Citation Nr: 1323869 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-30 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for calluses of the bilateral feet. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970 with service in the Republic of Vietnam from September 1968 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for posttraumatic stress disorder (PTSD), dysthymic disorder, alcohol dependence, assigning a 30 percent initial rating effective April 11, 2006; denied service connection for calluses of the bilateral feet and tinnitus; and declined to reopen the previously denied claims for service connection for bilateral hearing loss, hepatitis C, gunshot wound and injury to the right knee with nerve damage, arthritis, and popping joint, pseudofolliculitis of the neck, face, and head, and a skin disease due to herbicide and trench exposure. In March 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2008. In July 2009, the Veteran presented sworn testimony during a Travel Board hearing in New Orleans, Louisiana, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In February 2010, the Board dismissed the Veteran's petitions to reopen the previously denied claims for service connection for bilateral hearing loss, hepatitis C, gunshot wound and injury to the right knee with nerve damage, arthritis, and popping joint, pseudofolliculitis of the neck, face, and head, and a skin disease due to herbicide and trench exposure; granted an increased initial rating of 50 percent for his service-connected PTSD, dysthymic disorder, and alcohol dependence; and remanded his claim for service connection for calluses of the bilateral feet, as well as an inferred claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), to the Appeals Management Center (AMC) for further evidentiary development, including obtaining updated VA treatment records and Social Security Administration (SSA) records and providing the Veteran with VA examinations to address his bilateral foot calluses and employability. The Board is obligated by law to ensure that the AMC complies with its directives; 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. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records and SSA records. Additionally, the Veteran was afforded VA examinations to address his bilateral foot calluses and employability in June 2010. Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board. It is noted, however, that there is no documentation in the claims file, virtual VA, or VBMS, indicating that the Board's February 2010 decision and order granting an increased disability rating for service-connected PTSD from 30 percent to 50 percent has been effectuated by the Agency of Original Jurisdiction (AOJ) by rating decision or otherwise. The Board hereby instructs the AOJ to effectuate the Board's February 2010 decision and order granting an increased disability rating for service-connected PTSD from 30 percent to 50 percent. The issue of entitlement to TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The preponderance of the evidence is against a finding that calluses of the bilateral feet are the result of a disease or injury in active duty service. CONCLUSION OF LAW Calluses of the bilateral feet were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in May 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, a letter dated in March 2007 informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the September 2011 letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him. After he was provided adequate notice, he was provided time to respond with additional argument and evidence and the claim was readjudicated and a statement of the case and supplemental statement of the case were provided in August 2008 and May 2011. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, personnel records, SSA records, and VA treatment records are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 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. As noted above, the Veteran underwent a VA examination to evaluate his bilateral foot calluses in June 2010. The report from that examination has been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, consideration of the Veteran's lay statements/history, and a conclusions that was supported by sufficient rationale. Therefore, the Board finds that the June 2010 examination is adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Finally, some discussion of the Veteran's July 2009 personal hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding the etiology of his bilateral foot calluses. Notably, the Veteran's testimony triggered the Board's decision to remand the matter to obtain the above referenced VA examination and opinion. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he has calluses on both feet that are the result of his military service. Specifically, he claims that he first experienced foot calluses in Vietnam and that they have continued from that time. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. 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. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection is not allowed for a congenital defect or for aggravation of a congenital defect as congenital defects are not considered to be injuries or diseases within the meaning of the statue. See 38 C.F.R. § 3.303(c) (2012). Service connection is possible if a disease or injury is superimposed over the congenital or developmental defect during service and there is a resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991); VAOPGCPREC 82-90. "Congenital defects" are treated differently than "congenital diseases" in the context of VA disability compensation. A defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); VA Gen. Coins. Prec. 82-90 at p. 2. More importantly "congenital defects" are excluded from the list of qualified diseases or injuries. Therefore, VA disability compensation may only be awarded in the event that an additional, service-connected disability is superimposed upon a congenital defect. Id. In contrast, "congenital diseases" are directly compensable and VA disability compensation may be awarded if a congenital disease is aggravated by a claimant's military service. Id. Post-service VA treatment records show the Veteran's complaints of bilateral foot calluses, including podiatric treatment for such. Additionally, the June 2010 VA examiner diagnosed the Veteran with calluses secondary to partially compensated rearfoot varus and unstable first metatarsophalangeal (MTP) joints and apropulsive hallux bilaterally. The examiner noted that the primary diagnoses were not merely the Veteran's congenital (or "in utero") foot type which would not qualify as a current disability for service connection purposes. See 38 C.F.R. § 3.303(c) (2012); VAOPGCPREC 82-90. Although these diagnoses are congenital, the Veteran's diagnosed bilateral foot calluses are not and qualify as a current disability for service connection purposes. The first element of Hickson is met. As noted above, the Veteran claims that he experienced foot calluses in service as a result of wearing combat boots in Vietnam. Although he has not been consistent in this reported date of onset, the Board will afford him the benefit of the doubt and concede that he has reported foot calluses in service. His service treatment records are negative for any reports of bilateral foot complaints or calluses. However, a review of his DD-214 reflects a military occupational specialty of light weapons infantryman and award of the Combat Infantryman Badge. This award indicates combat experience. For veterans who engaged in combat with the enemy, lay testimony alone may be enough to establish an in-service event where such testimony is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of the injury. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). As wearing combat boots with resulting pain and calluses consistent with the circumstances of the Veteran's combat, his reported in-service bilateral foot calluses can be conceded and the second element of Hickson is met. Although an in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's conceded in-service foot complaints and his current bilateral foot calluses. See Hickson, supra. The Veteran was afforded a VA examination to evaluate his bilateral foot complaints in June 2010. At that time, he reported experiencing calluses on his bilateral feet approximately one year after his discharge from service. He indicated that he experienced weakness, lack of endurance, and pain in the balls of his feet. The examiner observed his abnormal weight wearing and diagnosed him with callosities of the bilateral foot, partially compensated rearfoot varus bilaterally, unstable first MTP joint with propulsive hallux on the right and apropulsive hallux on the left, and heloma dura/hammertoe of the left foot. The examiner concluded that the Veteran's calluses were secondary to his partially compensated rearfoot varus and unstable first MTP joints and apropulsive hallux bilaterally. He concluded that as these diagnosis were congenital or developed in utero, the Veteran's calluses would have developed regardless of his military service. He further noted the lack of treatment in service or shortly thereafter. He, therefore, opined that the Veteran's bilateral foot calluses were not related to his military service. The remaining medical evidence includes VA treatment records referencing the Veteran's treatment for bilateral foot calluses, but does not include any opinion linking the Veteran's bilateral foot calluses to his military service. The only other evidence which purports to link the Veteran's current bilateral foot calluses to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of podiatric medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe what he experiences (in this case, bilateral foot pain and calluses), he is not able to provide competent evidence as to the etiology of his calluses. Providing such an opinion requires medical expertise in the cause and symptoms of foot callosities. The Veteran and his representative have no such expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also 38 C.F.R. § 3.159 (a)(1) (2012). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. In this case, the Veteran has complained of bilateral foot pain and calluses since service. However, the VA examiner considered these complaints in forming his opinion. Although he acknowledged the Veteran's complaints, he still found that his current diagnoses were not related to his military service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Foot calluses are not one of the listed chronic diseases. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. The competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service and his current bilateral foot calluses. Although the Board notes the Veteran's current disability and conceded in-service bilateral foot complaints, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for calluses of the bilateral feet must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for calluses of the bilateral feet is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of the Veteran's claim of entitlement to service connection for TDIU, to include as on an extraschedular basis. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of determining a single disability results in a 60 percent rating, disabilities resulting from a common etiology, a single accident, or from multiple injuries incurred in action, may be combined. See 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service connected for PTSD, dysthymic disorder, and alcohol dependence, evaluated as 50 percent disabling, and diabetes mellitus, type II (DM), evaluated as 20 percent disabling. His combined rating is 60 percent according to the Combined Ratings Table. See 38 C.F.R. § 4.25, Table I (2012). The Veteran does not have a single service-connected disability ratable at 60 percent or more, and his total disability rating is less than 70 percent. In this regard, though both his PTSD and diabetes were incurred during service, it cannot be said that they are of a common etiology, a single accident, or from multiple injuries incurred in action. Therefore, his service-connected disabilities do not meet the percentage rating standards for schedular TDIU. See 38 C.F.R. § 4.16(a) (2012). Nonetheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See also Bowling, 15 Vet. App. at 6. As referenced above, the Veteran was afforded a VA psychiatric examination in June 2010. The examiner found that it was as likely as not that the Veteran's service-connected psychiatric disability alone renders him incapable of sustaining gainful employment. Moreover, the SSA determined that the Veteran may receive disability benefits based solely upon his service-connected PTSD and diabetes. Despite this evidence, the AMC did not refer the Veteran's claim for TDIU on an extraschedular basis to the appropriate VA officials for consideration. The Board finds that such a referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted. The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. See 38 C.F.R. § 4.16(b) (2012). Accordingly, the case is REMANDED for the following actions: 1. Refer the claim for TDIU under 38 C.F.R. § 4.16(b) to the appropriate department officials for a written decision that explains the reasons and bases for the conclusion reached. 2. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to TDIU, including on an extraschedular basis, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 2002 & Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs