Citation Nr: 1306929 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-15 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for right foot disability. 2. Entitlement to a compensable rating for left foot disability. 3. Entitlement to a compensable rating for tinea pedis. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active military service from December 1976 to June 1993. This appeal to the Board of Veterans' Appeals (Board) is from an October 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied compensable ratings for bilateral hallux valgus and tinea pedis and denied service connection for a low back disability. The RO in Nashville, Tennessee, now has jurisdiction over these claims, and that office certified this appeal to the Board. In January 2011, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration. In an August 2012 rating decision since issued, on remand, the AMC granted service connection for low back disability along with associated left sciatica. And since the Veteran has not, in response, separately appealed the ratings and/or effective dates that were assigned for these disabilities, the claim concerning his low back disability and, by extension, his associated sciatica is no longer at issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Consider also that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. This is indeed the situation here. Thus, under Rice, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated in part on the service-connected disabilities for which the Veteran is requesting higher ratings in this appeal. This TDIU claim is not a claim separate or distinct from these underlying increased-rating claims. See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which, in that case was posttraumatic stress disorder (PTSD). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Since, however, this derivative TDIU claim has not been initially considered by the RO as the Agency of Original Jurisdiction (AOJ) and requires further development before being decided, the Board is REMANDING it to the RO via the AMC. VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claims for higher ratings for the disabilities forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. From June 30, 2004 to March 19, 2011, the Veteran's service-connected right foot disability was manifested by postoperative hallux valgus and hammertoes. Claw foot, pes planus, separately ratable weak foot, separately ratable metatarsalgia anterior and malunion or nonunion of the tarsal or metatarsal bones were not shown, and the overall level of foot disability was not shown to be more than moderate. 2. From June 30, 2004 to March 19, 2011, the Veteran's service-connected left foot disability was manifested by hammertoes. Severe hallux valgus, claw foot, pes planus, separately ratable weak foot, separately ratable metatarsalgia anterior and malunion or nonunion of the tarsal or metatarsal bones were not shown and the overall level of foot disability was not shown to be more than moderate. 3. From March 20, 2011, the Veteran's service-connected left and right foot disabilities have been shown to be severe in degree. Left or right Claw foot with marked contraction of the plantar fascia with dropped forefoot, or left or right claw foot with limitation of dorsiflexion at the ankle to right angle, or loss of use of either foot, was not shown. 4. The Veteran's bilateral tinea pedis is manifested by dermatophytosis with thickened, fissured skin and scaling and flaking skin, but without scarring; this skin symptomatology does not involve at least 5 percent of the body and does not require systemic therapy. CONCLUSIONS OF LAW 1. From June 30, 2004 to March 19, 2011 the criteria are met for a 10 percent, but no greater rating, for right postoperative hallux valgus. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5280 (2012). 2. From June 30, 2004 to March 19, 2011, the criteria are met for a 10 percent, but no greater rating, for right hammertoes. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5282 (2012). 3. From June 30, 2004 to March 19, 2011, the criteria are met for a 10 percent, but no greater rating, for left hammertoes. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5282 (2012). 4. From June 30, 2004 to March 19, 2011, the criteria are not met for a compensable rating for left hallux valgus. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5280 (2012). 5. From March 20, 2011, the criteria are met for a 30 percent, but no greater rating for right foot disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284 (2012). 6. From March 20, 2011, the criteria are met for a 30 percent, but no greater rating for left foot disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284 (2012). 7. The criteria are not met for a compensable rating for tinea pedis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.118, DC 7813 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to: (1) notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, not of record that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In claims for increased disability ratings, meaning the disabilities at issue already have been determined service connected in years past, so not concerning initial ratings, the VCAA requires that VA notify the claimant that to substantiate the claims, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities and the effect the worsening has on employment. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him or her of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life. Vazquez-Flores, 580 F.3d at 1278. In this particular case at hand, the Board finds that VA has satisfied its duty to notify. By way of VCAA notice letters sent to the Veteran in July 2005 and June 2006, the RO generally informed him of the evidence necessary to substantiate his claims and his and VA's responsibilities in the development of his claims. Also, he was informed that in evaluating his disabilities, VA would consider evidence of the nature and symptoms of his condition, the severity and duration of his symptoms, and the impact of his condition and symptoms on employment. Additionally, he was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. Although some of the notice was not provided until after his claim had been initially adjudicated, the claims since have been readjudicated in a February 2007 statement of the case (SOC) and even more recently, so again, in an August 2012 supplemental SOC (SSOC), thereby rectifying ("curing") any defect in the timing of the provision of the notice. Ideally, VCAA notice should be provided to the Veteran prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claims, such as in an SOC or SSOC, is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this particular instance. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the Veteran's claim. Pertinent medical evidence associated with the claims file consists of his service treatment records (STRs), post-service VA treatment records and the reports of his VA examinations. Also of record and considered in connection with the appeal are various written statements provided by him personally and by his representative on his behalf. In the January 2011 remand, the Board instructed the RO/AMC to provide the Veteran VA compensation examinations reassessing the severity of his bilateral foot disability and bilateral tinea pedis, and then to subsequently readjudicate the claims. These examinations were performed in March 2011, as requested, and are adequate for rating purposes inasmuch as the reports address the Veteran's subjective complaints and the relevant rating criteria, etc., including in terms of the objective clinical findings needed to assign greater ratings. Hence, there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). But see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008) (discussing situations when it is alternatively acceptable to have "substantial" compliance, even if not "exact" or "total" compliance). As importantly, these claims were readjudicated in the August 2012 SSOC, so after considering this additional evidence. The Board has found nothing suggesting there is any outstanding available evidence with respect to the Veteran's claims needing to be obtained. No further action is required to comply with the duty to notify and assist him in developing the facts pertinent to his claims. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" rating. This practice initially was employed only as concerning initial ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It since has been extended, however, even to already established ratings, so to the increased-rating context. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were expressly raised, as well as the entire history of the Veteran's disability in reaching its decision. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Bilateral Foot Disabilities Service connection was granted for right foot disability by a June 1996 rating decision, with a noncompensable rating assigned effective March 1996. Service connection for left foot disability was granted by a March 1998 rating decision, with a noncompensable rating assigned effective March 1996. In June 2005, the Veteran filed a claim for increased ratings. The claim was received by the RO on June 30, 2005. The Veteran's right and left foot disabilities have been rated under Diagnostic Code (DC) 5280 for hallux valgus. 38 C.F.R. §§ 4.71a. Under DC 5280, a 10 percent rating is warranted for unilateral hallux valgus that was operated on with resection of metatarsal head as well as when there is severe hallux valgus, if equivalent to amputation of the great toe. Id. As the Veteran's foot disabilities include hammertoes, a rating under DC 5282 is also for consideration. Under this Code, single hammertoe deformities warrant a noncompensable rating and all toes with hammertoe, unilateral, without claw foot, warrant a 10 percent rating. Id. Additionally, claw foot is rated under DC 5278. Under this Code, the great toe dorsiflexed, some limitation of dorsiflexion at the ankle and definite tenderness under the metatarsal heads warrants a 10 percent rating when either bilateral or unilateral. Claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia and marked tenderness under the metatarsal heads warrants a 20 percent rating if unilateral and a 30 percent rating if bilateral. Claw foot with a marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and a marked varus deformity warrants a 30 percent rating if unilateral and a 50 percent rating if bilateral. Id. Foot disabilities may also be rated under DC 5284 concerning other foot injuries. Under this Code, moderate foot injuries warrant a 10 percent rating; a 20 percent rating requires a moderately severe foot injury; and a 30 percent rating requires a severe foot injury. If actual loss of the foot is shown, a 40 percent rating is warranted. Id., DC 5284. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although 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. See 38 C.F.R. §§ 4.2, 4.6. In a February 2006 notice of disagreement, the Veteran indicated that he felt that the ratings for each foot were too low. He reported that he had pain in both feet. At a June 2011 VA foot examination, it was noted that the Veteran had had surgery in service to correct his hallux valgus of the right foot as well as to reduce hammertoe deformities on the minor toes of the right foot. The condition of the feet had currently progressed to the point that the Veteran was not able to walk normally on either foot due to progressive contracture of the soft tissues in the forefeet with loss of the transverse arch of both feet, and contracture deformities of the metatarsophalangeal (MTP) joints with resulting abnormal weight-bearing on the plantar surface of joints 2 and 3 with aggressive painful callus formation. The Veteran's gait was grossly abnormal as he had lost the capacity to perform normal reciprocating heel to toe progression of weight-bearing. The Veteran noted that during service he had had repeated exposure to non-freezing cold injury as well as generalized foot trauma associated with prolonged weight-bearing etc. Review of symptoms showed that the Veteran reported bilateral foot pain and stiffness with standing, walking and at rest. He also experienced fatigability, weakness and lack of endurance while standing and walking. The pain was on the plantar surfaces and the forefeet. The stiffness was in all the toes. He experienced fatigability throughout both feet, lack of endurance in the plantar surfaces of the feet for weight-bearing and weakness in the toes. He indicated that he could not stand for more than a few minutes and could not walk more than 200 to 300 yards. Examination of the left foot showed pain on dorsiflexion/plantar flexion of the great toe at the MTP joint. There was marked tenderness on palpation of a thick, heavy callus under the 2nd and 3rd MTP joints. The Veteran was unable to abduct or flex the toes. The 2nd and 3rd toes were actually hyperextended by contractures in sort of a reverse hammertoe deformity. The Veteran's callosities were indicative of abnormal weight-bearing. Toes 2, 3 and 4 were hammertoes with contractures causing the hyperextension at the proximal interphalangeal (PIP) joints and loss of flexion at the MTP joints due to flexion contracture of the MTP joints of each toe. There was 20 degrees of angulation at the MTP joint and the Veteran could not actively dorsiflex or plantar flex the great toe but with passive range of motion 20 degrees of dorsiflexion and plantar flexion could be obtained. The Veteran's skin was thickened and his nails were severely dystrophic. The Achilles tendon was inward bowing on weight-bearing and there was mild pronation. The arch was not present on weight-bearing and there was pain on manipulation. The left heel was valgus to 7 degrees. Because of the extreme sensitivity of the Veteran's large bulky callus and loss of normal function of the toes, the Veteran stood and ambulated on the lateral margins of the foot. There was loss of the transverse arch due to soft tissue contracture with the described contracture deformities of the toes. There was muscle atrophy of the interosseous muscles and atrophy and contracture of the extensor digitorum brevis. Examination of the right foot showed evidence of painful motion, tenderness, weakness and abnormal weight-bearing. Attempts at passive range of motion of the great toes and all the other toes were painful. There was marked tenderness on palpation of a thick callus under the 2nd and 3rd metatarsophalangeal joints. The Veteran was unable to actively move any of his toes. The Veteran's callosities were indicative of abnormal weight-bearing. The residuals of surgery to the previous hammertoe deformities of the minor toes now showed that all were in full extension but not as severe as the hyperextension contractures of the left foot. There was no angulation of the 1st MTP joint after surgery but there was no active or passive dorsiflexion or plantar flexion. The skin was thickened and the toenails were severely dystrophic. The Achilles tendon was inward bowing on weight-bearing and there was moderate pronation. The arch was not present on weight-bearing and there was pain on manipulation. The right heel was valgus to 7 degrees. There was muscle atrophy of the interosseous muscles and the extensor digitorum brevis. The Veteran ambulated with a wide steppage type gait with weight-bearing on the lateral margins of the feet. He could not perform normal reciprocating heel to toe gait. A review of June 2010 X-rays showed diagnostic impressions of grossly unchanged findings of osteopenia/osteoporosis; post fracture/post osteotomy deformity involving the distal first right metatarsal; mild left hallux valgus; bilateral hammertoe deformities and significant elongation of the toenails. The VA examiner diagnosed the Veteran with bilateral severe foot disease with left foot hallux rigidis; left foot hallux valgus; bilateral hammertoe or hammertoe residuals equivalent to early clawfoot with severe callus formation due to abnormal weight-bearing caused by the soft tissue contractures with hammertoe deformities of all toes; and mild pes planus due to posterior tibial tendon dysfunction. The examiner indicated that the Veteran's feet had no remaining capacity for normal propulsion as available in a normal reciprocating heel to toe gait. The examiner commented that the findings in the Veteran's feet were equivalent to the residuals of non-freezing cold injury, ischemic injury due to stress fractures or overuse injuries, or both. The examiner noted that the Veteran served in a military occupational specialty (MOS) in which he was frequently exposed to cold weather outdoor operations and at risk for non-freezing cold injury. His history of foot pain early in service and gradual progression of the deformities was consistent with soft tissue contracture due to ischemia. The examiner found that the bilateral foot disability had significant effects on occupational activities with decreased mobility, problems with lifting and carrying and pain. The condition precluded standing or walking more than a few minutes at a time due to painful calluses. The examiner indicated that the bilateral foot disability would prevent exercise and sports; would have a severe effect on chores, shopping, recreation and traveling; would have a moderate effect on dressing and driving; would have a mild effect on bathing and would have no effect on feeding, toileting and grooming. It was noted that the Veteran had been unemployed for the past 10 to 20 years and that his usual occupation had been a general laborer. As noted above, the June 2011 VA examiner generally found that the Veteran had bilateral severe foot disease. He also specifically found that the Veteran's feet had no remaining capacity for normal propulsion as available in a normal reciprocating heel to toe gait and that the foot disability precluded him from standing or walking for more than a few minutes at a time. Additionally, the examiner found that the disability prevented exercise and sports, had a severe effect on chores, shopping, traveling and recreation and had moderate effect on driving and dressing. Thus, under DC 5284, the disability of each foot is reasonably shown to be severe, as these objective findings tend to indicate a level of impairment close to that of actual loss of use of the feet. Accordingly, separate 30 percent ratings are warranted for severe impairment of each foot under DC 5284. 38 C.F.R. § 4.71a. As DC 5284 considers the feet as a whole, assigning additional ratings for the Veteran's individual hallux valgus, hallux rigidis, hammertoe disabilities and/or disability equivalent to early clawfoot are not appropriate, as this would amount to impermissible pyramiding. 38 C.F.R. § 4.14. Also, appropriately combining ratings under these Codes (in lieu of applying DC 5284), would not result in higher than 30 percent ratings for each foot. In this regard, the maximum rating under DC 5280 for hallux valgus is 10 percent and assigning a separate 10 percent rating for both the hallux valgus and hallux rigidis shown in the left foot would amount to impermissible pyramiding. See DC 5281, indicating that hallux rigidis is to be rated as hallux valgus and that the maximum available rating is 10 percent. Also, although the Veteran has been found to have bilateral symptomatology compatible with early claw foot, he has not been shown have a marked contraction of the plantar fasci with dropped forefoot so as to warrant a 50 percent rating for bilateral clawfoot or a 30 percent rating for unilateral clawfoot. Additionally, he has not been shown to have limitation of dorsiflexion of either ankle to a right angle so as to warrant a 30 percent rating for bilateral clawfoot or a 20 percent or higher rating for unilateral clawfoot. Further, the maximum available rating for hammertoes under DC 5282 is also 10 percent. Also, anterior metatarsalgia under DC 5279 (i.e. Morton's Disease), is neither shown nor alleged. Additionally, even if this disease were shown, it appears that assigning the Veteran a separate 10 percent rating (i.e. the maximum rating available) for it under DC 5279, along with ratings for hallux valgus and hammertoes would amount to impermissible pyramiding, as the Veteran's metatarsal pain appears to be fully accounted for by these former two disabilities. 38 C.F.R. § 4.14. Also, even if such a separate rating could be assigned, this would still not result in a combined rating in excess of 30 percent. In addition, the Veteran is not shown to have more than mild pes planus, a degree of disability, which is noncompensable, and he is not shown to have separately ratable weak foot or malunion or nonunion of the metatarsal bones. See DCs, 5276 (pes planus), 5277 (weak foot) and 5283 (malunion or nonunion of the tarsal or metatarsal bones). Thus, 30 percent ratings for severe disability of each foot are the maximum schedular evaluations available. 38 C.F.R. § 4.71a. These ratings are assigned effective March 20, 2011, the date of the recent VA examination. 38 C.F.R. § 3.400(o). Ratings in excess of 30 percent are not warranted as actual loss of use of either foot is not shown. 38 C.F.R. § 4.71a, DC 5284. Prior to March 20, 2011, there is sparse evidence of record pertaining to the severity of the bilateral foot disability. It is clear, however, that the Veteran's right hallux valgus was subject to surgical resection of the 1st metatarsal head during service. Thus, a 10 percent rating may be assigned under DC 5280 for this disability effective one year prior to the date the Veteran's current claim for increase was received, or June 30, 2004, as it was obviously factually ascertainable that the right hallux valgus had been resected as of this date. See e.g. 38 C.F.R. § 3.400(o)(2). The evidence also shows that the Veteran had osteotomy surgery on right 2nd, 3rd and 4th hammertoes during service. Thus, as the Veteran was shown to have the hammertoes on all toes normally affected by this disability (i.e. toes 2, 3 and 4), a separate10 percent rating, effective June 30, 2004, is warranted under DC 5282. The separate 10 percent ratings for hallux valgus and hammertoes are the highest available under DCs 5280 and 5282 and are warranted from June 30, 2004 to March 19, 2011. 38 C.F.R. §§ 3.400(o)(2), 4.71a. Regarding the left foot, the Veteran is affirmatively shown to have had both left hallux valgus and hammertoe deformity in service. The left hallux valgus has not been subject to resection, however, and prior to March 20, 2011, it was not shown to be severe (i.e. equivalent to amputation of the great toe). Consequently, a compensable rating for left foot hallux valgus under DC 5280 is not warranted prior to March 20, 2011. Regarding the left hammertoes, an April 1987 X-ray during service clearly produced a finding of "bilateral hammer toes" with no indication that the hammertoe deformity was absent on the left in any of the toes where it is normally found (i.e. toes 2, 3 and/or 4). Consequently, as this disability was also shown during the March 2011 VA examination, the Board will presume that it was present in all toes normally affected by it (i.e. toes 2, 3 and 4) as of June 30, 2004. Accordingly, a 10 percent rating for left hammertoe deformity is also warranted from June 30, 2004 to March 19, 2011. The Board has also considered whether any separate ratings could be assigned under any other potentially applicable rating codes prior to March 20, 2011. As pes planus, separately ratable weakfoot, claw foot, anterior metatarsalgia, hallux rigidis and malunion or nonunion of the tarsal or metatarsal bones were not shown, nor alleged, however, ratings under Codes 5276, 5277, 5278, 5279, 5281 and 5283 are not warranted. Additionally, there is no evidence of record prior to March 20, 2011 tending to indicate that the Veteran's disability of either foot was more than moderate in degree. Thus, there is no basis for alternately rating the Veteran under DC 5284, as a single 10 percent rating for moderate foot disability would provide a lesser overall disability rating for the right foot and merely an equivalent disability rating for the left foot. Additionally, as mentioned above, rating the Veteran under DC 5284 in combination with the other codes for rating disability of the foot amounts to impermissible pyramiding. 38 C.F.R. § 4.14. Accordingly, from June 30, 2004 to March 19, 2011, a 10 percent rating is warranted for hallux valgus of the right foot; a 10 percent rating is warranted for hammertoes of the right foot; and a 10 percent rating is warranted for hammertoes of the left foot. As of March 20, 2011, these ratings subsumed by the current 30 percent rating assigned for each foot under DC 5284. 38 C.F.R. § 4.71a. Tinea Pedis Service connection was granted for bilateral tinea pedis by a June 1996 rating decision, with a noncompensable rating assigned effective March 1996. In June 2005, the Veteran filed a claim for an increased rating. That claim was received on June 30, 2005. The Veteran's tinea pedis/dermatophytosis of the feet is rated by analogy as dermatitis or eczema under DC 7806; or as scars (under DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7813. In this case, the Veteran's dermatophytosis of the feet is primarily manifested by thickened, fissured skin and scaling and flaking skin. Given these symptoms and given that scarring is not shown, the disability is appropriately rated under DC 7806 for dermatitis or eczema. A 60 percent rating is warranted for dermatitis or eczema involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. If the disability involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent evaluation is to be assigned. A 10 percent rating is for assignment where 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 is affected, or intermittent systemic therapy has been required, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period. Where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected, and no more than topical therapy has been required during the past 12-month period, a zero percent rating is appropriate. 38 C.F.R. § 4.118, DC 7806. During a March 2011 VA examination, it was noted that the Veteran had a history of dermatophytosis of the feet. The symptoms included thickened, fissured skin of both heels, along with scaling and flaking of the plantar foot and interdigital areas. He had not had any systemic symptoms and treatment entailed the daily use of 40% urea cream, which was neither a corticosteroid nor an immunosuppressive. There were no areas of the head, face, neck or hands affected and less than 5 percent of the total body area was affected. There was thickened, scaling skin in a moccasin distribution in both feet. The diagnosis was dermatophytosis of the feet. The results of the June 2011 VA examination clearly show that the Veteran's dermatophytosis of the feet affects less than 5% of his total body area. It also shows that he does not have any systemic symptoms and that he does not receive any corticosteroid or immunosuppressive therapy. Rather, he simply treats the problem with 40% urea cream. Additionally, there is no earlier evidence or allegation of record during the rating period indicating that the dermotophytosis has affected 5 percent or more of the total body area or that it has required corticosteroid or immunosuppressive therapy. Accordingly, a compensable rating under DCs 7813-7806 is not warranted at any time during the rating period. Moreover, as mentioned above, the Board has considered other potentially applicable rating codes for dermatophytosis/tinea pedis, but as scarring is not shown, these other potential rating codes are not applicable. See 38 C.F.R. § 4.118, DCs 7801-7805. Additionally, there does not appear to be another similar diagnostic code available to more appropriately rate the Veteran's tinea pedis at a higher evaluation. C. Extra-schedular Consideration The Board's assignment of the ratings above is based upon consideration of the applicable schedular rating provisions. The evidence of record does not suggest that the Veteran's bilateral foot disability or bilateral tinea pedis is so exceptional or unusual as to render impractical the application of the regular Rating Schedule standards and warrant extra-schedular consideration. See 38 C.F.R. § 3.321(b)(1). As explained above, the particular symptoms of his bilateral foot disability, including pain, stiffness, loss of motion and abnormal gait with severe limitations on standing and walking are contemplated by the schedular criteria. Similarly, the particular symptoms of his tinea pedis, including thickened, fissured skin of both heels, along with scaling and flaking of the plantar foot and interdigital areas are contemplated by the schedular criteria. Without suggestion that the Veteran's disability picture is not contemplated by the Rating Schedule, referral for the potential assignment of an extra-schedular rating is unwarranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In sum, for the reasons and bases discussed, from June 30, 2004 to March 19, 2011, a 10 percent rating is warranted for hallux valgus of the right foot; a 10 percent rating is warranted for hammertoes of the right foot; and a 10 percent rating is warranted for hammertoes of the left foot. From March 20, 2011, a 30 percent rating is assigned for severe disability of each foot. These ratings subsume the earlier ratings for hallux valgus and hammertoes. A compensable rating for tinea pedis is not warranted as the evidence shows that less than 5 percent of the Veteran's body is affected by this disability. As the preponderance of the evidence is against this latter claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER From June 30, 2004 to March 19, 2011 a 10 percent, but no greater rating for right postoperative hallux valgus is granted subject to the regulations governing the payment of monetary awards. From June 30, 2004 to March 19, 2011, a 10 percent, but no greater rating for right hammertoes is granted subject to the regulations governing the payment of monetary awards. From June 30, 2004 to March 19, 2011, a 10 percent, but no greater rating, for left hammertoes is granted subject to the regulations governing the payment of monetary awards. From June 30, 2004 to March 19, 2011, a compensable rating for left hallux valgus is denied. From March 20, 2011, a 30 percent, but no greater rating for right foot disability is granted subject to the regulations governing the payment of monetary awards. From March 20, 2011, 30 percent, but no greater rating for left foot disability is granted subject to the regulations governing the payment of monetary awards. A compensable rating for tinea pedis is denied. REMAND Further development is necessary before deciding the derivative TDIU claim. A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, VA must assess whether there are circumstances, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income... ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). By virtue of the rating increase for the bilateral foot disability awarded in this decision, the Veteran now has sufficient ratings, including a combined rating under 38 C.F.R. § 4.25, to satisfy the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU, that is, without having to instead resort to the special extra-schedular provisions of § 4.16(b). This derivative TDIU claim has not been fully developed and adjudicated by the RO/AMC as the Board has unilaterally assumed jurisdiction over it during the pendency of the appeal for higher ratings for the bilateral foot disabilities. Regarding the Veteran's employability, the report of the most recent June 2011 VA examination indicates he has been unemployed for the last 10 to 20 years and that his prior occupation was "general laborer." However, to date, he has not been afforded a VA examination specifically to determine whether he is unemployable as a result of his service-connected disabilities. The Board may not reject a claim for TDIU without producing evidence, as distinguished from mere conjecture, showing his service-connected disabilities do not prevent him from performing work that would produce sufficient income to be considered substantially gainful versus just marginal in comparison. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Thus, on remand, a VA examination is needed for a medical opinion concerning whether he is unemployable as a result of his service-connected disabilities. Prior to arranging for this VA examination, he should be provided appropriate VCAA notice concerning this derivative TDIU claim. Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA notice letter addressing his derivative claim of entitlement to a TDIU. Also ask that, in response, he identify all relevant evidence regarding his employment status since his separation from service in June 1993. This includes providing information concerning jobs he had in the past and why they ended, such as on a VA TDIU application (VA Form 21-8940). If records concerning his prior employment need to be obtained, then obtain them. If records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if the records are in the custody of a Federal department or agency. The Veteran should be appropriately notified if the RO/AMC is unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, have the Veteran examined for a medical opinion concerning whether his service-connected disabilities (i.e. low back disability, left sciatica, bilateral foot disability, fracture of the right fifth metacarpal and tinea pedis) render him incapable of obtaining and maintaining substantial gainful employment. It is essential the designated examiner have an opportunity to review the evidence in the claims file, including a complete copy of this decision and remand. The VA examiner must discuss the rationale for the opinion provided concerning the Veteran's employability, if necessary citing to specific evidence in the file. In making this determination, the VA examiner must consider the Veteran's level of education, prior work experience and training, etc. The examiner should not consider the Veteran's advancing age or impairment attributable to disabilities that are not service connected. 3. Ensure the examiner's opinion is responsive to this determinative issue of employability. If not, take corrective action. 38 C.F.R. § 4.2. 4. Then adjudicate this remaining TDIU claim in light of the additional evidence. If deemed warranted, refer this claim to the Director of C&P Service for consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16 (b). If the TDIU claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. The appellant 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs