump" or "pebble" underneath the forefoot. He stated he has a subjective sensation of stiffness and constant numbness and occasional burning in the fractured toes. He stated that in the winter the toes appear to be whiter than the rest of the toes. He stated he has occasional and momentary pain in that area which wakes him at night, which is relieved by moving the toes. On examination, the August 2017 VA examiner indicated that the Veteran's clawfoot affects the toes on the bilateral feet. The examiner indicated there is pain and tenderness due to pes cavus in the left foot. The examiner also found the bilateral feet to have an effect on plantar fascia due to shortened plantar fascia. The examiner also found no dorsiflexion and varus deformity due to clawfoot in the left foot. The examiner found the Veteran's left foot to have mild symptoms. On examination, the examiner observed the Veteran to have pain in the left foot. The examiner described the pain as minimal. In an October 2017 VA medical opinion, the August 2017 examiner found that there was a change in the Veteran's symptoms between examinations in October 2015 and August 2017. The examiner stated that the symptoms became classic symptoms of metatarsalgia. The examiner stated that the Veteran's fractures likely contributed to the metatarsalgia. In a January 2018 private foot disability benefits questionnaire (DBQ), the medical provider stated the Veteran has a diagnosis of metatarsalgia of the left foot in toes two and three, left foot fractures of toes two, three, and four, and bilateral pes cavus. The medical provider commented that the Veteran has had increased pain over the past six months and the toes are locking. The Veteran stated he has recurrent pain with walking and rest and numbness. He stated his toes lock up and he is unable to flex the toes. The Veteran stated that flare-ups occur daily. On examination, the January 2018 treatment provider observed the Veteran's pes cavus to cause the left foot to have all toes tending to dorsiflexion with marked tenderness under metatarsal heads due to pes cavus. The treatment provider found there to be pain on movement, pain on weightbearing, and pain on non-weightbearing in the left foot. On the February 2019 VA foot examination, the examiner stated there is a diagnosis of resolved fracture of left toes two, three, and four with metatarsalgia. The Veteran stated he currently experiences pain, intermittent numbness, and blanching of the toes. On examination, the Veteran stated he experienced cramping pain. On examination, the February 2019 VA foot examiner indicated the Veteran does not have Morton's neuroma, but does have left foot metatarsalgia. The examiner indicated the Veteran reported pain but does not report any functional loss. In a July 2020 VA treatment record, the Veteran complains of numbness in his toes. Prior to August 30, 2017, the Board finds that a compensable rating under Diagnostic Code 5284 is not warranted as the medical evidence does not support a finding of a moderate foot injury. In so finding, the Board notes that the October 2015 VA examiner found the Veteran to experience stiffness in the left foot second and third toes. The Board also finds that the November 2016 private treatment provider observed the Veteran to have tenderness between the second and third toes. These complaints of pain, numbness, and tingling were specifically described by the Veteran and the VA examiner as "occasional" and "subtle". The Board finds that the level of severity of these symptoms do not support a finding that the Veteran's residuals of left foot toe fractures are "moderate" such to warrant a compensable rating under Diagnostic Code 5284. Therefore, the Board concludes that the evidence simply does not support a finding that this level of symptomatology rises to the level of "moderate" to warrant a compensable rating under Diagnostic Coe 5284. From August 30, 2017 onward, the Board acknowledges that the Veteran has a diagnosis of metatarsalgia related to service-connected left foot toe fractures. The Board finds that a rating in excess of 10 percent is not warranted, however, as the medical evidence does not support a finding of moderately severe foot injury. The Board finds that on the August 2017 VA examination, the Veteran reported that he experiences increased discomfort in the ball of the foot over the past few years. The October 2017 VA examiner opined that the Veteran's left foot fractured toes likely contributed to the newly diagnosed metatarsalgia. The January 2018 private DBQ stated the Veteran has had increased pain over the past six months and the toes are locking. The January 2018 private treatment provider found there to be pain on movement, pain on weightbearing, and pain on non-weightbearing in the left foot. The Board finds that given this evidence, combined with the Veteran's statements, the evidence simply does not support finding that this level of symptomatology rises to the level of "moderately severe" or "severe" to warrant a higher rating under Diagnostic Code 5284. The Board further finds that the rating criteria under Diagnostic Code 5279 for metatarsalgia, anterior (Morton's disease) does not apply as the VA examiners specifically found the Veteran to not have Morton's disease. Also, from August 30, 2017 onward there is a diagnosis of pes cavus; however, the Board finds that Diagnostic Code 5278 for claw foot (pes cavus) is not applicable as there is no finding that the pes cavus is a continuation of the Veteran's service-connected left foot left toe fractures. Accordingly, the Board finds that prior to August 30, 2017 a compensable rating is not warranted and from that date onward, a rating in excess of 10 percent is not warranted for left foot toe fractures. 3. Entitlement to service connection for TBI is denied. The Veteran asserts that he is entitled to service connection for TBI on a direct basis. However, as outlined below, the evidence persuasively weighs against finding that the Veteran's TBI manifested during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). In an April 1973 service treatment record (STR), the Veteran was referred to the hospital approximately a week after sustaining a linear fracture to the left temporal area in a car accident. The Veteran denied any knowledge of the incident and acknowledged that he cannot remember the details of the accident. The medical provider stated that the Veteran was apparently unconscious and regained consciousness when he was admitted to a civilian hospital. Since that time, his injures have remained stable. The medical provider stated that the neurological examination failed to reveal any symptoms suggestive of intra-cranial injury. After nine days, the Veteran was discharged to duty. In an April 1974 STR, the Veteran complained of headaches. On a January 1975 STR report of medical history, the Veteran reported having a head injury. On the January 1975 STR reenlistment examination, the Veteran's neurologic system is observed to be normal. The medical provider noted the Veteran had a head injury during service in Hong Kong. On the November 1980 STR report of medical history, the Veteran again indicated he has a head injury. The Veteran indicated he has not and does not experience dizziness or fainting spells. On the November 1980 STR reenlistment examination, the Veteran's neurologic examination is observed to be normal. On the January 1984 STR report of medical history, the Veteran indicated he has never had and does not have dizziness or fainting spells or head injury. On the January 1984 STR periodic examination, the medical provider observed the Veteran's neurologic system to be normal. In an October 1987 STR, the Veteran complained of hitting his head while walking on deck. The Veteran denied hemorrhaging, loss of consciousness, dizziness, and blurred vision. The medical provider assessed the Veteran to have blunt trauma to the forehead. On the March 1988 STR separation examination, the medical provider observed the Veteran's neurologic system to be normal. In a January 2009 private treatment record, the medical provider listed a remote history of concussion in 1970 as a secondary diagnosis. In a June 2012 VA TBI examination, the examiner indicated the Veteran has a diagnosis of TBI diagnosed in April 1973. The Veteran reported that he sustained a head injury in 1987 after hitting his head. He stated he lost consciousness but reports that he was dazed for a couple of minutes. The Veteran denied any residuals of the head injury. The Veteran stated that in 1983 he was struck by a vehicle and sustained a skull fracture. The Veteran reported that he had loss of consciousness. He stated he was hospitalized for three days. The Veteran also stated he sustained a scalp laceration that required sutures. On examination, the June 2012 VA examiner found the Veteran to have no complaints of impairment of memory, attention, concentration, or executive functions. The examiner noted the Veteran's judgement was normal, social interaction routinely appropriate, and the Veteran is always oriented to person, time, place, and situation. The examiner also indicated the Veteran's motor activity and visual spatial orientation are normal. The examiner stated the Veteran has subjective symptoms such as mild or occasional headaches or mild anxiety that do not interfere with work or activities of daily living. In relation to residuals, the examiner indicated the Veteran does not have any subjective symptoms or any mental, physical, or neurological conditions attributable to a TBI. The examiner also noted the Veteran has no residual scar present on the scalp. The examiner remarked that the Veteran's mild TBI resolved without residuals. The examiner stated that the expected recovery from concussion would be over days to weeks after the event at most and given the Veteran's normal neurological examination, the expected course of recovery from concussion, the remoteness of the injury, and his lack of continuous post-injury symptomatology, recovery from concussion has occurred. On the May 2015 VA mental disorders examination, the examiner indicated the Veteran has a diagnosed TBI. The examiner stated that according to the doctor's report there are no sequelae. On the May 2015 VA TBI examination, the examiner indicated the Veteran has a diagnosis of TBI. On examination, the examiner observed the Veteran's memory, judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, communication, and consciousness are all normal. The examiner remarked that the Veteran appears to have had a mild TBI due to the original 1973 head injury with skull fracture, loss of consciousness, and amnesia of the event, but there are no aftereffects or other sequelae. The examiner stated the Veteran appears to have had a normal and complete recovery from this TBI. On the November 2021 informal hearing presentation, the Veteran's representative asserts that the Veteran has experienced headaches since his in-service TBI. Based on the foregoing, the Board finds that there is no evidence that the Veteran currently has residuals of TBI that was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for TBI on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the TBI continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran's TBI is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his TBI to service. The only competent evidence in the record that addresses this question is the June 2012 and May 2015 VA medical opinions, which stated that the Veteran's in-service TBI resolved during service and there is no post-injury symptomatology. As there is no other evidence to the contrary, and the June 2012 and May 2015 VA medical opinions were based on a full review of the record as well as an interview and examination of the Veteran, the Board finds them persuasive. Further, the Veteran's own statements relating his TBI to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether TBI, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, TBI is a disease of the neurologic system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. The Board acknowledges the Veteran's representative November 2021 assertion that the Veteran has experienced headaches since separation from service. However, the Board finds that the post-service treatment records and VA examinations show no complaints of headaches since separation from service and the VA examiners made specific findings that the Veteran experiences no symptoms of a TBI. Therefore, the Board does not find this statement persuasive as it is not supported by the medical evidence. In light of the foregoing, the Board concludes that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for TBI. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.