Citation Nr: 1524576 Decision Date: 06/09/15 Archive Date: 06/19/15 DOCKET NO. 13-19 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a compensable disability rating for herpes. 2. Entitlement to a compensable disability rating for degenerative joint disease of the left first metatarsalphalangeal (MTP) joint. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2013 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2015. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's herpes has been treated with systemic therapy totaling less than six weeks during a twelve month period. 2. Throughout the rating period on appeal, the Veteran's degenerative joint disease (DJD) of the first left MTP joint has been manifested by pain productive of noncompensable limitation of motion . CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, but no higher, for herpes have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806 (2014). 2. The criteria for an evaluation of 10 percent, but no higher, for DJD of the left first MTP joint have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist have been met in this case. Letters dated in May 2013 and January 2014 satisfied the duty to notify provisions as to the claims on appeal. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2) (2014); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran was afforded VA examinations with respect to his claims in February 2013, February 2014, and May 2014 38 C.F.R. § 3.159(c)(4). Toward that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board believes that the examinations provided were adequate in this case, as they provide subjective and objective findings sufficient to rate the severity of the Veteran's herpes and left foot disability under their respective diagnostic code rating criteria. Accordingly, for the foregoing reasons, the Board finds the February 2013, February 2014, and May 2014 VA examinations to be adequate to support an appellate decision. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ in this case specifically identified to the Veteran, prior to his testimony, the issues on appeal, the intended focus of the testimony. Both the Veteran and his representative demonstrated actual knowledge of what was needed, and provided the appropriate testimony to further clarify all lay bases of evidence. That notwithstanding, the representative and the VLJ then asked questions to ascertain the severity of the Veteran's herpes and left toe disability, and the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the Veteran's claims; through his testimony, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. Accordingly, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the April 2015 Board hearing constitutes harmless error. There is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that increased ratings are warranted for his service-connected herpes and left foot disability. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). I. Herpes The Veteran's herpes is currently rated under 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2014). Here, the use of Diagnostic Codes 7899-7806 reflects that there is no diagnostic code specifically applicable to the Veteran's skin disease, and that this disability is rated by analogy to dermatitis or eczema under Diagnostic Code 7806. See 38 C.F.R. § 4.20 (2014) (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 7806, a 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Dermatitis or eczema may also be evaluated under the rating codes for disfigurement of the head, face, or neck, or scars depending on the predominant disability. During his April 2015 hearing before the Board, and in various lay statements of record, the Veteran reported that his herpes is only present on his lips during outbreak, and his symptoms include tingling before an outbreak, tenderness, pain, swelling, blistering, oozing, and itching. He explained that he takes his herpes medication, Valacyclovir, for two days as soon as he feels an outbreak starting, and ceases taking the medication for the remainder of the outbreak. He indicated that he experiences six or seven outbreaks per year, and that the outbreaks last approximately 10 days to three weeks in duration. The Veteran argues that his medication, Valacyclovir, is an oral systemic therapy used to treat his herpes. In support of his claim, the Veteran submitted records from his pharmacy which reflect the number of times that he filled a prescription for his herpes medication, Valacyclovir. The records show that, in 2012, the Veteran filled five prescriptions for Valacyclovir, and that the prescription was written for a two day supply. Similarly, in both 2013 and 2014, the Veteran filled five prescriptions for Valacyclovir, and each prescription was written for a two day supply. Thus, in each 2012, 2013, and 2014, the Veteran took Valacyclovir for a total of 10 days. In February 2013, the Veteran underwent a VA skin examination. The Veteran reported a history herpes sore eruptions to the mouth, approximately once per month. He noted that his lesions were worse with sun exposure, stress, and intense exercise. He indicated that he takes Valacyclovir for his sores to lessen the duration. The examiner reported that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. There were no skin neoplasms and there was no systemic manifestation due to any skin disease. The Veteran reported that he took Valacyclovir for a period of less than six weeks during the past twelve months. The Veteran also noted that he used topical corticosteroids for less than six weeks in the past twelve months. The examiner reported that the Veteran had no debilitating or non-debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythema multiforme, a toxic epidermal necrolysis. Physical examination revealed no herpes infections of the Veteran's total body area or exposed areas. The examiner reported that the Veteran's herpes did not impact his ability to work. In an October 2013 statement, T. Hemming, M.D., stated that the Veteran experiences recurrent flare-ups of herpetic lesions. Dr. Hemming indicated that the Veteran requires "systemic therapy with oral Valacyclovir twice daily for flares, along with prophylaxix, i.e., systemic prevention." Dr. Hemming noted that the Veteran's eruptions typically last from 10 days to 3 weeks, and that they are assisted by the use of systemic oral valacyclovir. In May 2014, the Veteran underwent a VA skin examination. The Veteran reported a history of herpes eruptions approximately every six weeks, on the lips. He stated that he used Valacyclovir for two days every six weeks during the prior twelve months. Examination showed a small scar on the left lower lip measuring 0.5 centimeters (cm.) by 0.5 cm. There was no evidence of any benign or malignant skin neoplasms, and there were no systemic manifestations due to any skin disease. The examiner noted that the Veteran used oral medication for a total duration of less than six weeks during the past twelve months. There was no evidence of debilitating or non-debilitating episodes in the past 12 months due to uticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner noted that physical examination revealed no visible skin lesions on the mouth. There were no benign or malignant neoplasm or metastases related to the Veteran's herpes, and there were no other pertinent physical findings. The Veteran reported feeling self-conscious at work during a herpes eruption, but the examiner noted that the Veteran's skin conditions did not impact his ability to work. The diagnosis was herpes. With regard to the scar on the left lower lip, the examiner indicated that it was not painful and not unstable with frequent loss of covering of the skin. The scar measured 0.5 cm. by 0.5 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was hypopigmentation of the scar. The approximate combined total area in square centimeters of the scar was 0.25 square cm. There was no gross distortion or asymmetry of facial features or visible palpable tissue loss. The scar did not result in disfigurement of the head, face, or neck, and did not result in limitation of function. The examiner reported that the Veteran's scar did not impact his ability to work. After a thorough review of the evidence of record under the laws and regulations set forth above, the Board concludes that a 10 percent rating, but no higher, is warranted for the Veteran's herpes, under Diagnostic Code 7806. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. Specifically, although the Veteran reported six to seven outbreaks per year with the use or systemic Valacyclovir medication, the objective pharmacy records that the Veteran submitted revealed a total of five Valacyclovir prescriptions per year, each with a two-day duration. Accordingly, the pharmacy records confirm a total of approximately ten days use of systemic therapy for the Veteran's service-connected herpes during a given year. As this evidence supports a finding of systemic therapy required for a total duration of less than six weeks during the past 12-month period, a 10 percent evaluation is for application under Diagnostic Code 7806. 38 C.F.R. § 4.118. However, the evidence of record does not warrant an disability rating greater than 10 percent. The evidence does not reveal herpes affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for herpes that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more during an annual period. The Board acknowledges the Veteran's lay statements that he experiences herpes outbreaks monthly, and that this results in the use of systemic medication for six weeks or more. Although the Veteran is competent to report the severity, frequency, and duration of his service-connected skin symptoms, the pharmacy records in this case contradict the Veteran's reports that he used systemic therapy for more than six weeks during the past 12 months. Thus, the Board does not afford significant probative weight to the Veteran's lay statements indicating the use of systemic therapy for six weeks or greater during the prior 12 month period. Accordingly, a 30 percent rating is not for application in this case. The Board acknowledges that the May 2014 VA examination documented a left lower lip scar associated with the Veteran's service-connected herpes. However, the record reflects that service connection was separately granted for the Veteran's left lower lip scar in a May 2014 rating decision. A noncompensable rating was assigned for the scar, effective May 9, 2014. The Veteran did not appeal the rating assigned for the scar. The Board has also considered whether there are any other diagnostic codes which will provide the Veteran with a higher evaluation but finds that there is not. The evidence does not reflect that the affected area is at least 12 is square inches in size (DC 7801) or that the Veteran has unstable or painful scars (DC 7804). The Board acknowledges that the Veteran has stated that he experiences pain, tenderness, swelling, blistering, oozing, and itching due to his herpes; however, the Board finds that the Veteran's herpes is most analogous to dermatitis or eczema rather than to scars, and that dermatitis and/or eczema includes symptoms of pain. Dermatitis is defined as inflammation of the skin, and includes conditions with symptoms such as boils, pain, burning sensations, irritations of an area caused by scratching, and dry, moist, or crusty patches of skin. Eczema is defined as any of various pruritic papulovesicular types of dermatitis. Eczema also includes herpecticum. Herpes is defined as any inflammatory skin disease caused by herpes virus and characterized by the formation of clusters of small vesicles. (DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Thus, the Veteran's symptoms are best rated under DC 7806. Accordingly, a 10 percent rating, but no greater, for herpes is granted. 38 C.F.R. § 4.3. There is no basis for staged ratings for this disability, as his symptoms have remained consistent throughout the entire appeal period. See Hart, 21 Vet. App. at 509-10. II. DJD of the Left First MTP Joint The Veteran contends that he is entitled to a compensable rating for his service-connected left foot disability. During his April 2015 hearing before the Board, he testified that his left foot disability impaired his ability to walk at times due to pain, that it impaired his ability to bend and flex his left great toe, that it caused mild to moderate pain, and that it prohibited him from running as he used to do. 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 portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2014). Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2014). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2014). The Veteran's left foot disability was originally evaluated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5283, for malunion or nonunion of the tarsal or metatarsal bones. In its April 2014 rating decision, the RO reevaluated the Veteran's left foot disability under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 instructs VA to rate degenerative arthritis established by X-ray findings on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, when the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be confirmed by such findings as swelling, muscle spasm, or satisfactory evidence of painful motion. The regulations do not specifically address limitation of motion of the individual toes. However, Diagnostic Code 5280 provides for a maximum 10 percent evaluation when there is unilateral hallux valgus which is either severe if equivalent to amputation of the great toe, or if operated upon with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Diagnostic Code 5281 provides that unilateral severe hallux rigidus should be rated as severe hallux valgus. Diagnostic Code 5282 provides for a maximum 10 percent evaluation when there is hammer toe of all toes without claw foot. Diagnostic Code 5283 provides for a 10 percent evaluation for moderate malunion or nonunion of the tarsal or metatarsal bones; a 20 percent evaluation for moderately severe malunion or nonunion of the tarsal or metatarsal bones; and a 30 percent evaluation for severe malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Diagnostic Code 5284 provides for a 10 percent rating for moderate foot injuries; a 20 percent rating for moderately severe foot injuries; and a 30 percent rating for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5283. In February 2014, the Veteran underwent a VA foot examination. The Veteran reported pain of the first MTP joint on the left foot. He reported that he took over-the-counter pain medication two to three times per week for his pain, which he described as "moderate ache to sharp pain." He rated his pain as a 4-5 on a 1 to 10 scale. He noted that he used to be an avid runner, but that he could no longer run due to pain. He indicated that the pain increased with activity, and that occasionally caused him to limp. There was no evidence of Morton's neuroma or metatarsalgia; no hammer toe; no hallux valgus; no hallux rigidus; no pes cavus; no malunion or nonunion of the tarsal or metatarsal bones; no foot injuries; and no bilateral weak foot. There were no scars, but there was a substantial increase in pain upon flexion and extension of the left great toe. Palpation of the MTP joint was also painful. Dorsiflexion of the left great toe was markedly restricted due to pain. There was no swelling, effusion, or erythema. The Veteran's disability did not cause functional impairment of such an extent such that no effective function remained. The diagnosis was degenerative joint disease of the first MTP joint of the left foot. The examiner noted that the Veteran's foot disorder impacted his ability to work, as he was required to avoid prolonged standing, distance walking, and running. In a July 2014 letter, T. Hemming, M.D., stated that the Veteran reported discomfort of the left great toe and that radiographs documented some degenerative changes. Dr. Hemming described the Veteran's foot disability as "'mild to moderate' osteoarthritis of the 1st MTP joint." Dr. Hemming further noted that extensive walking, hiking, and marching would cause some discomfort and limitation. Range of motion was noted to be slightly decreased. Dr. Hemming indicated that the Veteran's osteoarthritis "may well develop into hallux rigidus in the near future." After thorough review of the evidence of record, the Board concludes that a 10 percent evaluation is warranted for the Veteran's DJD of the left first MTP joint based upon painful motion. See 38 C.F.R. § 4.59. The medical evidence of record documents diagnoses of degenerative arthritis in the left great toe. Additionally, the February 2014 VA examiner found evidence of painful motion of the left great toe on examination. Thus, the Board finds that application of 38 C.F.R. § 4.59 requires that a 10 percent rating be assigned for his left toe disability. However, the evidence does not show that a rating greater than 10 percent is warranted in this case. The February 2014 VA examiner stated that there was no evidence of flat foot, claw foot, moderately severe or severe foot injuries, or moderately severe or severe malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5278, 5283, 5284. As Diagnostic Codes 5276, 5278, 5283, and 5284 are the only rating criteria which permit for an evaluation greater than 10 percent for a foot disability, and the Veteran does not meet the criteria for an increased rating under those diagnostic codes, an increased rating greater than 10 percent is not warranted for the Veteran's service-connected left toe disability under the rating criteria. In making this determination, the Board has considered the Veteran's reports of pain. The fact that he had pain, even if his pain was throughout the range of motion, does not in itself warrant a rating higher than 10 percent. See Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011) (holding that pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss). Thus, the Veteran's reports regarding the manifestations of his left toe disability, which consisted primarily of pain, are essentially contemplated by § 4.40 and § 4.45 but do not show such an extent of disability as to warrant higher than a 10 percent rating. The preponderance of evidence is against a finding that his pain results in functional loss beyond that contemplated in his current 10 percent rating. In view of the foregoing, the Board finds that the Veteran is entitled to at least the minimum compensable rating of 10 percent for his left toe disability, based on painful motion. III. Other Considerations With regard to the Veteran's claims for entitlement to increased ratings, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is usually sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2014). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's herpes and DJD of the left first MTP joint are not so unusual or exceptional in nature as to render the ratings for these disorders inadequate. The criteria by which these disabilities are evaluated specifically contemplate the level of impairment caused by each disability. Id. As shown by the evidence of record, the Veteran's herpes was manifested by monthly outbreaks of herpes on the lips which necessitated systemic therapy for a total of approximately 10 days per 12-month period. The Veteran's left toe disability was manifested by painful motion. When comparing these disability pictures to the manifestations contemplated in the Rating Schedule, the Board finds that the schedular evaluations regarding the Veteran's herpes and left toe disability are not inadequate. Increased evaluations are provided for certain manifestations of, and/or levels of functional impairment due to, those disabilities, but the medical evidence reflects that those findings are not present in this case. Therefore, the evaluations awarded are adequate and no referral is required. See VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Last, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran does not contend, and the evidence does not suggest, that he is unemployable as a result of his service-connected herpes or DJD of the left first MTP joint. Thus, the issue of entitlement to a total rating for compensation purposes based upon individual unemployability has not been raised by the evidence of record, and the issue is not before the Board at this time. ORDER Entitlement to an increased rating of 10 percent, but no greater, for service-connected herpes is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to an increased rating of 10 percent, but no greater, for service-connected DJD of the left first MTP joint is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs