Citation Nr: 1640133 Decision Date: 10/06/16 Archive Date: 10/19/16 DOCKET NO. 14-26 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable rating for surgical scars, status post bunionectomies. 2. Entitlement to an initial rating in excess of 10 percent for left foot metatarsophalangeal (MTP) joint narrowing, status post bunionectomy. 3. Entitlement to an initial rating in excess of 10 percent for right foot MTP joint narrowing, status post bunionectomy. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran had active service from April 1993 to December 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. In March 2016, the Veteran provided a statement, wherein he indicated he wished to withdraw his previous request for a hearing before the Board. As such, the prior request for a hearing is deemed withdrawn. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, lay evidence of unemployability due to the above-noted service-connected disabilities was submitted in the Veteran's November 2013 notice of disagreement (NOD). Specifically, the Veteran indicated that as a result of his bilateral foot manifestations he "gave up trying to find work," because he kept losing jobs. Accordingly, in light of the Court's holding in Rice, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. All issues other than entitlement to an initial compensable rating for surgical scars, status post bunionectomies are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the period of the claim, the surgical scars of the left and right great toes have been painful. CONCLUSION OF LAW The Veteran's bilateral surgical scars, status post bunionectomies warrant a rating of 10 percent, but not higher, throughout the period of the claim. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7804 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded an appropriate VA examination to address his service-connected scars in May 2013. The Veteran has not asserted, and the evidence does not show, the scars have increased in severity since that examination was performed. The Veteran was also afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. General Legal Criteria: Disability Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the above noted service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. The Veteran's right and left MTP scars are rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. Under the criteria for rating skin disabilities, scars, other than on the head, face, or neck, that are deep and nonlinear warrant a 10 percent rating if the area or areas affected are at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars, other than on the head, face, or neck, that are superficial and nonlinear warrant a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent rating may also be assigned for one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. All other noncompensable linear scars are to be evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran was granted service connection for surgical scars, status post bunionectomies in an August 2013 rating decision. At that time, a noncompensable disability evaluation was assigned. The Veteran initiated an appeal of the assigned disability rating. The Veteran was afforded a VA examination in May 2013. During this examination, the examiner indicated the Veteran's bilateral surgical scars were neither unstable nor painful. The Veteran was noted to have a right foot linear surgical scar that measured 5 x .2 centimeters. He was also noted to have a left foot linear surgical scar that measured 4 x .2 centimeters. In his notice of disagreement (NOD), the Veteran indicated he experiences pain associated with both of his surgical scars. Specifically, he stated it hurts to take a shower and also hurts when he wears shoes that fit. He went on to describe his scars as feeling like a "rug burn of sorts." Although the May 2013 VA examiner found no evidence of painful or unstable scars, the Veteran has reported that he does experience pain when exposed to shower water and shoes. 38 C.F.R. § 4.118, Diagnostic Code 7804 does not speak to the type of evidence required when assessing for painful scars and therefore certainly does not, by its own terms, restrict evidence to "objective" evidence. See Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. Id at 427-28 (2015) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). The Veteran is certainly competent to report that he has noticed pain along his scars. In the Board's opinion, the evidence supporting the claim is at least in equipoise with that against the claim. Therefore, the Board has determined the Veteran's bilateral foot scars warrant a 10 percent rating throughout the pendency of the claim. The evidence does not indicate the Veteran's foot scars are either deep or non-linear, and the Veteran has not disputed this fact. As such, a compensable evaluation under Diagnostic Code 7801 or 7802 is not warranted. Additionally, the evidence does not show more than two-service connected scars. Therefore, a higher evaluation is also not warranted under Diagnostic Code 7804. For these reasons, the Board finds that a rating in excess of 10 percent for the service-connected bilateral foot scars is not warranted for any portion of the period on appeal. Other Considerations VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher or separate rating under any applicable diagnostic code. Consideration has been given to assigning a staged rating for the disabilities decided herein; however, as explained above, the evidence does not show the Veteran's scars have substantially fluctuated in severity over the pendency of the appeal period. As such, a staged rating is not applicable in this case. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected scars, as discussed above, are contemplated by the schedular criteria. There is no indication in the record that the average industrial impairment from these individual disabilities or from the Veteran's service connected disabilities in combination would be in excess of that contemplated by the assigned ratings. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. ORDER The Board having determined that the Veteran's surgical scars, status post bunionectomies warrant one rating of 10 percent, but not higher, throughout the period of the claim, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. REMAND Initially, the Board observes that during the above-noted May 2013 VA examination, the examiner indicated the Veteran underwent bunionectomy surgeries in service. However, when the examiner was asked whether the Veteran had ever experienced a hallux valgus (i.e. bunion) she stated he had not. Since the examiner incorrectly answered this question, she also failed to address whether the Veteran had residual impairment caused by his in-service hallux valgus. Thereafter, the examiner stated the Veteran underwent diagnostic testing, and no abnormal findings were noted. The examiner then curiously stated the Veteran had narrowing of the first metatarsophalangeal joints consistent with degenerative changes in her accompanying medical opinion. The examiner was also asked whether the Veteran experiences any other pertinent complications or symptoms related to his diagnosed bilateral MTP joint narrowing, status post bunionectomy procedures. Here, the examiner stated the Veteran experiences tender arches. The Board observes that following an October 2011 private examination conducted by Dr. J.S., the Veteran was diagnosed with bilateral pes planus. The May 2013 examiner failed to state whether the Veteran still warranted a diagnosis of pes planus. Based on the foregoing deficiencies, the Board finds a new VA examination is necessary. Moreover, as noted above the Board has inferred a claim for a TDIU rating based on the Veteran's statements in his November 2013 NOD. As such, the RO or AMC must also obtain a medical opinion assessing his employability status. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or AMC should notify the Veteran as to what information or evidence is needed to substantiate his TDIU claim pursuant to 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). Additionally, the Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and if necessary, a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). 2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO or the AMC should also afford the Veteran a VA examination by a clinician with sufficient expertise to determine the current severity of his service-connected bilateral MTP joint narrowing, status post bunionectomy procedures. The electronic records should be made available to and reviewed by the examiner. The RO or the AMC must ensure that the examiner provides all information required for rating purposes. Following a review of the relevant records and lay statements, the examiner should also indicate whether the Veteran continues to warrant a diagnosis of bilateral pes planus, as indicated by Dr. J.S. in his October 2011 examination report. 4. The RO or the AMC should also obtain from the VA examiner an assessment of the functional impact of the service-connected disabilities on the Veteran's employability. Specifically, the examiner should comment on the Veteran's ability to function in an occupational environment, and describe functional impairment caused solely by the Veteran's service-connected disabilities. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities. Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations. A rationale for the opinion must also be provided. 5. The RO or the AMC should then undertake any other development it determines to be warranted. 6. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran a supplemental statement of the case and afford him the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs