Citation Nr: 1309701 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-49 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for scar of the right forearm, secondary to a postoperative right radius fracture. 2. Entitlement to an initial compensable evaluation for left foot plantar fasciitis. 3. Entitlement to an initial compensable evaluation for pseudofolliculitis barbae (PFB), prior to September 15, 2010. 4. Entitlement to an initial evaluation in excess of 30 percent for PFB, since September 15, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1977 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009 and October 2009 rating decisions by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In pertinent part, the January 2009 decision granted service connection for the right forearm scar, rated 0 percent disabling effective February 15, 2008, the date of receipt of the claim. This decision also denied service connection for PFB and a left foot condition. The Veteran appealed all three determinations. In the October 2009 decision, service connection for PFB and left foot plantar fasciitis was granted; each was rated noncompensable from February 15, 2008. An increased, 10 percent evaluation was granted for the right forearm scar. The Veteran expressed his desire to pursue a yet-higher evaluation for the scar, and also disagreed with the evaluations assigned for the PFB and left foot disabilities. During the pendency of the appeals, the RO granted entitlement to an increased, 30 percent evaluation for PFB, effective from September 15, 2010. As this is not then maximum possible evaluation for all or some of the appellate period, the appeal continues with regard to that issue. AB v. Brown, 6 Vet. App. 35 (1993). The issues have been recharacterized to reflect the multiple stages of evaluation on appeal. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the RO noted allegations of unemployability in April 2010 correspondence from the Veteran, and a formal claim was solicited and filed. Entitlement to TDIU was granted in a June 2011 rating decision, effective from April 30, 2010. The Veteran has not disagreed with the assigned effective date. Inference of a TDIU claim from an earlier date is not appropriate; although the Veteran reported he was unemployed, he also was actively seeking employment and did not allege he was prevented from gaining such by his service connected disabilities until the April 2010 informal claim. The Veteran testified at a December 2012 hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the Veteran's claims file, as part of the electronic records maintained in the Virtual VA system. The Board has reviewed all electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. As is discussed below in connection with evaluation of the right forearm scar, the issue of entitlement to service connection for neurological and/or muscular impairments of the right forearm and hand have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The right forearm scar is tender and painful, with some adherence to underlying muscle tissue. 2. Left foot plantar fasciitis is manifested by pain on manipulation and use; there are no deformities, characteristic callosities, or swelling shown. 3. Before and after September 15, 2010, PFB has been manifested by recurrent, "myriad" lesions and pustules requiring use of topical ointment, with scarring throughout the beard area; the area involved is between 20 and 40 percent of the exposed area. 4. At no time during the appellate period has PFB involved more than 40 percent of the exposed area or required use of systemic therapies. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a scar of the right forearm are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7 (2012). 2. The criteria for an increased, initial evaluation of 10 percent, but no higher, for left foot plantar fasciitis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 3. The criteria for an increased, initial evaluation of 30 percent, but no higher, for PFB are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7 (2012). 4. The criteria for an initial evaluation in excess of 30 percent for PFB are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants 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). This appeal arises from the Veteran's disagreement with the initial evaluations assigned following grant of service connection for a right forearm scar, plantar fasciitis, and PFB. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). Several VA examinations have been afforded the Veteran. The examiners have made all clinical findings necessary for application of the Rating Schedule. Where the Veteran has complained of the adequacy of an examination, a new, updated examination was offered him to ensure a clear and adequate basis for adjudication. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Forearm Scar The evaluation of skin disabilities are governed under 38 C.F.R. § 4.118. The criteria were amended effective October 23, 2008, but the amendments apply only to claims filed on or after that date. As the claim which is the subject of this appeal was filed in February 2008, the older criteria apply. 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118 (2009)). The applicable criteria provide several possible alternative Diagnostic Codes for application. Codes 7801 and 7802 would require a minimum scarred area of six square inches before a compensable evaluation is warranted; increased evaluation would require involvement of a square foot of surface area. No examiner or treating provider has described the scar as approaching anywhere near this size; doctors report the scar is 15 cm x 2 cm, less than six square inches (39 cm²). Code 7803 would require that the scar's surface be found to be unstable. There are no objective findings or subjective reports indicating that the skin covering the scar is prone to sloughing, peeling, or any other form of instability. Code 7805, which provides that scars may be rated based upon the limitation of function of the affected part has been considered. The Veteran does complain of limitations of movement in his right forearm, at the elbow. However, the Veteran is already service connected for such limitation, and is assigned a 30 percent evaluation under Code 5206, for limitation of the flexion. To assign an additional evaluation for the scar based on functional limitation would be prohibited pyramiding. 38 C.F.R. § 4.14. It is correct that the Veteran also complains of neurological or muscular limitations of the right forearm, to include numbness, tingling, and decreased grip strength. However, these are not due to the scar; they are additional alleged residuals of the original radius fracture. Entitlement to compensation for them has been referred above, but cannot be considered here in rating the scar. No doctor has attributed these complaints to the scar itself, and the Veteran lacks the specialized knowledge and training to provide an etiological opinion in a case such as that here. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The RO has rated the disability under Code 7804, which grants a 10 percent evaluation for superficial scars that are painful on examination. 38 C.F.R. § 4.118 (2008). The Board agrees that this is the most apropos Code. The Veteran has regularly reported, and doctors have observed, tenderness at the site of the scar. Some portion of this may be due to adherence and pulling along the scar, but it has also been competently attributed to the surface of the scar. The Veteran is in receipt of the maximum Schedular evaluation under Code 7804. Consideration has therefore been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Schedular criteria fully contemplate the complaints of the Veteran as they relate directly to the scar. His reports of sensory changes in the scar form the basis for the assigned evaluation. Further, the Veteran does not report, and the evidence fails to demonstrate, any hospitalizations or missed work due to the scar. This does not consider musculoskeletal or neurological complaints, as such fall under other Codes. Application of an extraschedular evaluation for the right forearm scar is not appropriate. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Left Foot Plantar fasciitis is not a listed condition in the Rating Schedule. It is therefore rated by analogy to a listed condition, considering the functions affected, anatomical location, and symptoms. 38 C.F.R. § 4.20. The RO correctly selected Code 5276, for flat feet, to evaluate the plantar fasciitis. Code 5276 provides that a 0 percent evaluation is assigned for mild symptoms which are relieved by a built up shoe or arch support. A 10 percent evaluation is warranted for moderate impairment, marked by weight-bearing in a line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use of the feet; the 10 percent rating applied whether the condition is bilateral or unilateral. For severe impairment, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities, a 20 percent evaluation is assigned for a unilateral condition and a 30 percent for a bilateral condition. When the disability is pronounced, manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, and is not improved by orthopedic shoes or appliances, a 30 percent evaluation for unilateral disability is assigned, and a 50 percent evaluation is applied for bilateral disability. 38 C.F.R. § 4.71a, Code 5276. VA treatment records reveal ongoing complaints of and treatment for left foot pain, in association with other complaints of body pains. The Veteran reports that he has pain with movement and altered weight bearing. A VA Foot examination was conducted in September 2009. The Veteran complained of stiffness, swelling, heat, redness, and a lack of endurance. Pain would increase with weather changes. He did not report any functional impairment due to foot problems, but did use a crutch and over-the-counter shoe inserts; the Veteran's limp favored his left leg. On physical examination, the feet were symmetrical and normal. Movement (flexion and extension) was also normal, including with repetition. The examiner noted pain with palpation under the second and third metatarsals. There were no callosities or deformities. The Veteran was examined again in November 2010. The examiner noted that although the Veteran did have an antalgic gait, this was not related to the left foot. There were no indicators or abnormal weight bearing, such as callosities. No deformities were observed. There was mild, 5 degree concavity of the Achilles tendon externally; this could be corrected with manipulation, which was not painful. Motion was normal and objectively asymptomatic, but the Veteran subjectively reported pain in the arch. The Veteran has consistently, and competently, reported pain with use of the left foot throughout the appellate period. Both VA examiners have identified objective manifestations-albeit differing ones-of plantar fasciitis consistent with the criteria for assignment of a 10 percent evaluation for the unilateral condition. The doctors' observations, however, both address increased symptomatology with use. In 2009, pain was adduced with palpation. In 2010, there was alteration of the Achilles tendon alignment. The disability picture presented therefore warrants a 10 percent evaluation. A higher evaluation for severe disability is not warranted in the absence of any evidence of callosities, deformity, accentuated pain with use, or objective evidence of swelling. The Board notes that the Veteran did report swelling of his foot on occasion, but the overall disability picture presented is far more reflective of the criteria for a 10 percent rating. Again, extraschedular evaluation under 38 C.F.R. § 3.321 has been considered. However, the criteria to be applied fully contemplate the Veteran's reported symptomatology. His pain with use, the major complaint, is specifically addressed. Further, there is no evidence of a need for hospitalization or excessive interference with employment due to the plantar fasciitis. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). PFB As the analysis applicable to the stages of evaluation before and after September 15, 2010 is substantially the same, the issues are discussed together here. As was noted earlier, the criteria for evaluation for skin conditions were amended effective in October 2008; however, the changes apply only to claims received on or after the effective date. The current claim was filed in February 2008, and hence the older criteria apply. PFB is best rated under Code 7806, as analogous to dermatitis or eczema. Code 7806 provides ratings for skin conditions anywhere on the body. Dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and requires no more than topical therapy is required during the past 12- month period is rated 0 percent disabling. Dermatitis or eczema that involves 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 affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy is required for a total duration of six weeks or more, but not constantly, during the past 12-month period is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy is required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118 . VA treatment records reveal complaints of and treatment for PFB on the face and neck. In April 2009, the Veteran reported having problems since 1977, when he first began shaving in service. He had noted some improvement with use of topical medication. The examiner reported "myriad punctuate scars" in the beard area, but no inflamed pustules. By August 2010, the Veteran stated that his medication was becoming less effective. He shaved infrequently, but continued to develop PFB. Scattered pustules were observed in the beard area along with some scarring. The Veteran's topical medication was updated; this helped. In September 2010, the Veteran presented with "considerable scarring "of the face and neck, involving five percent of the total skin surface and 20 percent of the exposed skin. The Veteran continues to use his topical medication; no systemic therapy prescriptions are reflected in treatment records. At a September 2009 VA skin disease examination, the Veteran reported continued shaving bumps, even with use of clippers instead of shaving. The condition was not progressive, but was continually present. The Veteran had used topical creams daily, but stated it did not help. The examiner observed scattered papular eruptions on the cheeks and neck consistent with shaving bumps. No scars were reported. He opined that less than one percent of the total surface area, and zero percent of the exposed skin were involved. He commented that PFB was controllable, but not curable. At a November 2010 VA general medical examination, the Veteran stated he no longer shaved. He reported that he got four to five shaving bumps "from time to time." He had recently switched topical medications for use at his next outbreak. On physical examination, the doctor noted three or four papules, of the same color as the surrounding skin, on each side of the face and neck. The involved area was less than one percent of the total body and the exposed skin. In December 2012, the Veteran testified that the ingrown hairs on his neck would leak a pussy material and discolor the collars of shirts. He reported that while on many days the condition was fairly minor, with flare-ups he would have 12 to 15 pustules active on his face. He recently used an antibiotic to combat an outbreak before the holidays. He had a tendency to pick at the ingrown hairs. He reported extensive scars and "pits" on his face and neck. The RO has assigned a 30 percent evaluation for PFB effective from September 15, 2010, the date of the VA treatment note reporting involvement of 20 percent of the exposed skin surface by PFB. Although the RO also noted the much lower estimate of involvement by the November 2010 VA examiner, all doubt was resolved in favor of the Veteran, and the increased evaluation was assigned under Code 7806. The Board must reach a similar conclusion for the evaluation stage prior to September 15, 2010. The treating doctor noted "myriad" scars in 2009 and "considerable" scarring in 2010. Although the Veteran has stated, and the medical evidence shows, that active infection and lesions are not daily occurrences, they do happen with fair regularity, and have left extensive scarring in the beard area. It appears examiners have addressed only the active shaving bumps, while the treating doctor's estimate also accounts for the scarred area. Resolving all doubt in favor of the Veteran, the Board finds that the described scarring of the beard area covers 20 to 40 percent of the exposed skin surface, and hence a 30 percent evaluation is warranted before and after September 15, 2010. At no time during the appellate period has the disability picture presented approached that required for assignment of a higher, 60 percent evaluation. The Veteran has not alleged, and no medical care provider has estimated, involvement of greater than 40 percent of the entire body or exposed areas. There has been no use of systemic therapies of any duration. Accordingly, an evaluation in excess of 30 percent either before or after September 15, 2010, is not warranted. The Board has considered the possibility of a higher evaluation under another potentially applicable diagnostic Code, but no benefit greater than that already assigned is possible. Rating PFB as acne, under Code 7828 could result in a maximum schedular evaluation of 30 percent, and would require involvement of more than 40 percent of the face and neck. Rating under Code 7800, for conditions of the head, face, or neck that cause disfigurement, also would not result in a higher evaluation. A skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement is rated 30 percent disabling. Visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement is rated 80 percent disabling. Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: * Scar is 5 or more inches (13 or more cm.) in length. * Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. * Surface contour of scar is elevated or depressed on palpation. * Scar is adherent to underlying tissue. * Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). * Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). * Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). * Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). At best, only two such characteristics are described by doctors and the veteran: abnormal texture and abnormal contour. No adherence, discoloration, lack of flexibility, or loss of or adherence to underlying tissue is shown. The individual scars are also described as small. Code 7800 would not permit assignment of a higher evaluation. Finally, extraschedular evaluation has been considered. The Schedular criteria are adequate for evaluation of the Veteran's disability. They fully account for his complaints of skin changes and poor appearance, and permit higher evaluations for greater levels and extent of such symptoms. Further, there is no evidence of hospitalization or excessive interference with employment due to PFB. No extraschedular evaluation is warranted. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 10 percent for a scar of the right forearm is denied. An initial 10 percent evaluation, but no higher, for left foot plantar fasciitis is granted. An initial 30 percent evaluation, but no higher, for PFB prior to September 15, 2010, is granted. An initial evaluation in excess of 30 percent for PFB since September 15, 2010, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs