Citation Nr: 1806149 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-10 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left foot disorder, to include pes planus, plantar fasciitis and mid-foot arthritis. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to an initial compensable rating for facial acne. 5. Entitlement to an initial compensable rating for left lower face scar. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009, April 2012, and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2016, the Board remanded the issues for further development. The matters are again returned to the Board for adjudication. At the time of the prior remand, the issue of service connection for a right knee disability was also before the Board. That claim was subsequently granted in an April 2017 rating decision. As that constitutes a total grant of the issue on appeal, that claim is no longer before the Board. As was addressed in the prior remand, the Veteran has withdrawn his request for a hearing before a Veterans Law Judge. In September 2016, the Veteran submitted a claim for total disability based on unemployability (TDIU). The Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part and parcel of a claim for higher ratings, when reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 477, 453-54 (2009). As such, the Board has also included that issue in the issues on appeal, as described above. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left foot pes planus, plantar fasciitis and mid-foot arthritis are at least as likely as not etiologically related to his service-connected right foot disability. 2. The Veteran's left ankle disability is at least as likely as not etiologically related to his service-connected bilateral pes planus. 3. The Veteran's left knee disability is at least as likely as not etiologically related to his service-connected bilateral pes planus. 4. For all periods on appeal the Veteran's acne has been superficial at most; it is not deep and has not resulted in disfigurement, asymmetry, or distortion of any facial features. 5. For all periods on appeal, the Veteran's left lower cheek scar has been described as superficial; it has not resulted in disfigurement, asymmetry, or distortion of any facial features. CONCLUSIONS OF LAW 1. The criteria for service connection of a left foot disability, diagnosed as pes planus with plantar fasciitis and mid-foot arthritis, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection of a left ankle disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for service connection of a left knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. The criteria for a compensable rating for acne have not been met. 38 U.S.C. §§ 1155, 5701 (2012); 38 C.F.R. § 3.102, 4.1, 4.07, 4.118, Diagnostic Codes (DCs) 7828, 7800 (2017). 5. The criteria for a compensable rating for a facial scar have not been met. 38 U.S.C. §§ 1155, 5701; 38 C.F.R. § 3.102, 4.1, 4.07, 4.118, DCs 7800, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in February 2012. (The Board observes that to the extent that it is granting service connection for left foot, ankle and knee disabilities, any failure on VA's part to satisfy the duty to notify and assist with regard to those issues would constitute harmless error). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The Veteran seeks service connection for a left foot disability, left ankle disability and left knee disability. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2017). The Board finds that service connection should be granted for all three disabilities. The Veteran has a present diagnosis of bilateral pes planus with plantar fasciitis and mid-foot arthritis. While service connection was granted for right foot pes planus, the left foot was denied service connection because there was no evidence of left foot pain in his service treatment records. Although not specifically recorded in the record, the Veteran has testified that he experienced pain in his left foot and ankle during active service, particularly while running on uneven trails. Here, the Board observes that a lay person is competent to report observable symptomatology such as pain, and the Board has previously determined that this testimony must be considered. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In May 2015, the Veteran was afforded a VA examination report which confirmed a private diagnosis associated with the left foot, but did not provide an etiology opinion regarding those disabilities. As such, in January 2017, a new examination was conducted and the examiner opined against a causal nexus to service, stating that there was no evidence of a left foot condition found in his service treatment records, or in the available medical records until July 2011. The Board has considered this examination report and opinion, but finds it to be of limited value in assessing the claim, as the examiner specifically did not consider the Veteran's reports of foot pain in service, as was ordered by the Board in its prior remand. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (a medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's evaluation will be a fully informed one); 38 C.F.R. § 4.1 (2017) (it is essential that each disability be viewed in relation to its history). Because the examiner did not consider the Veteran's reported foot pain in service, the Board sought an independent medical opinion. In January 2018, an orthopaedic surgeon at the VA Maryland Healthcare System reviewed the entire medical record and claims file and opined that it is at least as likely as not that the Veteran's left foot pes planus, plantar fasciitis, and mid-foot arthritis are etiologically related to active service, particularly to his service-connected right foot disability. In support of this opinion, the examiner stated that pes planus is a bilateral condition with the same structural changes of loss of the longitudinal arch and pronation of the feet and exposure of the feet to the same stress of weight-bearing. The only time a unilateral pes planus can occur would be secondary to trauma with rupture or dysfunction of the posterior tibial tendon. As the claims file is silent for such trauma in the right foot, then it is likely that the left foot pes planus developed bilaterally with the service-connected right foot disability. The Board finds the January 2018 independent medical opinion to be persuasive. That opinion was rendered by a medical professional with expertise in orthopaedic conditions, and was given in consideration of the complete medical records, particularly in consideration of the Veteran's reports of foot pain during active service. It provided a medical opinion which was supported by known medical principles, as well as by the evidence in the record. The Board has considered the other evidence of record, but finds no other medical opinions or evidence which would contradict the 2018 independent medical opinion in favor of service-connection. The Board does acknowledge the January 2017 opinion, but finds it to be of less evidentiary weight for the reasons discussed above. As such, affording the Veteran the benefit of the doubt, the Board will grant service connection for a left foot disability, diagnosed as pes planus with plantar fasciitis and mid-foot arthritis. Regarding the Veteran's left ankle and knee disabilities, the Veteran has a present diagnosis of left ankle osteoarthritis and left knee degenerative arthritis. In order to fully assess these conditions, the Board also sought an independent medical opinion in January 2018. The examiner considered the complete claims file, to include the prior VA examinations, and opined that it is at least as likely as not that the Veteran's left ankle and knee disabilities are related to his bilateral pes planus. Particularly, the loss of the longitudinal arch bilaterally causes strain to the proximal joints (namely the ankle and knees). Further, the examiner noted that a February 2011 VA examination diagnosed left knee patellofemoral syndrome which had progressed to osteoarthritis of the knees by the time he was examined in January 2017. This showed a progression of patellofemoral syndrome in the knees between 2011 and 2017. The Board has reviewed the entire claims file and has not found any evidence which would contradict this opinion. Although the January 2017 examiner opined against service connection for a left ankle and knee disability, the examiner based that opinion on the lack of ankle conditions reported in the Veteran's service treatment records. As addressed above, this renders the opinion less than probative because it did not consider the Veteran's own competent reports of ankle pain during active service and since that time (the Board also notes that the opinion does not consider service connection secondary to pes planus and therefore is also inadequate to fully assess the claim). Further, to the extent that the examiner in January 2017 opined against service connection for left knee degenerative arthritis as secondary to pes planus, that opinion was rendered under the presumption that his left foot pes planus was not service-connected. In fact, the examiner opined in favor of service connection for right knee degenerative arthritis, stating that pes planus has been associated with knee pain and loss of cartilage due to the associated biomechanical changes in weight bearing seen with flat feet. Therefore, because the Veteran's right foot pes planus was service-connected, his right knee should also be granted that status as secondary to the right foot disability. As discussed above, the Board has found the Veteran's left foot pes planus to be service connected, therefore this opinion should reasonably also apply to the left knee degenerative arthritis. Essentially, considering the development undertaken by the Board, above, this opinion also favors a finding of service-connection for a left knee disability, when considering the facts as now established. The Board has also considered April 2012 and January 2011 VA examinations regarding the knees but finds them to also be of limited value. The April 2012 examination report did not provide an opinion on service connection secondary to pes planus, and the January 2011 opinion, which did address such a theory, stated that the records was limited and that if medical records from a podiatrist or orthopaedist can be submitted documenting severity and effect, the opinion may be reconsidered. As such, the Board finds that neither of these opinions contradicts the independent medical opinion from January 2018. In sum, the Board will afford the Veteran the complete benefit of the doubt and grant service connection for a left ankle disability, as well as a left knee disability, both secondary to his service-connected left foot pes planus. Increased Ratings The Veteran is service connected for acne, and a scar of the left lower face. Both disabilities are rated as noncompensable. He asserts he is entitled to compensable ratings for both. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2017). The Board finds that compensable ratings should not be granted for either disability on appeal. Acne, to include facial acne is rated under 38 C.F.R. § 4.118, Diagnostic Code 7828. Under the applicable rating criteria, superficial acne (described as comedones, papules, pustules, or superficial cysts) of any extent is assigned a noncompensable rating. Deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck, is assigned a 10 percent rating. Finally, deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck is assigned a 30 percent rating. In the alternative, acne may also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-7805). Id. The Veteran's facial scar is rated under Diagnostic Code 7805, which evaluates "other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-7804" which instructs the rating board to evaluate a scar under the applicable Diagnostic Codes 7800-7804, with any further disabling effects not covered by said Diagnostic Codes under a separately appropriate Diagnostic Code. 38 C.F.R. § 4.118, DC 7805. Here, the Board finds that Diagnostic Code 7800 is the most applicable Diagnostic Code. Under that rating criteria, which addresses burn scars of the head, face, or neck; or scars of the head, face or neck due to other causes, or other disfigurements of the head, face or neck, a 10 percent rating is assigned when there is evidence if at least one characteristic of disfigurement. The eight characters of disfigurement for purposes of evaluation under section 4.118, are: (1) a scar of 5 or more inches in length; (2) a scar at least one-quarter inch wide at the widest part; (3) surface contour of the scar is elevated or depressed on palpation; (4) scar is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches; (6) the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; (7) the underlying soft tissue is missing in an area exceeding six square inches; and (8) the skin is indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin forehead, eyes, ears), or with two or three characteristics of disfigurement. Id. A 50 percent rating is assigned for visible or palpable loss and either gross distortion or asymmetry of two feature or paired set of features (nose, chin forehead, eyes, ears), or with four or five characteristics of disfigurement. Id. Finally, an 80 percent rating is assigned for visible or palpable loss and either gross distortion or asymmetry of three or more feature or paired set of features (nose, chin forehead, eyes, ears), or with six or characteristics of disfigurement. Id. Diagnostic Codes 7801 and 7802 address scars not of the head, face or neck, and therefore do not meet the pathology at issue in this case. Likewise, Diagnostic Code 7804 addresses unstable or painful scars, which is also not supported by the medical evidence of record, and therefore not applicable in this matter. The Veteran was afforded a VA examination May 2011, in connection with his initial service connection claim. Acne was diagnosed located on the neck. Hyperpigmentation was less than six square inches, as was abnormal texture. There was no ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, or limitation of motion. The lesion coverage of the exposed area was approximately 3 percent. The skin lesion coverage of the whole body was .5 percent. The lesions were not associated with a systemic disease and did not manifest in connection with a nervous condition. The examiner stated that the Veteran had a history of infected acte of the face, worsened by shaving. The examiner opined that his usual occupation was not affected by his condition. The only reported side effect was itching when hot, which sometimes made it hard to sleep. At that time, the examiner did note a scar of the left lower face. It was described as nonlinear with a calculated area of .1 cm by .1 cm. The scar was not painful on examination. There was no skin breakdown. The scar was described as superficial with no underlying tissue damage. There was no inflammation or edema. There was no keloid formation. The scar was not disfiguring and it did not limit the Veteran's motion. It did not adhere to the underlying tissue and on palpation it was level. The texture was normal (not shiny, scaly, atrophic or irregular). There was no hypo- or hyper-pigmentation of the scar. The scar was not indurated or inflexible. It did not result in any gross distortion or asymmetry of any features or pair of features. Here, the Board finds that the initial 2011 evaluation does not support a compensable rating for either disability. The Veteran's acne was found to be superficial (not deep). At most, it affected 3 percent of the exposed skin area, with minor flares resulting in itching. There was no evidence of deep inflamed nodules or puss-filled cysts. Likewise, there was no evidence of any characters of disfigurement by either the Veteran's acne or secondary scar. Nor was there any evidence that either distorted a feature or pair of features of the Veteran's face. As such, compensable ratings are not supported by the diagnostic criteria from the date of service connection. The Veteran's VA treatment records note acne as an ongoing issue, but do not reveal any treatment or description of either his acne or his service-connected facial scar which the Board could use to evaluate the disabilities. At most, those records note periodic breakouts of acne, with requests for medicated ointments. For example, in September 2010 he requested ointment for periodic breakouts of acne. In December 2010, the record noted "acne on face on and off." A June 2011 nursing skin assessment not indicated a rash, described as "acne infection" although his skin was described as warm, dry and within normal limits. In December 2011 a rash was noted on the face, described as acne, although his skin was described as within normal limits. The Board does observe that the Veteran's May 2012 notice of disagreement notes recurrent flare-ups of the condition if he stops taking the medication prescribed for this. The notice of disagreement also indicated multiple new scars. As such, the Board, in October 2016, requested a new examination be scheduled. In January 2017, the Veteran was afforded a new VA examination. At that time, the diagnosis of acne was confirmed. The Veteran reported frequent outbreaks of acne for which he used topical medication. He reported previously using antibiotics, but denied present use. The condition did not cause scaring or disfigurement of the head, face or neck. There were no benign or malignant neoplasms. He did not have any systemic manifestations due to any skin diseases. He used constant or near constant topical medication, but did not require any treatments or procedures other than systemic or topical medication in the prior 12 months. There were no debilitating or non-debilitating episodes in the prior 12 months. The examiner did not find any exposed area affected at that time. The Veteran's acne was described as superficial in nature. There were no tumors or neoplasms. There were no facial acne lesions at the time of the examination, on the neck, the examiner reported approximately 10 small (2-3 mm), slightly red, slightly raised papules. No pustules or cysts were found. The examiner found no functional impact on his ability to work. A scar examination was also conducted at that time. The examiner confirmed a facial scar. It was not painful or unstable (with frequent loss of covering of the skin over the scar). It was described as a single scar on the left lower cheek, approximately 1.5 cm by .1 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was no abnormal pigmentation. There was no gross distortion or asymmetry of any facial features. There was no visible palpable tissue loss. The examiner found that the scar did not result in a limitation of his ability to function, and would not impact his ability to work. Again, the Board finds that this evidence does not support a compensable rating for either his acne or the secondary facial scar. Even considering the Veteran's own reports of flare-ups of his acne, the disability has been found to be superficial at most. There is simply no evidence of deep acne, nor any evidence that his acne has affected in large portions of his exposed skin. There is certainly no evidence that his acne has resulted in any characteristics of disfigurement or distortion or asymmetry of any of his facial features. As such, a noncompansable rating for acne is supported by the diagnostic criteria. Likewise, a non-compensable rating is also supported for his facial scar. Despite reports of multiple scars, examinations continue to support a single facial scar on the left lower cheek, which is superficial and does not result in any distortions or disfigurement. Absent such a finding, a compensable rating for a facial scar cannot be assigned based on the diagnostic criteria. In sum, the Board finds that for all periods on appeal, the Veteran's acne has been superficial at most, even during periods of flare ups. Likewise, his single facial scar has not resulted in any distortion, asymmetry, or disfigurement. As such, compensable ratings cannot be assigned for either disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection for a left foot disability, diagnosed as pes planus with plantar fasciitis and mid-foot arthritis, is granted. Service connection for a left ankle disability, presently diagnosed as osteoarthritis of the ankle is granted. Service connection for a left knee disability, presently diagnosed as degenerative arthritis of the knee, is granted. A compensable rating for acne is denied. A compensable rating for a facial scar is denied. REMAND Inasmuch as the Board regrets further delay in the adjudication of this claim, an additional remand is necessary. As addressed above, entitlement to TDIU has been raised by the record and is a part of this claim. A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). As the Board has granted service connection for three disabilities, as addressed above, this could impact the Veteran's eligibility for a grant of TDIU. However, until the RO is given the opportunity to assign ratings for these disabilities, the Board cannot determine what periods the Veteran may be statutorily entitled to such a grant. Therefore, the Board must remand this issue so that the recently granted claims may be assigned disability ratings and the RO may be given the opportunity to fully develop the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim for TDIU. 2. The AOJ should assign disability ratings for the now service connected left foot, left ankle, and left knee claims, as granted above. The AOJ should then undertake any further development deemed necessary to fully assess the TDIU claim. 3. Thereafter, readjudicate the claim remaining on appeal. If the benefit should remain denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs