Citation Nr: 1318855 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 06-34 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right elbow disability, claimed as cellulitis, bursitis, and chronic pain with weakness. 2. Entitlement to an initial compensable evaluation for residuals of a bunionectomy of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was initially brought before the Board in May 2010, at which time the claim was remanded to provide the Veteran with a statement of the case as to the issue of entitlement to an initial compensable evaluation for residuals of a bunionectomy of the left foot. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran thereafter perfected his appeal, and the claim was again before the Board in September 2012. At that time, the Board remanded the claim for a higher rating for a bunionectomy of the left foot for further development, to include obtaining treatment records, affording the Veteran a new examination, and supplying him with a statement of the case. The Board also directed the RO to provide the Veteran with a statement of the case as to the issue of entitlement to service connection for a right elbow disorder. Thereafter, the Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was afforded a VA examination in January 2013 for his left foot disability claim. In March 2013, the Veteran was provided with a statement of the case for his right elbow claim. The Veteran perfected this appeal in May 2013. See Informal Hearing Presentation, dated May 2, 2013. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The competent evidence of record does not indicate the Veteran has been diagnosed with a right elbow disability. 2. Throughout the appeal, the Veteran's left foot disability has been manifested by pain, post bunionectomy. CONCLUSIONS OF LAW 1. A right elbow disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for entitlement to a compensable evaluation for a left foot disability have not been met at any point during the appeals period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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). Prior to the initial rating decision in this matter, a May 2005 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claims, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. Additional letters were sent to the Veteran in February and July 2006. Therefore, the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in July 2005 for his right elbow disability claim. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded VA medical examinations in July 2005 and January 2013 to determine the severity of his left foot disability. The January 2013 opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr, supra. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran claims that he has a right elbow disability consisting of cellulitis, bursitis, and general weakened movement with pain. The Veteran's service treatment records show that he reported right elbow pain in December 1993. He was diagnosed with cellulitis. In January 1994, the Veteran was again treated with complaints of pain to his right elbow. He was again diagnosed with cellulitis and early bursitis. The physician noted he had a good response to antibiotics previously, but that he was symptomatic again. He was prescribed medication for his right elbow condition. There is no further follow up for this condition in the service treatment records. After service at a July 2005 VA examination, the examiner noted the Veteran was previously diagnosed with right elbow bursitis. The Veteran reported that his right elbow began to bother him in 2004. He reported no trauma to his right elbow. On examination, the Veteran had full range and normal of motion and the elbow was nontender to touch. He was diagnosed with a history of right elbow cellulitis which had resolved. There is no further medical evidence indicating that the Veteran has been diagnosed with a right elbow condition since his separation from service. After reviewing the claims file, the Board finds that there is no competent evidence of record which shows that the Veteran is currently, or since his appeal was filed, suffered from a right elbow disability. Without a current diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). The Board acknowledges the Veteran's contention that he has a right elbow disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the diagnosis of a right elbow disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In addition, while the Veteran is competent to state that he has right elbow pain, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Board sincerely appreciates the Veteran's honorable service, there is no competent and credible evidence showing that he has a right elbow disability. The Veteran has produced no competent evidence or medical opinion in support of his claim that he suffers from such a disability, and the preponderance of the evidence is against the Veteran's claim. Accordingly, the Veteran's claim for service connection for a right elbow disorder must be denied. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has been assigned a noncompensable, zero percent, rating for his left foot disability under 38 C.F.R. § 4.73, Diagnostic Code 5280. Under this Diagnostic Code, 10 percent is the maximum rating available for hallux valgus. A 10 percent evaluation is assigned where there has been an operation with resection of the metatarsal head or where there is severe hallux valgus, if it is equivalent to amputation of the great toe. At his July 2005 VA examination, the Veteran reported he had a left bunionectomy in 1997. The examiner noted well healed surgical scars. The area was not tender to palpation and the Veteran's big toe had a normal range of motion. The examiner specifically noted there were no residuals from the bunionectomy. The Veteran was afforded another VA examination in January 2013. He reported pain in his left foot. The examiner noted the Veteran had mild or moderate symptoms in his left foot due to hallux valgus. He did not have severe symptoms, with function equivalent to amputation of the great toe. The examiner noted the Veteran previously had surgery, a bunionectomy, but not resection of a metatarsal head. The Veteran had a scar on his left foot, but it was not painful and unstable or in an area greater than 39 square centimeters. The examiner concluded the Veteran's left foot disability would not impact his ability to work. The Board finds the Veteran's current noncompensable rating is appropriate. In view of the examination findings, the Veteran does not have severe hallux valgus, equivalent to amputation of the great toe, or an operation for his hallux valgus with resection of the metatarsal head. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the current assigned rating. See 38 C.F.R. § 4.7. The Board has also considered the potential applicability of other rating codes for the Veteran's left foot disability. However, no separate or higher evaluation is warranted under any of the other diagnostic codes related to foot disabilities. At his January 2013 VA examination, the Veteran did not have metatarsalgia, hammer toes, hallux rigidus, claw foot, weak foot, flatfoot, malunion or nonunion of the tarsal or metatarsal bones, or any other foot injuries. As such, Diagnostic Code 5276-5279 and 5281-5284 are not for application. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). Here, however, it is not appropriate to rate the Veteran's foot disorder by analogy to another code, such as DC 5284 for other foot injuries, because hallux valgux is specifically provided for under DC 5280. The Veteran has also been noted to have surgical scars from his bunionectomy. Accordingly, the Board has also considered diagnostic codes pertaining to scars. At the outset, the Board notes that the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended in October 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. Id. In this case, the Veteran filed the present claim in May 2005. Therefore, only the pre-October 2008 version of the schedular criteria is applicable. Under Diagnostic Code 7802 a compensable evaluation is awarded for superficial, non-linear scars which total 929 square centimeters in area. At the Veteran's January 2013 VA examination, his scar did not total 39 centimeters, much less 929 centimeters. As such, the Veteran does not meet the rating criteria for a separate, compensable evaluation under this Diagnostic Code. The Board has also considered whether a separate and/or higher rating may be assigned for the Veteran's left foot scar under any other diagnostic code. Diagnostic Code 7803 provides a 10 percent rating for superficial scars which are unstable. See 38 C.F.R. § 4.118. An unstable scar is one where there is frequent loss of covering of the skin over the scar. Id., Diagnostic Code 7803, Note (1). A superficial scar is one not associated with underlying soft tissue damage. Id., Note (2). Here, the Veteran's scar was noted to be stable. See January 2013 VA examination report. Thus, a separate, compensable rating under Diagnostic Code 7803 is not warranted. Under Diagnostic Code 7804, a 10 percent rating is provided for scars which are superficial and painful on examination. 38 C.F.R. § 4.118. Here, at both his July 2005 and January 2013 VA examinations the Veteran scars were considered nontender. Diagnostic Code 7805 provides that scars can also be rated on limitation of function of the affected part. See 38 C.F.R. § 4.118. The Veteran has not reported that his left foot scar causes limitation of motion. Thus, a separate, compensable rating is not warranted under Diagnostic Code 7804 or 7805. In addition to the medical evidence, the Board has considered the Veteran's statements in support of his claim. The Veteran, as a layman, is competent to report matters of which he has personal knowledge, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative opinion on the severity of his left foot disability in relation to the applicable rating criteria. Medical examiners, including the VA compensation examiners, have measured the objective residuals of his bunionectomy and take into account his subjective complaints of pain in determining the overall severity of his left foot disability. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran is not entitled to a higher evaluation for his left foot disability at any point during the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected disability is appropriately evaluated. His primary symptom is pain, but all of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected left foot disability is adequate, referral for an extra-schedular rating is unnecessary. ORDER Entitlement to service connection for a right elbow disability is denied. Entitlement to an initial compensable evaluation for residuals of a bunionectomy of the left foot is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs