Citation Nr: 1310207 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-13 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating for postoperative intractable plantar keratosis of the right foot higher than 10 percent before July 5, 2012. 2. Entitlement to a rating for postoperative intractable plantar keratosis of the right foot higher than 30 percent from July 5, 2012. 3. Entitlement to a rating for postoperative intractable plantar keratosis of the left foot higher than 10 percent before July 5, 2012. 4. Entitlement to a rating for postoperative intractable plantar keratosis of the left foot, higher than 30 percent from July 5, 2012. 5. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from January 1980 to April 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2008 the Veteran appeared at a hearing before an Acting Veterans Law Judge. In July 2009 and August 2011, the Board remanded the case for further development. The claim for a total disability rating for compensation based on individual unemployability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Before July 5, 2012, the postoperative intractable plantar keratosis of the right foot was manifested by symptomatology, equating to a severe foot injury, but not loss of use of the foot. 2. From July 5, 2012, the postoperative intractable plantar keratosis of the right foot is manifested by symptomatology, equating to a severe foot injury, but not loss of use of the foot. 3. Before July 5, 2012, the postoperative intractable plantar keratosis of the left foot was manifested by symptomatology, equating to a severe foot injury, but not loss of use of the foot. 4. From July 5, 2012, the postoperative intractable plantar keratosis of the left foot is manifested by symptomatology, equating to a severe foot injury, but not loss of use of the foot. CONCLUSIONS OF LAW 1. Before July 5, 2012, the criteria for a 30 percent rating for postoperative intractable plantar keratosis of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284; 4.118, Diagnostic Codes 7801 to 7805 (2012); 4.118, Diagnostic Codes 7801 to7805 (2007). 2. From July 5, 2012, the criteria for a rating higher than 30 percent rating for postoperative intractable plantar keratosis of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284; 4.118, Diagnostic Codes 7801 to 7805 (2012); 4.118, Diagnostic Codes 7801 to7805 (2007). 3. Before July 5, 2012, the criteria for a 30 percent rating for postoperative intractable plantar keratosis of the left foot have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284; 4.118, Diagnostic Codes 7801 to 7805 (2012); 4.118, Diagnostic Codes 7801 to7805 (2007). 4. From July 5, 2012, the criteria for a rating higher than 30 percent rating for postoperative intractable plantar keratosis of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284; 4.118, Diagnostic Codes 7801 to 7805 (2012); 4.118, Diagnostic Codes 7801 to7805 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in March in July 2009, in January 2010, in August 2011, and in June 2012. As for the content and the pre-adjudication timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in September 2012. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA and private medical records, and records from the Social Security Administration including medical records. The Veteran was afforded VA examinations in April 2006, in January 2010, in September 2011, and in July 2012. As the examination reports are based on review of the Veteran's history and described the disabilities in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In October 2012, the Board notified the Veteran that the Acting Veterans Law Judge who conducted the hearing in March 2008 had retired. The Veteran was afforded the opportunity for another hearing before a Veterans Law Judge who would decide the claims. In n November 2012, the Veteran stated that he did not want another hearing. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Policy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for a Disability of the Feet Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. 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. Rating Criteria In January 2008, the Veteran filed the current claims for increase. During the appeal, the RO increased the rating for each disability to 30 percent, effective from July 5, 2012. Although the disabilities were initially rated as scars, the service-connected disabilities are also associated with a foot disability. The Board will consider the rating criteria for scars under Diagnostic Codes 7801 to 7805 and for a foot injury under Diagnostic Code 5284. Under 38 C.F.R. § 4.71a, Diagnostic Code 5284, a 30 percent rating is the maximum schedular rating for a foot injury. The note following Diagnostic Code 5284 provides a 40 percent rating for actual loss of use of the foot. During the appeal, the rating criteria for scars were amended in September 2008. See 73 Fed. Reg. 54,708-54,712 (Sept. 23, 2008). The changes apply to claims received on or after October 23, 2008. The Board will consider the old and new criteria for rating a scar. VAOPGCPREC 7-2003 (Nov. 19, 2003). Under the criteria in effect prior to October 23, 2008, the following criteria apply. Scars, other than the head, face, or neck, that were deep or that caused limited motion were evaluated by the measurement of the area of the scar under Diagnostic Code 7801. Areas exceeding 144 square inches (929 sq. cm.) were rated 40 percent disabling; areas exceeding 72 square inches (465 sq. cm.) were rated 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) were rated 20 percent disabling; and areas exceeding 6 square inches (39 sq. cm.) were rated 10 percent. Under Diagnostic Codes 7802 (area of scar), 7803 (unstable), and 7804 (painful), the maximum schedular was 10 percent. Under Diagnostic Code 7805 a scar was also rated on the limitation of function of the foot. Under the criteria in effect since October 23, 2008, the following criteria apply. Under Diagnostic Code 7801 scars, not of the head, face, or neck, that are deep and nonlinear, provides: that areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating; that areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrant a 20 percent rating; that areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrant a 30 percent rating; and that areas of at least 144 square inches (929 sq. cm.) or greater, warrant a 40 percent rating. 38 C.F.R. § 4.118 (2012). Under Diagnostic Code 7802 t scars 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. A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent evaluation. Under Diagnostic Code 7805, scars are to be rated in relation to function of the foot. Facts On VA examination in April 2006, the Veteran complained of severe pain in each foot that was aggravated by standing and walking. It was noted that the Veteran wore special shoes with orthotics. The Veteran stated that he had worked as a laborer until 1989 and that he was receiving Supplemental Social Security Income because of a heart attack. He denied weakness, stiffness, swelling, heat or redness of the feet. Functionally, the Veteran was independent in activities of daily living. X-rays showed no acute fracture or dislocation and no change of an old healed left fourth metatarsal fracture and right third metatarsal fracture. There was bilateral lateral deviation of the second to fourth toes. On examination the Veteran walked on his heels and lateral aspect of each foot. He had no difficulty with shoes or socks and could get on and off the examination table without difficulty. There was no unusual wear of shoes, and station was normal. He could not squat and rise without support and was unable to stand on his toes without pain or loss of balance. He had no functional limitation on standing or walking. He had no deformity or swelling in either foot. There was no evidence of loss of height of the planter arch. Pulses were palpable and sensory function was intact. On the left foot there was a 1.5 inch hyperpigmented scar on the dorsum of the foot over the fourth toe. The scar was smooth and stable without adherence to underlying tissue. The texture was normal. There was no inflammation, edema or keloid formation. The Veteran complained of pain. There was a callus on the lateral aspect of the great toe and a callus under the ball of the foot under the second toe and another under the fourth toe. There were residuals of two planter warts that were painful. Left ankle dorsiflexion was to 3 degrees, plantar flexion to 8 degrees, inversion to 15 degrees, and eversion to 10 degrees. The proximal IP joint of the great toe had flexion of 15 degrees and extension of 3 degrees. The Veteran reported pain with all toes. Repetitive motion did not change the range of motion or symptoms. On the right foot there was a one inch hyperpigmented scar on the dorsum of the foot over the third toe. The scar was smooth and stable without adherence to underlying tissue. The texture was normal. There was no inflammation, edema or keloid formation. The Veteran complained of pain. There were calluses under the second and fourth toes. Right ankle dorsiflexion was to 5 degrees, plantar flexion to 10 degrees, inversion to 10 degrees, and eversion to 5 degrees. The proximal IP joint of the great toe had flexion of 15 degrees and extension of 5 degrees. The Veteran reported pain with all toes. Repetitive motion did not change the range of motion or symptoms. The VA examiner stated that during a flare up the Veteran may develop limitations in range of motion and functional pain, but objective evidence of weakness, incoordination, fatigue, or lack of endurance was not detected. The VA examiner stated that the Veteran was able to perform activities of daily living without restriction. Private medical records dated from May to August 2006 show that the Veteran complained of painful calluses. VA records show that in August 2006 the Veteran was seen for severe foot pain, associated with bilateral plantar lesions. The assessment was a contracted foot with difficulty walking and a keratoma. The Veteran was told that the condition was permanent and that the difficulty he had walking was due to multiple foot surgeries for his service-connected foot disabilities. Records of private podiatrist from November 2006 to July 2009 show that the Veteran complained of foot pain and plantar keratotic lesions. The Veteran stated he had difficulty wearing most shoes. Generally, the findings were toe and metatarsal deviations. In March 2008, the pertinent findings were toe contractures and an antalgic gait with normal joint range of motion and muscle strength. In January 2009, there were several calluses on each foot beneath the toes and thickened hyperkeratosis on the soles of the feet. In July 2009, there hyperkeratotic lesions on the feet. The assessments were intractable plantar keratosis, callus formations, abnormal weight transfer and weight balance, and limited joint range of motion of the metatarsophalangeal joints. The podiatrist stated that the Veteran's feet had changed structurally with increased pain and discomfort while walking and standing. On VA examination in January 2010, the Veteran complained of chronic pain with weight bearing. The Veteran stated that he could stand for only 15 to 20 minutes and walk no more than 1 and one-half. On examination the Veteran walked with a limp. He used a cane and he wore extra wide shoes with inserts. There were markedly tender plantar keratosis under the fourth metatarsal head of the right foot and a smaller, tender keratosis on the plantar aspect of the right great toe. He had a mildly tender callus on the medial aspect of the right great toe and some thickening of the skin on the postero-medial heel. On the left foot, there were well-healed surgical scars on the dorsum of the left fourth toe, overlapping fourth and fifth toes, and decreased range of motion of the fourth and fifth toes. There was no pain on motion. He had a slightly tender small keratosis under the fourth metatarsal head and a tender callus over the medial aspect of the left great toe. There were painful calluses on the soles of the feet and surgical scars, measuring 6 cm by 4 mm, over the mid portion of each foot. The scars were slightly hyperpigmented, but not adhering to the underlying tissue. There was no elevation or depression of the scars. The scars were superficial with no evidence of inflammation, edema, or keloid formation. There was no induration or inflexibility of the skin in the areas of the scars and no limitation of motion due to the scar. The calluses involved less than one percent of the total body area and zero percent of exposed skin area. The VA examiner stated that the calluses did not cause any impairment in activities of daily living. The VA examiner stated that the plantar keratoses were associated with the foot surgeries. The VA examiner stated that due to the functional impairment of the service-connected foot disabilities the Veteran would be markedly restricted in his ability to obtain and maintain gainful employment. In September 2011 on VA examination, the diagnoses were metatarsalgia, bilateral intractable plantar keratosis of the feet, and scars related to the diagnosed conditions. The VA examiner stated that the Veteran did not have Morton's neuroma, hammer toes, hallux valgus, hallux rigidus, claw foot, malunion/nonunion of tarsal/metatarsal bones, pes cavus, bilateral weak foot, or other complications. The Veteran used a cane on a constant basis as an assistive device. The VA examiner noted there were abnormal findings of degenerative changes of the feet. On examination of the right foot, the Veteran had a well-healed surgical scar, two inches long on the dorsum of the second toe. The scar was well-nourished, well-healed, non-ulcerated and nontender. A second scar was one-half inch long, on the dorsal aspect of the metatarsophalangeal joint of the third toe, and was a completely normal scar. The Veteran had shaved keratotic or callused lesions on the plantar aspect of the right foot, which were markedly tender to palpation. Examination of the left foot revealed a well-healed surgical scar over the dorsum of the fourth toe, extending proximally to the dorsal distal aspect of the fourth metatarsal, which was 1.5 inches long and completely normal. There was a tender keratotic lesion of the medial aspect of the left great toe; a tender shaved callus under the left toe metatarsophalangeal joint under the fourth metatarsal head. X-rays had showed arthritic changes. The VA examiner stated that the surgical scars were asymptomatic and did not cause any functional impairment. Also, the VA examiner stated that the healed fractures of the metatarsals were due to osteotomies performed to relieve the pressure from the metatarsal heads, which was the cause of the development of the keratotic lesions and that the surgical findings were directly related to the service-connected intractable plantar keratosis because the procedures were due to the plantar keratosis. The VA examiner stated that the keratosis did not cause weakened movement, excessive fatigability, or incoordination. The VA examiner stated that the Veteran would have increased pain from the keratotic lesions, which would limit his ability to stand and walk, not only during flare-ups, but for any period of weight-bearing. The VA examiner stated that the associated pain would be moderately severe to severe. In July 2012 on VA examination, the VA examiner acknowledged the most recent VA examinations in 2010 and 2011. The VA examiner reviewed the findings from the previous examinations, noting that the Veteran's complaints were unchanged. The findings included metatarsalgia. The Veteran did not have hallux rigidus, pes cavus, mal union or nonunion of tarsal or metatarsal bones, or bilateral weak foot. The VA examiner found that the condition of the feet did not result in functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The VA examiner reiterated the conclusions of the earlier VA examinations that the plantar keratosis had required surgical osteotomies and that any surgical finding was directly related to the service-connected plantar keratosis. The VA examiner described the bilateral foot condition as severe. A Rating Higher than 10 Percent before July 5, 2012 As acknowledged by the RO in the most recent rating decision, the orthopedic conditions of the feet are due to the service-connected foot disabilities. And the Board will considered ratings under appropriate Diagnostic Codes for evaluation of disability of the musculoskeletal system. Before July 2012, the record shows no significant difference in the severity of the foot conditions when compared to the findings on VA examination July 2012. The findings in the reports of VA examinations in January 2010 and September 2011 are consistent with the findings on VA examination in July 2012 as were the findings by VA in August 2006 (the Veteran's foot pain was severe and made walking difficulty and by a private podiatrist in 2008 (toe contractures and an antalgic gait) and in 2009 (intractable plantar keratosis, callus formations, abnormal weight transfer and weight balance, and limited joint range of motion of the metatarsophalangeal joints). The VA examiner, who conducted all three examinations, characterized the bilateral foot condition as severe. Overall, the Board concludes that the disability picture is one of severe foot impairment before July 5, 2012, which warrants a rating of 30 percent for each foot under Diagnostic Code 5284. A Rating Higher than 30 Percent Under Diagnostic Code 5284, a 30 percent rating is the maximum schedular rating. There is no Diagnostic Code that provides a rating higher than 30 percent for a disability of each foot. And the remaining function of each foot does not more nearly approximate loss of use of a foot, ratable as 40 percent under Note to Diagnostic Code 5284, as the VA examiner in July 2012 found that the Veteran would not equally be well served by amputation. 38 C.F.R. §4.63 (loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance). With a rating of 30 percent for each foot, there are no other applicable Diagnostic Codes that provide for a rating higher than 30 percent for a single foot, for example, Diagnostic Codes 5276 (flatfoot), 5277 (weak foot), 5278, (clawed foot), 5279 (metatarsalgia), 5280 (hallux valgus, unilateral), 5281 (hallux rigidus), 5282 (hammertoe); and 5283 (malunion or nonunion of tarsal or metatarsal bones). There is no other schedular basis for a higher rating than 30 percent for either foot based on criteria for rating on disability based on limitation of function. Accordingly, there is also no basis for a higher rating for the associated scars on the basis of: limitation of function of the feet, or disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804, applying Diagnostic Code 7805 (2007) and Diagnostic Code 7805 (2012). The 30 percent rating for each foot under Diagnostic Code 5284 encompasses the total foot and a separate rating under Diagnostic Code 7805 for functional loss due to a scar would be pyramiding, which is not permitted. 38 C.F.R. § 4.14 (pyramiding is rating the same disability, or the same manifestation of a disability, under different diagnostic codes, which is to be avoided). A separate rating may be assigned for the scars associated with the service-connected disabilities if there is no pyramiding, that is, rating the same disability, or the same manifestation of a disability, under different Diagnostic Codes. Neither the scars on the right foot or left foot disability covers an area of 6 square inches or 39 square centimeters (deep scars under Diagnostic Code 7801) or an area of 144 square inches or 929 square centimeters (superficial scars under Diagnostic Code 7802) under the old or new criteria. And there is no evidence of an unstable scar under old Diagnostic Code 7803 and the new Diagnostic Code 7804. As for a painful scar on examination under the old Diagnostic Code 7803 and a painful scar under the new Diagnostic Code 7804, on VA examination in April 2006, the Veteran complained of pain in each foot in the area of the scars. On VA examination in January 2010, the surgical scars were well-healed. In September 2011 and In July 2012 on VA examinations, the scars were well-nourished, well-healed, non-ulcerated, and nontender. The VA examiner stated that the surgical scars were asymptomatic. The preponderance of the evidence is against a finding that the surgical scars are painful, and a separate rating for scars under the old Diagnostic Code 7803 and under the new Diagnostic Code 7804 is not warranted. Conclusions The schedular criteria for a 30 percent rating for postoperative intractable plantar keratosis of the right foot and the left foot before July 5, 2012, have been met. And the preponderance of the evidence is against a rating higher than 30 percent for postoperative intractable plantar keratosis of the right foot or left foot at any time during the period of appeals and there is no doubt to be resolved. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the current disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disabilities and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER A rating of 30 percent before July 5, 2012, for postoperative intractable plantar keratosis of the right foot is granted. A rating higher than 30 percent before and since July 5, 2012, for postoperative intractable plantar keratosis of the right foot is denied. A rating of 30 percent before July 5, 2012, for postoperative intractable plantar keratosis of the left foot is granted. A rating higher than 30 percent before and since July 5, 2012, for postoperative intractable plantar keratosis of the left foot is denied. REMAND The record reasonably raises the claim for a total disability for compensation based on individual unemployability, which is not a separate claim, but a part of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance with the duty to notify and the duty to assist, including a VA examination, if necessary, on the claim for a total disability rating for compensation based on individual unemployability. 2. After the development of the claim, adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs