Citation Nr: 18143854 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 13-33 853 DATE: October 22, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint is denied. Entitlement to an initial disability rating in excess of 10 percent for status post right bunionectomy with residual scar and right hallux valgus is denied. Entitlement to an initial evaluation in excess 50 percent for a total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to an initial compensable rating prior to September 17, 2015, and in excess of 30 percent for pes planus with plantar fasciitis and calcaneal spur is remanded. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum 10 percent rating for her status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint. 2. The Veteran is in receipt of the maximum 10 percent rating for her status post right bunionectomy with residual scar and right hallux valgus. 3. The Veteran’s postoperative scars on the bilateral great toes are neither painful nor unstable. 4. The Veteran underwent a total abdominal hysterectomy in 1989. 5. For the period on appeal, the total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis, has been characterized by pelvic pain, swelling, chronic constipation and intermittent diarrhea. CONCLUSIONS OF LAW 1. The criteria are not met for an initial increased disability rating in excess of 10 percent for status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5280 (2018); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018). 2. The criteria are not met for an initial increased disability rating in excess of 10 percent for status post right bunionectomy with residual scar and right hallux valgus. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5280 (2018); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018). 3. The criteria for a rating in excess of 50 percent for total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.116, Diagnostic Code 7617 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to June 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal of February 2012 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Board videoconference hearing was held before the undersigned Veterans Law Judge at the RO in August 2014. A transcript of the hearing is of record. In June 2015, the Board remanded the claim on appeal for further development. However, as set out below, additional development remains necessary. Stegall v. West, 11 Vet. App. 268 (1998). In November 2015, the RO granted an increased evaluation for the Veteran’s service-connected bilateral pes planus with plantar fasciitis and calcaneal spur to 30 percent, effective September 17, 2015, status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint to 10 percent, and status post right bunionectomy with residual scar and right hallux valgus to 10 percent. Since these grants did not constitute a full grant of the benefits sought on appeal, the claims remain for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that the issues of entitlement to service connection for a left knee disorder, a right knee disorder, and a right ankle disorder are on appeal. However, the Veteran has requested a Board hearing regarding those issues. They will be addressed in a separate decision after that hearing. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The 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 (2018). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 1. Entitlement to an initial disability rating in excess of 10 percent for status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint 2. Entitlement to an initial disability rating in excess of 10 percent for status post right bunionectomy with residual scar and right hallux valgus In February 2012, VA granted entitlement to service connection for status post bunionectomy with residual scar and hallux valgus, bilaterally, and assigned a 0 percent rating from June 13, 2011. The Veteran disagreed with the rating and perfected this appeal. Ultimately, a November 2015 Supplemental Statement of the Case, granted an initial disability rating of 10 percent for each foot. The Veteran’s bilateral status post bunionectomies are currently rated 10 percent disabling for each foot pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5280. Diagnostic Code 5280 provides for a maximum 10 percent schedular rating when the metatarsal head has been resected or when hallux valgus is severe, if equivalent to the amputation of the great toe. This diagnostic code is not predicated on limitation of motion and therefore, 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2018) are not for consideration. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). On review, the Veteran is currently assigned the maximum 10 percent rating under Diagnostic Code 5280. The Veteran’s hallux valgus may not be rated under another diagnostic code as hallux valgus is specifically listed in the Rating Schedule. See Copeland v. McDonald, 27 Vet. App. 333 (2015). Additionally, although VA examinations contain numerous findings pertaining to the Veteran’s bilateral flat feet, she is currently service-connected for bilateral pes planus. This issue is also on appeal and will be addressed separately from this rating. As to the other left foot conditions noted on recent examination (metatarsalgia, hammer toes, hallux rigidus, and malunion or nonunion of the tarsal or metatarsal bones), she is not service-connected for those disorders and separate ratings under Diagnostic Codes 5279, 5281, 5282, 5283 are not warranted. The Board will consider, however, whether a separate compensable rating is warranted for the bilateral scars associated with the bunionectomies. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a maximum 30 percent rating is warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is a frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). In October 2010, the Veteran was afforded a VA examination where it was noted the she underwent a bunionectomy on the right foot in 1996 and on the left foot in October 2009. Examination showed active motion of the metatarsophalangeal joints of the great toes. There was no evidence hallux valgus or hallux rigidus, clinically. There was a scar on each foot that was linear, superficial, non-disfiguring, soft and depressed, texture was normal and not shiny or scaly, and there was no evidence of hyperpigmentation or hypopigmentation. There was also no evidence of underlying soft tissue loss. Imaging revealed bilateral mild hallux valgus with early osteoarthritis in the first metatarsophalangeal joint. There was evidence of a bunionectomy and resection if the distal end of the proximal phalanx of the 5th toe. The diagnoses were confirmed as status post bilateral bunionectomy with residual non-disfiguring scars and bilateral mild hallux valgus by radiograph, and left foot degenerative joint disease of the 1st metatarsophalangeal. In September 2015, the Veteran underwent a VA examination. A diagnosis of bilateral status post bunionectomy with residual scar were confirmed. The Veteran’s scars at the surgical sites were stable, well healed, and non-tender. The VA examiner determined the Veteran did have symptoms due to hallux valgus currently and that she had resection of the metatarsal head in 1993, bilaterally. Regarding her scars, the VA examination report indicated her scars on the bilateral 1st toes were not painful or unstable as it measured at 3 cm x.25 cm, and were well-healed, linear and nontender. The Veteran underwent a separate scar examination which confirmed these findings. Imaging studies revealed reduced plantar aches, bilaterally, with evidence of prior surgery in bilateral feet and moderate sized plantar spur, left calcaneus. On review, the residual scarring related to the bunionectomies are not shown to be unstable or painful and a separate compensable rating is not warranted under any regulations pertaining to scars. Therefore, the Board finds that an assignment of a separate evaluations for the scars are not warranted. Additionally, the evidence does not demonstrate X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Accordingly, the Board concludes Veteran is not entitled to initial increased evaluations in excess of 10 percent for each foot for his service-connected status post left bunionectomy with residual scar and left hallux valgus with degenerative joint disease of the first metatarsophalangeal joint or separate evaluations. 38 C.F.R. § 4.3. 2. Entitlement to an initial evaluation in excess of 50 percent for a total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis The Veteran contends that she is entitled to a higher rating total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis. The Veteran’s total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis, has been rated at 50 percent under Diagnostic Code 7617 for the entire period on appeal. Diagnostic Code 7617 provides the ratings for complete removal of the uterus and both ovaries and a 100 percent rating is assigned for the three months after removal, and a 50 percent rating is assigned thereafter. 38 C.F.R. § 4.116, Diagnostic Code 7617. According to private treatment records from Presbyterian Intercommunity Hospital, the Veteran underwent a total abdominal hysterectomy, right salpingo-oophorectomy, and cauterization of endometriosis in May 1989. However, the Board notes that the Veteran did not file her application for service connection until June 2011, well after the three-month period following her surgery. The three-month 100 percent rating under Diagnostic Code 7617 is therefore not applicable to the period on appeal and a 50 percent rating is the highest rating available under the Diagnostic Code. As the 50 percent rating already assigned is the highest rating available for the period on appeal under the applicable Diagnostic Codes, the Board finds that a higher rating is not warranted. Under Diagnostic Code 7629, which rates endometriosis, a 50 percent rating is assigned for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. This is the highest rating available under the Diagnostic Code. Thus, a higher evaluation under this code is not for assignment. The Veteran is already separately rated for residual scars status post hysterectomy associated with total abdominal hysterectomy and bilateral salpingo-oophorectomy. In addition, the Board notes that the Veteran already receives special monthly compensation for loss of a creative organ, which was effective June 13, 2011. Thus, these diagnostic codes are not for consideration. In October 2011 the Veteran underwent a VA examination where it was noted that the Veteran underwent a left salpingo-oophorectomy in December 1978 and a total abdominal hysterectomy and right salpingo-oophorectomy in 1989. A pelvic examination and pap smear performed in July 2011 were normal and she was in menopause. She denied any hematuria, painful urination, excessive day or night time urination, or urinary incontinence. The Veteran denied a pelvic examination as she was examined in August 2011. According to the results of that examination, the Veteran’s cervix was surgically absent, and the cuff was without excoriation. The uterus was also surgically absent. An abdominal scar was revealed on examination. It was a non-disfiguring scar on the suprapubic area measured at 20 x 0.2cm. It was soft and depressed, non-tender, and blank with the skin. The scar was linear, superficial with no evidence of adherence. The texture of the scar was normal and with no evidence of irregularity, atrophy, shiny, scaly, hyperpigmentation, or hypopigmentation. The Veteran was afforded another VA examination in September 2015 where the Veteran reported she experienced over ten years of painful periods until 1989 when she underwent a total abdominal hysterectomy. Following surgery, she has had chronic diarrhea and occasional leakage of stool and feels pelvic pressure when she has a full bladder due to adhesions. The Veteran was continuously treated with female hormone replacement related to the bilateral oophorectomy. It was noted the Veteran underwent a complete removal of the bilateral ovaries in 1979 and 1989. There was no evidence of urinary incontinence/leakage, or rectovaginal or urethrovaginal fistula. The Veteran had a diagnosis of endometriosis with pelvic pain. There was no evidence of benign or malignant neoplasm or metastases related to her disability. Scars associated to her surgeries were found but were not painful and/or unstable, or where the total area of all related scars were greater than 39 square cm. The VA examiner further determined her gynecological conditions did not impact her ability to work. The Veteran is currently rated at 50 percent for the entire period on appeal for her gynecological disability. Therefore, as the Veteran is already assigned the highest rating available under both Diagnostic Codes, there is no basis to consider whether a higher schedular disability rating may be assigned. See 38 C.F.R. § 4.116, Diagnostic Codes 7617, 7629. The Board has also considered whether the Veteran’s disability should be evaluated under alternative Diagnostic Codes. The Veteran is already rated at 50 percent under Diagnostic Codes 7629-7617 for her gynecological disability. Ratings in excess of 50 percent for gynecological disabilities are only available for the first three months after the removal of the uterus or ovaries, rectovaginal fistulas, urethrovaginal fistulas, radical or modified radical mastectomy, or malignant neoplasms of the gynecological system or breast. As noted above, the period on appeal does not include the three months following the Veteran’s hysterectomy. As there also is no evidence of rectovaginal fistulas, urethrovaginal fistulas, radical or modified radical mastectomy, or malignant neoplasms, rating the Veteran’s disability under an alternative Diagnostic Code is not warranted. As the Veteran already has the highest possible schedular rating of 50 percent for her total abdominal hysterectomy and bilateral salpingo-oophorectomy with scar associated with endometriosis, a rating in excess of 50 percent is not warranted. 38 C.F.R. § 4.116, Diagnostic Codes 7617, 7629. REASONS FOR REMAND Where evidence is submitted to the RO prior to certification of the appeal to the Board, the RO must issue a supplemental statement of the case (SSOC); where evidence is submitted to the Board, such consideration may be waived by the Veteran. 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1304(c) (2018). According to the June 2015 Board remand, the Board found that a new VA examination was warranted. Following the VA examinations in September 2015 for her feet and ankles, a Supplemental Statement of the Case (SSOC) was issued in November 2015 for the issues of entitlement to service connection for the left ankle disability and an initial increased disability rating for pes planus with plantar fasciitis and calcaneal spur. However, the Veteran underwent new VA examinations of the ankles and feet in 2018, which include findings of the pes planus and its severity. Here, the RO certified the appeal back to the Board in September 2017. Remand is thus required for consideration and issuance of an SSOC.   The matters are REMANDED for the following action: Readjudicate the Veteran’s claims for entitlement to service connection for a left ankle disorder and increased ratings for service-connected pes planus with plantar fasciitis and calcaneal spur, considering all evidence received since November 2015. If the benefits sought on appeal remains denied, a SSOC must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel