Citation Nr: 1628244 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 10-43 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for porokeratotic lesions of the toes, left foot. 2. Entitlement to a disability rating in excess of 30 percent for porokeratotic lesions of the toes, right foot. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1975 to April 1981. This case comes before the Board of Veterans' Appeals (the Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This matter was previously before the Board in June 2015. At that time, the issue was remanded to obtain additional development. That development has been completed to the extent possible, and the matter is before the Board again. The Board notes that upon remand a new rating decision was issued in March 2013 that granted service connection for bilateral pes planus. The Veteran has not appealed this decision. This matter is not before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. As will be discussed in greater detail below, during the pendency of the appeal, the matter of unemployability has been raised. The TDIU claim has been recognized as part and parcel of the increased rating appeal and is before the Board. The issue of entitlement to a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's porokeratotic lesions of the toes, left foot, has manifested by limitation of motion, pain, antalgic gait, limitations in walking and standing, tenderness, resulting in a severe foot injury, but not by actual loss of use of the left foot. 2. Throughout the entire period on appeal, the Veteran's porokeratotic lesions of the toes, right foot, has manifested by limitation of motion, pain, antalgic gait, limitations in walking and standing, tenderness, resulting in a severe foot injury, but not by actual loss of use of the right foot. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for a left foot disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2015). 2. The criteria for a disability evaluation in excess of 30 percent for a right foot disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.159 , Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations In June 2015, the Board remanded the Veteran's claim for further development, instructing the AOJ to obtain updated VA treatment records and to schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral porokeratotic lesions. Updated VA treatment records were added. The Veteran was also provided with a VA examination in January 2016 to evaluate the current nature and severity of his bilateral porokeratotic lesions of the feet. In light of the foregoing, there has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2014) 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's claims for entitlement to a disability rating in excess of 30 percent for service-connected porokeratotic lesions of the toes, for both the right foot and left foot, the Veteran was provided a VCAA notice in May 2010, which was prior to the June 2010 rating decision. Therefore, VA has satisfied its duty of providing notice. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's service treatment records, VA medical records, and private treatment records are in the claims file. The Veteran has not identified any other records or evidence that remain outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf has been satisfied. See 38 C.F.R. § 3.159(c) (2015). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). Here, the AOJ provided the Veteran VA examinations in June 2010 and upon remand in January 2016. The examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings, treatment history, and the Veteran's reported symptoms. The examination reports also discussed the functional losses cause caused by the Veteran's disabilities. They are, therefore, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran was provided the opportunity to request a hearing but declined to do so. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 ;38 C.F.R. §§ 3.321(a), 4.1 (2015). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1(2015); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2015). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2015). The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, 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 (2015). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14 (2015); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Analysis The Veteran filed a claim for an increased rating in November 2009, reporting that his condition was worse than the rating of 30 percent for each foot reflected. In August 2010, the Veteran elaborated in a notice of disagreement, that his pain medication had to be increased and that he tries to walk on his heels to avoid pain. He also expressed that he thought he should be rated at 100 percent. VA treatment records throughout the period on appeal demonstrate the Veteran has consistently reported pain in his feet related to his porokeratotic lesions. In December 2009, the Veteran was noted as having drastic pain with multiple lesions on both feet. He was prescribed a cane to assist with walking due to his condition in February 2010. In June 2010, the Veteran's treating physician noted that he could only pallatively treat the Veteran's condition by debriding the lesions every 3 weeks because of the severity of the condition. The June 2010 VA examination noted the Veteran had severe difficulty ambulating. He was noted as being limited to walking 50 yards at a time and was unable to stand for more than a few minutes. The condition caused severe limitations in exercise and shopping, and moderate limitations in performing chores and recreational activities. In July 2010, the Veteran subjectively rated his pain as a 7 on a scale of 10, but noted that it was not always that intense. That rating reflected the occasional sharp pain he experienced while walking. In September 2010, the Veteran's physician indicated that his pain was out of proportion with what he would expect from the condition and ordered an EMG to rule out neuropathy. Testing did not indicate neuropathy. In February 2011, it was noted that he was no longer using Vicodin to control the pain because of a violation of his pain contract. He continued to receive debridement treatment through September 2012. The Veteran reported to the January 2016 VA examiner that he had started self- treating his lesions in 2012. VA treatment records from July 2014 also noted he was self-treating the lesions. The Veteran described to the VA examiner that he works on them every 4 to 5 days paring them down with his own tools. He also used gel inserts, heated Epsom salt, and urea cream to treat his condition. The Veteran reported that he has sharp abrupt pains that rate as a 8 or 9 on a scaled of 10. He has occasional flair ups that require him to sit for 10 to 15 minutes for relief. Pain was accentuated on use, and he was noted as having extreme tenderness. The Veteran used a cane to ambulate, explaining that it helped to take weight of whichever foot was hurting more due to painful lesions. The examiner noted that the Veteran could not stand or walk for extended periods of time, cannot run, and had a significant antalgic gait. The examiner also stated that the Veteran's limitation were not equivalent to having amputated feet with prostheses. The Veteran's subjective complaints of pain and reports of worsening, along with his medical records and VA examinations, portray a severe limitation posed by the Veteran's porokeratotic lesions on each foot. Both VA examinations indicated severe limitations in the ability to shop and exercise, while only moderate limitations in performing recreational activities and chores. Combined with the limitations in mobility and the need to rest when experiencing flare-ups, the Veteran's disability picture is most nearly approximates a severe foot injury. The rating schedule assigns a 30 percent disability rating for such conditions. A higher rating would require the functional loss of a foot that is the equivalent to having an amputated foot with a prosthesis. A rating based on that criteria is the highest schedular rating available for a disability of a foot, and is evaluated at 40 percent. A preponderance of the evidence shows the Veteran does not have the functional loss of either foot equivalent to an amputated foot with a prosthesis. The Veteran's difficulty with ambulating has been associated with his painful lesions. He indicated that he has to stop and rest when he experiences sharp pains when walking. There is no loss of the ability to balance indicated in the record, nor is there an indication that Veteran has lost the ability to propel himself forward with his feet. The Veteran does use a cane to ambulate; however, the Veteran indicated in a VA examination that this was to take pressure of whichever foot was hurting more due to porokeratotic lesions, not to maintain balance or propulsion. The January 2016 VA examiner considered all the limitations the Veteran described and that were indicated in the medical records, to include the inability to walk more than 50 yards at a time and flare-ups that require the Veteran to sit and rest his feet. The VA examiner, a nurse practitioner with expertise in the field of medicine, concluded based on the evidence of record and an in-person examination that the Veteran would not be equally well served by an amputation with a prosthesis. Based upon the expertise of the VA examiner and the fact that it was based upon a review of the record and the examination of the disability at issue, it is found that this medical opinion has substantial probative value regarding the question at issue. There are no competent opinions to the contrary. It must be concluded that a preponderance of the evidence does not support a rating in excess of 30 percent for either foot. Therefore, a rating in excess of 30 percent for porokeratotic lesions of the toes on the left foot is not warranted, and a rating in excess of 30 percent for porokeratotic lesions of the right foot is not warranted. Extra-Schedular Considerations Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. A Veteran may also be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014) (the Court of Appeals for the Federal Circuit explained that 38 C.F.R. § 3.321 (2015) fills a gap when the overall disability picture is less than total unemployability, but where the collective impact of disabilities is not adequately represented.). Here, the Board notes that the Veteran's bilateral porokeratotic lesions of the toes was manifested by pain, limitation in walking and standing in place, and the need for regular treatment. These symptoms and manifestations and the resulting impairment are contemplated by the rating criteria for foot disabilities. Further, the regulations contemplate additional functional loss caused by having both feet affected by a disability by adding a bilateral factor to combined rating of the feet. See 38 C.F.R. § 4.26 (2015). Finally, the Board notes that the Veteran's pain upon movement and extreme tenderness are encompassed by the separate rating for bilateral pes planus granted in a March 2016 rating decision. Therefore, the Veteran's disabilities do not warrant an extra-schedular rating. ORDER Entitlement to a disability rating in excess of 30 percent for porokeratotic lesions of the toes of the left foot is denied. Entitlement to a disability rating in excess of 30 percent for porokeratotic lesions of the toes of the right foot is denied. REMAND When evidence of unemployability is submitted during the course of an appeal for an increased disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As noted above, in the August 2010 notice of disagreement the Veteran implied that he should be rated at 100 percent for his service-connected disabilities. Additionally, the Veteran reported to the VA examiner in June 2010 that he no longer worked because it was too difficult to get to work and remain on his feet. Finally, the Board notes that the Veteran's treatment records from August 2013 noted that he no longer works as a plumber because he cannot stay on his feet. These statements indicate the Veteran's service-connected disabilities prevent him from working; therefore TDIU has been raised and is before the Board. The record is insufficient to adjudicate the issue of a TDIU, however. As opposed to a disability rating based on rating schedule, which is based on the average impairment in earning capacity caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. Rice at 452. In this case, the record does not contain the information necessary to determine if the Veteran's service-connected disabilities render him unemployable because the record does not contain information about the Veteran's employment history and vocational background. The Board notes that the January 2016 VA examiner opined that the Veteran could work a sedentary job such as keyboarding based on his functional limitations; however, whether the Veteran has the skills and background required to perform such is unclear based on the record. Therefore, the issue of entitlement to a TDIU must be remanded for further development. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Complete any development required to adjudicate the Veteran's claim of TDIU. 3. Ensure completion of the foregoing and any other development deemed necessary, then adjudicate the claim. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs