Citation Nr: 1801444	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-36 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for depression secondary to service-connected disability.

2.  Entitlement to service connection for bilateral lower extremity peripheral vascular disease secondary to service-connected disability.

3.  Entitlement to a rating in excess of 10 percent for bilateral small toe metatarsalgia.

4.  Entitlement to a rating in excess of 40 percent for duodenal ulcer disease.

5.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

The Veteran is represented by:  The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Sean G. Pflugner, Counsel


INTRODUCTION

The Veteran served on active duty from January 1948 to December 1967.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  During the pendency of this appeal, the RO issued a September 2014 rating decision wherein it increased the rating assigned to the Veteran's duodenal ulcer disease to 40 percent throughout the appeal period.  As this is not the maximum benefit available and the Veteran did not limit his appeal to the assigned rating, this matter is still pending before VA.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of this hearing has been associated with the claims file.

The Board finds that the evidence of record reasonably raises the issue of entitlement to TDIU and, thus, this claim is for consideration throughout the appellate period.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017). 

The issues of entitlement to service connection for depression and bilateral lower extremity peripheral neuropathy, as well as the issue of entitlement to a rating in excess of 40 percent for duodenal ulcer disease, entitlement to TDIU, and entitlement to an extraschedular rating for bilateral small toe metatarsalgia, will be addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A schedular 10 percent rating has been assigned to the Veteran's service-connected bilateral small toe metatarsalgia throughout the pendency of this claim.


CONCLUSION OF LAW

A 10 percent rating is the maximum schedular rating available for bilateral small toe metatarsalgia.   38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5279 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2017).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 

Throughout the pendency of this appeal, a 10 percent rating has been assigned to the Veteran's service-connected bilateral small toe metatarsalgia under 38 C.F.R. § 4.71a, Diagnostic Code 5279.  According to Diagnostic Code 5279, a maximum 10 percent rating is warranted for metatarsalgia, anterior (Morton's disease) regardless if it is present unilaterally or bilaterally.  Consequently, a schedular rating in excess of 10 percent is not available under Diagnostic Code 5279.

In determining whether there are other applicable diagnostic codes, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2017).  Therefore, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Service connection has already been granted to the Veteran's bilateral pes planus (with calluses and corns).  The record does not support applying other diagnostic codes under which a schedular rating in excess of 10 percent was available.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5280, 5281, 5282, 5283, and 5284 (2017);  see Copeland v. McDonald, 27 Vet. App. 333 (2015).

Consequently, even with application of the benefit of the doubt doctrine, the Board finds that a schedular rating in excess of 10 percent is not warranted for the Veteran's bilateral small toe metatarsalgia.   Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Consideration on an extraschedular basis will be addressed in the remand portion of the decision below.


ORDER

A schedular rating in excess of 10 percent for bilateral small toe metatarsalgia is denied.

REMAND

Depression and Bilateral Lower Extremity Peripheral Vascular Disease

The Veteran asserts that his depression and bilateral lower extremity peripheral vascular disease are secondary to his service-connected disabilities.  The Board finds that these claims are inextricably intertwined with the other claims being remanded herein and with an additional claim still pending before the RO.  Specifically, the Board observes that the Veteran has timely submitted a notice of disagreement regarding a denial of service connection for right lung cancer.  As such, remanding these matters is required for contemporaneous adjudication.

Duodenal Ulcer Disease

The most recent VA examination to assess the severity of this disability occurred in September 2014.  During the May 2017 Board hearing, the Veteran testified that his duodenal ulcer disease had worsened since then.  The Board finds that the September 2014 examination is too remote to adequately assess the current severity of the Veteran's service-connected disability.  Further, there remains a question as to whether the Veteran's more severe symptoms are attributable to this or a non-service-connected disability (lung cancer and the associated treatment).  For these reasons, the Board finds that a remand is required to provide the Veteran with another VA examination.

Extraschedular Rating for Bilateral Small Toe Metatarsalgia

Service connection has been granted for both the Veteran's bilateral pes planus (with calluses and corns) and his bilateral small toe metatarsalgia.  The record includes evidence regarding symptoms associated with the Veteran's feet that are not contemplated by either of the diagnostic codes under which ratings have been assigned to his bilateral pes planus (with calluses and corns) and bilateral small toe metatarsalgia.  For example, the Veteran asserts that these disabilities result in an altered gait and a loss of balance.  Moreover, the evidence indicates that bones in his feet are absent.  The evidence of record does not include non-service-connected diagnoses to which these symptoms are attributed or attributable.  The Board finds that a remand is warranted in order for the AOJ to refer a claim to the Chief Benefits Director or the Director of Compensation and Pension Service for consideration in the first instance of an extraschedular rating.  38 C.F.R. § 3.321(b) (2017); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

Accordingly, the case is remanded for the following actions:

1.  The AOJ must provide notice and assistance to the Veteran with respect to his claim of TDIU.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

2.  The Veteran should be afforded a VA examination to determine the current severity of his duodenal ulcer disease.  All pertinent evidence of record should be made available to and reviewed by the examiner.  The AOJ should ensure that the examiner provides all information required for rating purposes.

3.  The AOJ must refer the Veteran's claim to the Chief Benefits Director or the Director of Compensation and Pension Service for consideration of an extraschedular rating for the Veteran's service-connected bilateral small toe metatarsalgia and bilateral pes planus.

4.  The AOJ should undertake the appropriate action regarding the Veteran's notice of disagreement regarding the issue of entitlement to service connection for right lung cancer.

5.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated, including the issue of entitlement to TDIU.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. §§ 5109B, 7112 (West 2014).




_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs