Citation Nr: 18140784 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-00 476 DATE: ORDER Service connection for the right foot disabilities of plantar fasciitis and metatarsalgia is granted. An increased disability rating (or evaluation) in excess of 10 percent for a nasoseptal deformity due to residuals of a shell fragment wound is denied. REMANDED An increased disability rating in excess of 10 percent for status post fracture, right third metatarsal with retained metallic foreign body secondary to shell fragment wound, is remanded. An increased disability rating in excess of 10 percent for facial scarring due to residuals of a shell fragment wound is remanded. A higher initial (compensable) disability rating for chronic left facial headaches is remanded. A higher initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s currently diagnosed right foot disabilities of plantar fasciitis and metatarsalgia are due to the in service right foot injuries and treatment. 2. For the entire increased rating period on appeal, the service connected nasoseptal deformity due to residuals of a shell fragment wound has been assigned the maximum 10 percent schedular rating available under Diagnostic Code 6502, and an increased disability rating may not be assigned under any other diagnostic code. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for the right foot disabilities of plantar fasciitis and metatarsalgia have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2017). 2. There is no legal basis for the assignment of an increased disability rating in excess of 10 percent for nasoseptal deformity due to residuals of a shell fragment wound for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6502 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from December 1966 to December 1973. This matter came before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified from Milwaukee, Wisconsin, at a December 2015 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants service connection for a right foot disability, which is a total grant of benefits as to that issue, and remands a number of other issues for additional development, no further discussion of VA’s duties to notify and assist is necessary as to those issues. Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the rating decisions on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Service Connection for a Right Foot Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran contends that one or more right foot disabilities are related to in service right foot injuries and treatment. At the outset, the Board notes that the Veteran is currently diagnosed with the right foot disabilities of plantar fasciitis and metatarsalgia. Such diagnoses are found within the report of a February 2012 VA foot examination. Service treatment records show that during service the Veteran sought treatment for the right foot, including a stress fracture. In July 2018, VA received a Veterans Health Administration (VHA) opinion concerning whether one or more currently diagnosed right foot disabilities were related to in service right foot treatment. As to the plantar fasciitis, the podiatrist opined that it was at least as likely as not that the plantar fasciitis of the right foot was related to the Veteran’s complaint of pain in the ankles with edema in January 1967. Per the podiatrist, the right foot symptoms that manifested in January 1967 were similar to symptoms expected from plantar fasciitis. In the VHA opinion, the podiatrist also opined that it was as likely as not that the currently diagnosed right foot metatarsalgia was due to the February 1967 in service fracture of the third metatarsal. Per the podiatrist, such an injury can disrupt the metatarsal parabola and cause an unequal pressure distribution of the right ball of the foot, which subsequently results in metatarsalgia. Having reviewed all the evidence of record, lay and medical, the Board finds that the currently diagnosed right foot disabilities of plantar fasciitis and metatarsalgia are due to the in service right foot injuries and treatment. A VHA podiatrist in July 2018 specifically found that the plantar fasciitis was likely related to in service complaints of pain and swelling in January 1967, and that the metatarsalgia was likely due to the in service fracture of the third metatarsal in February 1967. For these reasons, the Board finds that the currently diagnosed right foot disabilities of plantar fasciitis and metatarsalgia are related to active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The evidence of record indicates other right foot disabilities, to include pes cavus, hammer toes, and hallux valgus. Where a veteran is diagnosed with multiple right foot disabilities, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service connected right foot disabilities of plantar fasciitis and metatarsalgia from any other right foot disabilities. As such, the Board has attributed all disability symptomatology and functional impairment to the now service connected right foot disabilities of plantar fasciitis and metatarsalgia, and the RO should consider all of the Veteran’s right foot symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other right foot disabilities. 2. Increased Disability Rating for Nasoseptal Deformity The Veteran’s service connected nasoseptal deformity is rated as 10 percent disabling under Diagnostic Code 6502 for deviation of the nasal septum, and has been rated as such for many years prior to the date of claim in the instant matter. Under Diagnostic Code 6502, a 10 percent disability rating is assigned when there is 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. No higher disability rating is available under Diagnostic Code 6502. Id. In view of the foregoing, the Board concludes that the regulations preclude a schedular rating in excess of 10 percent for deviation of the nasal septum; therefore, the Veteran’s claim for a disability rating greater than 10 percent for the service connected nasoseptal deformity due to residuals of a shell fragment wound must be denied (under Diagnostic Code 6502). 38 C.F.R. § 4.97. As disposition of this issue is based on the law and not the facts of the case, the issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered whether an increased disability rating may be granted under any other diagnostic code. As the Veteran is already service connected for nasal scarring, of which the question of an increased disability rating is addressed below, an increased disability rating under Diagnostic Code 6504 is not warranted. 38 C.F.R. § 4.97. In August 2012, the Veteran received a VA nasal examination. Per the examination report, the Veteran advanced having symptoms of difficulty breathing and pain. Upon examination the Veteran did not have any symptoms of sinusitis, rhinitis, or any other symptoms that could warrant an increased disability rating under any other diagnostic code. The Veteran’s difficulty breathing is directly related to the deviation of the nasal septum, which cannot be rated in excess of 10 percent under Diagnostic Code 6502 or any other diagnostic codes for diseases of the nose. As to the Veteran’s complaint of pain, review of all the evidence of record, including VA examination reports, medical records, and the Veteran’s own lay statements, reflects that the pain is due to either the Veteran’s already service connected headaches and/or the service connected nasal scarring. As such, an increased disability rating cannot be assigned for the symptom of pain as this would result in improper pyramiding. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. Review of all the evidence of record, lay and medical, does not reflect any additional symptoms related to the service connected nasoseptal deformity that could warrant an increased disability rating under a different diagnostic code. For these reasons, an increased disability rating in excess of 10 percent for a nasoseptal deformity due to residuals of a shell fragment wound under any of the diagnostic codes for diseases of the nose is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Codes 6502 24. Extraschedular Referral Consideration The Board notes that it has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the nasoseptal deformity due to residuals of a shell fragment wound. See Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the nasoseptal deformity rating issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). As discussed above, the only nasoseptal deformity symptoms advanced by the Veteran, difficulty breathing and pain, are either specifically contemplated by the rating schedule or are currently compensated under a separate service connected disability; therefore, the Board will not further address the question of extraschedular referral in the instant decision. REASONS FOR REMAND 1. Increased Disability Rating for Fracture of Right Third Metatarsal 2. Increased Disability Rating for Facial Scarring 3. Higher Initial Disability Rating for Chronic Left Facial Headaches 4. Higher Initial Disability Rating for PTSD A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. Since the most recent VA foot, scar, headache, and mental health examinations, VA has received additional evidence indicating that the service connected disabilities may have worsened. As such, the Board finds remand for new VA examinations to be warranted. 5. TDIU The adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As the additional development on remand may be relevant to the question of entitlement to a TDIU, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined with the rating issues being remanded at this time. The aforementioned matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the Veteran’s service connected disabilities. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s service connected disabilities, not already of record, for the period from November 2014. Per the Veteran’s December 2015 Board hearing testimony, this should include the Veteran’s treatment records from the Milwaukee VA Medical Center and the Union Grove Community Outpatient Clinic. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiners should provide the following opinions: The VA examiners should report the extent of the Veteran’s right third metatarsal fraction residuals, facial scarring, headache symptoms, and mental health symptoms in accordance with VA rating criteria. As to the Veteran’s mental health symptoms specifically, the VA examiner should address whether the Veteran has used alcohol to self medicate any mental health symptoms. 4. Then, readjudicate the remanded issues on appeal. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel