Citation Nr: 1038282 Decision Date: 10/12/10 Archive Date: 10/22/10 DOCKET NO. 97-28 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including bipolar disorder. 2. Entitlement to an increased initial rating for bilateral plantar keratomas, each foot separately rated 10 percent disabling prior to July 7, 2009 and 20 percent disabling from that date. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran's active duty service included the periods from August 1985 to August 1991, and from January 1992 to January 1996. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at Board hearings in September 2000 and March 2006. In December 2000 and November 2006 the issues were remanded by the Board for further development. FINDINGS OF FACT 1. There is competent evidence of a current diagnosis of an acquired psychiatric disorder, and also competent medical evidence linking the Veteran's acquired psychiatric disorder to his military service. 2. Prior to July 7, 2009, the Veteran's bilateral plantar keratomas were not manifested by a moderately severe impairment of the feet. 3. From July 7, 2009, the Veteran's bilateral plantar keratomas are not manifested by a severe impairment of the feet. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, to include bipolar disorder, is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. The criteria for a disability rating in excess of 10 percent prior to July 7, 2009 and 20 percent from that date for bilateral plantar keratomas have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 5284 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran claim stem from rating decisions issued prior to enactment of the VCAA. In May 2001 and October 2002, VCAA letters were issued. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Id.; but see VA O.G.C. Prec. Op. No. 1- 2004 (Feb. 24, 2004). The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless. Although the notice provided to the Veteran in May 2001 and October 2002 was not given prior to the first AOJ adjudication of the claim, this matter was remanded in November 2006, and thereafter, the RO issued another VCAA letter to the Veteran in December 2006. The contents of these notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial to the claimant. The December 2006 letter provided the Veteran with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the Veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the Veteran's post-service VA and private medical records. The evidence of record also contains several reports of VA examinations. The examination reports obtained are thorough and contain sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran, and his representative, have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d. 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Acquired Psychiatric Disorder Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran has a current disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's service treatment records, to include a January 1989 entry, showed that he apparently had depression. A separate note from the chaplain indicated that the Veteran posed imminent harm to others and was in need of a psychiatrist. Private treatment records from Dr. S.H. dated in June 1998 reflect that Dr. S.H. diagnosed bipolar disorder, manic. VA outpatient treatment records dated in December 1998 reflect that the Veteran was assessed with schizoaffective disorder. Private treatment records from Dr. J.F.P. dated in March 1999 reflect that Dr. J.F.P. diagnosed bipolar disorder, PTSD, and anxiety disorder. July 2005 treatment records from Dr. K.S. reflect that Dr. K.S. opined that the Veteran suffered from undiagnosed and untreated bipolar I disorder while in service. The Veteran underwent a VA examination in February 2009. He reported anxiety and poor memory. Following mental status examination, the examiner diagnosed mixed bipolar I disorder, currently in partial remission. A November 2009 VA examination addendum reflects that the examiner opined that the Veteran's mental health condition is more likely than not related to service. The Board finds that there is evidence of an acquired psychiatric disorder, i.e., bipolar disorder. There is also evidence linking the Veteran's bipolar disorder to service. The Veteran is entitled to have the benefit of the doubt resolved in his favor, and the Board concludes that there is sufficient evidence linking the Veteran's current bipolar disorder to his military service. See 38 U.S.C.A. § 5107(b). Therefore, as the medical evidence demonstrates a diagnosis of an acquired psychiatric disorder related to the Veteran's military service, entitlement to service connection for bipolar disorder is granted. Bilateral Plantar Keratomas Criteria & Factual Background A September 1995 rating decision granted service connection for recurrent plantar keratomas and assigned a 10 percent disability rating under Diagnostic Code 7819-5284, effective January 5, 1996. An August 2009 rating decision assigned a 20 percent disability rating effective July 7, 2009. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Pursuant to Diagnostic Code 5284, moderate residuals of foot injuries are 10 percent disabling, moderately severe residuals of foot injuries are rated 20 percent disabling, and severe residuals of foot injuries are rated 30 percent disabling. The Veteran underwent a VA examination in July 1996. He reported that callous formation on the left foot was painful, limiting his ability to stand and jog for prolonged periods. Upon physical examination, the left foot had keratoma, tender, nonexudative, noncellulitic, hyperkeratotic growth opposite the third toe on the plantar surface consistent with the diagnosis of keratoma hyperplasia. A similar less significant lesion was noted on the right foot opposite the fourth toe on the plantar surface which also showed excessive callous formation. No pes planus or pes cavus was evident. Arterial pulses in the lower limbs were intact. The Veteran underwent another VA examination in May 1999. He compared his symptoms to walking on the nerve of the left keratoma and walking on the bone of the right keratoma. He reported that symptoms were constant. He stated that he had at least 5 or 6 surgeries on the keratomas with the same response and residual side effects of soreness. Upon physical examination, there was evidence of moderate callous formation on the plantar aspect of the bilateral feet, which were moderately tender to touch specifically on the left compared to the right. The Veteran did not have flat foot deformity. The weight bearing alignment of the Achilles tendon was good. There was no evidence of hallux valgus of claw foot deformity. There was evidence of moderate tenderness on the callouses which were approximately 2 centimeters by 3 centimeters bilaterally on the plantar aspect of the feet. There were at least 3 on the metatarsal phalangeal areas of the second, third and fourth toes bilaterally. The examiner diagnosed bilateral plantar keratomas. The examiner noted that the bilateral plantar keratomas were tender to palpation, hypersensitive, associated with abnormal posture and abnormal antalgic gait favoring the left lower extremity. There was evidence of unusual shoe wear pattern bilaterally. The Veteran underwent another VA examination in January 2003. He reported pain at rest, as well as with standing and walking. He stated that standing and walking more than 15 minutes worsened his symptoms. He reported symptoms of itching as well as crusting and shedding on his feet on a constant basis. He stated that he also used topical creams and razor blades to remove the lesions. Upon physical examination, there was no evidence of pes planus. There was evidence of hammertoe deformities on the left second, third and fourth digits. There was no evidence of hallux valgus. There was evidence of tender callous formation on both feet. The size of the calluses were approximately one by one centimeter in the metatarsal area. The percentage of the involvement was approximately 3 percent of the unexposed area. There was evidence of atrophy of the plantar padding. In addition there was mild prominence of the fifth metatarsal with mild tenderness to palpation. The examiner diagnosed bilateral recurrent plantar keratoma and left hammertoes. The examiner noted that there was no evidence of open ulceration, skin breakdown or drainage. The examiner opined that sedentary type of duty would be the best suitable job for the Veteran. VA outpatient treatment records dated in October 2006 reflect that the Veteran was assessed with degenerative changes of the midfoot and ankle region. In March 2008, the Veteran was assessed with calluses, foot pain, and metatarsocuneiform (MCJ) arthritis. In December 2008, the Veteran was assessed with onychomycosis, onychocryptosis, intractable plantar keratoses, and foot pain. The Veteran underwent another VA examination on July 7, 2009. Upon physical examination, the arches of the bilateral feet were one inch above ground. There was no tenderness over the heels of the feet. There was no ulceration or discharge. The skin over the heel of the feet showed no calluses. There were 3 tender calluses (hyperkeratotic) over the balls of the right foot one centimeter each, proximal to the fourth, third, and second toes. There were tender 2 centimeter thickened calluses over the middle of ball of the left foot (proximal to the fourth toe). The examiner diagnosed moderately severe bilateral plantar keratoses. Analysis Prior to July 7, 2009 The objective evidence does not support a finding of a moderately severe disability. For example, the May 1999 VA examination noted that there was evidence of moderate callous formation on the plantar aspect of the bilateral feet and moderate tenderness on the callouses which were approximately 2 centimeters by 3 centimeters bilaterally on the plantar aspect of the feet. The Veteran reported that he had had at least 5 or 6 surgeries on the keratomas. In January 2003, the size of the calluses was one by one centimeter in the metatarsal area. There was evidence of hammertoe deformities on the left second, third and fourth digits. Foot pain was noted on examination in 2006. Overall, the level of disability associated with the Veteran's bilateral foot disorder is more consistent with moderate, which warrants a 10 percent evaluation for each foot. From July 7, 2009 The objective evidence does not support a finding of a severe disability. On the July 7, 2009 VA examiner diagnosed moderately severe bilateral plantar keratoses. At that time, there were 3 tender calluses over the balls of the right foot, one centimeter each. There were no calluses on the toes and no tenderness of the toes. The diagnosis was moderately severe bilateral plantar keratoses. The current level of disability is consistent with moderately-severe residuals of foot injury, warranting the assignment of a 20 percent evaluation. DeLuca and Extraschedular As previously noted, when evaluating musculoskeletal disabilities on the basis of limitation of motion, functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is to be considered in the determination of the extent of limitation of motion. 38 C.F.R. § 4.40, 4.45, 4.59 (2003); DeLuca, 8 Vet. App. at 204-07. The Board notes that the Veteran has reported painful calluses on his feet since service. The Board finds, however, that the present disability ratings take into consideration the Veteran's complaints of foot pain, thus, the Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for increased ratings. See DeLuca, 8 Vet. App. at 204-07. There is a preponderance of the evidence against a finding that the criteria for increased initial disability ratings have been met. The Veteran may always advance a claim for an increased rating should the severity of his disability increase in the future. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that his service connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. For example, the January 2003 VA examiner opined that the Veteran was capable of sedentary type of duty. Under these circumstances, the Board finds that the Veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for an acquired psychiatric disorder is granted. Increased initial ratings for bilateral plantar keratomas, each foot separately rated 10 percent disabling prior to July 7, 2009 and 20 percent disabling from that date, are denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs