Citation Nr: 0004357 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-12 484 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for amputation of the right great toe. 2. Entitlement to an increased (compensable) evaluation of fracture of right great toe. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from September 1952 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased (compensable) evaluation for the veteran's service-connected right great toe and denied entitlement to service connection for amputation of the right great toe. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran's claim for an increased evaluation for his right great toe disability to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). FINDINGS OF FACT 1. Residuals of a fracture of the right great toe are manifested by periarticular pathology productive of painful motion and swelling. 2. Competent medical evidence of record reveals that the right great toe has not been amputated. CONCLUSIONS OF LAW 1. Fracture of the right great toe is 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5284 (1999). 2. The veteran has not submitted a well grounded claim of entitlement to service connection for amputation of the right great toe. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased evaluation The veteran contends that his service-connected residuals of right great toe fracture are worse than the current evaluation contemplate. Specifically, he states he cannot experiences constant pain and occasional swelling in right great toe and that standing for long periods of time aggravates it. Initially, the Board finds that the veteran has submitted evidence which is sufficient to justify a belief that his claim for an increased evaluation for residuals of fracture of the right great toe is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, a claim that a disability has become more severe where the disability was previously service connected and rated, and the claimant subsequently asserts that a higher evaluation is justified due to an increase in severity since the original evaluation. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The veteran has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). The veteran's May 1954 separation examination indicated that the veteran fractured his right great toe and suffered occasional mild symptoms during service. Subsequent VA medical records from 1994 to 1995 show complaints and treatment for pain, swelling, and calluses of the feet. In June 1995, the RO established service connection for fractured right great toe and assigned a noncompensable evaluation under Diagnostic Code 5284. Under Diagnostic Code 5284 of Schedule For Rating Disabilities, moderate residuals of a foot injury warrant a 10 percent evaluation; moderately severe residuals warrant a 20 percent evaluation; and severe residuals warrant a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1999). A 10 percent evaluation is also warranted for a severe unilateral hallux valgus, if equivalent to amputation of the great toe, or if operated on with a resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (1999). Moderate malunion of or non-union of tarsal or metatarsal bones warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5010 (1999). However, there are no Diagnostic Codes which address limitation of motion of the toe. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 (1999), which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, periarticular pathology productive of painful motion is entitled to a compensable evaluation 38 C.F.R. § 4.59 (1999). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). VA medical and hospital records from 1994 to 1996 pertain to treatment of ulcerations on the left and right foot and amputation of the right 5th toe. An October 1996 VA medical record assessed chronic osteomalacia of the right foot. At a September 1998 VA examination, the veteran complained of constant pain and occasional swelling in his right great toe. He reported that standing aggravated the pain in the right great toe and that he could not walk during flare-ups. It was noted that his right 5th toe had been amputated. On evaluation, swelling in the right great toe was described as 2+ and there was a hypertrophied nail. A callus on the medial aspect of the right great toe was noted. He could not raise his toes and walked with a walker. There was right hallux valgus to 5 degrees. X-ray evaluation of the right foot revealed a calcaneal spur and diffuse osteopenia with unchanged neuropathic joints as well as diffuse soft tissue swelling. The diagnoses included calcaneal spur on the right with diffuse osteopenia and neuropathic joints. Unfortunately, the VA examination was remarkable in determining whether the service-connected fracture resulted in disability. Rather, the examination concentrated on the non-service connected disabilities. The veteran is service- connected for the fracture and he has complained of pain due to the toe fracture. He is competent to report his symptoms and the service medical records noting mild symptoms supports his claim. There is nothing in the record that refutes the veteran's statements and reexamination would result in a waste of resources. The Board notes that the veteran has complained of pain and swelling in the right great toe, and VA medical records and examinations have supported such statements. In essence, there is periarticular pathology productive of painful motion warranting the minimum compensable evaluation assignable for the joint. Accordingly, under section 4.59, these findings warrant a 10 percent disability evaluation. In making the determination that the veteran's residuals of right great toe fracture is no more than 10 percent disabling, the Board has specifically considered the guidance of DeLuca v. Brown, 8 Vet. App. 202 (1995). We again note that there are no limitaiton of motion codes for the toes. Johnson v. Brown, 9 Vet.App 7 (1996). The toe is not amputated and no professional has established that the service-connected disability is equivalent to amputation. Although the RO rated the disorder as a foot injury, the service connected disability is limited to the toe. Thus, if rated on par with a foot injury, the disorder would be only moderate. See 38 C.F.R. Part 4, Diagnostic Code 5284. As noted above, there are no Diagnostic Codes that address limitation of motion of the toes and thus Diagnostic Code 5003-5010 would not be applicable to granting an evaluation in excess of 10 percent. In view of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for a fracture of the right great toe. 4.14 The Board is aware that the veteran has multiple problems involving the lower extremities. He has diabetes the fifth toe is amputated. There is hallux valgus, spurs, osteopenia and neuropathic joints. However, the veteran is only service connected for the great toe. No competent person has attrbiuted any of the other manifestations to the fracture of the toe. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). The Board may not consider the nonservice-connected impairments when evaluating the service- connected great toe disability. Ultimately, the Board is left with the impression that the service connected disability results in periarticular pathology productive of painful motion and no more. Such impairment warrants the minimum compensable evaluation in accordance with 38 C.F.R. § 4.59. II. Service connection In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well grounded claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (1998); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). In the instant case, the veteran, in an October 1997, alleged that he is entitled to service connection for the amputation of his right great toe. However, an August 1998 VA medical examination reveals that the veteran's right great toe is present as there were medical findings pertinent to the right great toe, including a callus in the medial aspect and swelling of 2+. The Board notes that case law has found that the veteran is competent to report that on which he has personal knowledge, that is what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the competent medical evidence of record does not support such allegation, and reveals that the right great toe is present, thus indicating that the claim is not plausible or possible. See Caluza, 7 Vet. App. at 507; see also Robinette v. Brown, 8 Vet. App. 69, 77 (1995); Edenfield v. Brown, 8 Vet. App. 384 (1995); Grottveit, 5 Vet.App. at 93. Therefore, the Board concludes that the veteran's claim for amputation of the right great toe is not well grounded. Accordingly, the claim for service connection for amputation of the right great toe is denied. 38 U.S.C.A. § 5107 (West 1991). In the alternative, if we assume that a person is competent to report that a toe has been amputated and even if 38 U.S.C.A. § 1154 (West 1991) were applicable, the claim would be denied on the merits because the veteran does not have amputation of the great toe. In the absence of current disability, there can be no valid claim. On a merits based determination, the objective evidence of a great toe that is still on the foot requires the denial of service connection based on a claim that the toe has been amputated. We conclude that a doctor's opinion to the effect that a great toe is present is more probative than a lay opinion that the great toe has been amputated. There is no doubt to be resolved. Lastly, we are left with the impression that the veteran has confused his little toe with his big toe. ORDER A 10 percent evaluation for residuals of a fracture of the right great toe is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for amputation of the right great toe is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals