Citation Nr: 0120216 Decision Date: 08/07/01 Archive Date: 08/14/01 DOCKET NO. 00-11 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a right foot disability. 2. Entitlement to an evaluation in excess of 10 percent for a left foot disability. 3. Entitlement to service connection for post-traumatic stress disorder. 4. Entitlement to service connection for post-traumatic headaches. 5. Entitlement to a compensable evaluation for a scar on the forehead. 6. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from December 1976 to April 1977 and from December 1979 to February 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 1999 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The notice of disagreement was received in August 1999, a statement of the case was issued in February 2000, and a substantive appeal was received in March 2000. The issues of entitlement to service connection for post- traumatic stress disorder (PTSD), post-traumatic headaches, a total disability evaluation due to individual unemployability based upon service-connected disability (TDIU), and entitlement to a compensable evaluation for a scar on the forehead will be addressed in the REMAND portion of this decision. The Board notes that VA treatment records dated in September 1999 note impressions of degenerative joint disease of the back exacerbated by gait alterations from the veteran's podiatry problems. To the extent that this information amounts to an informal claim for service connection for a back disorder aggravated by the service-connected foot disorders, this matter is referred to the RO for appropriate action. Finally, the Board notes that in January 1997, the RO denied entitlement to service connection for bilateral hearing loss. The veteran filed a notice of disagreement as to that determination in February 1997 and a statement of the case was issued in March 1999. The veteran did not file a substantive appeal as to that issue; thus, it is not before the Board for appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The service-connected right foot disability is manifested by a limp favoring the right foot due to calluses and corns, complaints of extreme pain, discomfort on ambulation, difficulty standing for prolonged periods of time, weakness, stiffness, and cramps in the right toes. The right foot is also status post multiple surgeries. 3. The service-connected left foot disability is manifested by hallux valgus at the left metatarsophalangeal joint and hammer toe deformities described as mild. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation for a right foot disability have been met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2000). 2. The criteria for an evaluation in excess of 10 percent for a left foot disability have not been met. 38 U.S.C.A. § 1155 (West 1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the record reflects that upon VA examination dated in June 1989, radiological examination showed hallux valgus bilaterally. Physical examination revealed the presence of surgical scars, calluses, and plantar tylons, greater on the right than the left. In a December 1989 rating decision, the RO granted entitlement to service connection for a bilateral foot condition. A 10 percent evaluation was granted for status post surgery of the right foot with callosities and hallux valgus. A 10 percent evaluation was also granted for status post surgery of the left foot with callosities and hallux valgus. A December 1992 VA examination revealed the veteran walked with the right sole elevated, reportedly due to calluses. The examiner noted three calluses of the right sole under the right 5th metatarsal and under the 2nd metatarsal, as well as a pinch callus of the big toe. In an April 1996 decision, the Board determined that a 20 percent evaluation was warranted for status post surgery of the right foot with callosities and hallux valgus. The Board also continued a 10 percent evaluation for status post surgery of the left foot with callosities and hallux valgus. In February 1998, the veteran sought entitlement to an increased evaluation of his service-connected right and left foot disabilities. A February 1998 VA hospital record reflects that the veteran underwent a distal head osteotomy of the 5th right toe with arthroplasty. A statement from the veteran's VA physician dated in February 1998 noted the veteran was required to remain off his right foot for three to four weeks. A March 1998 statement from the veteran's VA physician reflects that the veteran was currently being followed for post-operative care. It was also noted that he was expected to be able to return to full activity in May 1998, but until that time he was advised to continue limited physical activity on the right foot. An October 1998 VA physician statement indicates that the veteran reported that his job as a postal worker had aggravated his right foot symptoms for the past two years. It was noted the veteran had difficulty standing for prolonged periods of time on his right foot as well as discomfort and pain while ambulating. Upon VA examination of the feet dated in May 1999, the examiner noted that the claims folder had been reviewed. The veteran complained of pain, weakness, stiffness, swelling, lack of endurance, and cramps in the right toes. Standing or walking for long periods of time were noted as precipitating factors of flare-ups. It was also noted the veteran had corrective shoes and shoe inserts. Physical examination revealed the veteran walked slowly holding his right ankle in dorsiflexion with a limp. There was no list or tilt. He rose on his toes easily and on his heels slowly. The examiner noted no edema or instability of the feet, but the skin was warm. There were corns on the right fifth and left second and fifth toes. There was a callus of the right sole under the second and fifth metatarsal bones and under the left first toe. There was a fungus like infection of both soles. There were good pedal pulsations and no hammer toes, high arch, or claw foot on the right. The examiner also noted all scars on the veteran's right foot. The scars were noted as healed and nontender. Hallux valgus of the left metatarsophalangeal joint was noted. X-ray examination revealed post-surgical change on the right foot with bunionectomy at the 1st metatarsal, arthroplasty at the proximal interphalangeal joint of the 3rd toes and healed osteotomy at the distal 5th metatarsal. There was also an old healed fracture at the proximal phalanx of the 2nd toe. The left foot had no post surgical change and mild hammer toe deformities. Diagnoses of hallux valgus of the left metatarsophalangeal joint, hammer toe deformities of the left foot, status post multiple surgeries of the right foot, and callus of the right fifth toe were noted. VA treatment records dated in 1999 note scars on the right foot over the extensor surface of the great toe metatarsophalangeal, two scars from separate procedures over the extensor surface of the second metatarsophalangeal joint, longitudinal scars over the second and third toes, and a scar over the lateral aspect of the foot at the level of the distal part of the fifth metatarsal. It was also noted that the veteran had a flat arch, tender calluses over the second and fifth metatarsal heads on the plantar surface of the foot, and a callus over the medial aspect of the first toe near the interphalangeal joint. On the left foot, there was a small scar over the medial aspect of the great toe (callus removal), bony enlargement over the first metatarsal phalangeal joint, and pes planus. At his May 2001 hearing before a Member of the Board, the veteran testified that he was experiencing extreme pain in his right foot. He stated that he was taking Tylenol or Motrin for his pain management. He stated that depending on his level of pain, he took medication between one and three times a day. He also testified that he could walk about a quarter of a mile before the pain became too great. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (2000). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2000). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (2000) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The veteran's service-connected right foot disability is currently evaluated as 20 percent disabling and his service- connected left foot disability is currently evaluated as 10 percent disabling. These disabilities are evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, which provides that a 10 percent evaluation is warranted for moderate foot injuries. A 20 percent evaluation is warranted for moderately severe foot injuries and a 30 percent evaluation is warranted for severe foot injuries. It is noted that a 40 percent evaluation is warranted for actual loss of use of the foot. The words "mild" "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2000). It should also be noted that use of terminology such as "mild" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When there is a question as to which of two evaluations should be applied to a disability, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Following a thorough consideration of the evidence of record, the Board concludes that the veteran's service-connected right foot disability more nearly approximates to a 30 percent evaluation in that the evidence demonstrates that the veteran walks with a limp favoring his right foot due to calluses and corns. The veteran is status post multiple surgeries on the right foot and has consistently complained of pain and discomfort on ambulation and difficulty standing for prolonged periods of time. He also testified to experiencing extreme pain in the right foot. The veteran has complained of weakness, stiffness, and cramps in the right toes. The Board concludes that this evidence more nearly approximates to a 30 percent evaluation as it demonstrates a severe foot injury pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. As the evidence of record does not demonstrate actual loss of use of the right foot, entitlement to a 40 percent evaluation is not warranted. In regard to the service-connected left foot disability, the Board concludes that entitlement to an evaluation in excess of 10 percent is not warranted. The evidence of record demonstrates hallux valgus at the left metatarsophalangeal joint and hammertoe deformities. However, the veteran's complaints of pain and difficulty ambulating are directed toward the right foot. Additionally, the veteran's left hammer toes have been described as mild. The Board concludes that this evidence demonstrates no more than a moderate foot injury on the left. The Board notes that it has considered the application of Diagnostic Codes 5280 and 5282, which address hallux valgus and hammer toe, respectfully. However, a 10 percent evaluation is the highest provided by each of those rating criteria. Thus, consideration of Diagnostic Codes 5280 and 5282 would be of no benefit to the veteran as his left foot disability is already rated as 10 percent disabling. In the absence of symptomatology indicative of a moderately severe or severe foot disability, entitlement to an evaluation in excess of 10 percent for the left foot is not warranted. Accordingly, the Board finds that a 30 percent evaluation is warranted for the service-connected right foot disability and a 10 percent evaluation is warranted for the service- connected left foot disability. ORDER Entitlement to a 30 percent evaluation for the service- connected right foot disability is granted, subject to the controlling regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent for the service-connected left foot disability is denied. REMAND In regard to the claim of entitlement to a compensable evaluation for a scar on the forehead, the Board notes that the veteran has not been afforded a VA examination to assess the current nature and severity of the scar. The Board is of the opinion that additional development of the record is needed in regard to this issue to enable the Board to render a final determination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The veteran is also seeking entitlement to service connection for PTSD and post-traumatic headaches, both alleged to have occurred as a result of a personal assault during military service. The veteran has alleged that he was assaulted by fellow servicemen while sleeping and struck in the head with a chrome pipe, resulting in eleven stitches. He has also alleged that one of the assailants was disciplined in an Article 15 and has provided the name and rank of that serviceman. The Board notes the record reflects that the veteran is service-connected for a scar on the forehead. Additionally, medical evidence of record reflects diagnoses of PTSD and chronic headaches related to the alleged in- service incident. Thus, the only element missing in the veteran's claim for service connection is verification of the alleged in-service incident. The VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) provides that veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Because assault is an extremely personal and sensitive issue, many incidents are not officially reported, and victims of this type of in- service trauma may find it difficult to provide evidence to support the incurrence of the stressor. Therefore, alternative evidence must be sought and the manual contains detailed guidelines for developing and adjudicating these types of claims. It does not appear from the record that these procedures have been sufficiently followed in this case. In Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") stated that because of the unique problems of documenting personal-assault crimes, the RO is responsible for (1) assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an in-service stressor, (2) sending a special letter and questionnaire, (3) carefully evaluating the evidence including behavioral changes, and (4) furnishing a clinical evaluation of behavior evidence. By failing to remand the matter so that the RO might assist the veteran in seeking and interpreting such alternative evidence, the Board failed to comply with M21-1, Part III, 5.14(c) and the duty to assist. In this case the RO has not satisfied the duty to assist with respect to the claim of entitlement to service connection for PTSD. The veteran was apparently not sent the special letter and questionnaire related to personal assault cases. The RO has not endeavored to collect some of the types of evidence set forth in the relevant M21-1 provisions. Additionally, even though the veteran has provided the name and rank of the serviceman alleged to have struck him, the RO has not made any attempt to verify the veteran's stressor through the U. S. Armed Services Center for Research of Unit Records (USASCRUR). Thus, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim, the issues of entitlement to service connection for PTSD and for chronic headaches must be remanded to the RO. As the issue of entitlement to TDIU benefits is inextricably intertwined with the aforementioned issues, it must also be remanded to the RO. Accordingly, these matters are REMANDED to the RO for the following development: 1. The RO should contact the veteran and obtain the names and addresses of all medical care providers who have treated him for PTSD and headaches since 1999. After securing the necessary permission from the veteran, copies of any available records that are not already of record should be obtained and associated with the claims folder. 2. The RO should obtain from the Social Security Administration all records pertinent to the veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The veteran should be sent a letter and questionnaire related to personal assault claims. The attention of the RO is directed to M21-1, paragraph 5.14(c), Exhibits A.3 and A.4 for sample development letters. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. All alternate sources set forth in M21-1, paragraph 5.14c should be utilized. In this regard, the RO should ensure that the veteran is notified of alternative sources that may provide credible evidence of the claimed in-service stressor, to include medical records from private physicians or caregivers who may have treated him immediately after the incident or some time later; civilian police reports; testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; and copies of personal diaries or journals; and that he should submit any such available evidence. The RO should also request a comprehensive statement from the veteran containing as much detail as possible regarding the who, what, where, and when as to the putative stressors alleged. The veteran should provide specific details of the claimed stressors such as dates, places (including duty station location), detailed descriptions of events, and identifying information concerning any other individuals involved in the events, including their full names, rank, unit of assignment, or any other identifying detail. 4. The RO should also request the service record jacket and complete military personnel records of the veteran. Other necessary service records, including all relevant additional Article 15's, morning reports, any reports from military police, or other military law enforcement entity should also be obtained. 5. Once all of the aforementioned information has been obtained to the extent possible, the RO should forward a request for stressor verification to the USASCRUR, located at 7798 Cissna Road, Suite 101, Springfield, VA 22150-3197. The veteran's statements regarding the alleged stressor, as well as all other relevant information should be provided to this organization. Any USASCRUR report or response obtained should be associated with the claims folder. 6. A VA dermatological examination regarding the increased rating claim for a scar of the forehead should be completed. The claims folder and a copy of this REMAND must be reviewed by the examiner prior to completion of the examination report. The examiner is requested to note all relevant symptomatology regarding the service- connected scar on the forehead. 7. If it is determined that the alleged stressor occurred, the veteran should then be afforded VA specialist examinations of his post-traumatic headaches and PTSD. The claims folder and a copy of this REMAND must be reviewed by the examiners prior to completion of the examination report. In regard to the PTSD examination, the examiner should render an opinion as to whether the veteran currently suffers from PTSD pursuant to the diagnostic criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); and if so, whether the diagnosis is linked to a specific corroborated stressor event experienced while in service. In regard to the headaches, the examiner is requested to note all relevant symptomatology. The examiner is also requested to express an opinion as to whether it is at least as likely as not that the veteran's headaches are related to an incident of military service. A complete rationale for any opinion expressed should be provided by each examiner. 8. When the above development has been completed, the RO should review the record and readjudicate the issues of entitlement to a compensable evaluation for a scar on the forehead, entitlement to service connection for PTSD, entitlement to service connection for post-traumatic headaches, and entitlement to TDIU benefits. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a supplemental statement of the case with regard to the additional development and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The Board notes the veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. V. L. JORDAN Member, Board of Veterans' Appeals