Citation Nr: 1333681	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  06-03 500	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder and depression.

2.  Entitlement to service connection for residuals of a blow to the mouth and jaw.

3.  Entitlement to an effective date earlier than March 6, 2004, for the grant of service connection for bilateral pes planus.

4.  Entitlement to an effective date earlier than March 31, 2011, for the grant of service connection for right foot arthritis.

5.  Entitlement to an effective date earlier than March 31, 2011, for the grant of service connection for left foot arthritis. 

6.  Entitlement to an effective date earlier than August 24, 2004, for the grant of 10 percent for a burn of the right hand and wrist.

7.  Entitlement to an evaluation in excess of 30 percent for bilateral pes planus.

8.  Entitlement to an evaluation in excess of 10 percent for left foot arthritis.  

9.  Entitlement to an evaluation in excess of 10 percent for right foot arthritis.

10.  Entitlement to an evaluation in excess of 10 percent for a burn of the right hand and wrist.

11.  Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

K. Marenna, Associate Counsel


INTRODUCTION

The appellant had active service from July 1975 to May 1979.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2005 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

The issues of entitlement to service connection for a psychiatric disorder, entitlement to service connection for residuals of a blow to the mouth and jaw, entitlement to an effective date earlier than March 31, 2011, for the grants of service connection for right and left foot arthritis, entitlement to an evaluation in excess of 30 percent for bilateral pes planus, entitlement to evaluations in excess of 10 percent each for left and right foot arthritis, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The appellant's initial claim was received by VA on April 5, 1985; the claim was reconsidered and the grant of service connection for bilateral pes planus was based in part on service treatment records which had not been associated with the claims file at the time of the last final decision.

2.  The appellant's claim for an increased evaluation for a burn of the right hand and wrist was received on August 24, 2004 and a timely notice of disagreement with the initial rating assigned in the July 2003 rating decision was not received.

3.  Throughout the period on appeal, the appellant's burn of the right hand and wrist was manifested by pain and less than three or four scars that were unstable or painful.


CONCLUSIONS OF LAW

1.  The criteria for an effective date of April 5, 1985, for the grant of service connection for bilateral pes planus have been met.  38 U.S.C.A. §§1155, 5108, 5110, 7105 (West 2002); 38 C.F.R. § 3.156(c), 3.400 (2013).

2.  Entitlement to an effective date earlier than August 24, 2004, for the grant of a 10 percent evaluation for a burn of the right hand and wrist, have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2013).

3.  The criteria for an evaluation in excess of 10 percent for a burn of the right hand and wrist are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the appellant's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  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 appellant 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 appellant).

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 claimant.  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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  Notice and Assistance

VA has 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  More specific notice is required in claims for increased compensation.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Here the appellant is appealing a rating assignment as to his burn of the right hand and wrist.  The appellant's filing of a notice of disagreement as to the rating assigned in the January 2012 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3).  Rather, the appeal here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement.  If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2013).  

As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished here.  The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code.  The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned.  Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue.

In regard to the appellant's claims for earlier effective dates, because the decisions granted the benefits sought, additional notice is not required concerning the downstream effective date element of the claim because the initial intended purpose of the notice has been served.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Rather, as required by 38 U.S.C.A. § 7105(d), the RO issued statements of the case in response to the appellant's disagreement with the effective dates.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).

VA's duty to assist has been satisfied.  The appellant's service treatment records and VA medical records are in the file.  Private medical records identified by the appellant have been obtained, to the extent possible.  The appellant's Social Security Administration records have been associated with the file.  The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).

The RO provided the Veteran with an appropriate VA examination to evaluate his service-connected burn of the right hand and wrist in November 2012.  The examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings.  There is no objective evidence indicating that there has been a material change in the severity of the appellant'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.  The VA examination report is thorough and provided findings pertinent to the rating criteria.  The examination in this case is adequate upon which to base a decision.

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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

II.  Earlier Effective Dates

Legal Criteria

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2013).  In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions.  Hazan v. Gober, 10 Vet. App. 511 (1997).

The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r) (2013).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (2013).

The effective date for an award of service connection based on a claim reopened due to the submission of new and material evidence not received within one year of the prior decision is the date of receipt of the new claim or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (r).   

Where a service-connection claim has been finally decided, before addressing that claim anew, VA must first determine whether new and material evidence has been submitted to reopen that claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  If new and material evidence is presented or secured with respect to a prior final and binding decision, the Secretary shall reopen and review the former disposition of that claim.  38 U.S.C.A. § 5108.  

The appellant's claim was filed prior to October 6, 2006.  As in effect prior to October 6, 2006, 38 C.F.R. § 3.156(c) and § 3.400(q)(2), together establish an exception to the general effective date rule in § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later.  The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefit and those records lead VA to award a benefit that was not granted in the previous decision.  Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, whichever is later, even though the decision on that claim may be final under § 3.104.  

Effective on or after October 6, 2006, 38 C.F.R. § 3.156(c) provides that notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.  An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.  38 C.F.R. § 3.156(c)(i)(3).

Analysis

Bilateral Pes Planus

The appellant seeks an earlier effective date for the grants of service connection for bilateral pes planus and left and right foot arthritis.  

In this case, the appellant originally filed a claim for entitlement to service connection for fallen arches of both feet which was received on April 5, 1985.  In a March 1986 rating decision, the RO denied entitlement to service connection for pes planus.  The appellant appealed the decision.  In June 1989, the Board denied the appellant's claim for entitlement to service connection for pes planus.

The appellant filed a claim to reopen his claim for entitlement to service connection for pes planus in August 1998.  In a July 1999 rating decision, the RO found that new and material evidence adequate to reopen the claim for feet had not been submitted.  On March 6, 2004, the appellant filed a claim to reopen his claim for entitlement to service connection for a bilateral foot condition.  

In July 2010, the Board remanded the appellant's claim for entitlement to service connection for bilateral pes planus.  The Board observed that additional evidence received by VA subsequent to the last adjudication of the claim included service treatment records.  The Board noted that it was unclear by the records exactly when these records were associated with the claims file, but it appeared based on the statements of the last rating decision in January 1999 that denied the appellant's claim to reopen the claim for a foot disorder that service treatment records were not associated with the record.  The Board stated that the first evidence that the claims file contained these records was in the July 2002 rating decision, where it was specifically noted that the appellant's service treatment records between July 1975 and May 1979 were considered in that decision.  These service treatment records show that the appellant had stress fractures of the bilateral heels in August 1975.

The Board notes that in a July 1999 rating decision, the RO denied the appellant's claim to reopen his claim for ankles, right shoulder and feet.  Although service medical records were noted as evidence, the July 1999 rating decision did not specify the dates of the service treatment records.  Thus, it is not clear whether the appellant's service treatment records from July 1975 to May 1979 were associated with the claims file at the time of the July 1999 rating decision or whether the RO was referring to the incomplete service treatment records which had previously been associated with the claims file.  As the Board found reconsideration was warranted in July 2010, the Board finds that the service treatment records from July 1975 to May 1979 were not associated with the claims file at the time of the July 1999 rating decision. 

Under VA regulations, if VA receives or associated with the claims file relevant official service department records at any time after a decision is issued on a claim that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, not withstanding paragraph (a) of the same section (which defines new and material evidence).  38 C.F.R. § 3.156(c) (2013).  As the additional service treatment records from July 1975 to May 1979 associated with the claims file relate to the claimed in-service event or disorder, the Board considers the records to be relevant evidence.  Thus, the Board found that the appellant's original service connection claim for a bilateral foot disorder would be reconsidered without requiring the submission of new and material evidence.

In a January 2012 rating decision, the RO granted entitlement to service connection for bilateral pes planus, effective March 6, 2004.  As discussed above, the appellant's original service connection claim for fallen arches of both feet was filed on April 5, 1985.  Service connection for bilateral pes planus was granted based on a March 2011 VA examination report.  The VA examiner noted that there multiple entries in the record for bilateral foot pain.  The first of these was in July 1975 when he was seen for bilateral foot pain and diagnosed with a stress fracture of the os cal bilaterally.  The VA examiner also noted that the appellant was seen in August 1975 for his right os cal stress fracture and in April 1976 for blisters of his left foot.  The VA examiner found the appellant had metatarsalgia and pes planus of both feet.  The VA examiner found the above diagnoses are at least as likely as not a result of his military service especially the prolonged marching etc. that would have produced stress fractures of the above nature.  The January 2012 rating decision noted that affective date of March 6, 2004, was assigned, the date VA received his claim for this condition.    

Under 38 C.F.R. § 3.156(c), an award made based all or in part on relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, shall be made effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.  The grant of service connection is January 2012 was based on a March 2011 VA examination opinion, which was based on service treatment records which had not been associated with the claims file at the time of the last final decision.  Consequently, the January 2012 rating decision granting service connection for bilateral pes planus constitutes a reconsideration of the appellant's original claim of entitlement to service connection for bilateral pes planus, received on April 5, 1985.  The effective date for the award of service connection for this disability is the date that entitlement arose of the date that his initial claim was received, whichever is later.  As a lay person, the appellant is competent to report that he has flat feet.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  As the appellant stated that he had fallen arches at the time of his claim in April 5, 1985, and the March 2011 VA examiner found that the appellant's pes planus was related to service, the Board finds that the appropriate effective date for the award of service connection is April 5, 1985, the date of the appellant's original claim for service connection.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.156(c), 3.400(b)(2).


Burn of the Right Hand and Wrist

The RO granted service connection for a burn of the right hand and wrist in a July 2003 rating decision.  The RO granted a noncompensable rating effective August 25, 1998, the date of receipt of his claim.  In a letter dated in March 2004, the appellant's representative filed a "Formal Claim for Entitlement to Service Connected Compensation based upon the following disabilities: 1. Jaw Condition; 2. Bilateral Foot Condition; 3.  Teeth Condition; 4.  Major Depressive Disorder."  The representative specifically stated "The veteran contends that he is entitled to service connected disability benefits for Jaw Condition, Bilateral Foot Condition, Teeth Condition and Major Depressive Disorder."  The letter does not reference the appellant's service-connected burn of the right hand and wrist.

In August 2004, more than one year after the July 2003 rating decision, the appellant submitted a claim stating "I am reopening a service connected claim for increase on my R shoulder condition and R hand burn."  

In the May 2012 notice of disagreement with the effective date assigned for the increased rating of 10 percent for the right hand burn, the appellant's representative asserted that a "timely Notice of Disagreement (seeking a compensable rating) was filed on March 6, 2004."  The representative asserted that the effective date of the 10 percent rating should have been August 25, 1998, the date of the appellant's original claim for service connection for a burn of the right hand and wrist.  

A notice of disagreement is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result.  See 38 C.F.R. § 20.201.  While specific wording is not required, the Notice of Disagreement must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201 specifically provides that, "If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified."  A notice of disagreement must be filed within one year from the date that the agency mails notice of the determination.  Otherwise, that determination will become final.  See 38 C.F.R. § 20.302(a).  

The Board finds that the March 2004 statement cannot be construed as a notice of disagreement with the initial rating assigned for a burn of the right hand and wrist in the July 2003 rating decision.  The statement did not make any references to the burn of the right hand and wrist.  Instead, the claim specifically referenced 4 other issues.  The March 2004 statement did not express disagreement with the July 2003 rating decision.  The statement did not reference either of the disabilities for which service connection was granted in the July 2003 rating decision.  The appellant filed a specific claim for an increased rating for his right hand burn in August 2004.  

As discussed above, the effective date of an evaluation based on a claim for increase will be (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  As the March 2004 statement cannot be construed as a notice of disagreement with the initial rating assigned in the July 2003 rating decision, the Board finds that an earlier effective date is not warranted.  The 10 percent rating was assigned from August 24, 2004, the date of the appellant's claim for an increased evaluation for the condition.  There is no other correspondence prior to that date that can be construed as a notice of disagreement or increased rating claim.  Consequently, an effective date prior to August 24, 2004, for the 10 percent evaluation for a burn of the right hand and wrist is not warranted.

III.  Increased Evaluation- Burn of the Right Hand and Wrist

The appellant contends that he is entitled to a rating in excess of 10 percent for a burn of the right hand and wrist.  In an October 2011 decision, the Board granted an increased rating of 10 percent for the burn of the right hand and wrist.  In a January 2012 rating decision, the RO granted an increased rating of 10 percent.  In a May 2012 letter, the appellant's representative requested a higher rating for all conditions.  As the claim for an increased rating was received on March 26, 2012, the rating period on appeal is from October 12, 2011, the date of the final Board decision on the appellant's previous claim for an increased rating, which was less than one year prior to the claim.  38 C.F.R. § 3.400(o)(2) (2013).

Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2013).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant.  38 C.F.R. § 4.3. 

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The criteria for rating disabilities of the skin are found at 38 C.F.R. § 4.118.  As the appellant's claimed was filed after October 23, 2008, the criteria in effect after that date are applicable.  See 73 Fed. Reg. 54708 (September 23, 2008).  The appellant's burn is currently evaluated under Diagnostic Code 7804.  Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A 30 percent rating is warranted for five or more scars that are unstable or painful.  Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  

The appellant's scars on his hands were evaluated in a November 2012 VA examination.  The VA examiner found that the appellant's scars were not painful and they were not unstable, with frequent loss of covering of the skin over the scar.  There were no scars that were both painful and unstable.  The VA examiner stated that the appellant had a burn scar on the right hand that was less than deep partial thickness.  The VA examiner stated that the right upper extremity was affected.  There was no visible evidence of scarring found that could be measured.  The VA examiner found the appellant did not have any superficial non-linear scars or deep non-linear scars.  The VA examiner stated that scars were not present.  The examiner stated that:

If scars were present at one time, they are nonetheless not present in a manner that renders the veteran, who is right hand dominant and the burn injury for which he is service connected is for the right hand, unable to use the right hand to perform sedentary or physical work.  There is full range of motion of the right hand, without evidence of impairment in function.

The appellant's VA treatment records do not reflect that the appellant received treatment for or complained of symptoms related to his service-connected burn of the right hand and wrist.

Based on the evidence of record, the Board finds that a higher rating is not warranted.  The November 2012 VA examination report does not reflect that the appellant had three or more scars that were unstable or painful.  Thus, under Diagnostic Code 7804, the appellant is not entitled to a rating in excess of 10 percent.  A higher rating is also not warranted under Diagnostic Code 7801 as the scar did not have an area of at least 12 square inches.  DC 7805 provides that for scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804, "evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code."  The November 2012 VA examiner specifically found that the scars were not present and that the appellant had full range of motion of the right hand without evidence of impairment in function.

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet.App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology.  Further, the appellant has not alleged that the schedular evaluation is inadequate.  Therefore, the available schedular evaluations for that service-connected disability are adequate.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  Further inquiry into extraschedular consideration is moot.  See Thun, 22 Vet.App. at 115.

In sum, the Board finds that the preponderance of the evidence is against the appellant's claim for an evaluation in excess of 10 percent for the burn of the right hand and wrist.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to an earlier effective date of April 5, 1985, for the grant of service connection for bilateral pes planus is granted.

Entitlement to an effective date earlier than August 24, 2004, for the grant of 10 percent for a burn of the right hand and wrist is denied.

Entitlement to an evaluation in excess of 10 percent for a burn of the right hand and wrist is denied.


REMAND

The appellant's complete VA treatment records have not been associated with the claims file.  A July 1987 VA treatment record indicates that the appellant was treated at VA for alcoholism.  The earliest VA treatment record in the claims file is dated in October 1992.  The October 1992 record is a discharge summary, but the records from his inpatient treatment are not in the claims file.  It appears only the appellant's electronic VA treatment records were associated with the claims file, beginning in 1992.  Additionally, VA treatment records from November 2001 to November 2003 and from November 2005 to December 2006 have not been associated with the claims file.  The VA treatment records are relevant to the appellant's claims for service connection for an acquired psychiatric disorder and entitlement to an evaluation in excess of 30 percent for bilateral pes planus.  Thus, these claims must be remanded.

In regard to the appellant's claims for entitlement to an effective date earlier than March 31, 2011, for the grant of right and left foot arthritis, the Board finds that the claim must be remanded to obtain the missing VA treatment records.  As discussed above, the appellant initially filed a claim for service connection for fallen arches.  The July 1988 Board decision denied the appellant's claim for service connection for pes planus.  The July 1999 rating decision denied the appellant's claim to reopen his claim for "feet."  In March 2004, the appellant filed a claim for a "bilateral foot condition."  The Board finds that the appellant's claim for entitlement to service connection for pes planus may be construed as a claim for a foot disability, however diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The grant of service connection is January 2012 was based on a March 2011 VA examination opinion, which was based on the appellant's service treatment records.  The VA examiner found that the appellant had metatarsalgia and mild degenerative changes of both feet.  Consequently, the January 2012 rating decision granting service connection for right and left foot arthritis constitutes a reconsideration of the appellant's original claim of entitlement to service connection for fallen arches of the foot received on April 5, 1985.  The effective date for the award of service connection for this disability is the date that entitlement arose of the date that his initial claim was received, whichever is later.  As a lay person, the appellant is not competent to report that he had arthritis in the feet.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The appellant's available VA treatment records showed that he had normal foot X-rays.  See e.g. June 1996, April 1998 X-ray reports.  However, as noted above, the appellant's complete VA treatment records have not been associated with the claims file.  As it is unclear whether the appellant was first diagnosed with arthritis in the feet prior to March 2011 without the complete VA treatment records, the claim must be remanded.  As the claim for entitlement to an effective date earlier than March 31, 2011, for the grant of service connection for left and right foot arthritis is being remanded, the claims for a higher evaluation for left and right foot arthritis must also be remanded.

In regard to the appellant's claim for entitlement to an acquired psychiatric disorder, the Board finds that the claim must be remanded for a VA examination.  In response to a notice letter sent as requested by the Board in the July 2010 decision, the appellant submitted additional statements regarding his stressors.  He submitted a copy of an October 1978 service treatment record which noted that he "wants to talk about fighting feeling of worthlessness, inability to make plans, etc.  Problems discussed.  Imp.- immature personality/antisocial personality."  As there is evidence the appellant may have had psychiatric problems in service, he has asserted that he has had psychiatric symptoms since service, and there is medical evidence indicating he has a long history of psychiatric problems, the Board finds that the claim should be remanded for a VA examination.

In the July 2010 remand, the Board requested that VA schedule the appellant for a VA examination to determine the etiology of the appellant's jaw and tooth disorder.  The appellant's teeth were evaluated in March 2011.  The VA examiner found that he was unable to state what teeth were loose and what the outcome of the teeth were due to lack of documentation.  The VA examiner cited several specific service treatment records.  In an April 2012 addendum opinion, the VA examiner stated that he was unable to provide an opinion without resorting to speculation what teeth were damaged and if the current jaw condition (decreased motion) is due to active military service.  He stated that the claims file note does not indicate the outcome of the teeth noted in the 12/3/75 medical note.  The Board notes that the dental treatment records associated with the appellant's service treatment records were incomplete.  A complete set of dental records was located in the appellant's service personnel records.  The records from December 4, 1975, through 1976 on the dental record were not noted by the VA examiner.  The December 4, 1975 dental record noted the trauma on December 3, 1975.  A record that appears to be dated a few days later in 1975 noted that the appellant was "referred for restoration of angle #15"  As this record is relevant to the appellant's claim and appears to not have been considered in the March 2011 VA examination or April 2012 addendum opinion, the opinions are inadequate.  The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary.  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).  Thus, the claim must be remanded for a new VA opinion.

The Board also notes that since the last prior supplemental statement of the case for the issue of entitlement to service connection for an acquired psychiatric disability, additional Social Security Administration records were associated with the claims file.  Although some of the records were duplicates, some of the records were new and relevant to the appellant's claim for an acquired psychiatric disorder.  Thus, the RO should review the records prior to issuing a new supplemental statement of the case on the issue of entitlement to service connection for an acquired psychiatric disorder.

The appellant's claim for entitlement to a TDIU is inextricably intertwined with the increased rating claims being remanded.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  Thus, the issue of entitlement to a TDIU must also be remanded.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain the appellant's complete VA treatment records from prior to November 1992, from November 2001 to November 2003, from November 2005 to December 2006, and from July 2013 to present.  If no records are available, the claims folder must indicate this fact.

2.  After completion of the above, schedule the appellant for a VA examination to determine the following:

(i) Identify any acquired psychiatric disorders.

(ii)  Provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the appellant has an acquired psychiatric disorder, to include PTSD and depression, that is related to service.

Forward the claims file to the examiner for review.  The VA examiner should review the appellant's stressor statements.  The VA clinician is requested to provide a thorough rationale for any opinion provided.  

If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided.  

3.  After completion of step 1, forward the claims file to an appropriate specialist to determine the etiology of the appellant's jaw and tooth disorder.  The examiner is associated to review all pertinent record associated with the claims file, including the dental records from December 1975, and offer an opinion as to whether any jaw and/or tooth disorder is at least as likely as not (i.e., a 50 percent or greater probability) related to active military service, to include the in-service mouth injury.

The VA clinician is requested to provide a thorough rationale for any opinion provided.  If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided.  

If the clinician determines that an examination is necessary to provide an opinion, such should be accomplished.

4.  Thereafter, readjudicate the issues on appeal, following review of the evidence of record.  If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs