Citation Nr: 1320666 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-06 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for herpes simplex. 2. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis with synovitis and keratotic lesions (bilateral foot disability). ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1975 to July 1992 and from April 2009 to June 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In that rating decision, the RO reopened the previously denied claim for herpes simplex, but confirmed and continued the denial of the underlying claim. The RO also denied the increased rating claim for bilateral foot disability. In January 2013, the Board reopened the claim for service connection for herpes simplex and remanded the claims for further development. FINDINGS OF FACT 1. March 2013, prior to the promulgation of a decision in the appeal, the Veteran submitted a letter wherein he withdrew his appeal as to the issue of service connection for herpes simplex. 2. The Veteran's service-connected bilateral flat foot disability is manifested by complaints of pain with bilateral weight-bearing line over the great toe without characteristic callosities, marked deformity, valgus deviation of the Achilles tendon, malalignment of the forefoot and midfoot, or severe foot impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for herpes simplex by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a disability rating in excess of 10 percent bilateral flat foot with synovitis and keratotic lesions have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276-5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2012). In the present case, in a March 2013 letter, the Veteran withdrew from consideration the issue of entitlement to service connection for herpes simplex. As he has withdrawn his appeal regarding this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of service connection for herpes simplex and it is dismissed without prejudice. II. Increased Rating A. 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the appellant of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Through December 2004 and February 2005 letters, the RO or VA's Appeals Management Center (AMC) notified the appellant of the information and evidence needed to substantiate the claim. VA's letters notified the appellant of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In a June 2009 letter, the RO specifically notified the appellant of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the appellant's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the appellant. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records. With regards to the claim for an increased disability rating for plantar fasciitis, the Board observes that the RO did attempt to schedule the Veteran for a more recent VA examination in February 2013 to once again evaluate the severity of his disability. However, the Veteran failed to report for that examination. Under such circumstances, 38 C.F.R. § 3.655(b) (2012) provides that, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase without good cause, the claim shall be denied. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street," and a veteran has an obligation to assist in the development of his claim). However, the record reflects that the Veteran did report for VA examinations previously during this appeal in January 2005, November 2008 and July 2009. Therefore, the Board does not believe that the instant case is of the type contemplated by 38 C.F.R. § 3.655, and the Board will evaluate the claim on the evidence of record. The Board does emphasize, however, that in light of the Veteran's failure to appear for an additional VA examination, the Board concludes that the RO did attempt to develop this case to the extent possible under the circumstances. Regarding the VA examinations, the Board finds they are adequate for appellate review. They provide sufficient information to evaluate the Veteran's foot disability. The examinations considered subjective and objective findings and included a physical examination of the Veteran. The appellant has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained, and that this case has been developed to the extent possible under the circumstances. B. Legal Criteria and Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) . In the January 2013 decision promulgated by the Board, the Board reopened the Veteran's previously denied claim of service connection for herpes simplex, and the reopened claim was remanded for additional development. The Board's January 2013 remand required an examination for purposes of obtaining a competent etiology opinion as to any current skin disability, in conjunction with the reopened claim for service connection. Following the Board's remand, a VA medical facility attempted to schedule the appellant for an examination as directed, but the appellant did not report for the examination scheduled in February 2013. The duty to assist the appellant in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As noted, VA regulations provide that when a claimant fails to report for a scheduled medical examination without good cause, in a reopened claim for a benefit which was previously disallowed, the claim shall be denied. The United States Court of Veterans Affairs (Court) has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). In this case, there is no indication in the record that mail was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The appellant provided any rationale showing good cause explaining why he failed to report for the examination. The Board recognizes that a notice letter regarding the scheduled VA examination is not of record. However, the report from the VA medical facility notes that the appellant failed to report for the scheduled examination, and there is otherwise no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Most significantly, the March 2013 SSOC discussed the Veteran's failure to report for the VA examination, and there is no record in the claims folder of a response from the appellant. In short, the preponderance of the evidence shows that the Veteran failed without good cause to report for his VA examination. For these reasons, Board finds that the reopened claim of service connection must be denied as contemplated by the provisions of 38 C.F.R. § 3.655(b). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether a staged rating is needed in the present claim and finds that the disability picture has been uniform throughout the appellate period. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. The Veteran seeks an increased disability rating for his service connected bilateral plantar fasciitis with synovitis and keratotic lesions. His disability is currently rated as 10 percent under the hyphenated diagnostic code (DC) 5284-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. §4.27 (2012). Under DC 5276, which is applied for disabilities resulting from acquired flatfoot, a 10 percent disability rating is assigned for moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent disability rating is warranted for severe bilateral involvement, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, etc. A 50 percent disability rating is assigned for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Under DC 5284, foot injuries that are shown to be moderate in severity are assigned a 10 percent disability rating. Moderately severe foot injuries are assigned a 20 percent disability rating. Severe foot injuries are assigned a 30 percent disability rating. In instances where the foot injury has resulted in actual loss of use of the foot, a schedular maximum 40 percent disability rating is warranted. Consistent with Schafrath, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that potentially applicable criteria for rating the Veteran's plantar fasciitis is available under 38 C.F.R. § 4.71 , DC 5284. In this regards the Board notes that a 10 percent disability rating is the maximum allowable under DC 5280 and therefore it does not provide for a higher disability rating than the currently assigned. The Board also notes that additional rating criteria for foot disabilities are also provided under DC 5277 (for bilateral weak foot), DC 5278 (for acquired pes cavus or claw foot), DC 5279 (for anterior metatarsalgia or Morton's disease), DC 5281 (for hallux rigidus), DC 5282 (for hammer toes), and DC 5283 (for malunion or nonunion of the tarsal or metatarsal bones). Nonetheless, as the evidence does not demonstrate the presence of such disorders in either of the Veteran's feet, these criteria are not applicable in this case. Moreover, there is no showing of the amputation of or the equivalent of the amputation of the forefoot or any of the toes. The Board observes that words such as "moderate," "severe," and "pronounced," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. VA outpatient treatment records of November 2003 note the Veteran sought treatment for foot pain. He complained of increased pain on his feet over the previous four weeks. VA outpatient treatment records of December 2004 note surgical scars on the right foot with plantar calluses on the plantar surface of the third metatarsal and the lateral aspect fo the left great toe. Hallux valgus deformity was noted on the great toe. The left foot had a surgical scar over the fifth metatarsal joint with calluses on the lateral aspect of the fifth digit and proximal third metatarsal joint. He was diagnosed with plantar calcinosis, hallux valgus deformity of the right foot, and multiple calluses on both feet. On VA examination of January 2005, the Veteran denied any pain, weakness, stiffness, swelling or fatigue on rest or while walking or standing. He reported a reconstruction of two toes in 1991 which causes him pain on walking. On physical examination gait and posture were normal. There was abnormal weight bearing, including tender callosities located at the metatarsal region of both second toes. He does not require any assistive devices. Examination revealed tenderness on both feet. There was no pes planus. He had limitations with standing and walking for prolonged periods of time due to the callosities. He does not require any support in his shoes. He was diagnosed with bilateral plantar callosities with subjective reports of plantar pain and objective findings of slightly tender bilateral callosities. In a January 2005 addendum, the VA examiner noted that the pain was localized to the callosities on the feet and no other portion of the plantar surface. On VA examination of November 2008, it was noted the Veteran had been treated for painful hyperkeratotic lesions. He denied any relevant pain, weakness, fatigability, problematic motion, edema, instability or tenderness. Physical examination revealed a normal foot type and symmetrically with normal longitudinal arch architecture and normal form and function of tibialis posterior and tendo Achilles bilaterally. There was painful range of motion present in and about the first metatarsal phalangeal joints where he had joint ine tenderness to examination and limited passive range of motion with 20 degrees of dorsiflexion and plantar flexion with attention to both metatarsal phalangeal joints. There was no edema, weakness or instability, but there was tenderness in and around both first metatarsal phalangeal joints as well as about the course of the plantar fascia and the soles of both feet and about the focal hyperkeratitic lesions of the plantar right fourth metatarsal head and plantar left fifth metatarsal head. It was noted the lesions may be considered evidence of abnormal weight bearing. The gait was abnormal with analgia associated with the problematic lesions as well as phalangeal joints. The Veteran's ability to walk and stand is characterized by mildly limited in relation to the findings. On VA examination of July 2009, the Veteran the Veteran reported pain while standing and walking in the area of the callouses of the plantar surface, radiating up to the dorsum of the foot in the same region. There were no reported limitations of walking or standing. Abnormal weight bearing was noted on both feet evidenced by callosities. There were extensive callouses of the lateral aspect of both feet and areas of marked hyperkeratosis of the lateral aspects of both feet to the great toe and mid portions of the anterior aspect of the plantar surface of the foot. There was a scar on the lateral aspect of the dorsum of the foot which is 2.5 by .2 centimeters long, and which was not tender, had normal skin color and texture, and had no tissue loss or adherence and no loss of function. Instability was noted on the right foot. X-rays showed moderate secondary osteoarthritic changes on the medial cuneiform/first metatarsal joints. A March 2010 podiatry clinic note shows that he Veteran was treated for calluses, bunions, and over ten benign hyperkeratotic lesions on each foot. A February 2011 service treatment note shows that the Veteran underwent a debridement and he was provided with orthotics to alleviate increased bone pain in his foot and increased soft tissue pain in his toes. He complained of difficulty with running because of his bilateral foot problems; however walking was normal. X-ray filmed revealed evidence of calcaneal enthesophytes. He was diagnosed with calluses, hallux limitus, bone spurs, and ankle/foot joint instability. Overall, the evidence shows that the Veteran's plantar fasciitis with synovitis and keratotic lesions has been productive of chronic pain with some limitation of motion and instability. There is no evidence, however, that the plantar fasciitis has resulted in flat feet. Similarly, there is no evidence of marked pronation, displacement or spasm of the tendo Achilles. For those reasons, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 10 percent for his bilateral plantar fasciitis with synovitis and keratotic lesions under DC 5276. Similarly, the Veteran is not entitled to a disability rating higher than 10 percent under DC 5284. Although the evidence is indicative of pain, at the most recent VA examination of July 2009 it was noted there was no limitation of function with walking or standing. There was no occupation impairment noted either. Moreover, during the July 2009 VA examination, the examiner noted that there was no demonstrated functional limitation during the examination, and no weakness or fatigability. See Deluca v. Brown, 8 Vet. App. 202 (1995). Under the circumstances, the Board finds that the overall disability picture in connection with the Veteran's bilateral plantar fasciitis is consistent with moderate injuries of the feet. The Board acknowledges the reports of instability of the ankle/foot joint in February 2011. However, while the Veteran reported difficulty running, he denied any difficulties with walking. The report did not note any instances of the foot giving away or of the Veteran falling. Therefore, the basis of the instability is not known. Moreover, as the Veteran can continue to walk without difficulty and to an extent even run, the Board finds that the noted instability is not sufficient to warrant a higher disability rating or to consider the disability moderately severe. The Board sympathizes with the Veteran's difficulties, but the medical evidence establishes that his primary disability of the feet stems from pain and the current 10 percent disability contemplates pain on manipulation and use of the feet. Accordingly, even considering the painful motion, the Veteran's disability simply does not warrant a higher rating. See DeLuca, 8 Vet. App. 202. Based on the foregoing no higher rating is warranted as the evidence does not reflect that this disability is moderately severe in nature or meets the criteria for a higher rating under either DC 5276 or 5284. The Board has also considered whether a separate disability rating is warranted for the scars on the feet. However, the scars are noncompensable in nature and therefore a separate disability rating is not warranted. See DC 7805. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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 attendant thereto 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 extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral plantar fasciitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral feet with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Even taking into account the Veteran's pain on extended standing and walking, his current 10 percent rating fully compensates him for his symptomatology. Thus, the Veteran's current schedular rating is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. For the reasons noted above, a disability rating in excess of 10 percent for bilateral plantar fasciitis with synovitis and keratotic lesions is denied. ORDER The appeal as to the issue of entitlement to service connection for herpes simplex is dismissed. A disability rating in excess of 10 percent for bilateral plantar fasciitis with synovitis and keratotic lesions, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs