Citation Nr: 1300402	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  09-03 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an initial compensable evaluation for service-connected bursitis of the right shoulder prior to July 22, 2009, in excess of 10 percent from July 22, 2009, and in excess of 20 percent from December 10, 2010.

2.  Entitlement to an evaluation in excess of 20 percent for service-connected residuals, surgical correction, plantar flexion, first ray, right foot.

3.  Entitlement to an initial compensable evaluation for service-connected pes cavus and varus hind foot to include plantar fasciitis, claimed as left foot condition, prior to May 14, 2008, and in excess of 10 percent thereafter.

4.  Entitlement to a compensable evaluation for service-connected scar, removal of scapula cyst.


REPRESENTATION

Appellant represented by:	Nebraska Department of Veterans' Affairs

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from October 1983 to June 1998.

This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2007 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

In November 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO.  Additionally, the Veteran testified before a decision review officer (DRO) in November 2010 and June 2009 at the RO.  Transcripts of these proceedings are associated with the claims files.

The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal.

The issue of entitlement to an initial compensable evaluation for service-connected pes cavus and varus hind foot to include plantar fasciitis, claimed as left foot condition, prior to May 14, 2008, and in excess of 10 percent thereafter is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT

1.  Prior to July 22, 2009, the Veteran's right shoulder disability was manifested by pain and stiffness with range of motion greater than shoulder level and no x-ray findings for arthritis.

2.  From July 22, 2009, the Veteran's right shoulder disability has been manifested by pain and stiffness with range of motion more nearly approximating shoulder level.

3.  From July 2009, the Veteran's right shoulder disability does not more nearly reflect arm motion limited to 25 degrees from the side; at worst the Veteran has had flexion that is functionally limited to 80 degrees.

4.  The Veteran's right foot disability is moderately severe and the symptoms of foot pain under the 1st and 2nd metatarsals exacerbated with prolonged walking or walking distances does not more nearly reflect the presence of severe foot disability.

5.  Left scapular scar is not nonlinear, deep, unstable, tender, or painful to palpation, and does not lose its covering repeatedly, cover an area exceeding 144 square inches, or adversely affects any function.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation prior to July 22, 2009, for right shoulder disability (bursitis) are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5019-5201 (2012).

2.  The criteria for a 20 percent evaluation from July 22, 2009, for right shoulder disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5019-5201 (2012).

3.  The criteria for an evaluation in excess of 20 percent from July 22, 2009, for right shoulder disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5019-5201 (2012).

4.  The criteria for an evaluation in excess of 20 percent for right foot disability are not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5284 (2012).

5.   The criteria for a compensable evaluation for scar of the left scapula (residual of cyst removal) are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7805 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.
The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how ratings and effective dates are assigned.  Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Board finds that VA satisfied its duty to notify the Veteran.  VA provided the Veteran with notice letters dated in March 2008 and June 2009 prior to the rating decisions on appeal.

The Board also finds that VA satisfied its duty to assist the Veteran.  All relevant medical records have been obtained and associated with the claims files.  VA afforded the Veteran appropriate medical examinations.  The Board has reviewed the examination reports and finds that they are adequate for rating purposes in that they described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Lastly, VA afforded the Veteran the opportunity to present sworn testimony on the matters before the Board.  A copy of the transcript is associated with the claims files.

The Board previously reviewed the record and determined additional development was necessary.  The Board has reviewed the record and finds substantial compliance with the requirements articulated in the Board's prior remand decision.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  It is noted that the Board instructed that the RO request from the Veteran information pertaining to treatment dates and locations for the disorders on appeal, but no response was received.  Notwithstanding, the RO associated with the Veteran's Virtual VA file VA treatment records dated from 2009 to 2012, which were duplicative of evidence in the paper claims files or irrelevant to the issues on appeal.

Accordingly, the Board will address the merits of the claims.

II. Claims for Higher Ratings

The Veteran seeks an increased rating for his right shoulder, right foot, and scapular scar disabilities.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

A.  General Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.

The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

B.  Right Shoulder Disability

The Veteran's right shoulder disability (bursitis) is rated under Diagnostic Code 5201-5019 as noncompensably disabling prior to July 22, 2009; as 10 percent disabling from July 22, 2009; and as 20 percent disabling from December 10, 2010.  It is noted that the 10 percent evaluation was assigned based on painful motion under 38 C.F.R. § 4.59.

The Veteran seeks an increased evaluation and testified at his June 2009 DRO hearing that his right shoulder problems limited his activities with his grandchildren.  He stated that he could do most activities on a good day except for over head activities due to pain.  He reported shoulder pain that varies from day-to-day.  He reported taking over-the-counter pain medication (Aleve, Tylenol, etc.) for pain relief with sufficient results.  He denied interference with employment.  At his November 2011 Board hearing, the Veteran testified that he could not perform over head work or activities and that he treated his condition with Aleve.

The rating schedule provides that bursitis should be rated on the limitation of motion of the affected part.  38 C.F.R. § 4.71a, Diagnostic Code 5019 (2012).  Diagnostic code 5201 provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012).  Normal range of shoulder flexion and abduction is from 0 to 180 degrees, and internal/external rotation is from 0 to 90 degrees.  38 C.F.R. § 4.71a, Plate I.
Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence supports the assignment of a 20 percent disability evaluation from July 22, 2009, and no more; and is against a compensable evaluation prior to July 22, 2009, for right shoulder disability.  Neither the lay nor the medical evidence more nearly reflects the criteria for a compensable evaluation prior to July 22, 2009, or in excess of 20 percent from July 22, 2009.

Report of VA examination dated in June 2007 reflects complaints of increased right shoulder pain for the past year.  The Veteran reported deep pain and catching sensation when he reaches for objects or performs certain activities.  He denied weakness, stiffness, swelling, heat, redness, instability or giving way, and dislocation.  He takes Motrin for pain with some relief.  He reported flare-ups of pain described as 7 on a scale of 10 (worst), occurring about 2 times a week, precipitated by overhead reaching, increased activities, and activities that require lifting.  The Veteran denied interference with employment, noting that he worked in human resources.  Clinical finding show no erythema or tenderness of the acromioclavicular joint.  Tenderness in the subacromial region over the anterior right shoulder was found.  Range of motion testing showed as follows, in degrees:


Flexion
Abduction
Internal Rotation
External Rotation
Active
0-155
0-95
0-75
0-90
Passive
0-160
0-110
0-75
0-90

The range of motion was without pain.  There was some crepitus.  Repetitive motion testing resulted in no additional loss of motion or pain.  There was no weakness, fatigue, or lack of endurance with repetitive motions.  The right upper extremity was neurovascularly intact.  There was no intrinsic weakness of the rotator cuff.  X-rays dated in March 2007 indicated no evidence of degenerative changes or any osseous abnormalities.  The diagnosis was right shoulder bursitis.

Report of VA examination dated in April 2008 reflects complaints of right shoulder pain, more noticeable with over head movements.  The Veteran avoids heavy lifting and other activities that could strain the shoulder.  He reported occasionally taking Ibuprofen with good results.  He reported having a desk job and that his condition did not impact his work or social life.  He denied given way, dislocation or subluxation, stiffness, weakness, locking episodes, and effusion.  Range of motion testing showed as follows, in degrees:


Flexion
Abduction
Internal Rotation
External Rotation
Active
0-180
0-180
0-65
0-65
Passive
0-180
0-180
0-65
0-65

There was no additional loss of motion on repetitive-use testing.

Report of VA examination dated in July 2009 reflects complaints of "some pain" in the right shoulder a couple times a day.  He reported pain with getting dressed-but he noted that he was able to fully dress himself without assistance.  He rated pain as 4/10 with strain of the shoulder on any activity with flexion or abduction greater than 90 degrees.  He avoids heavy lifting as this aggravates his shoulder condition.  He enlists help with trash removal, snow shoveling, and taking care of his farm animals.  He reported that his condition was gradually worsening.  He reported no interference with employment, noting that he worked for immigration services.  The Veteran denied giving way, instability, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, effusion, and inflammation.  Clinical findings reflect crepitus, tenderness, and pain at rest.  There was pain on range of motion testing.  Range of motion testing showed as follows, in degrees:


Flexion
Abduction
Internal Rotation
External Rotation
Active
0-112
0-110
0-65
0-60

There was objective evidence of pain following repetitive motion testing, but no additional loss of motion.  There was no ankylosis.

Report of VA examination dated in December 2010 reflects complaints of daily shoulder pain and stiffness with intermittent remissions, treated with Advil every morning with some relief.  X-rays show normal right shoulder.  Range of motion testing showed as follows, in degrees:

Flexion
Abduction
Internal Rotation
External Rotation
Active
0-105
0-110
0-85
0-85

There was no crepitus.  After repetitive motion testing, flexion was limited to 105 degrees with pain beginning at about 85 degrees, but no additional loss of motion.  There was no ankylosis.  The diagnosis was right shoulder bursitis.

Report of VA examination dated in March 2012 reflects evaluation of right shoulder bursitis.  It was noted that the Veteran was right hand dominant.  The Veteran reported flare-ups that impact right shoulder function, such as, reaching for objects, awakening at night if he sleeps on his right side, and pain with repetitive reaching for objects.  Clinical findings reflect pain on palpation of the acromioclavicular joint, but no guarding.  Muscle strength was 5/5 on flexion and abduction.  There was no ankylosis of the glenohumeral joint.  Dislocation, subluxation, or impairment of the clavicle or scapula was not shown.  Range of motion testing showed as follows, in degrees:


Flexion
Abduction
Range
0-130
0-110
Pain Begins At
80
80
After Repetitive Motion
130
110

The examiner noted that the contributing factors to disability were less movement than normal and pain on movement.  The examiner noted that the Veteran's right shoulder condition did not result in functional impairment such that there was no effective function remaining other than that which would be equally well served by an amputation with prosthesis.  The examiner further noted that the right shoulder disorder impacted the Veteran's work in that he had problems reaching for objects, especially those above chest level.  X-ray showed degenerative joint disease.  Lastly, the examiner summarized that the Veteran had active painful motion of the right shoulder beginning at 90 degrees on abduction and at 110 degrees on flexion with mild pain on palpation over the acromioclavicular joint consistent with moderate degenerative joint disease.

Prior to July 22, 2009, neither the lay nor the medical evidence reflects that right shoulder motion is limited to shoulder level as required for the minimum compensable evaluation under Diagnostic Code 5201.  Report of VA examination dated in 2007 shows that the range of motion was better than 90 degrees on flexion and abduction; that repetitive-use testing showed no additional loss of motion or pain.  While the Veteran reported flare-ups of pain with over head use, neither his statements nor the medical findings reflect that the range of motion was functionally limited to shoulder level, i.e. 90 degrees.  Therefore, a compensable evaluation under Diagnostic Code 5201 is not warranted.  Also, x-rays dated in March 2007 indicated no evidence of degenerative changes which would warrant a 10 percent evaluation based on findings for arthritis and limitation of motion under Diagnostic Code 5003.

From July 22, 2009, the date of a VA examination of the right shoulder, the evidence shows the Veteran's right shoulder disability was manifested by pain, stiffness, restricted range of motion, and additional loss of motion and pain with repetitive-use testing.  The range of motion was functionally limited to roughly 90 degrees, which is at shoulder level.  Specifically, the Veteran reported pain with flexion or abduction greater than 90 degrees on his VA examination in July 2009.  At his VA examination in December 2010, the Veteran reported that right shoulder pain began at about 85 degrees of flexion.  He similarly reported that right pain shoulder pain began at 80 degrees of flexion on his VA examination in March 2012.  The lay and medical evidence more nearly reflects the criteria for a 20 percent evaluation from July 22, 2009, as the Veteran's right shoulder motion is shown to be limited to about shoulder level from this date forward.  Clearly, flexion to 80 degrees more nearly approximates 90 degrees (shoulder level) rather than 45 degrees (midway between side and shoulder level).  Therefore, while the criteria for a 20 percent evaluation are met, the criteria for the next higher evaluation are not met.  38 C.F.R. §§  4.7, 4.71a, Diagnostic Code 5201.

The Board acknowledges that the Veteran has pain.  This is well documented in the lay and medical evidence.  Furthermore, the Veteran is competent to report that his disability is worse than presently evaluated.  In this regard, the Board accepts that he has functional impairment, pain and motion limited to shoulder level.  See DeLuca, supra.  The Board further finds that the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher evaluation.  The more probative evidence consists of that prepared by neutral, trained medical professionals, and such evidence demonstrates that the currently assigned evaluations are appropriate for the Veteran's limitation of motion to better than shoulder level prior to July 22, 2009, and more nearly approximating shoulder level from July 22, 2009.  Notably, the Veteran self treats his symptoms with over-the-counter medications, and denied weakness, fatigue, lack of endurance, and incoordination of the right upper extremity.  The Board notes that muscle strength is shown as 5/5, and there is no evidence of muscle atrophy.  Also, although the evidence shows that the Veteran's disability interfere with work to the extent  that he reaches for items or has over head movements, the Veteran did not report any lost time from work or significant interference with his job performance due to his right shoulder condition.  Therefore, the Board finds that the current evaluations contemplate functional impairment due to pain and restricted range of motion, as well as some interference with employment.  See DeLuca, supra.

The Board has considered whether higher disability evaluations may be assigned under any other potentially applicable provision of the rating schedule.  However, in the absence of any lay or medical evidence for ankylosis, impairment of the humerus, or impairment of the clavicle-dislocation, nonunion, or malunion, the Board finds that there is no basis to assign higher evaluations under Diagnostic Codes 5200, 5202, and 5203.  38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203.

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Although the Veteran believes he meets the criteria for higher disability ratings, his complaints and the medical findings do not meet the schedular requirements for a compensable evaluation prior to July 22, 2009, or in excess of 20 percent thereafter, as explained and discussed above.
Accordingly, to the extent that the Board finds that a 20 percent evaluation is warranted from July 22, 2009, the claim is granted.  However, a compensable evaluation prior to July 22, 2009, and an evaluation in excess of 20 percent from July 22, 2009, is not warranted.  There is no basis for further staging of the ratings.  See Fenderson, supra.  As the evidence is not in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107(b); Gilbert, supra.

C.  Right Foot

The Veteran is service connected at the 20 percent disability level for right foot disability under Diagnostic Code 5299-5284.  Historically, the Veteran had recurrent ankle strains in service due to foot malalignment and underwent corrective surgery of the first metatarsal bone.  The Veteran reports worsened right foot pain and increased difficulty walking distances.  At this June 2009 DRO hearing, he cited problems walking the distance of his 20 acre property and getting to the food court at the shopping mall.

Under Diagnostic Code 5284, a 10 percent disability rating is warranted for moderate foot injury; a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of use of the foot.  38 C.F.R. § 4.71a.  Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

VA General Counsel opinion VAOPGCPREC 9-98 provides that some foot disorders rated under Diagnostic Code 5284 may affect range of motion and, therefore, warrant consideration of the provisions of 38 C.F.R. § 4.40, 4.45. and 4.59.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for right foot disability.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher disability evaluation.  38 C.F.R. § 4.7.  Also, a higher evaluation is not warranted under any other provision of the rating schedule.

VA treatment record dated in March 2004 reflects that the Veteran presented for an annual follow-up of his right foot status post surgery a few years earlier.  He complained of pain under his 2nd toe.  The impression was status post dorsal closing wedge osteotomy of the 1st metatarsal for cavus foot deformity in an attempt to treat recurrent ankle sprain with current transfer stresses to his lesser toes causing a callus to form under his 2nd metatarsal head.  He was advised to use a metatarsal pad and semi-rigid insert to help stiffen-up his forefoot to minimize the bending movements about his metatarsal phalangeal (MTP) joint axis.

A January 2007 statement from the Veteran's wife reflects that the Veteran has bilateral foot and gait problems, and that he was unable to walk long distances without extreme pain.

Report of VA examination dated in July 2007 reflects complaints of pain and difficulty walking.  The Veteran wore custom molded orthotic shoe inserts, bilaterally.  He denied taking medications or using any brace or wrap.

Report of VA examination dated in Apri 2008 reflects a history of pes cavus with surgery in 1997 to modify the 1st metatarsal in an attempt to diminish outward bowing of the right foot.  The Veteran complained of residual right foot pain, with numbness and throbbing, along with an erythematous area on the ball of the foot, if he walks great distances.   He used over-the-counter analgesics occasionally.  He wore work boots for foot support.  He stated that the condition was only mildly worse than when he was last examined.  He denied swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance.  The Veteran could stand more than 1 hour but less than 3 hours, and walk 1 to 3 miles.  He used orthotic shoe inserts with fair results.  There was no objective evidence of painful motion, swelling, instability, weakness, hammertoes, hallux valgus or rigidus, skin or vascular abnormality, evidence of malunion or nonunion of the tarsal or metatarsal bone, flatfoot, or muscle atrophy.  There was pain with deep palpation of the ball of the right foot at the 1st and 2nd metatarsals.  There were signs of abnormal weight bearing:  callosities and unusual shoe wear pattern.  There was no appreciable dropped forefoot and the hindfoot was rotated outward slightly.  The diagnosis was hindfoot with pes cavus, right foot.  The examiner stated that there were no significant effects on his occupation.

Report of VA examination dated in July 2008 reflects similar physical examination findings.

Report of VA examination dated in March 2010 reflects complaints of pain in the 1st metatarsal of the right foot with weightbearing activity.  The Veteran reported numbness and tingling on the tips of his 2nd, 3rd, and 4th toes at the end of the day, relieved with cessation of weightbearing activity.  He reported using orthotic shoe inserts.  Objectively, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weightbearing.  Gait was normal.  X-ray of the right foot showed a small plantar calcaneal spur, but no fracture or dislocation, and unremarkable soft tissue.

At his November 2011 hearing, the Veteran reported that his foot conditions had worsened since his prior VA examination.  He provided a history of his foot problems and indicated that he had trouble walking on uneven ground over the past 3 to 4 years.  He reported that he limits his walking.

Report of VA examination dated in March 2012 reflects history of right foot problems and surgery in service.  The examiner indicated that the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus/rigidus, or clawfoot.  He further indicated that there was no malunion/nonunion of the tarsal or metatarsal bones, or weak foot.  The Veteran used foot orthotics regularly.  X-ray showed hardware from surgical correction of proximal right metatarsal bone of the right foot; small plantar calcaneal spur.  The Veteran reported that his right foot condition impacted his ability to work; specifically he stated that walking irritates his foot at work, but the examiner indicated that work was not affected because the Veteran had sedentary type work.  Clinical examination revealed no real tenderness on the plantar surface, no skin breakdown, and moderate pain when the foot flares.  The examiner explained that he believed there was moderate pain as there was no arthritis shown on x-ray and no significant gait alteration or limping.

The lay and the medical evidence reflect that the Veteran's right foot disability is manifested by flare-ups of pain due to walking or ambulation.  The Board finds that severe impairment is not shown because the Veteran has significantly retained function of his right foot.  There are no complaints or findings for impaired propulsion, strength, or coordination.  The Veteran does not use a cane or other assistive device for ambulation.  Although there is lay evidence of altered gait, the Veteran reported he could walk up to 1/4 mile, that he did not require regular medical care, and that he had some pain relief with his regular use of orthotic shoe inserts and analgesics on an as needed basis.  While the Veteran has some interference with work when walking, he acknowledged that his work is essentially sedentary and the examiners have indicated no interference with employment.

To the extent that the Veteran has pain and limited foot function due pain along with some interference with activities and work due to foot pain, the Board finds that the current 20 percent disability evaluation contemplates these factors.  See DeLuca, supra.

Additionally, a higher evaluation is not warranted under any other potentially applicable provision of the rating schedule.  Other provisions relating to the foot are Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (clawfoot); Diagnostic Code 5279 (anterior metatarsalgia); and Diagnostic Code 5280 (unilateral hallux valgus); Diagnostic Code 5281 (unilateral, severe, hallux rigidus); Diagnostic Code 5282 (hammer toe); and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones).  As these conditions are not shown on any examinations, these Diagnostic Codes are not for application and do not provide a basis for increase.   38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283.

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 20 percent, as explained and discussed above.

Accordingly, the claim is denied.  As the disability has remained essentially unchanged during the appeal period, there is no basis for a staged rating and a uniform disability evaluation is warranted.  See Fenderson, supra.  There is no doubt to resolve.  38 U.S.C.A. § 5107(b); Gilbert, supra.

D.  Scar of the Left Scapula

The Veteran had a cyst removed from his right mid-scapular region in service.  The RO awarded service connection for scar associated with this surgery in an August 1998 rating decision at the noncompensable disability level under Diagnostic Code 7805.  In June 2009, VA received his claim for increased disability compensation.

Disabling effects of scar residuals are to be rated either as scars or as impairment of function, whichever results in the higher rating.  38 C.F.R. § 4.118, Diagnostic Code 7805.

Recent changes to the rating criteria for evaluation of scars are applicable only to claims received by VA on or after October 23, 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)).  Here, VA received the Veteran's claim for increase in June 2009.  Therefore, the Board will consider both the revised regulations.

Under revised Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2012).

Under revised Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation.  Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) indicates that if multiple qualifying scars are present, a separate evaluation should be assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2012).

Under revised Diagnostic Code 7804, unstable or painful scar(s) warrant a 10 percent evaluation.  Note (1), indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) indicates that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) indicates that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7805, when applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2012).

The revised Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2012).

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an increased evaluation for scar of the scapula (residual of cyst removal).  Neither the lay nor the medical evidence more nearly reflects the criteria for a compensable evaluation under the pertinent schedular criteria.  38 C.F.R. § 4.7 (2012).

VA treatment records are silent for complaints or findings related to scar from removal of scapula cyst, and the Veteran denied treatment for scapula car at his November 2011 Travel Board hearing.  Further, at his hearing, the Veteran reported that his scar was visible to his wife but no one else.  Lastly, report of VA examination dated in March 2012 reflects the presence of only a very superficial, horizontal, linear scar, measuring 1 cm, which the examiner described as nontender and not painful to palpation, stable, and without loss of covering of skin.  There were no findings for elevation, depression, adherence to underlying tissue, or missing underlying soft tissue.  There were no findings for hypopigmentation, hyperpigmentation, induration and inflexibility, or abnormal texture.  The examiner indicated that the Veteran's scar does not impact his ability to work.  Neither the lay nor the medical evidence reflects any impairment associated with the scar.

The evidence shows that the left scapular scar is not nonlinear, deep, unstable, or painful, and that it does not lose its covering repeatedly, cover an area exceeding 144 square inches, or adversely affects any function.  Therefore, a compensable disability evaluation is not warranted.  In the instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a compensable evaluation, as explained and discussed above.  The Board has concluded that the medical evidence, prepared by skilled, neutral professionals, is more probative of the degree of disability.  Accordingly, the claim is denied.  There is no doubt to resolve.  38 U.S.C.A. § 5107(b); Gilbert, supra.

E.  Extraschedular Consideration

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the disabilities herein addressed are specifically contemplated by the schedular criteria.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order of the disabilities herein addressed.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).


ORDER

An initial compensable evaluation prior to July 22, 2009, for right shoulder disability (bursitis) is denied.

A 20 percent evaluation from July 22, 2009, for right shoulder disability is granted.

An evaluation in excess of 20 percent from July 22, 2009 for right shoulder disability is denied.

An evaluation in excess of 20 percent for right foot disability is denied.

A compensable evaluation for scar of the left scapula is denied.


REMAND

In a July 2008 rating decision, the RO continued a noncompensable evaluation prior to May 14, 2008, and granted a 10 percent evaluation from May 14, 2008.  The Veteran seeks increased evaluations for left foot disability (pes cavus and varus hindfoot to include plantar fasciitis).  

In November 2011, the Veteran testified that his left foot disability had worsened since his last VA examination in December 2010.  Accordingly, in February 2012, the Board remanded this matter for a VA examination to ascertain the severity of the Veteran's left foot disability.

In March 2012, a VA foot examination was conducted.  The examiner indicated that the Veteran had no prior history of pes cavus and noted only the Veteran's right foot disorder on item 1 of the Disability Benefits Questionnaire (DBQ).  The examiner gave a medical history for right foot injury and made no reference to the Veteran's left foot disability on item 2 of the DBQ.  In the remarks section of the DBQ, the examiner reported that he examined both feet and found that the Veteran may have moderate foot pain with flares, but had no tenderness or significant gait alteration.  An x-ray of the left foot showed moderate sized plantar calcaneal spur.

Having carefully reviewed report of VA examination dated in March 2012, the Board finds that the report of examination is inadequate for rating purposes because it does not describe the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  Here, the examiner incorrectly reported that there was no history of pes cavus and the examination report reflects essentially no clinical findings pertaining to the left foot with the exception of the remark that there may be moderate pain with flares.  Therefore, remand is necessary for another VA examination of the left foot, which fully details all complaints and abnormal pathology associated with the left foot, and provides an accurate medical history.

A remand by the Board confers on an appellant the right to VA's substantial compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1.  The RO or the AMC should undertake appropriate development to obtain a copy of all updated VA treatment records and any other outstanding pertinent records identified by the Veteran.

2.  Then, the Veteran should be afforded a VA foot examination to ascertain the severity of his left foot disability.  The examiner should identify all the left foot symptoms and the severity of the symptoms.  The examiner should indicated whether the severity of the left foot symptoms are such that the Veteran would be equally well-served by amputation with prosthesis.

The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed.

3.  The RO or the AMC should also undertake any other development it determines to be warranted.

4.  Then, the RO or the AMC should readjudicate the issue on appeal.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
DAVID L WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs