Citation Nr: 1321405	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  10-42 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota



THE ISSUES

1.  Entitlement to service connection for any acquired psychiatric disability.

2.  Entitlement to a compensable initial rating for a bilateral foot disability.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Jeffrey E. Marion, Attorney


ATTORNEY FOR THE BOARD

C. Fetty, Counsel

INTRODUCTION

The Veteran performed active military service from July 1980 to August 1983.  

This appeal arises to the Board of Veterans' Appeals (Board) from February and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in, St. Paul, Minnesota.  A February 2010 rating decision, in pertinent part, granted service connection and assigned a noncompensable rating for bilateral plantar keratomas.

An appealed August 2010 rating decision denied service connection for any acquired psychiatric disability, to include depression and post-traumatic stress disorder (PTSD).

In his substantive appeal, the Veteran requested hearing before a Veterans Law Judge; however, in October 2010, he changed his request to a videoconference hearing, and in November 2011, he withdrew his hearing request altogether.  

In May 2013, the Veteran's attorney submitted additional medical evidence.  The RO has not had the opportunity to review this new evidence; however, the Veteran has waived his right to initial RO consideration of this evidence.  Thus, a remand will not be necessary for this procedural safeguard.  38 C.F.R. § 20.1304 (c) (2012).

Service connection for an acquired psychiatric disability and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO.

FINDING OF FACT

Bilateral plantar keratomas (two on each foot) have been manifested throughout the appeal period by painful standing, painful walking, and pain while performing daily activities.  


CONCLUSION OF LAW

For the entire appeal period, the criteria for a 20 percent schedular rating for bilateral plantar keratomas are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.118a, Diagnostic Code 7804 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA must notify and assist claimants in substantiating claims for benefits.  38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his attorney of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Regarding the claim for a higher initial rating for bilateral plantar keratomas, the notice of disagreement as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a).  See 38 C.F.R. § 3.159 (b) (3) (2012).  Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103.  Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished in a statement of the case (hereinafter: SOC).  

The SOC provided the claimant with the relevant rating criteria for disabilities of the spine, as listed at various diagnostic codes.  The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings for a low back disability.  Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied.

VA also has a duty to assist the claimant in the development of the claim.  This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained all pertinent VA medical records.  The claimant was afforded VA medical examination on January 2010 and May 2011.  These VA examination reports contain sufficient details and are adequate for rating purposes.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Neither the claimant nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

Disability Ratings

Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  The entire medical history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  38 C.F.R. § 4.2.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  
In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established.  The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  

A keratoderma is a horny skin, or covering, also called keratosis, keratyloma, and keratylosis, Dorland's Illustrated Medical Dictionary 878 (28th ed. 1994)).  A keratoma is a callus or callosity, Id, at 879.  

Bilateral plantar keratomas are rated noncompensably disabling for the entire appeal period under Diagnostic Code 7819.  The effective date of the award is October 29, 2009.  Because no service connection claim was received prior to October 29, 2009, the earlier rating criteria for disabilities of the skin, which was revised effective October 23, 2008, need not be considered.  

Under Diagnostic Code (DC) 7819, a skin disorder is rated as for eczema and the assigned rating is dependent on location, extent, and repugnancy or other disabling manifestations.  Manifestations such as exfoliation, exudation, or itching, if involving an exposed surface or extensive area, warrant a 10 percent rating.  Constant exudation or itching, extensive lesions, or marked disfigurement warrants a 30 percent rating.  Ulceration, extensive exfoliation, or crusting and systemic or nervous manifestations, or if the condition is exceptionally repugnant, warrants a 50 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7819 (2012).  Under DC 7819 there is no basis for a compensable rating because there is no evidence of exfoliation, exudation, or itching involving an exposed surface or extensive area.  However, the Board must consider all potentially applicable diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In this case, as described below, DC 7804 can be applied to grant entitlement to a higher rating.

According to a January 2010 VA podiatry compensation examination report, the Veteran reported foot pain when standing, which also limited his walking distance to no more than a few yards.  A cane was used to assist walking.  He claimed that shoe inserts were not helpful, but wearing sneakers has helped.  The January 2010 VA examiner saw no evidence of painful motion, swelling, instability, or weakness, but there was evidence of foot tenderness that caused abnormal weight-bearing.  The abnormal weight-bearing had caused callosities.  Painful keratomas were located under the great toe and third toe, bilaterally.  The foot pains limited several types of daily activities, including chores, shopping, and exercise.  The Veteran was currently employed, although laid-off.  His work lay-off is unrelated to his feet.  

In a July 2010 notice of disagreement, the Veteran reported excessive foot pains.

A May 2011 VA general medical compensation examination report mentions that the Veteran had burning sensations and numbness in the feet due to non-service-connected diabetic neuropathy.  The examiner identified a callosity under the right fourth toe and under the left fifth toe.  The examination report mentions that the Veteran had difficulty feeling the feet due to diabetic neuropathy. 

A May 2011 VA podiatry note reflects a plantar keratoma near the third metatarsal head and "shearing calluses" near the first metatarsalphalangeal joint, bilaterally.  The relevant assessment was plantar keratomas and tylomas (a tyloma or tylosis is a callus or callosity, Dorland's Illustrated Medical Dictionary 1767 (28th ed. 1994)).  Other VA out-patient treatment reports note occasional treatment for callosities.  Some reports note increased heel pain due to a non-service-connected calcaneal spur and plantar fasciitis.

From the facts above, the identified bilateral plantar keratomas have been manifested throughout the appeal period by painful standing and painful walking.  Under Diagnostic Code 7819, these keratomas could be rated as painful or tender scars under Diagnostic Code 7804.  Under Diagnostic Code 7804, one or two scars that are painful warrant a 10 percent disability rating.  Three or four scars that are painful warrant a 20 percent rating.  Five or more scars that are painful warrant a 30 percent rating.  
Because the correct rating under Diagnostic Code 7804 depends on the number of painful lesions that are service-connected (whether these lesions be skin scars, keratomas, callosities, or tylomas), it is significant that the VA podiatry examiner of January 2010 found two painful keratomas on each foot.  These were located under the great and third toes, bilaterally.  In May 2011, another VA examiner found only two painful callosities, under the right fourth toe and under the left fifth toe.  Although it appears that six separate, painful lesions have been identified, no more than four lesions were seen at one time.  Where there are four service-connected lesions, the criteria of a 20 percent schedular rating under Diagnostic Code 7804 are more nearly approximated.

Although the number of service-connected bilateral plantar keratomas appears to fluctuate, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal.  The assignment of staged ratings is therefore unnecessary.  Hart, supra.  

After considering all the evidence of record, the Board finds that the evidence favors the claim.  A 20 percent initial schedular rating will be granted under Diagnostic Code 7804 for the entire appeal period for bilateral plantar keratomas.  

Extraschedular Consideration

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115   (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116  . When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular rating in this case is adequate.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected plantar keratomas, but the medical evidence reflects that those symptoms are not present in this case.  The Board has rated the disability based on the number of painful scars which is specifically provided for in the rating schedule.  The Veteran's disability picture is contemplated by the Rating Schedule, and no extraschedular referral is required. 


ORDER

Entitlement to an initial 20 percent schedular rating for bilateral plantar keratomas is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. 


REMAND

Service Connection Claim

In a July 2011 substantive appeal, the Veteran's attorney argued that major depression and anxiety are related to active service and that VA did not provide adequate assistance in developing the PTSD claim.

The Veteran's STRs reflect that he was psychiatrically sound at entry and exit from active service and that he made no relevant complaint or received any relevant treatment during active service.  He filed a service connection claim in October 2009, but made no reference to a psychiatric-related disorder.  In May 2010, he requested service connection for major depression.  He related his involvement in a fatal accident at the Fort Irwin, California, range complex wherein a battle-tank fired at an armored personnel carrier, killing three soldiers.  He alleged that he was threatened with jail if he reported what he knew of this accident.  In June 2010, he re-iterated that he was threatened by his superiors.

VA hospital records include an April 2010 comprehensive psychiatric report and assessment.  That report notes a July to September 2008 VA hospitalization for suicidal ideation due to pain issues and a hospital discharge diagnosis of mixed substance dependence.  The April 2010 VA psychiatric report notes that the primary Axis I diagnosis was major depression without psychotic features, but with fleeting suicidal ideation.  The psychiatrist offered no etiology opinion, but did briefly discuss work-stress, pain issues, and health concerns. 

A May 2010 VA addendum report contains an Axis I diagnosis of PTSD.  The in-service stressor was the Veteran's involvement in a fatal accident at the Fort Irwin Range Complex.  

Later-dated VA and private psychiatric treatment reports note depression, anxiety, and post-service PTSD stressors.  

The Veteran's official personnel file reflects that he served as an infantryman.  He was assigned to Company B, 1st Infantry Battalion, 2nd Infantry Brigade (or Regiment?), of the 1st Infantry Division, at Fort Riley, Kansas, from 1980 to 1983.  Although the Veteran has not been able to recall the date of the PTSD stressor, research conducted at the Board reflects that the 1st Infantry Division trained at the NTC (National Training Center) at Fort Irwin, California, in January 1982.  

The RO should therefore attempt to verify the Veteran's claimed PTSD stressor through official records for the January 1982 time-frame.  The Veteran should be invited to submit any supporting evidence, including lay witness evidence from service comrades, of the fatalities that he alleges had occurred.

The Veteran should also be offered a VA compensation examination to determine the nature and etiology of all acquired psychiatric disorders.  


TDIU

The issue of entitlement to TDIU was initially denied in a decision in June 2011 by a decision review officer while also issuing a second level adjudication of other issues.  In June 2011 the Veteran filed a VA form-9 as a substantive appeal on the other issues and also expressed disagreement with the denial of TDIU.  That statement is a Notice of Disagreement that begins the appeal process.  38 U.S.C.A. § 7105 (West 2002); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10   (1995). Therefore, remand is required so that the Veteran may be issued a Statement of the Case.  See Manlincon v. West, 12 Vet. App. 238   (1999).

Accordingly, the case is REMANDED for the following action:

1.  The RO should inform the Veteran that VA will attempt to verify his claimed PTSD stressor through official records.  He should be invited to submit any additional evidence, including any lay witness statement of service comrades, which might corroborate his claim of witnessing fatalities at the Fort Irwin Range.  The RO should request that he provide any additional information regarding his reported stressor and/or dates of deployments to Fort Irwin, California.  To the extent possible, this information should include the approximate month and location of any claimed stressful event that occurred.  Advise the Veteran that although it is stressful for him to recall such details, any additional information could help his appeal.  

2.  The RO should seek corroboration of the claimed stressor through the Joint Services Records Research Center (JSRRC)) and assume that the approximate date of the event was January 1982 (unless the Veteran offers an alternate date).   Ask JSRRC to provide any information that might corroborate the alleged stressor, including unit morning reports, after-action reports, lessons learned, unit historical records, and records of casualties, although the Veteran has not claimed that the Fort Irwin casualties were from his Division.

3.  Following the above, the Veteran should be scheduled for an examination to determine the nature and etiology of all psychiatric disabilities.  The claims files must be made available to and reviewed by the examiner.  The examiner is asked to elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis or diagnoses, as appropriate.  For each diagnosis offered, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed psychiatric disability is related to active military service.  

If PTSD is diagnosed, the examiner should specifically indicate what stressor or stressors is causing the PTSD.

A complete rationale must be provided for any opinion offered.

4.  Issue an SOC on the claim of entitlement to TDIU.  If the benefits is denied, inform the Veteran that the issue will not be sent back to the Board unless he perfects his appeal by filing a substantive appeal.

5.  Following the above, the RO should review all the relevant evidence and re-adjudicate the claims.  If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued.  The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board.  

The Board intimates no opinion, legal or factual, as to the ultimate disposition in this matter.  The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs