Citation Nr: 1336147 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-11 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a stomach disability. 2. Entitlement to a compensable rating for right wrist arthralgia. 3. Entitlement to a compensable rating for generalized anxiety disorder and major depressive disorder before December 27, 2012; a rating in excess of 50 percent thereafter. 4. Entitlement to a compensable rating for residuals of a puncture wound of the right foot instep. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to the above claimed benefits. In July 2012, the Veteran and his spouse provided testimony before the undersigned during a videoconference hearing. A transcript is of record. As explained in the October 2012 remand, the Board considers the claim of service connection for a stomach disability to be an original claim. The Veteran's service-connected psychiatric disability was re-characterized from "hysterical nervousness, conversion type" to "generalized anxiety disorder and major depressive disorder" in the December 2012 VA mental health examination report; the title page reflects this change. Also, in February 2013, the Appeals Management Center (AMC) awarded an increased rating to 50 percent from December 27, 2012. The claims of service connection for a stomach disability; a compensable rating for right wrist arthralgia, and a compensable rating for generalized anxiety disorder and major depressive disorder before December 27, 2012, an increased rating in excess of 50 percent thereafter are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT The residuals of a puncture wound of the right foot instep are manifested by pain. CONCLUSION OF LAW The criteria for a 10 percent rating, but no more, for the service-connected residuals of a puncture wound of the right foot instep have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.71a, Diagnostic Codes (DC) § 5003, 5010, 5171, 5284 (2013); 38 C.F.R. § 4.118, DC 7804 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In an October 2007 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Here, as to the claim being decided on appeal, relevant service treatment and other medical records have been associated with the claims file. The Veteran reported treatment from private sources and the Board finds that information from each source has already been requested and a response has been received. No VA treatment was reported. Social Security Administration (SSA) records are contained in the file. The Veteran was afforded several VA examinations, which are fully adequate because they sufficiently addressed the rating criteria for the service-connected residuals of a puncture wound of the right foot instep. While the Veteran submitted a statement in April 2013 that was not reviewed by the AMC, the Board finds it does not pertain to the increased rating being adjudicated and will not consider it at this time. The SSA decision submitted is duplicative. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the July 2012 Board hearing shows the Veteran gave information regarding his increased rating claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran has not raised complaints regarding the conduct of the hearing; neither has his representative who was present at the hearing. The Board finds the duties to notify and to assist have been met. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Disabilities must be reviewed in relation to their history. Id. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The entire period on appeal is considered for the possibility of staged ratings. Consideration is given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In this case, the Board does not find that a staged rating is warranted for the residuals of a puncture wound of the right foot instep because it has shown to be stable throughout the appeal period. As explained further below, the Board finds this disability has symptoms characteristic of its respective DC. Because the schedular criteria for rating the residuals of a puncture wound of the right foot instep approximate the disability picture (which is essentially pain on palpation), the Board finds that referral for extraschedular consideration is not required here. See 38 C.F.R. § 3.321 (b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2011). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the Board finds entitlement to a TDIU in conjunction with the disabilities on appeal has not been raised because the Veteran was employed (see December 2012 VA foot examination). As background, in April 1970, the RO granted a claim of service connection for the residuals of a puncture wound of the right instep and assigned a noncompensable rating from April 29, 1969 under DC 7805 which read: "Scars, other; Rate on limitation of function of affected part." 38 C.F.R. § 4.114 (See also 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Effective October 23, 2008, and during the pendency of this appeal, the rating codes of the skin changed under 38 C.F.R. § 4.118. See 38 C.F.R. § 4.118, DC 7800 (2007); 38 C.F.R. § 4.118, DC 7800 (2013). However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800-05 (2013)). In the present case, the amended regulations are not applicable, since VA received the Veteran's claim in October 2007 and there has been no explicit request for consideration under the revised criteria. The pre-amended regulation will be applied. Prior to October 23, 2008, under 38 C.F.R. § 4.118, DC 7801 applies to scars other than the head face or neck that were deep or that caused limited motion; for a 10 percent rating under this code the area had to exceed 6 square inches (39 square centimeters). 38 C.F.R. § 4.118 (2008). DC 7802 applies for scars that are: 1) on a part of the body other than the head, face or neck; 2) superficial; 3) do not cause limited motion; and 4) must cover an area of 144 square inches or 929 square centimeters or greater. If the criteria are met, a 10 percent rating was warranted. Id. For a 20 percent rating or greater, the scar area needed to exceed 12 square inches (77 sq. cm.). Id. DC 7803 applies for scars that were superficial and unstable but only provided a 10 percent rating. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) defines a superficial scar as a scar that is not associated with soft tissue damage. This definition is essentially the same for DCs 7802 and 7804 except these codes specify "underlying soft tissue damage." Id. Similarly, DC 7804 applies when a scar is superficial and painful upon examination; a 10 percent rating is applied. Id. Finally, as stated above, if there is other limitation of function, the scar should be rated on that limitation. 38 C.F.R. § 4.118, DC 7805. Also of potential relevance is DC 5284, which assigns a 10 percent rating for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A note provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 (2013). Under DC 5279, metatarsalgia (regardless of whether it is anterior as with Morton's disease, unilateral or bilateral) warrants only a 10 percent rating. 38 C.F.R. § 4.71a, DC 5279 (2013). The words slight, moderate, and severe as used in the various DCs 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 (2013). The use of terminology such as severe by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Here, the Board finds that the Veteran is more properly rated under DC 7804, regarding a superficial and painful scar. Under that code, a 10 percent rating is warranted. While the Veteran sincerely reported generalized right foot pain, the evidence shows that he has some pain related to his bilateral foot disabilities and not just the residuals of a puncture wound of the right foot instep. The Veteran contended in his August 2009 notice of disagreement that his right foot had healed and looked fine, but he could not wear shoes that put constant pressure on the top of his foot. At the July 2012 Board hearing, he described his foot disability as a penetrating wound from the top of the foot, but not through it (no exit wound). (Transcript, pp 10-11.) His foot was painful. (Transcript, p 11.) He elevated his foot occasionally and it was tender only when palpated. (Transcript, p 14.) He did not wear orthopedic shoes but it was hard to find a good fitting shoe. (Transcript, p 16.) A review of the evidence shows the Veteran has other issues with his feet besides his residuals of a puncture wound of the right foot instep. Private treatment records show that in June 2005 an X-ray of the right foot was negative. Other private records from September 2009 reflect bilateral foot pain and bilateral metatarsus adductus. He had no acute fractures or dislocations of the feet. He had a bilateral mild collapse of longitudinal arch and walked with an abducted a propulsive gait. In a June 2011 letter, Dr. L. stated that he had arthritis, carpal tunnel syndrome, shortness of breath, obstructive sleep apnea, and obesity; he found it hard to walk and needed a power scooter. In June 2008, upon VA foot examination, the Veteran again reported had pain on the foot when wearing a shoe after five minutes or walking 50 to 100 feet with slippers. Medication totally relieved his pain. He had the following symptoms with standing and walking: pain (dorsal foot), swelling, stiffness (whole foot), fatigability, and lack of endurance (whole foot). He did not have: heat, redness, or weakness. He had flare ups one to two times a year that lasted less than one day and were alleviated by additional narcotic pain medication. The result of flare ups were that he became less mobile, he could stand for 15 to 30 minutes, and was unable to walk more than a few yards. Physical examination revealed no evidence of swelling, tenderness, instability, weakness, or abnormal weight bearing. There was evidence of painful motion by the Veteran's report. No other foot abnormalities were noted although gait was antalgic. He did have mild degenerative joint disease of the right foot. It was noted his disability had a mild effect on chores, shopping, recreation, and traveling and it prevented exercise. There were no effects on feeding, bathing, dressing, toileting, grooming or driving. The Veteran reported no pain with respect to his scar on the right foot. There was no skin breakdown. It was on the dorsal right foot anterior to the ankle joint. It was .4 by .7 centimeters. There was no tenderness to palpation, adherence to underlying tissue, limitation of motion or loss of function, underlying soft tissue damage or skin ulceration or breakdown over the scar. In December 2012 his foot was again examined. The examiner noted degenerative joint disease and calcaneal spurs of the right foot along with the service-connected old puncture wound residuals. He reported his foot hurt after disuse initially (in the morning or after sitting and then got better quickly). His shoe inserts helped. He did not have metatarsalgia, Morton's neuroma, hammertoes, hallux valgus, hallux rigidus, claw foot, mal/nonunion of the foot bones, bilateral weak foot or any other foot injuries. He did occasionally use a cane and arch insert in his dress shoe. There were no diagnostic tests or findings. This disability did not impact his ability to work because he had a desk job at home that did not require a lot of walking. The Board finds the Veteran is competent to report his right foot symptoms because such symptoms are obviously readily observable. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Moreover, he has been credible in reporting his symptoms. Indeed, the Board finds his statements do not materially conflict with what the VA examiner's findings. To that extent, the Veteran's statements are assigned some weight, but the VA examiner's findings are assigned greater weight because they are more specific to the rating criteria. After considering every possible potential DC to determine whether an increase is available, the Board finds that a 10 percent evaluation best represents the Veteran's disability picture in this case. Indeed, he did appear to report pain upon palpation of the scar in his statements and testimony. However, an evaluation in excess of 10 percent is not warranted under any of the diagnostic codes pertaining to skin disabilities, as the specific rating criteria, as detailed previously, have not been established. As explained above, the scar area does not exceed 12 square inches. Turning to the possibility of a higher evaluation under an orthopedic code, a finding of moderate foot injury with respect to the disability at issue would not provide an evaluation in excess of 10 percent. 38 C.F.R. § 4.71a, DC 5284. Moreover, the evidence does not support a finding of moderately severe foot injury. Indeed, per the private treatment notes, the residuals of a puncture wound of the right foot instep is largely asymptomatic, although the Veteran does have various other bilateral foot issues that are not service-connected. He does not have metatarsalgia and even if he did, this would not provide an increased rating. 38 C.F.R. § 4.71a, DC 5279. Further, arthritis is not service-connected, but even if it was, an increase is not warranted under the arthritis DC because two or more major joints or two or more minor joint groups are not involved here. 38 C.F.R. § 4.71a, DCs 5003, 5010. In sum, the Board finds that a rating of 10 percent, but no more, is warranted and the reasonable doubt rule does apply. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER A compensable rating of 10 percent for the residuals of a puncture wound of the right foot instep is granted. REMAND Regarding the remaining issues on appeal, additional development is required, for the reasons discussed below. The Board finds the December 2012 VA examination for the stomach inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009) (A probative medical opinion is factually accurate). The examiner was asked to consider that the Veteran and his wife reported stomach trouble right after service, prior to 2005 (see July 2012 Board transcript, pp 35-41) as well as the fact that private treatment records showed diagnoses of peptic ulcer disease (PUD) and gastroesophageal reflux disease (GERD) as early as 1995. Instead, the examiner stated GERD symptoms started in 2005. Such a statement is erroneous and corrective action is needed. In February 2013, the supplemental statement of the case (SSOC) listed a wrong issue (entitlement to service connection for right wrist arthralgia instead of entitlement to a compensable rating for right wrist arthralgia). The correct issue must be adjudicated. A Board remand imposes upon VA's Secretary a duty to ensure compliance with the terms of the remand. When the AMC fails to comply, the Board must return the claims file for completion of previously requested action. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the December 2012 VA examination report stated the Veteran received mental health treatment from the West Palm Beach VA since August 2012. These records should be obtained and associated with the file so the claim may be rated. 38 C.F.R. § 3.159(c)(2) (2013). Accordingly, the case is REMANDED for the following action: 1. Associate all VA mental health treatment records with the file since August 2012. If unavailable, document this fact and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Return the file to the VA examiner who completed the December 2012 VA stomach examination for a corrected opinion. * The examiner should note in the report that the Veteran and his wife reported stomach trouble right after service, prior to 2005 (see July 2012 Board transcript, pp 35-41). * The examiner should note in the report private treatment records noting PUD and GERD as early as 1995. * The examiner should provide an updated opinion based on the above information and answer the following questions: o Does the Veteran now have PUD? If so, is there a 50 percent probability or greater that PUD had its clinical onset in service or is otherwise related to service? Why or why not? o Based on all the information, is there a 50 percent probability or greater that Veteran's currently diagnosed is GERD related to service? Why or why not? o Could any gastrointestinal or esophageal disability the Veteran currently has have been mistaken for a different type of disease in service but really was a precursor the current disability? See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). If necessary, schedule a new VA examination to answer the questions above. All opinions should be supported by accurate facts. 3. Adjudicate the claim for entitlement to a compensable rating for right wrist arthralgia. Also, re-adjudicate the other claims. If the decision remains in any way adverse to the Veteran, provide him and his representative with a supplemental SSOC. The SSOC should reflect that all records have been reviewed. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. 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 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs